A.     Procedural Background

16.  On or about 26 March 1996, the Accused was arrested in Cameroon pursuant to an international arrest warrant issued by the Office of the Public Prosecutor (Parquet général) of Rwanda.

17.  On 15 April 1996, the Prosecutor of the Tribunal submitted to the authorities of Cameroon a request for provisional measures in respect of the Accused and others, pursuant to Rule 40. On 6 May 1996, the Prosecutor requested the authorities of Cameroon to extend the detention of the Accused by three weeks.

18.  On 17 May 1996, the Prosecutor informed the authorities of Cameroon of her intention to proceed only against four of the twelve suspects named in the request for provisional measures, not including the Accused.

19.  On 21 February 1997, the Court of Appeal for the Centre Province in Yaoundé, Cameroon, dismissed the Rwandan request for extradition and ordered the release of the Accused. On the same day, the Prosecutor of the Tribunal submitted a new request for the provisional detention of the Accused pursuant to Rule 40.

20.  On 3 March 1997, the Tribunal issued an Order, filed the following day, requesting the authorities of Cameroon to transfer the Accused to the Tribunal’s Detention Facility pursuant to Rule 40bis. [4]

21.  On 29 September 1997, while awaiting transfer to the Tribunal, the Accused filed a writ of habeas corpus ad subjiciendum with the Tribunal, challenging the lawfulness of his detention in Cameroon. The Defence withdrew the writ on 6 July 2000. [5]

22.  The indictment against the Accused was confirmed on 23 October 1997, [6] and the Accused was transferred to the Tribunal’s Detention Facility on 19 November 1997.

23.  On 16 February 1998, the Accused made his initial appearance before the Tribunal and pleaded not guilty to the seven counts contained in the initial indictment.

24.  On 18 June 1999, the Trial Chamber granted the Prosecutor’s motion to amend the indictment. [7] On 23 June 1999, the Prosecutor filed the first amended indictment. On 24 June 1999, the Accused made a further appearance and entered a plea of not-guilty on the charges contained in the first amended indictment. There were no further pleas with respect to the second and third amended indictments, which only corrected translation errors or clarified the facts alleged in the first amended indictment and did not contain any new charges.

25.  On 24 August 1999, the Defence filed a motion to set aside the arrest and detention of the Accused as unlawful. On 6 October 1999, the Chamber denied the Defence Motion. [8] On 12 October 1999, the Accused appealed the Trial Chamber’s decision. In its decision rendered on 31 May 2000, the Appeals Chamber found that certain of the Accused’s rights had been violated during his arrest and detention. [9] The Appeals Chamber ordered that the appropriate remedy would be financial compensation if the Accused is found not guilty or a reduction in sentence if he is found guilty.

26.  On 3 November 2000, the Chamber took judicial notice of certain facts and documents listed in Annex II, to this Judgement. [10]

27.  On 9 February 2001,the Chamber granted leave to the Government of the Kingdom of Belgium to file an amicus curiae brief and to make submissions about the scope of Common Article 3 and Additional Protocol II. [11]

28.  On 6 February 2002, the Chamber partially granted a Defence motion filed on 13 November 2001 and took judicial notice of the following documents: Décret-Loi No. 10/75: Organisation et fonctionnement de la préfecture [au Rwanda], and Décret-Loi No. 18/75 du 14 août 1978, to the extent that it amended or otherwise modified Décret-Loi No. 10/75. [12]

B.     The Trial

29.  The trial started on 16 October 2000 with the opening of the Prosecution case. The Prosecutor conducted her case during five periods: 16 to 17 October 2000; 6 to 15 November 2000; 4 to 7 December 2000; 6 to 20 March 2001; and 18 to 25 April 2001. Over the course of twenty-nine trial days, the Prosecutor called twenty-four witnesses and entered eighteen exhibits into the record.

30.  On 20 July 2001, the Defence filed a Motion for a Judgement of Acquittal. [13] In its decision of 27 September 2001, the Chamber denied this motion. [14]

31.  The Defence case opened on 1 October 2001 and was conducted during four periods: 1 to 10 October 2001; 22 October 2001 to 14 November 2001; 26 to 28 November 2001; and 28 January 2002 to 28 February 2002. Over the course of forty-four trial days, the Defence called twenty-seven witnesses and entered forty-five exhibits into the record.

32.  At the end of the Defence case, the Prosecutor filed a Motion for Leave to Call Rebuttal Evidence to respond to the Defence of Alibi. With the Chamber’s leave, the Prosecution called three rebuttal witnesses during the period of 15 to 25 April 2002. [15]

33.  After the completion of the Prosecution case in rebuttal, the Defence filed a Motion for Leave to Call Rejoinder Witnesses. The Chamber denied this motion. [16]

34.  The parties submitted their final trial briefs on 12 June 2002. On 17 June 2002, the Prosecutor presented her oral closing arguments. On 18 June 2002, the Defence presented its oral closing arguments. On 19 June 2002, the parties completed rebuttal and rejoinder to the closing arguments, and the Presiding Judge declared the trial hearing closed pursuant to Rule 87(A).

C.     Evidentiary Matters

35.  Rule 89 sets out the general provisions of the Tribunal’s rules of evidence. In accordance with this Rule, a Chamber may admit any relevant evidence which it deems to have probative value. Furthermore, in cases not otherwise provided for under the Tribunal’s rules of evidence, the Chamber is bound to apply rules of evidence which best favour a fair determination of the matter before it and which are consonant with the spirit of the Statute and the general principles of law. The Chamber is not bound by national rules of evidence.

36.  The Chamber observes that in this case, prior written statements of witnesses were not systematically tendered into evidence in their entirety. Rather, when the parties used such statements during examination, they read the relevant portions of the statements into the record. Only in the case of Witness CBN did the Chamber admit the entire statement into evidence. [17] When inconsistencies were raised between the content of a prior statement and the testimony during trial, the Chamber’s point of departure was the account given by a witness in his testimony in court. The Chamber notes that differences between prior statements and testimony in court may be due to various factors, such as the lapse of time, the language used, the questions put to the witness, the accuracy of interpretation and transcription, and the impact of trauma on the witness. However, when the inconsistencies cannot be explained to the satisfaction of the Chamber, the probative value of the testimony may be questioned.

D.    Witness Protection Issues

37.  Part of the evidence adduced by the parties was given in closed sessions due to witness protection concerns. In analysing evidence received during closed sessions in this Judgement, the Chamber was mindful of the need to avoid unveiling identifying particulars of protected witnesses so as to prevent disclosure of their identities to the press or the public. At the same time, the Chamber wished to provide in the Judgement as much detail as possible to make it easy to follow its reasoning. In view of these concerns, when referring to evidence received in closed sessions in this Judgement, the Chamber used language designed not to reveal protected information yet specific enough to convey the basis for its reasoning.