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The Prosecutor V Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, ICTR-99-52-T International Criminal Tribunal for Rwan

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The Prosecutor V Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, ICTR-99-52-T International Criminal Tribunal for Rwan TheProsecutor v Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, ICTR-99-52-T InternationalCriminal Tribunal for Rwanda Tribunalp~nal international pour le Rwanda OR: ENG TRIAL CHAMBER I Before: JudgeNavanethem Pillay, presiding JudgeErik Mose JudgeAsoka de ZoysaGunawardana Registrar: Adama Dieng Date: 9 May 2003 THE PROSECUTOR V. FERDINAND NAHIMANA JEAN-BOSCO BARAYAGWIZA HASSAN NGEZE Case No. ICTR-99-52-T DECISION ON THE PROSECUTOR’S APPLICATION FOR REBUTTAL WITNESSES Officeof the Prosecutor: Mr StephenRapp Ms SimoneMonasebian Ms CharityKagwi Mr WilliamEgbe Counselfor FerdinandNahimana: r,,,,+.,Ib Jean-MarieBiju-Duval DianaEllis, Q.C. ! Counselfor HassanNReze: -O Mr JohnFloyd, III Mr Ren6 Martel 73 r.~ Counselfor Jean-BoscoBarayagwiza: N CO Mr GiacomoBarletta-Caldarera TheProsecutor v Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, ICTR-99-52-T THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA ("the Tribunal") SITTINGas TrialChamber I, composedof JudgeNavanethem Pillay, presiding, Judge ErikMose, and JudgeAsoka de ZoysaGunawardana ("the Chamber"); CONSIDERING: 1. The Prosecutor’sApplication for RebuttalWitnesses, filed on 24 April2003 (the "Motion")in whichthe Prosecutor requests ten witnesses in rebuttal; 2. The Prosecutor’sSupplementary Application for additionalrebuttal witnesses on HassanNgeze’s alibi defence filed on 28 April2003 (the "Supplementary Motion"), requestingone further witness in rebuttal; 3.The Replyof the Defencefor HassanNgeze, filed on 1 May 2003; 4.TheReply of the Defencefor Jean-BoscoBarayagwiza, filed on 1 May 2003; 5.The Replyof the Defencefor FerdinandNahimana, filed on 5 May 2003; 6. TheReply of theProsecutor entitled the Opposition to theSupplementary Prosecutor’s Applicationfor AdditionalRebuttal Witnesses on HassanNgeze’s Alibi Defence filed on 5 May 2003; 7. TheProsecutor’s Consolidated Response to the DefenceOpposition to Her Requestfor Leaveto CallRebuttal Witnesses in theCurrent Trial filed on 6 May2003; NOWDECIDES the matterbased solely on thewritten briefs of the parties,pursuant to Rule73(A) of theRules of Procedureand Evidence of theTribunal (the "Rules"). INTRODUCTION 1. On 12 July2002, the Prosecutionrested its caseafter having called 47 witnesses. Duringthe 11 April2003 status conference, the Prosecution informed the Chamber that it wouldbe filinga motionto request rebuttal witnesses. 2. On 16 April2003 a motionfor the depositionof rebuttalWitness AZZA was filedby the Prosecution.The Chamberrendered a Decisionon 25 April 2003 denyingthe depositionof AZZA. 3. As requested,the Prosecutor filed a rebuttalmotion on 24 April2003. 4. The Defencefor Ferdinand Nahimana filed its notice of alibion 7 December2000, in which it indicatedthat on 29 March 1994, Nahimanawas not in the Communeof Gatondebut was in Kigali.On 12 April1994, Nahimana was in Kigaliand thereafter travelledto Bujumbura.On 14 - 16 April1994, Ferdinand Nahimana was in Bujumbura, TheProsecutor v Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, ICTR-99-52-T fromwhere he did not leaveand thereforehe was not at Gatondeand Musasaor at the JankaSecondary School in Kiragaragoon thesedays, respectively. On 20 April1994, Nahimanawas not at RutakeChurch but in Bukavu,Zaire and on 28 April1994 he was not at GatondeCommune but at Cyangugu. 5. On 20 October2000 the Defencefor Hassan Ngeze filed a Pre-trialBrief in whichit statesthat "there will be in excessof twenty(20) alibis for Hassan Ngeze". 6. On 20 January2003 Hassan Ngeze’s Defence filed a noticeof alibi. SUBMISSIONS Witness AZZA The Prosecution 7. The Prosecutionsubmits that this witness would testify inter alia that he had seen FerdinandNahimana with PhocasHabimana coming out of the Ministerof Defence’s Officein May 1994.The witnesswould rebut the testimonyof FerdinandNahimana that (i)RTLM had been taken over by extremistsin April1994, that (ii) he hadno meetings withthe governmenton behalfof RTLMapart from one in November1993 and one in February1994, that (iii) he neversaw PhocasHabimana or anyother individuals working forRTLM between 9 April1994 and 7 July1994 and that (iv) he neverreturned to Kigali after12 April1994. The Prosecution further submits that during the testimony of Defence witnessValerie Bemeriki she claimedthat Ferdinand Nahimana was no longerinvolved withRTLM after April 1994. The Prosecution states that it allegedin itsIndictment that Nahimanahad commandand controlof RTLMfrom its 1993inception, through its mid- July1994 demise. The Defence’sNotice of Alibiand Pre-trial Brief, dated 16 October 2000,did not givethe Prosecutionnotice that the Accusedwould be claimingthat he neveronce went to Kigalibetween 29 Apriland mid-May1994. The Prosecutionalso claimsthat it receivedno indicationthat the Defence would be claimingthat a groupof extremiststook over RTLM after April. 8. TheProsecution submits that although a statementwas taken from this witness on 13 October2001, it wasonly on 13 April2003 that the witness authorized the Office of the Prosecutionto disclose his name to theDefence, and for the first time agreed to becomea witnessfor the Prosecution. Defencefor Barayagwiza 9. The Defencefor Barayagwizasubmits that the Prosecutionhad a statementfrom 13 October2001 before the closureof the Prosecutioncase and thatthis could have been evaluatedat that time and that this witness should therefore have been called earlier. Defencefor Nahimana 10.It is submittedthat the Indictment does not allegethe presence of theAccused in Kigaliand thatthe Accuseddoes not contesthis presencepartially in Rwandaduring May to July1994. Moreover, the Defenceformally contested the chargesagainst the TheProsecutor v Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, ICTR-99-52-T Accusedand especiallyall control of RTLMby the Accused.Further, that the Prosecutor cannotreasonably state that the importance of the witness was not apparent until after the presentationof the evidence by theDefence. It is alsosubmitted that to hearthis witness in rebuttalwould be againstthe rules of equitableprocess as setout in Article20 of the Statuteas theProsecution introduce a new charge. Finally, the Prosecution has taken far toolong to bringthis witness and it wouldbe prejudicialto the Defence to allowhim to becalled. Witness AZZC The Prosecution 11. The Prosecutionsubmits that this witnesswould testify that he himselfand AmbassadorGerard personally told Nahimana that the characterof RTLMbroadcasts wasdeplorable and that these broadcasts must stop, particularly those threatening General Dallaireand UNAMIR.According to the Prosecution,the witnesswould state that Nahimanaagreed to do thisand shortly afterwards he heardthat such broadcasts did in fact stop.This evidence would rebut what Nahimanatestified during his direct- examination,namely that during the threemeetings he had withFrench officials from OperationTurquoise in July1994, there was no discussionof puttingan end to RTLM’s incendiarybroadcasts, and that he neverdiscussed RTLM at allwith the said officials in anyof thosemeetings. 12.The Prosecution produced a summaryof whatthey anticipate this witness’s testimony wouldbe and the witnessconfirmed it by telephoneon 22 April2003. However, the witnessstatement is yet to be signeddue to formalprocedures as he is a French Governmentwitness. The Prosecutionsubmits that the witnesscould alternatively be calledas a Rule98 Chamberswitness, as was donewith similar types of governmental witnessesin the Blaskiccase in the ICTY,at the end of thattrial. 1 The Prosecution submitsthat it is essential totruth-seeking tocall this witness. Defencefor Barayagwiza 13.It is contendedthat this witness had statements dated 18 March2000 and 19 February 2003,the firstof whichwas usedby the Prosecutionin its cross-examinationof 17 October2002. The Prosecutionwas thereforeaware of the evidencethat couldbe producedby thiswitness before the closure of itscase. Defencefor Nahimana 14.The Defencefor Nahimana submits that Rule 98 is not applicableto thisevidence. This witnesswould not showthat the Accusedcontrolled RTLM during the monthof July1994 through the giving of instructionsto journalists. The witness is a personwho was involvedin "OperationTurquoise" and was wellknown before the beginningof the trial. TheProsecutor v.Tihomir Blaskic (IT-95-14). TheProsecutor v Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, ICTR-99-52-T Witness AZZD The Prosecution 15.The Prosecution submits that it needsthis witness to testifythat on 10 or 11 April 1994,he attendeda meetingat the Kigali-VillePrefecture where Ngeze, Nahimana and Barayagwizawere present. The primarypurpose of the meetingwas to fuseall of the youthparties into one grand militia of theInterahamwe. The witness’s statement dated 18 March2000 was disclosedto the Defenceon 11 April2003 (redacted) and on 18 March 2000(unredacted). The Prosecutionsubmits that this witness will rebut the alibi Nahimanathat he stayedin theFrench Embassy from 7 Aprilto 11 April1994 except for onceon 8 April1994. The evidencewould also rebut the testimonyof bothNgeze and Nahimanathat they had only seen each other once in theApril - July1994 period. Defencefor Ngeze 16. The Defencefor Ngezesubmits that Witness AZZD should have been called by the Prosecutionin its case in chiefas hisstatements were available to theProsecution before the end of itscase. Further, the NgezeDefence submits that this witness will merely repeatwhat has been said by otherProsecution witnesses. Defencefor Nahimana 17.The Defencefor Nahimana submits that the Prosecution is tryingto introducea
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