TheProsecutor v Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, ICTR-99-52-T

InternationalCriminal Tribunal for 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 new chargein its referenceto Nahimana’sparticipation in meetingcivil and military authoritiesin Kigali in April1994. They further submit that the evidence was available to theProsecution in March2000.

Defencefor Barayagwiza 18. TheDefence for Barayagwizasubmits that as thefirst statement was madeon 18 May 2000,this witness who allegedlymade such important allegations about the meetingand membersof the lnterahamweshould have been called earlier.

Witness AZZB

The Prosecution 19. Accordingto the Prosecution,this witness would testify that he saw Ferdinand Nahimanawith RTLM announcerValerie Bemeriki in the RTLM vehiclebetween 7 and 12 April1994. He wouldsay that theyleft the vehicleand lookedat corpsesand thereafterBemeriki, speaking through a loudspeaker,congratulated the peopleof the neighbourhoodfor doinggood work. Further, that Bemeriki stated on RTLMthat she had beenout withthe chiefof RTLMwho was veryhappy at whathe had seen.On another date,between 7 and 12 April,the witnesssaw Nahimanaarrive at a roadblockin Muhima,where he was congratulatedby Interahamwewho statedthat RTLM encouraged them.The Prosecution submits that this evidence would rebut the Accused’s claim that he was stuckat the Frenchembassy from 7 to 11 Apriland thattherefore his onlycontact withRTLM journalists during this period was limited to a briefvisit to theRTLM studios on 8 April1994. The witnesswould also rebut testimony given by ValerieBemeriki and FerdinandNahimana that the onlytime they saw eachother after 6 Aprilwas in early

I The Prosecutorv Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, ICTR-99-52-T

Julyin Gisenyi.The witness statement dated 20 October2001 was disclosed to the Defenceon 10 December2001.

Defencefor Barayagwiza 20.It is submittedthat the date of thewitness statement clearly precedes the closure of theProsecution case and that they therefore had sufficient information to enable them to callthe witness earlier.

Defencefor Nahimana 2I.It is submittedthat the Prosecution is trying to introducea new charge, namely controlof RTLMby the Accused’spresence in Kigaliin Apriland by implication throughthe journalist Valerie Bemeriki in theactions of incitingto killand the participationof the Accused in theinterim government of Gitarama in Mayof 1994.This evidencewas available to the Prosecution in October 2001 and cannot be adducedat such a latestage of the trial.

mWitnessAFI

TheProsecution 22.The Prosecution submits that this witness, who was a journalist,would testify that she metValerie Bemeriki in Gisenyiand that she had told her that RTLM would broadcast fromGisenyi as of Saturday,9 July 1994. This witness would testify that she spoke to YannickGerard, a high-rankingFrench civilian envoy of "OperationTurquoise", who toldher that he hadspoken to FerdinandNahimana in personon puttingan endto the callsfor murder on RTLMradio. According to her,these instructions were immediately cardedout. The Prosecution submits that this testimony would rebut Valerie Bemeriki’s testimonythat she never spoke to otherjournalists about RTLM or anyother matters whileshe was in Gisenyi.The witness would also rebut Nahimana’s testimony that he neverspoke to OperationTurquoise officials about RTLM, in July1994. The Prosecution statesthat if WitnessAZZC was allowed to be calledand was authorised to testify by his country,the Officeof the Prosecutorwould not examineWitness AFI on her conversationwith Mr. Gerard about Nahimana.

Defencefor Barayagwiza 23.It is submittedthat given the date of the witness statement the Prosecution wasaware ofthe evidence ofthis witness.

Defencefor Nahimana 24.It is submittedthat the witness was dealt with by theChamber in its Decision of 26 June2001 and confirmed on 10 July2001. His position has not changed.

WitnessAFX

TheProsecution 25.This witness testified before the Tribunal on 5 May,7 Mayand 8 May2001. The Prosecutionsubmits that the witness would testify that he hadnever been a memberof

i TheProsecutor v Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, ICTR-99-52-T

IBUKAand thathe knewnothing of the deathof ModesteTabaro, that he was not given anyfinancial reward for testifying in Arusha, that he hasnot discussed his testimony with anyoneand thathe wasnot hidingin HassanNgeze’s house. The Prosecution argues that histestimony would rebut Defence evidence that this witness had fabricated his evidence in his testimonybefore the Tribunal and engagedin tamperingwith former Prosecution witnessesto bringfalse evidence against Ngeze regarding the killing of ModesteTabaro. The Prosecutionsubmits that should this witness not be recalled,the evidencefrom Defencewitnesses about Witness AFX’s alleged tampering with witnesses and giving falseevidence before the Tribunal should be givenno weightby theTrial Chamber.

Defencefor Ngezeand Nahimana 26.It is submittedthat as thiswitness has already been called he cannotbe a rebuttal witnessbut rather that the Prosecutor wishes to recallthe witness. They submit that in orderto do thisa partymust show good cause and that the Prosecution has notdone so. Theyfurther submit that Witness AFX’s anticipated testimony does not respondto any elementpresented by the Defencecase and doesnot assistthe TrialChamber in its determinationof the case. Finally they submit that the Prosecution only proposed Witness AFXin orderto re-establishhis credibilityand that this should have been done during cross-examinationof Defence witnesses.

Defencefor Barayagwiza 27.It is submittedthat a rebuttalwitness should not be calledmerely for corroboration andto questionthe credibility ofpersons already called.

WitnessPA2

The Prosecution 28.The Prosecution submits that this witness would testify as to Ngeze’sinvolvement in roadblocks,the and the distributionof arms during the relevantperiod in Rwanda.On 7 April,the witnesssaw Ngezeaccompanied by about100 youthsarmed withguns and other types of arms,patrolling the town of Gisenyi.This evidence would rebutthe evidence given by Ngeze,who testified that between 6 and9 April1994 he was in custody,as didseveral of hisDefence witnesses. No notice of alibiwas given prior to the commencementof trialin violationof the provisionsof Rule67 (A).The witness wouldfurther rebut Defence evidence that the Accusedwas neverseen at any roadblock andnever gave orders to theInterahamwe militia.

29. Defencefor Ngeze,Barayagwiza and Nahimana The Defencesubmits that WitnessPA2 shouldhave been calledby the Prosecution duringits case as hisstatements were available to theProsecution before the end of its case(the statement is dated21 June1998). With regard to the rebuttal of late alibi notice of the NgezeDefence, the NgezeDefence submits that its positionwas clearsince the beginningof thetrial. Further the Ngeze Defence submits that this witness will merely repeatwhat has been said by otherProsecution witnesses. TheProsecutor v Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, ICTR-99-52-T

AntipasNyaniwa

The Prosecution 30.This witness is a handwritingexpert who was called by theProsecution in July 2002. The Prosecutionsubmits that the witnesswould put intoevidence a reportindicating whetherWitness RM 10 is the signatoryto eachpage of ExhibitP219. The handwriting reporthas yet to be finalised.The Prosecutionargues that this evidence would rebut WitnessRM10’s testimony that she did not signher nameon her Prosecutionwitness statement.

Defencefor Ngeze,Nahimana and Barayagwiza 31. The Defencesubmits that, when this witness testified at the Tribunalhe was an incompetentwitness. It isfurther submitted that this is a collateralissue not relevant for thedetermination ofthe case, which only goes to credibility.

David Chappell

The Prosecution 32. TheProsecution would like this witness, who is a WVSSOfficer, to producea report on when WitnessAAW, who later became WitnessRM14, was at the safe house. Accordingto the Prosecution,this evidence will rebut the testimonyRM14 gave on the conductof Protectionofficer David Chappell and other witnesses who were present at the safehouse with him duringthe durationof hisstay in Arushain 2001.The Prosecutor submitsthat if thereport is notallowed the Trial Chamber should give no weightto the testimonygiven by WitnessRM14 regarding the abovematters.

Defencefor Ngeze,Nahimana and Barayagwiza 33.It is submittedthat this witness is beingcalled to discredita Defence witness about a fact,which is notrelated to themain issues in the case. The Defence further submits that Mr Chappellcannot be a witnesssince he is an employeeof the Registrarand was directlyinvolved in the matterpresented by WitnessRM14. According to the Defence, the Chambershould consider the relevance of eventsof minorimportance and lookat the qualityof Defencewitness RM14 and AAW,as thiswould be a supplementarywitness.

Sa__idouGuindo

The Prosecution 34. The Prosecutionsubmits that Mr Saidou Guindo,the UNDF Commanderwould testifythat Ngeze gave him Exhibit P251, that he discussedwith the Accused the sending of emailsto the Prosecution,and thatthe Accusedtold the Commanderthat he would continueto do so, Thiswould rebut the Accused’sstatement on 7 April2003 and other daysof his testimony,that the email address does not belongto him andthat he never sentemails to the Prosecution. TheProsecutor v Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, ICTR-99-52-T

Defencefor Ngeze,Nahimana and Barayagwiza 35.The Defence submits that this witness should be disallowedon publicpolicy grounds. It is submittedthat the relationshipbetween Commander Guindo and Ngezeis not good and thatthe Accusedbelieves Mr. Guindobears a grudgeagainst him. The Defence arguesthat whatever Commander Guindo might say wouldbe legallyirrelevant and that it wouldbe moreprejudicial than probative.

CharlesUgiliwa~abo

The Prosecution 36. The Prosecutionsubmits that this witness would testify that he was on dutyas a prisonguard in GisenyiPrison in April1994, and thatHassan Ngeze was never in prison duringthe month of April.This evidence will rebut Ngeze’s alibi that he wasin prison for muchof the relevantperiod. The Prosecutionargues that this alibi evidence was raisedwithout notice to theProsecution before the commencement of the trial and could notreasonably have been foreseen and presented in theProsecution’s case.

Defencefor Ngeze 37.The Ngeze Defence submits that it is impossiblethat the identity of the witnesswas not knownto the Prosecutionbefore 25 April2003. The witnessindicated in his statementthat it wasnot the firsttime that he had metwith investigators of ICTR. At leastthree of theNgeze Defence witnesses said they knew that Ngeze was detained at the militarycamp (RM13, BAZ31 and BAZ1). BAZ6 said that Ngeze was arrested soldiers.Hassan Ngeze testified that on 6, 7, 8 and9 Aprilhe wasin custodyin Gisenyi and thathe saw and met the commandingmilitary officer of the Gisenyicamp, Anatole Nsengiyumva.The evidencepresented by the NgezeDefence was thereforethat Hassan Ngezewas detained by themilitary at the militarycamp and notat the Gisenyiprison. The NgezeDefence submits that the positionof the NgezeDefence was clearsince the beginningof thetrial and the Prosecutor cannot pretend that the late alibi notice requires testimonyofa rebuttalwitness at this stage of the trial.

Generalsubmissions 38.The Defence for each of thethree Defendants request that the Prosecution application be denied.Defence Counsel for Ngezesubmits that the Defencehas beencut shortof callingimportant witnesses because of timeconsiderations. It also argues that it wouldbe unfairto grantthe Prosecution’s application since it is withoutlegal or logicalmerit. Finally,it is statedthat if the Chamberallows the Prosecutionto bringits rebuttal witnessesthe Ngeze Defence will seek the rightto bringevidence in rejoinderand will requirethe right to havea realopportunity (i.e. time and money)to do so.The Defence forBarayagwiza requests a delay of threemonths should the request be granted.

39. DefenceCounsel for Mr Nahimanasubmits that the Prosecutionwants to justifythe rebuttalevidence by arguingthat it suddenlydiscovered new mattersthrough the Defence’spresentation of witnessesand evidence.In the Defence’ssubmissions, the Defencehad clearly indicated its positionduring the Prosecution case. In itsPre-trial Briefthe Defencefor Nahimanainformed the Prosecutionof its positionfacing the TheProsecutor v Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, ICTR-99-52-T accusationsand particularlyindicated that it wouldbe contestingthe authorityand controlof the personsworking at RTLM.The alibinotice was clearly dated. The Defence submitsthat the Accusedindicated that he couldnot understandwhy theIndictment did notspecify dates and places in order that he couldbetter anticipate the allegations during theprocess of thehearing. Therefore, itis not the alibi notice that should be criticized but theIndictment itself as concernsplaces and times. This imperfection in the Indictment is irrefutableby theProsecution. It willprejudice the Accusedand thereforecannot be justifiedby the presentrequest. The Defencefor Nahimana further submits that during its cross-examinationof Prosecution witnesses, the Defence systematically contested the allegationsby setting out the position of theAccused. It was on the basis of thisposition that2 the Prosecution demanded and obtainedpermission to modifyits list of witnesses. As a result,the Prosecution cannot claim to havebeen in ignoranceof theposition of the Accused.

40. In theProsecution’s consolidated response to theDefence opposition it is submitted thatit wouldnot be reasonableto expectthe Prosecution to adduceevidence beforehand in everycriminal case to countervague and imprecise statements as to thealibi defence thatthe Accusedmay raise.It is submittedthat the informationgiven by the Ngeze Defencedoes not live up to therequired standard of adequateand timely notice to plead alibias a defence.The Prosecution lays out the Semanza test that evidence is admissible on rebuttalif it (a)responds to or refutesevidence put forth during the Defence case-in- chief,and (b) is related"directly to the guiltor innocenceof the Accused.’’3 The Prosecutionsubmits that the evidenceof witnessesAZZA, AZZC, AZZD, AZZB and AFI meetsthe requirementsof the Semanzatest. The Prosecutionargues that the applicationstocall rebuttal witnesses are not attempts to fill in gapsor callnew evidence to supportits case. The Prosecution submits that in theUnited States, there is authority forthe proposition that the credibility ofa witnessis always treated as a non-collateral matter,upon which extrinsic evidence may be calledin rebuttalas longas certain conditionsare met.4 The Prosecutioncontends that in the UnitedStates impeachment evidenceis generallydeemed to be non-collateral,particularly with respect to alleged biasor prejudiceof a witness.

DELIBERATIONS

_LegalPrinciples

41. The Chamberis cognizantof Rule85(A) (iii) of the Rules,which envisages possibilityof the presenting ofevidence in rebuttal by theProsecution.

z "Decisiononthe Prosecutors Oral Motion for Leave to Amendthe List of Selected Witnesses" Prosecutorv.Ferdinand Nahimana, Hassan Ngeze, Jean Bosco Barayagwiza dated 26 June 2001. 3 "Decisionon the Prosecutor’s Motion for Leave to CallRebuttal Evidence and the Prosecutor’s SupplementaryMotion for Leave to Call Rebuttal Evidence", Prosecutor v Semanza dated 27 March 2002. 4 TheProsecution cites U.S.V. Abel, 469 U.S. 45, 52-53 (1984); Behler v. Hanlon, 199F.R.F. 553, 556-7. (D.Md.2001). 10 TheProsecutor v Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, ICTR-99-52-T

42. The Chamberrefers to the Decisiondated 27 March2002 relatingto rebuttal witnesses,in the caseof Prosecutorv Semanza. 5 In thatDecision, it was heldby the Chamberthat it shouldbe satisfiedthat the evidence the Prosecutor proposes to callin rebuttalof thealibi is aimedat refutingevidence that had been adduced by theDefence duringits caseregarding matters that the Prosecutioncould not reasonablyhave foreseen.6 Wherethe defenceof alibiis a centralmatter for determinationand the Defencehas not givennotice to the Prosecutionbefore the commencementof the Trial, theDefence can still rely on thealibi. However, the Trial Chamber must ensure the trials arefair, therefore the Prosecution should be grantedleave to attempt to refute the alibi, a key7 issue that arose for the first time during the Defence case.

43. The Chamberis alsopersuaded by ICTYjurisprudence on rebuttal.8 The principles laidout by theICTY Decisions are set out below.

44.Rebuttal evidence should be of significantprobative value and notof a cumulative nature.9

45.If theTrial Chamber is sufficientlyinformed to properlyappreciate the weight of the originalevidence then rebuttal evidence as to weightis not necessary. 10

46.The significance of the proposed rebuttal evidence must also be considered. If it isnot sufficientlysignificant itshould not be admitted in rebuttal.ll

47.Rebuttal evidence should be limitedto mattersthat arise directly and specifically out of Defenceevidence. Where the evidencesought to be introducedin rebuttalis itself evidenceprobative of theguilt of theaccused, and where it is reasonablyforeseeable by the Prosecutionthat some gap in the proofof guiltneeds to be filledby theevidence calledby it,then generally speaking, the Trial Chamber will be reluctantto exerciseits discretionto grantleave to adducesuch evidence. The Prosecutionthus, cannot call additionalevidence merely because its case has been met by certainevidence to contradictit. However,if any matterarises ex improvisoand unforeseen,the Trial Chamberwill exercise its discretion and will allow such evidence to be adduced.On the otherhand, evidence available to theProsecution ab initio, the relevance of whichdoes

5 "Decisiononthe Prosecutor’s Motion for Leave to CallRebuttal Evidence and the Prosecutor’s SupplementaryMotion for Leave to Call Rebuttal Evidence" Prosecutor v Semanza dated 27 March 2002. 6 ibidparagraph 9. 7 ibidparagraph 10. 8 "DecisiononRebuttal Case" Prosecutor v Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic, dated28 September 2000; "Decision onRebuttal Evidence" Prosecutor v Stanislav Galic, dated 2 April 2003;"Decision onthe Prosecution’s Alternative Request toReopen the Prosecution’s Case"Prosecutor v ZejnilDelalic and others dated 19 August 1998. 9 "DecisiononRebuttal Evidence" Prosecutor v Stanislav Galic, dated 2 April 2003 paragraph 7. 1oibid paragraph 27. ~ ibidparagraph 27. TheProsecutor v Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, ICTR-99-52-T

not ariseex improviso,and which remedies a defectin the caseof the Prosecutionis generallynot admissible. 12

48. Theadvanced stage of the trialmust be a relevantconsideration. The TrialChamber mustalso consider the delay likely to be causedby a re-openingof theProsecution case, and thesuitability of a possibleadjournment in theoverall context of the trial.The probativevalue of the proposedevidence must be suchthat it outweighsany prejudice causedto the accused.Great caution must be exercisedby the TrialChamber lest injusticebe doneto theaccused, and it is thereforeonly in exceptionalcircumstances wherethe justiceof the caseso demands,that the TrialChamber will exercise its discretionto allow the Prosecution to adduce new evidence after the parties to a criminal trialhave closed their case. 13

49.The Prosecutionhas the burdenof demonstratingthat with reasonable diligence the proposedevidence could not have been previously obtained and presentedas partof the Prosecutioncase. 14 TheProsecution must satisfactorily explain the failure to obtainthe evidenceduring the presentation ofthe case of theProsecution. 15

50. Otherrelevant provisions include: 16 Whendeciding whether to allowevidence in rebuttalthe court has to recognizethat the Prosecution is expected to reactreasonably to whatmay be suggestedas pre-trialwarnings of evidencelikely to be givenwhich calls fordenial beforehand, and also to suggestionsput in cross-examinationoftheir witnesses. Theyare notexpected to takenotice of fancifuland unreal statements no matterfrom whatsource they emanate. ~7 If evidencewas availableto the Prosecutionfrom the beginningand the relevanceof it does not ariseunexpectedly the evidenceis inadmissible.18 Evidencewhich does fall within the ex improvisoprinciple i.e. where a matter19 has arisen unexpectedly is admissible subject to thetrial judge’s discretion. Evidencewhich was available to theProsecution from the beginning of itscase but the relevanceof whichwas only marginal is admissiblesubject to thetrial judge’s discretion. TheCourt of Appealof Englandhas held that the principle is thatif theProsecution could reasonablyhave foreseen that a particularpiece of evidencewas necessary to provetheir case,e° they should have put it before the court as part of their case.

12"Decision onthe Prosecution’s Alternative Request to Reopenthe Prosecution’s Case"Prosecutor v ZejnilDelalic and others dated 19 August 1998 paragraph 23. 13ibid paragraph 27. ~4ibid paragraph 30. ~5ibid paragraph 37. ~6Principles setout in Archbold Criminal Pleading Evidence andPractice 2000 pages 431 and 432. 17R ,¢Hutchinson, 82Cr. App. R. 51 at 59, CA. 18R v Day,27 Cr. App.R. 168, CCA. 19 R v.Frost (1839) 9 C. & P.R v Blick,50 Cr. App.R.280 CCA. zoR v Scott(A.S.), 79Cr. App.R.49.

12 TheProsecutor v Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, ICTR-99-52-T

a51.witnessItalsobvf°ll°WSreferencefr°mtoEngliShparticularCaSe lawthat when an attack ismade upon the veracity of facts,"the matter is collateral,anda denialcannot be rebutted".-2i’

52. In consideringthe admissibilityof the proposedProsecution witnesses the above statedprinciples will be applied.

OtherConsiderations

53.The Chamberhas considered the Prosecution’s reasons for seekingto callwitnesses in rebuttalas well as theDefence responses.

54. The Chambernotes that the Defenceof FerdinandNahimana had givennotice of the Accused’salibi as earlyas 7 December2000 in whichhe indicatedhis whereaboutson sevendates, as statedabove. Thus the Prosecutioncould reasonably have foreseen that Nahimanawould adduce evidence of his absencefrom the scenesof crimeon thesedates. 55. Concemingthe Defence of HassanNgeze, although a noticeof alibiwas servedlate by theDefence and only after the closure of the Prosecution’scase, the Defenceraised thealibi in theircross-examination of the Prosecution witnesses. Rule 67 (B)permits the Accusedto relyon thealibi. Moreover, the Pre-trial Brief filed on Ngeze’sbehalf makes referenceto over20 alibiwitnesses that would be presented.

56. The Chamberfinds that the Prosecutionhas not demonstratedthat with reasonablediligence the proposedevidence could not havebeen previously obtained and presentedas partof the Prosecutioncase. The Prosecutionhas not satisfactorily explained22 the failure to obtainthe evidence during the presentation of its case.

Witness AZZA 57.This witness’s statement was recorded on 13 October2001, thus the Prosecution were in possessionof thisevidence from that date. There is nothingto showthat the Prosecutionhad wanted to callthis witness earlier and that he hadrefused at thatstage. Whenthe Accusedgave evidence, he statedthat he had notcome to Kigaliin the months of April,May, June, July and met withPhocas Habimana. It is at thatstage that the Accusedshould have been confronted with this matter, which the Prosecutionhad notice of,but this was not done. It wouldnot be in theinterest of justiceand contrary to the principlesregulating rebuttal evidence to permitthe Prosecution to lead evidence at this stage,to filla gapin the presentation of its case. Moreover, the evidence that this witness wouldbe ableto givewould not be sufficientto rebutthe evidencethat Nahimana was not involvedin the runningof RTLM.The evidenceonly suggests that he was at the

2 ~Rv Hamilton(1998) Times, 25 July, reaffirming R v Wood [ 1951] 2 AllER 112n, 35 Cr App Rep 61, R v Redgrave(1981) 74 Cr App Rep 10. Cross and Tapper on Evidence pg332. 22See paragraph 49. TheProsecutor v Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, ICTR-99-52-T

Ministryand with the personnamed. The purposefor whichNahimana went to the Ministryis not clarified bythe evidence.

5 8. TheProsecution argues that because of theinformation in the Indictment the Defence shouldhave produced a noticeof alibiexplaining certain facts, which later came out in evidence.However, the Defencefor Nahimanacontend thai the Indictmentwas not specificenough for themto be requiredto producea morespecific notice of alibi.It wouldtherefore not be unfair to refusethe Prosecution’s request to call this witness.

WitnessAZZC 59. The Prosecutionquestioned Nahimana on his meetingswith Ambassador G6rard and Witness23 AZZC during his cross-examinationon 17 October2002.

Q.Mr. Nahimana, when you met with Ambassador G6rard, it’s true, isn’t it, that JeanChristophe Belliard and I’ll spell Belliard, B-E-L-L-I-A-R-D, of theFrench ForeignMinistry, was also there; yes?

A. In anycase, what I knowand what I cantell the Chamber is thatYannick G6rardnever received me alone.He was often accompanied byhis assistants, so, ifBelliard - because I only retained the name of YannickG6rard because he was in thehead, otherwise, amongst those who are accompanying himthere was this personyou mentioned and I don’thave any reason to deny that he was present.

Q. Andyou are, indeed, aware, are you not, that both Mr. Belliard and Mr. G6rardhave several times stated openly that they did speak with you about RTLMon the6 u’of July,despite your saying that you did not speak to anybody onthe 6 th ofJuly, despite your saying that you did not speak to anybody on the 6thof July about RTLM. You are aware they say that publicly and openly; yes?

A.Madam President, I believe the Prosecutor istrying to distort the facts. It was afterMr. Yannick G6rard had met the president, President Sindikubwabo, in Gisenyi,and I usethis term so that was when I meta largenumber of journalists whocame successively, some of themcame to my smallhouse, a houseI had rented,and somemore interviewed - were not interviewedas such but they spokewith me, but I don’tsee where, exactly, you say Yannick G6rard said that wehad discussions over on the radio. This information -

Q.(Interpreter-s microphone on) ... By discussionson the radio, discussions concerningtheradio, yes?

A. MadamPresident, Yours Honours, I saidduring the meetingwith the AmbassadorYannick G6rard, we spokeonly about the settingup of the OperationTurquoise and the limiting ofthe buffer zone.

The questionsasked in cross-examinationshow that all informationthat came from the witnessstatement was knownto the Prosecution.They were thereforeaware of the matterfor which they wish to callthis witness and it couldnot be saidthat it tookthem

23TI 7-10-02 page 46 line 30 to page 48 line 2.

14 TheProsecutor v Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, ICTR-99-52-T

by surprise.The Accusedshould have been presented with the Prosecution’s position at thatstage. In factit wouldbe theProsecution surprising the Defence if they were allowed to producethis rebuttal witness when they put factsto the Accusedwithout disclosing theirsource. The Chamber sees no reasonto callthis witness under Rule 98 and doesnot findit "essential totruth-seeking" todo so.

Witness AZZD 60.The matterof theAccused’s involvement in a meetingthe primarypurpose of which was to fuseall of the youthparties into one grandmilitia of the Interaharnweis somethingwhich was of obviousrelevance from the timethe Prosecutionreceived the witnessstatement which is dated18 March2000. The factthat Nahimana was at the FrenchEmbassy from 7 to 11 April1994 except for a briefdeparture on 8 April1994 is somethingwhich should have been stated in hisnotice of alibi.In Nahimana’snotice of alibidated 24 October2000 the datesspecified are 29 March1994, 12 April1994, 14 April 1994,15 April 1994,16 April1994, 20 April1994 and 28 April1994. The informationwas, however, made known to theProsecution on 5 March2002 in thecross- examinationof GeorgesRuggiu:

Q. Is it correctthat on thatoccasion, Mr. FerdinandNahimana told those presentthat he andhis family had sought refuge at theembassy of Franceon themorning of 7 April?

A. I do not rememberhis exactwords, but he did indeedsay he sought refugenot on themorning of the7 th, theevenin~ of the6 th. In anycase, he said2~’~he soughtrefuge at the embassy of France.

TheProsecution received notice of evidencelikely to be givenwhich calls for reaction. Further,the evidencethat Witness AZZD would give would be so prejudicialto the Accusedat this late stage of thecase that it outweighsthe unfairness to the Prosecution of notbeing able to rebut the alibi evidence. The evidence is relevantto the Prosecution case and shouldhave been led in evidencein the presentationof the Prosecution.If such evidencewere presentedat this stageit wouldbe tantamountto the Prosecution reopeningits case.

WitnessAZZB 61. The testimonyof this witnesswhich may be relevantto the proofof guiltof Nahimana,i.e. regarding Nahimana’s position as chiefof RTLM,his involvementwith the Interahamweetc should have been presented by the Prosecutionearlier. The Chamber notesthat the statementof thewitness is dated20 October2001. It is the Chamber’s opinionthat although this evidence may rebut the alibi given by Nahimanait cannotbe allowedat thisstage of thetrial for the same reasons explained in the above paragraph.

WitnessAFI 62. In the Chamber’sview the matterof rebuttingthe evidenceas to whomBemeriki spoketo inGisenyi is collateral and not directly related to the guilt of the Accused. As far 24T5-3-02, Page 10 Line 22.

15 TheProsecutor v Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, ICTR-99-52-T

as rebuttingthe evidencethat Nahimana never spoke to "OperationTurquoise" officials aboutRTLM is concemed,this is alsonot directlyrelevant and wouldnot in any case establishthat Nahimana did in facthave control of RTLM.The Chamberrefers to its Decisionon theProsecutor’s oral motion for leave to amendthe list of selectedwitnesses of 26 June2001 where it statedthat Witness AFI’s statement "mainly contains indirect evidence25 and would seem to be of limitedvalue for theChamber".

WitnessAFX 63.The Chamberis of the viewthat if WitnessAFX werere-called as a rebuttalwitness histestimony would go to hiscredibility. 26 TheProsecution itself put the matter of weight of evidencein thealtemative. The TrialChamber already has sufficientinformation to evaluatethe testimony of this witness. 27Further, this witness was already called to testify inthis trial and it would not be appropriate tocall him back as a rebuttalwitness.

WitnessPA2 64.It seemsthat the relevance of theevidence of thiswitness should have been clear to the Prosecutionfrom the beginning,i.e. Ngeze’s involvement in roadblocksand Ngeze distributingarms. Further the Chamber has alread),heard evidence on thismatter and corroborationis excluded from rebuttal evidence.2SThe Prosecution also contends that thiswitness will rebut the alibi given by Ngeze,that he wasin custodyon 7 April.As notedabove the Prosecution was on noticethat Ngeze would be callingalibi witnesses. Furtherthe matterof Ngeze’sarrests was put to Prosecutionwitnesses in theircross- examination.29 Thisevidence is in any eventtoo prejudicialto be allowedas rebuttal evidence.

AntipasNyanjwa 65. Thematter of whetherRM10 had actually signed her witness statement is not crucial to3°the determination ofthe present case.

DavidChappell 66. Thiswitness is to giveevidence on the testimonyof WitnessRM14. The rebuttal ewidencetherefore only goes to credibilityand is a collateralmatter as discussedin paragraph62. The Prosecution itself refers to theelement of weight in thealternative and

25"Decision onthe Prosecutors Oral Motion for Leave to Amend the List of Selected Witnesses" The Prosecutorv.Ferdinand Nahimana, Hassan Ngeze, Jean Bosco Barayagwiza dated 26 June 2001. z6The Chamber notes the conflict innational jurisprudence; seethe American position setout in paragraph 40,where credibility isa non-collateral matter, and the English position setout at paragraph 51where credibilityisa collateral matter. TheChamber ispersuaded byinternational jurisprudence andrefers tothe "DecisiononRebuttal Evidence" Prosecutor v Stanislav Galic, dated 2 April 2003 at paragraph 27. 27ibid paragraph 27. 28The Chamber notes the evidence given by Omar Serushago on16 November 2001 (T16-11-01 page 54) , andthe "Decision onRebuttal Evidence Prosecutor,, v Stamslav , Galie, dated 2 April2003 paragraph 7. 29The Chamber notes the cross examination ofwitnesses AHA (T7-11-00, pages 60 - 81),ABE (T27-11- 01,page 40), EB (T17-5-01, pages 47-48), GO(T6-6-01, pages 116-117) and AHI (T10-9-01 pages 92-94). 3oDecision on theProsecutor’s Motion for Leave to CallRebuttal Evidence and the Prosecutor’s SupplementaryMotion for Leave to Call Rebuttal Evidence Prosecutor v Semanza dated 27 March 2002 paragraph11.

16 TheProsecutor v Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, ICTR-99-52-T

theTrial Chamber will be ableto assessthe weight of theevidence of RM14without the additional31 evidence of Mr Chappell.

SaidoGuindo 67.This witness would be testifyingon collateralmatters such as thecredibility of the Accusedand the Accused’s email address. This is notthe kind of evidencethat should be permittedto be adducedin rebuttal.The Chamberobserves that where it is sufficiently informedto properlyappreciate the weightof the originalevidence then rebuttal evidence32 as to weightis not necessary.

CharlesUgiliwagabo 68.This witness would only testify as to whetherNgeze was in prisonin Gisenyiin the monthof April1994. The evidenceof the Accusedand his witnesseswas thathe was detainedin a militarycamp. It is not therefore clear that this witness would be referring to the sameplace. Further, the factthat one prisonguard did not see him in custodyat Gisenyiwould not in anycase suffice to provethat he wasnot in prison.

69. Finally,if any of the abovewitnesses were allowed, this would also lead to the Accusedwanting to presentevidence in rejoinder,which would unnecessarily prolong a trial,which has already been delayed.

FOR THESE REASONS, THE TRIBUNAL

DENIESthe Prosecutionmotion to callall the listedwitnesses, namely AFX, David Chappell,Antipas Nyanjwa, AZZA, AZZC, AFI, Saido Guindo,AZZB, AZZD,PA2 and CharlesUgiliwagabo.

Arusha,9 May 2003

Erik Mose Asoka de Zoysa Gunawardana Judge J~Presldihg~ "~ !/ Judge

[Sealof theTribunal] 31"Decision onRebuttal Evidence" Prosecutor v Stanislav Galie, dated 2 April 2003 paragraph 27. 32See paragraph 45.

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