Tribunal penal international pour le Rwanda OFFICE OF THE I \In [I \Arlo\\ \AIKV.\I \~r\ PROSECUTOR Arusha International Conference Centre P.O.Box 6016, Arusha, Tanzania Tel: 255 57 4207-1114367-72 or 1 212 963 2850 - Fax: 255 57 400014373 or I212 963 2848 INTEROFFICE MEMORANDUM - MEMORANDUM INTERIEUR To: Mr. Constant Hometowu, LO Date: 24/November, 2005 Co-ordinator Trial Chamber I11 Ref: KARJOS Court Management Section ?< CC : Ms. Carmelle Marchessault Counsel for Francois Karera /' 1: * From: Florida Kabasinga sj k- &2 c- - -P -- r Case Manager KibuyeIKigali Rural Trial Team Subject: MOTION FOR PROTECTIVE MEASURES FOR VICTIMS AND WITNESSES TO CRIMES ALLEGED IN THE INDICTMENT (PURSUANT TO ARTICLE 21, RULES 54,69,73 & 75. 1. Kindly find attached to this memo the following documents in the above matter: a) The above mentioned motion. b) Annextures thereof 2. Kindly serve the Defence and other concerned parties with said documents attached. Regards. International Criminal Tribunal for Rwanda Tribunal Penal International pour la Rwanda Arusha International Conference Centre IYllI )YhllON\ ~\IION,~JPII, P.O.Box 6016, Arusha, Tanzania Tel: 255 57 4207-1 114367-72 or 1 212 963 2850 - Fax: 255 57 400014373 or 1 212 963 2848 TRIAL CHAMBER I11 Before: Dennis C.M. Byron, Presidmg Flavia Lattanzi Gberdao Gustav I<am Regstrar: Adama Dieng Filed on: 24 November 2005 THE PROSECUTOR FRANCOIS KARERA (CASE NO.ICTR-01-74-1) THE PROSECUTOR'S MOTION FOR PROTECTIVE MEASURES FOR VICTIMS AND WITNESSES TO CRIMES ALLEGED IN THE INDICTMENT. - (Pursuant to Article 21, Rules 54,69,73 and 75) Office of the Prosecutor: Charles ;\deogun-Phlllips Peter Tafah Memory Maposa Florida Kabasinga For the Accused: Carmelle Marchessault Steven Kelhher Introduction: 1. Pursuant to a warrant of arrest issued by the Honorable Judge Erlk Mose on 2 August 2001, Francois KARERA was arrested in Kenya on 20 October 2001 and transferred to the Tribunal's detention facility on 21 October 2001. 2. Francois KARERA made hs Initial Appearance on 26 October 2001 under Rule 62 of the Rules of Procedure and Evidence before the Trial Chamber of the Tribunal. 'l'he accused pleaded not gudty to the four counts he stood charged with. 3. On 16 September 2005, the Prosecutor filed an application for an order for non- dsclosure to the public and to the medta, of the identity, whereabouts and any other information that is hkely to reveal the identity or addresses of witnesses identified by pseudonyms. 4. On 9 November 2005 the prosecutor dsclosed all the witnesses' statements to the defence in an unredacted format. 5. On 21 November 2005, the Chamber du-ected the parties to present oral submissions, and provide any other information deemed necessary, in support or in rebuttal of the Motion [for Protective Measures] at the Status Conference on 23 November 2005. 6. At the status conference of 23 November 2005, the Chamber drected that a motion br protective measures be filed on 24 November 2005. Le~aland factual ?rounds advanced in sup~ortof this Motion: 7 Article 21 of the Statute recognizes the need for and the importance of protective measures for victims and witnesses. ,Rule 54 is a general provision relating to orders that can be issued to ensure the smooth conduct of trial. Rule 69 states that, in exceptional circumstances, either party may apply to a Trial Chamber to order the non-closure of the identity of a victim or witness who may be in danger or at risk, unul the Chamber decides otherwise. Rule 73 provides that after the initial appearance of the Accused, either party may move the Trial Chamber for appropriate relief. Rule 75 authorizes a Judge or Trial Chamber to order appropriate measures for the privacy and protection of victims and witnesses, provided that the measures are consistent with the rights of the Accused. 8 Pursuant to both the Statute and the Rules, the Tribunal has issued orders in every trial proceedng before it for the protection of victims and witnesses. 9 'The Prosecutor submits that the granting of measures for the protection of witnesses, as recognized in the international criminal justice system, is necessary for the security and protection of witnesses. It is submitted that the measures requested are appropriate under the circumstances of ths case. They are sdar to measures granted by ths Tribunal in the past and are designed to gve due regard to the protection of victims and witnesses whde at the same time safeguarding the rights of the Accused. 10 The Prosecutor moves the Trial Chamber to grant these measures because there is a real and substantial danger that victims and potential prosecution witnesses d be threatened, assaulted, or lulled if their identities are revealed. 11 The Prosecutor attaches the Declaration of Alfred KWENDE dated 23rd November 2005 in support of ths motion (Annex A). The Declaration provides information regardmg the security situation generally in Rwanda and specifically in the IOgali- Rural Prefecture. Adhtionally, the Prosecutor attaches the following supporting material: Annex B Article, Reuters, "Nine Rwandans to Hang for Wnggenocide witness", dated 26 Apnl2005; Annex C Article, Irinnews, "Over 1,000 refugees flee to Uganda", dated 20 Apnl2005; Annex D Article, Irinnews, "Hundreds flee Gacaca courts", dated 13 March 2005; Annex E Article, Afrol News Onltne, "Genocide conviction of Rwanda clerical welcomed", dated 16 December 2004; Annex F Article, Afrol News Online, 'Congo "fighting Rwandan troops" in IOvu', dated 15 December 2004; Annex G Article, Afrol News Onltne, "Burundians flee for Rwanda, citing violence", dated 11 March 2004; Annex H All Africa.com News Report, Africa 2004; Annex I Article, Knight kdder Newspapers, "Witnesses to Rwanda genocide intimidated, slain", dated 6 Apnl2004; Annex J Report of the Government bi-weekly newspaper, The New Times, dated 12 January 2004 reporting on the flee of genocide survivors from Gikongoro province; Annex K BRC News Onltne, "Genocide witnesses 'being Ned"', 16 December 2003; Annex L Article, AfricaBlog, "Hidmg the Truth", dated 16 December 2003; Annex M Press Report, Agence France Press (AFP) dated 14 October 2003; Annex N Press Report, Agence France Press (AFP) dated 14 October 2003; Annex 0 Press Report, Agence France Press (AFP) dated 13 October 2003; Annex P Report by UN office for the Coordmation of Humanitarian Affairs, dated 3 June 2003; Annex Q Memorandum from the Witness and Victim Support Section, dated 4 September 2002. Annex R Documents produced by Le Petit Chateau, evidencing the number of Rwandan asylum seekers in Belgium, dated 8 June 2002. Annex S Article, Hirondelle News, "Rwanda/genocide - genocide survivors in danger", dated 17'~November, 2005 Annex T Article, The New Times Online, "Another survivor murdered", dated bthNovember 2005 Backround of the Accused 12 Franqois IOXf3RA was born around 1939 in Huro Secteur, Musasa Commune, Igali-Rtlrale Prefecture, Rwanda. 13 At all times referred to in the Indictment Franqois IC4RERA was a senior public official who was PrPfet of Iagali-firale prefecture. 14 By virtue of hls rank, office, and links with prominent figures in the community, Franqois IURERA had control over Borqmestres, Conseillers de Sectetcr, Responsables de Celh.de, h>trmbakmi (ten-house leaders), admhstrative personnel, gendarmes, communal police, Interahamwe, dtia, and armed cidans. Victims and Potential Prosecution Witnesses for whom the Protection is Sought: 15 The persons for whom protection is sought fall into dfferent categories, all of which require measures of protection. Those categories include: (i) Potential prosecution witnesses who may presently reside in Rwanda and who have not affirmatively waived their right to protective measures; (ii) Potential prosecution witnesses who may presently reside outside Rwanda but who live in other countries in Africa and who have not affmatively waived their rights to protective measures; (iii) Potential prosecution witnesses who may reside outside the continent of Africa and who have not affirmatively waived their rights to protective measures. The risks faced bv victims and potential witnesses in Rwanda: 16 The risk to victims and witnesses is not hted to that posed by cross-border incursions. There is also serious risk of attacks and Wngs within and throughout Rwanda, as shown by the Gikongoro killings. (See Annex H). 17 The documents presented in the Annexes detail some of the violent incidents that have occurred. Such occurrences threaten not only potential prosecution witnesses but also survivors of the genocide, includng the victims of attempted murder, rape, assault, robbery, confiscation of property, and other crimes committed during the course of the genocide. They also threaten those living in other countries, both withn and outside the continent of Africa because of the existence of large numbers of members of Rwandan Armed Forces, the Interahamwe groups as well as members of the former civihan government of Rwanda and other people who collaborate with such persons, as well as fugtives sought by the Prosecutor, who are sdat large. 18 It is a matter for the record that since the genocide in 1994, more than one don Rwanda refugees have returned to Rwanda, many of them of Hutu origm. Most of these refugees entered Rwanda without border checks by the Rwandan authorities, and there is evidence that former members of the Rwandan Armed Forces and the lnterahamwe have infiltrated the ranks of these refugees. These infiltrators have regrouped inside Rwanda and constitute a menace withln the country. Elements of ths force have made several attacks that continue to result in deaths and destruction among the community of survivors. The risk to witnesses livinp outside Rwanda: 19 Sirmlar insecurity exists in countries neighboring Rwanda, as evidenced by the Annexes attached. Moreover, ths Tribunal has previously recopzed that the present security situation affects victims and potential witnesses residmg outside Rwanda or the neighboring countries.