ICTR/ANALYSIS: Witnesses who are accomplices are not ‘a priori’ liars

By Hirondelle News Agency
September 25, 2009

Brussels: The use of testimonies of “genocidaires” in cases tried by the International Criminal Tribunal for Rwanda (ICTR) happens very frequently for the prosecution as for the defence. The latest todate were called last week for the prosecution in the Gaspard Kanyarukiga case and for the defence of Yussuf Munyakazi.

The witnesses have a fundamental role in the prosecution of the persons responsible for grave violations of international humanitarian law before the ICTR as well as before the International Criminal Tribunal for the former Yugoslavia (ICTY).

In fact, they are the main source of information which the parties have because, as Rwanda is concerned, the genocidaire organization left little written evidence. Moreover, common law criminal procedure, which dominates at the international tribunal, largely has recourse for their participation.

Among the direct witnesses of the genocide committed against Tutsis in Rwanda there are survivors as well as génocidaires. The latter, “persons with a questionable morality”, according to Jean-Pierre Fofe Djofia Malewa, a lawyer having argued before the ICTR, are the people who were convicted by the Rwandan courts for acts of genocide.

It is recognized “that the jurisprudence of both ad hoc Tribunals does not a priori exclude the testimony of convicted persons”, points out the Appeals Chamber in its ruling of 18 November 2007 in the media case.

However, certain “genocidaires”, as in the Simba case, acknowledged their acts before the ICTR before having done so in Rwanda. It was sometimes thought that it was a strategy on their part to try, in exchange of their co-operation, to obtain a more lenient sentence. Witness YH in the abovementioned case does not hide this fact. Another one even hoped to be able to be “forgiven and pardoned”. It is thus that the credibility of these witnesses is regularly questioned.

In their decisions, the ICTR Chambers never spent much time on the question. Nevertheless, they regularly took care of demonstrating all the precautions which they used to consider the testimony of “genocidaires”.

The judges of the ad hoc tribunals have sometimes been more suspicious when the witnesses are proven accomplices. The ruling of the ICTR Appeals Chamber in the Ntagerura et al. case recapitulates in a concise manner the positions already taken by the ICTR and by the ICTY.

The judges must have a “critical eye”; the testimony, just like the circumstances in which it was made, must be studied “with the upmost caution” or “with all the desired circumspections”; did the witness have “precise motives to testify as they did and to lie?” Specifying that the corroboration of a testimony, even of an accomplice, was not obligatory, the however judges have regularly recourse to it.

The Appeals Chamber concluded, in the Andrea Ntagerura case, by reminded that “it is within the discretion of the Trial Chamber to evaluate the evidence and to consider whether the evidence as a whole is credible, without explaining its decision in every detail”.

In the judgement of Callixte Kalimanzira, on 22 June of this year, the Trial Chamber considered that it “would not appear that his judicial proceedings could be enhanced by giving false testimony against Kalimanzira” neither that he “might have had an interest in diluting his own responsibility for committing killings by blaming Kalimanzira”. It will accept in the same manner granting credit to the following testimony, also delivered by a person convicted by a Rwandan Gacaca court.

Lastly, it should be considered that “accomplice evidence is not per se unreliable, especially where an accomplice may be thoroughly cross-examined”.

Among the “genocidaires” there are people who repented, who confessed during the procedure, new at the time, planned by the Rwandan institutional act of 1996. The introduction of the guilty plea aimed to shorten the trials, to reduce the work of the investigators and to favour the process of reconciliation of the population.

The full confession (detailed description of the committed infractions, information on the co-authors and accomplices, excuses presented for the acknowledged misdeeds) provided before the communication of the repressive file to the president of the Tribunal led to, except for the defendants of category 1 which relates to the most serious facts, to a reduced sentence. The procedure was a big success.

There are positive and important points in the recourse to such witnesses. Indeed, they often know the inner workings of the criminal organization or the hierarchy often so difficult to establish. A Chamber of the ICTY admitted indeed in the sad case of the Celebici camp that the accomplice witness was, in connection with the defendant, “well placed to know the exact statute of the latter”.