Interview Summary

Charles Taku discusses the failure of the ICTR to prosecute RPF members. He refers to a form of

‘judicial genocide’ through which Hutu victims are denied justice and the Tribunal perpetuates

violence through impunity. He notes that the Office of the Prosecutor (OTP) should investigate

crimes based on the acts committed rather than on ethnicity or political affiliation. Taku also

discusses the controversial principle of joint criminal enterprise which he claims has been abused by

the OTP to indict individuals without sufficient evidence.

The transcript of the interview begins on the following page.

Role: Defense Counsel

Country of Origin: Cameroon

Interview Date: 3 November 2008

Location: Arusha, Tanzania

Interviewers: Batya Friedman

Ronald Slye

Videographer: Max Andrews

Interpreter: None

Charles Taku

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Part 1

00:00 Batya Friedman: Hi, my name is Batya Friedman, I’m a professor at the University of

Washington. I’m here interviewing Chief Taku. It is November 3rd, 2008 and with me

is Professor Ron Slye from Seattle University Law School and Max Andrews who’s our

cinematographer. So, Chief Taku, could I ask you to please introduce yourself? Say

your name, your role here at the ICTR and your nationality.

00:29 Well, as you’ve rightly said, my name is Chief Charles Taku. I’m Lead Counsel in the

Military 2, 2 trial. I first came here in 1999 as Lead Counsel for Laurent Semanza. I’m

also Lead Counsel in the Special Court for Sierra Leone in the, the case of Prosecutor

versus the Revolutionary United Front for Sierra Leone. I’m Lead Counsel for Mr. Morris

Kallon. And I’m Lead Counsel here in the Military 2 trial as I’ve just said. I come from

Cameroon.

01:05 BF: Thank you.

01:06 Note: Gap in Interview. Gaps occurred due to interruptions during the interviews,

technical issues, or corrupted data files.

01:10 BF: So can you tell us a little bit about your role as, as Lead Counsel? And when you

say Lead Counsel, you mean Lead Counsel for the defense?

01:18 Yes, I’m Lead Counsel for the defense.

01:20 BF: Yes.

01:20 I first came here on the 23rd of October 1989 as co-counsel on the case of Prosecutor

versus Laurent Semanza. And a few months after, I became Lead Counsel and I’ve been

Le-, Lead counsel all along. The case of Semanza ended in sometimes in 2004, and I was

appointed Lead Counsel in 2005 at the Revolutionar-, for the Revolutionary United

Front for Sierra Leone. That’s for Major Mo-, Morris Kallon.

01:56 And two months after I was appointed here again as Lead Counsel in Military 2, as Lead

Counsel for Major François Xavier Nzuwonemeye who was the commander of the

Reconnaissance Battalion of the Rwandan army.

02:13 And I work as Lead Counsel and actually coordinator for a legal team constituted by

the, the tribunal to defend the accused persons. And I have under me co-counsel and I

have a number of legal assistants and investigators. And Lead Counsel, I direct the

team, the defense team as it were.

02:41 And now Beth Lyons, whom you know, became co-counsel about more than a year ago.

I met her here on a visit from the US and when I was doing Semanza, she was sitting in

the gallery. And when she went back she sent a card to me and I found that very, very

touching because many (_______) thousand who come and nobody does that. And I

said this must be a very good lawyer so I invited her to come back here and join the

team.

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03:14 Unfortunate for me, when she came, my former co-counsel Alao, Barrister Alao, he’s

from Benin Republic, he had become a Lead Counsel for Colonel Aloys Simba. So he was

fast, faster than me and he got her as co-counsel in that team.

03:32 And when the, the case ended, I was happy enough to bring her back to come and work

with me. So, as I say, Lead Counsel’s the one who coordinates the entire defense of an

accused person and that’s the role I play either here or in Sierra Leone.

03:49 BF: Mm-hmm. So, I’d like to take you back to the spring of 1994.

03:56 Yeah.

03:57 BF: And, so in 1994 in the spring, where were you and what were you doing at that

time?

04:05 Well, about that time I was in Cameroon. I, I followed the story like every other person,

about what was happening in Rwanda unfortunately. Of particular interest to me was

the fact that the elements that led, the factors or the elements that led to the, the

calamity in Rwanda are present in many African countries, including my own country.

04:36 The conduct of the politicians, excruciating poverty, economic factors, and of course

the duplicity of international community in situations like these. So I followed the

events and I followed the events painfully as I watch over the television or listened to

the news. There was nobody there to do anything to, to help these people of Rwanda

to solve this problem.

05:11 And most striking of all was the fact that United Nations was actually there on the spot.

And what came to my mind was what use is the United Nations? What use is United

Nations that even their presence cannot pre-empt a calamity of that nature? So I was in

Cameroon but later (_________) that I would play a role in the, one way or other at

some point in time.

05:36 BF: So, and what were you doing in Cameroon at, at that time, in your country?

05:42 Well, in Cameroon at the time, we, we were facing a serious crisis at the time because I

come from the English-speaking part of Cameroon. And these were two Trust

Territories who were under the British and the, the French majority were under the

French. And were, as Trust Territories, that the UN had a mandate to lead to

independence.

06:07 It was never foreseen in the UN charter that, well, it could lead to what at the time we

thought was annexation – that instead of leading our own part of the country to

independence, because we're a former German colony and a Trust Territory of Great

Britain, the, the (______) brought us into what we considered as some form of

annexation in that our own party was just annexed to the French Cameroons.

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06:36 And the people, population was agitating at that time. Thousands of people were

agitating that they want independence, not (_____) independence. The, the policies of

the, the, the majority in power, the French majority in power, were very oppressive.

06:52 And, at that time I had been on the bar council, (_____________) of the bar council and

also one of the perhaps very visible lawyers at the time because a lot of people were

arrested, many of them died in detention.

07:07 And at least in ‘92 people were brought before the military court and they were being

indicted before the military court, civilians of course, for treason. That carries

mandatory death sentence under the Cameroonian military court.

07:26 And I was Lead Counsel defending these, these, these people. The case was going on

around the time that this was ha-, was happening and we just thought that oh, maybe

this crackdown may lead to some other serious crisis.

07:43 At that time we need also not just to defend the courtroom but to get international

support, because we thought that the, the military people were not people who can do

justice to civilians, especially as there was no reason to bring them to military court in

the first place. These were civilians; they were not armed. There was, there was no

reason to bring them there.

08:06 More importantly but because they were arrested from the English-speaking part of

Cameroon and carried over to the French-speaking part to be subjected under different

legal system and to be tried in a language they didn’t understand.

08:18 And we were busy trying to rally international support, the embassies in Yaoundé. And

at some point in time I left and went to Washington and thought that we could, the

press in Washington could help us.

08:30 I went to the Voice of America. Scott Steel was still a very young reporter at the time

preparing at the time to come to the Great Lakes. So, he was asked to interview me and

I was there with him in the program "English to Africa" for over a week highlighting the,

the problems with this trial, that the, the fair trial issues. And of course he did a very

effective job.

09:01 At the end, when we came back, this, the Voice of America actually helped us in really

propagating, I mean, our own side of the story, because back home the media is

controlled by the government, so nobody could have known that whole story. When I

came back now, almost, most of the people were acquitted but a few of them (__),

some 20 years, some 15 years, I think one or two life here.

09:29 And for us in, under the circumstances, it was a victory – thanks to the Voice of

America, thanks to the international community because the US Embassy in Yaoundé

also they were very interested in the case. They came to me at every turn and they

were in court at every session of the trial. So these, these two events were going on

simultaneously with what was happening in Rwanda.

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09:52 And the, the – we were telling the journalists at Voice of America, was telling the

Cameroonian government, “Let there not be another Rwanda. This is leading to

another Rwanda; this is leading to genocide,” and so on and so forth. And therefore

you will be surprised that it is my performance on that case that cleared the role in me

being called upon, shortly thereafter, to come and defend here.

10:15 BF: Mm-hmm.

10:16 Yeah.

Part 2

00:00 BF: So how, how did that happen, how did you end up here at the ICTR?

00:06 It was surprise. My name was not on the list of, of lawyers because I didn’t know the

procedure at that time. But after that case in Cameroon I came over here. And I said

“Look” – I heard that sub-, subsequently, I heard that the court had been constituted –

and I said “Look, let me have this experience, because this may well happen to us at

some point in time as long as our problems subsist, and as long as the momentum is

building that will lead to this.”

00:40 “So let me come.” So I came to Arusha and when I came here, I met one of the

secretaries and I said, “Look, I want to know how to, one can, can become a lawyer

here in these proceedings.” So she got me some forms, “Fill these forms.” I filled them

and somebody signed and my name was put on the list. And I left here and went to

Washington and I was in Washington for about three months.

01:06 And one day I got information from Cameroon that they were looking for me in Arusha.

And that I’d been called upon to come quickly to be co-counsel for one of the accused

persons. And when I came here, I didn’t know anybody here in Tanzania apart from the

(______) here, and it was very, very exciting and I met the accused and I discovered

that the accused was a former mayor.

01:36 He was no longer in command, he had no position and he was not as literate as the

others would be. And I started working for him and sometimes in February, there was

an interlocutory appeal that had been filed challenging his arrest and detention,

because the defense at the time felt that the, the arrest and detention were illegal.

There was no warrant and when they obtained the warrant for another person, they

used that warrant to arrest him and he was brought here.

02:11 So the, the Lead Counsel withdrew from the case and the appeal chambers had

indicated that they were going to come here two weeks thereafter to, to hear the

interlocutory appeal. And they wrote to me and said, “Well, you have to be prepared.

We’re coming, we, we cannot postpone the session so you should prepare for the

interlocutory appeal.”

02:37 So I went on reading the transcripts and preparing the briefs and, and when I did the

arguments and it was good, one of the judges, Judge (________) was very impressed.

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Of course on the other side I had the, the Prosecutor with seven prosecutors, Carla Del

Ponte herself. And the, and the advantage I had is that all the seven of them decided

to, to argue the appeal and I found a lot of contradictions.

03:02 It was easy when the other, the other person got up, he contradicted the other person

and that was the situation. In the end, the remedies I, I was seeking that he should be

set free, we didn’t get that, but we heard midway that (______) the trial proceed.

03:20 If he’s convicted, they should take into consideration the arrest, the illegal arrest and

detention, and that should affect in the sentencing. And that is why I think at the end of

the day that, that we benefited from that.

03:34 BF: So when you first came to the tribunal and you wanted to participate here as a

lawyer, did you clearly say, “I want to participate on the side of the defense,” or did

you, were you open to being both a prosecutor on the prosecution side and the

defense? What, what was your thinking?

03:54 My thinking was to be on the side of the defense and the reason is very, very clear. I

already knew that there was some politics involved in the court by the f-, mere fact that

the UN was present in Rwanda and they did nothing. And I knew that if the very UN

should constitute a court to try the alleged perpetrators, they would try to hide their

role or the role of the UN officers who were in the field.

04:22 I already knew and, or suspected this, and therefore I told myself, I went on the side of

the prosecutor I’ll be complicit in this. Let me be there so that I can have the

opportunity to see through this case and see all the complexities of this case. See all the

politics about that case. So in case that it happens again, I will be in a position from that

(_____) to be able to take part in trying to point out the, the politics of that.

04:53 It is this suspicion of the political intrigues that might have informed the creation of the

court especially from the standpoint of the UN. And my suspicions were proved right

thereafter, because the UN from inception, from the Security Council, from the

Secretary General report, now characterized the conflict as an internal arms conflict,

but you know this is a major component of war crimes.

05:26 The evidence now points otherwise. It points that Uganda was involved. It points even

to the mere presence of the UN itself, some of its officials. Now which (_________) that

they were trying to conceal, to pre-empt any attempt to litigate the role of the UN and

that of some of the neighboring countries and some of the superpowers that were

complicit in one way or other, either by commission or omission, to the thing that took

place in Rwanda.

05:54 So my suspicions were right in that, although I didn’t have the picture as this, but as

evidence unfolded and people now feel more comfortable to testify (____). But the

court cannot (_______) finding because their hands are tied; the Security Council

including the court, Secretary General, all they said was an internal arms conflict.

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06:13 And of course ordinarily an independent court should be in the position to disagree

with the Security Council – that in spite of your position that it’s an internal arms

conflict, the evidence points otherwise. Of course that’s another issue.

06:29 It all depends if the judges themselves who are United Nations appointees, Security

Council appointees from different member states, if they’re bold enough to go that far.

That’s another issue but my suspicions exceptionally have been proved right.

Part 3

00:00 BF: So if, thinking about tribunals in the future and you can imagine that we may

have others, other situations that arise where a tribunal is needed – we might not

want that but that might be the case – what kinds of checks and balances would you

put in place in how other tribunals are constituted to try and address this problem?

00:23 Well, in the first place, the statute here guarantees the independence of the judges.

The statute also guaranteed independence of the Office of the Prosecutor. And I think

this independence of the Office of the Prosecutor has been abused to the extent that

the Prosecutor in refusing to indict the RPF perpetrators, even when the Security

Council mandate directed clearly that all the people without distinction, that per-,

perpetrated the crimes should be indicted.

01:01 In spite of the fact that the, the RPF itself has admitted – in spite of the fact Prosecutor

himself has said so many times that, “We’re investigating the RPF, they will be

indicted.” The fact that the Prosecutor is unable to do this, presumably due to other

influences, and he can hide behind prosecutorial independence, I think it’s an abuse of

the notion of independence.

01:28 There should be an, an organ, an organ to hold the prosecution to account. To say,

“Look, your mandate, you’ve not been able to meet the, the, your mandate. You’ve not

been able because, you’ve turned the tri-, the, the court into a victors’ court,” and that

at the end of the tribunal, the c-, the, the, the – at the end of the tribunal, there’s every

indication that the violence will start all over, as long as one of the parties believe that

they too were victims.

02:13 They believe that justice has not been totally done, (_____) victor’s just-, justice. And as

the, the, the factors that led to the crisis in the first place remain with thousands and

thousands, no, millions of Hutus now as refugees, not in the sub-region but across the

world, they will be telling they want to come back to Rwanda.

02:36 They want to regain their land, the land issue remains unresolved. They, they, they

want free and democratic elections – one man, one vote under international

supervision. They want that this injustice should, should be, sh- – of course we know

exactly that the, the conflict is still playing out now in the Congo.

02:58 Now, as long as the Prosecutor cannot prosecute the RPF, the perception that the

tribunal has condoned impunity will remain. And therefore that will be a viable factor

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to start the war again, (______) tribunal. As long as the tribunal is here, and the ability

to arrest, it serves as some form of – it pre-empts.

03:30 You see, people will look at the tribunal as it is on the continent, not only in Rwanda,

but in the African continent. It serves as a monument to people who may like to, to, to

take up arms and kill people at that massive scale. That, “Oh, look, that could be you.

Those people there, that could be you.”

03:49 But as long as the tribunal is not and as long as the many dictators in the continent can

continue to, to stonewall in ratifying even a treaty of the ICC or if there were to be a

special tribunal of this nature, they will use all sort of limitations of – I mean they’ll

(________) to limit their participation to, to, to make sure that they can't, they’re not

held accountable.

04:26 They’ll put the politics of it ahead. As long as the African Union remains a club for

dictators on the continent, they don’t really have the power to say no. I believe that

that, that act of impunity that has been condoned by not going after all the perceived

perpetrator of the crimes, will remain. It will remain a scar, a (________) on the

conscience of this tribunal.

05:01 And I say so for good reason, because one of the reasons why the, the, the – it has been

ruled that this is a genocide is because of the fact that the Tutsis were targeted. Now

when you have a tribunal that targets the Hutu, it becomes a sort of judicial genocide,

sort of judicial genocide.

05:24 And the, the tribunal and United Nations, did they do, do, do justice? No, they didn’t do

justice, as long as that perception remains very, very strong, especially on the majority

of Rwandans. Not just the majority of Rwandans but majority of people of the ethnic,

the same ethnic composition of the Tutsi-, the Hutus in Congo, in Congo Brazzaville, in

Central Africa, in Cameroon.

05:49 And the, the Tutsi that constitute the Himas in Uganda or other places, the wider, the

wider ethnic configuration as long as it remains, it remains a major problem for the – so

I believe that if another tribunal were to be set up, yes there should be independence

of the, the Prosecutor’s office, but it should be well-defined to say that we will hold you

accountable at some point in time, in order for you to justify that you carry out your

mandate consistent with United Nations resolution, with the statute.

06:24 With the judges, there is very little you can do because these come from member state

of the UN. And if I can say this from the African continent and some of the smaller

states where at the moment (__) war is going on, I doubt whether the government of

these countries will submit to the Security Council the name of a judge who is truly

independent. It must be someone who has rendered service or rendered service to the

regime in power in the respective countries.

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07:00 You can count, look, look at the countries and the background of the judges. I, I, I say

with due respect; some of them are very, very good. Some are very fair minded. Some

of them have transcended the limit of being subservient to their respective countries.

07:16 But so many of them are still very, very – especially some on the African continent and

some of the oth-, some from the Asian countries, some from the, the islands, some of

them you find out their background, just read their CV and find out their background.

07:38 You’ll find that it is very, very difficult. They come with that concept in mind and the,

the potential for influence, political influence, is still very, very great. If you look at the

first judgments that we had from here and the, the, the judgments we are having lately,

you find that they have overturned themselves several times because some of the, the

notions were just (________).

08:05 The notion of joint criminal enterprise, developed right from the Tadić case, have been

so much abused to sign a conviction by association. There has been so much abuse and

if this tribunal should close down and perhaps the tribunal for Yugoslavia, without them

putting that notion into context, and if it were to be a jurisprudence not only at the

international tribunal level but also in national jurisdiction, imagine what dictatorships

can make of that.

08:44 So some of these later notions that were conceived in order to address particular

situations now have a potential to be a weapon in the hands of dictators to perpetrate

further genocide, judicial genocide in the community, in the country in which they

preside or as tools of oppression in order to remain in power.

09:10 BF: So back to . . .

09:10 So, so, so my suggestion is that there should be a potential apart from this, that apart

from just having a review of the cases, the UN should put in place a structure that can

review some of these decisions, and really have a, a good debate about that, so that

the tribunal (______) some of the judges will know whether they succeeded – one, in

meeting their mandate and two, if the legal pre-, pre-, the legal precedent that they

laid out for the international community are going to do good or bad for international

justice.

Part 4

00:00 BF: So I want to make sure I, I understand what you’re saying. The, with respect to

the Prosecutor, the Prosecutor’s choices about where, who to prosecute – so, you’re

saying that the issue here is not so much that the people who are prosecuted should

not have been prosecuted . . .

00:21 Exactly.

00:22 BF: . . . but that they’re an incomplete set. Right.

00:25 Exactly. Yeah.

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00:26 BF: And when you say that they’re an incomplete set, one thing you could say is,

“Well, it is the Tutsis, the RPF, that also need to be prosecuted.” But maybe I also

heard you say that beyond that, there are people beyond those say in Uganda or

elsewhere, that you’ve felt should also be prosecuted here as part of this tribunal?

00:53 I really hesitate to say, to put the, the, the parties in this compartment – Hutus, Tutsi.

01:03 BF: Mm-hmm.

01:04 Because we, w-, a notion has emerged where you have a group of people called Hu-,

‘Hutsi,’ because of etymologies (___) they’re now called ‘Hutsi,’ Hutu Tutsi. And the,

the, (______) they’re people that speak the same language, they live in the same hills,

they know themselves for so long. The RPF was not Tutsi, just as the government of

Rwanda was not Hutu. They, they were mixed.

01:29 So we find now, now. You see the, the, the pattern in which people are fleeing the

country even now, you find so many Tutsi who were in the RPF fleeing the country

today. You find even the king, who is now in the U.S., the, the, the, who was Tutsi. He’s

in the U.S. He can’t come back to the country, because Kagame is saying, “You come

back as an ordinary citizen.” Yet this was the symbol of power before the revolution

1958.

01:58 And it’s more acceptable even to the Hutus now than even the Tutsi. So I hesitate to

put it that way. I just say that ‘the perpetrators of the crimes that were committed by

the RPF.’ And the RPF, you find that they were soldiers of the National (_______),

Registered Army of Uganda, that, that, that front part of RPF.

02:21 You find also that what, when (________) was investigated, the assassination of the

three Tutsi presidents; two of Burundi, and one of Rwanda. If the Prosecutor – because

it falls within the mandate of the Prosecutor to investigate and go after the

perpetrators. If that were to be done, if they were to prosecute some RPF . . .

02:47 Take note, before April 1994, the soldiers of the Rwandan army then did not control

the entire territory. Large portion of the territory was under the control of the RPF. Yet

thousands were massacred there. Somebody ought to be held accountable for that.

03:07 The United Nations tried to organize an election there, and all the Hutus who won

elections – the RPF lost – all of them were killed. And in the course of this trial you had

many RPF officers coming to testify in closed session for their own protection. “Yes, we

were asked to killed these number of people.”

03:31 Or, in Burumba, Kagame 250,000 people in the stadium, Kagame asked to kill all of

them. Or immediately after the, the, the shooting down of the plane, Kagame left

Mulindi the north, and came to Mosha, near Kigali. Kigali (_____). And he sent a

company of 160 soldiers that cleared this corridor. “Any person you find, clear the

corridor,” for him to be able to come close to the capital, to (_________).

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04:04 Now this is evidence which the Prosecutor was hiding for so long. You must have heard

about the decision we had on the 23rd of September, 2008. Exculpatory evidence that

the Prosecutor was hiding.

04:20 Trial Chamber II ordered that this exculpatory evidence should be disclosed to the

defense forthwith, and held the Prosecutor in contempt by saying that, “You are the

minister of justice, you should be seen as doing justice, not only in this trial but to

international community.” And that he should be (______) personally.

04:39 Now he has disclosed some of the material. What does the material contain? Crimes of

the RPF. Why has he not prosecuted them?

04:47 BF: Mm-hmm. And then (________) . . .

04:49 Crimes ascribed to the accused in this case; you committed these murders. This

disclosed material now shows that that witnesses from whom we took statements in

2002 are saying that he got statement from them, statement about the perpetrators of

the crime by the RPF.

05:06 The assassination of Habar-, Habyarimana. The evidence matched. The witnesses come

in closed session, “we were the ones who were on the spot. We were the ones who

took part in the assassination.” He kept the information. Why has he not prosecuted

them?

05:24 The only answer is this: that he’s submitting himself to political influence. There can be

no other, no other explanation for this. At least officially, the tribunal is going to end,

perhaps this year, perhaps next year.

05:42 The official statement from the, heard from the Prosecutor every day is that, “We are

investigating the RPF. Do not mind, we (__), the indictments will come.” That is the

official statement. If he said that, “I’ve found no evidence at all,” one would

understand. But that’s not the case here.

05:56 So we’re not saying that the Tutsi or Hutu – no. We’re saying that the perpetrators –

crimes have no ethnicity. Criminal is a criminal. There’s a presumption of innocence

though, for everyone until they’re found guilty. But if there’s any (___) of, leads to the

fact that crimes have been committed, or may have been committed, (__), we want at

least the prosecution to be able to say no.

06:22 BF: And from your . . .

06:22 The Prosecutor should be accountable to someone. If he didn’t do this.

06:25 BF: Mm-hmm. And . . .

06:26 It cannot be, it cannot be independence of the Prosecutor’s office. Cannot, cannot

(_____) impunity on the part of the Prosecutor.

Part 5

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00:00 BF: And so, from your point of view, from the things you’ve seen and heard, then you

would say, “Well, clearly the RPF, the pro-, there, there should be some prosecutions

there.” And are you also of the view that beyond the RPF there are other parties that

should be prosecuted or possibly investigated for possible prosecution?

00:21 I wouldn’t put the blame on the Prosecutor here . . .

00:24 BF: Yes.

00:24 . . . with the (___), countries like Uganda that provided army and arms, and things like

that because the Security Council and presumably some of the superpowers, the

United States and perhaps a country which is not a superpower but a very, very

important country in Europe and the world, Belgium.

00:48 By virtue of being the heart; the depository of the secret of the western world, NATO,

European Union, (_______). They're a very small country, but so important, more

important than even some of the superpowers for that matter. They play a major role

in this; the evidence leads to them at every turn.

01:09 Their own ambassador testified here in open session and said, “We are more interested

in getting out our people and that was the right thing to do because we didn’t care

about the (_____).” That’s what he said at the opening session. Those were his

transcripts (_______) reading a few days ago.

01:24 My problem is this, they were the ones United States sitting there in the Security

Council. They drafted the statute that was brought to us. And we filed a report saying,

“Look, this was an internal arms conflict.” Now if this an internal arms conflict,

automatically no matter what amount of evidence you leaked in regard to this case,

with regard to the international character of the conflict, it’s not going to be

considered.

01:54 In other words they make it impossibly for anybody to enquire into their own role. In

Semanza I applied to get one – Professor Max Hilaire of Morgan State University as an

expert witness on the role of the international community in the Rwandan con-,

conflict. He prepared a report and the court at the end of the day said, “No, we will not

allow the evidence.” They said, “We’ll not allow the evidence.” Why? No reason was

given.

02:28 And the only reason can be found in the Secretary General report to the Security

Council at the time. So when the constituting elements and the travaux préparatoires

themselves have limited the scope of the evidence and the, the inquiries, state of the

inquiry you can’t put that blame on the Prosecutor.

02:50 It is the Security Council and when the Security Council we know means some of the

superpowers. I will never know for sure why, for example, the United States would take

that position. But what I can guess now is because Carla Del Ponte, was a former

Prosecutor, has said that a lot of influence was put on her not to conduct investigation

against RPF, not to indict them even though she has enough evidence.

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03:14 Her spokesperson has written a book saying the same thing and whom do I believe? I

believe Carla Del Ponte if she says that that influence is there. And if – and that she

even says the reason why they removed her as a prosecutor of this court was because

she insisted on going ahead with the prosecution.

03:33 If her predecessor takes over, and doesn’t prosecute, it will mean that he was a more

convenient person through which they could hide this. But the question is, in this

particular context, can they actually hide? No.

Part 6

00:00 BF: So one last question before I will turn to my colleague. Is your perception that of

your colleagues very broadly here at the tribunal – so not just the defense but among

the prosecutors, perhaps judges, Registrar’s office – do you think the vast majority of

your colleagues in some way share your view that, th-, that a broader prosecution

would have been better for the tribunal?

00:27 Well, in answer to that question let me just give you one promise. When the tribunal

closes down, in order to prove that they share my view, wait and see what many of the

prosecutors are going to write. I’m perfectly aware about the position of most of the

prosecutors who are very good lawyers; ordinary prosecutors, very good lawyers.

00:47 And some of them who have said, “Look, when we started these trials, we didn’t know

that this where the evidence leading to.” And some of them have said, “No, this

inadmissible.” And, and I, and I promise you this, that most of them are very, very fine

lawyers, good lawyers and they said, “Look, we cannot be seen as being complicit in

this.”

01:05 And probably even before the end of the trial, most of them must have left because of

this. Also try to talk to some of the investigators because you find many are in America,

some in Canada and among the, the, the prosecutors, talk to some of the African

prosecutors and others, and also some from Europe.

01:25 And now they are covered by the six months. The UN, after six months when you are

still (____) you cannot talk. But let me tell you. They share these views. I think we

talked to the Prosecutor and put the question to him, “Why have you not prosecuted

RPF?” I don't know how he is going to respond, but maybe he’ll tell you, “We are still

investigating,” because he cannot reverse himself on that.

01:49 And I think that most of us are very, very frustrated. I, coming from the continent, from

Africa, I being a traditional ruler in my community, I know very, very well that this

impunity will just exacerbate the conflict. Not necessarily only in Rwanda but in the

sub-region. There’s absolutely no doubt about that.

02:11 The indicators, the elements that led to the conflict is this, if anything that’s been

exacerbated by the fact that the end structure put in place to redress these crimes has

failed woefully in its mandate. Now, ask, I asked, I put this question to the former

President of the court Judge Møse. I said, “Look, Judge, how do you think, rightly or

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wrongly, the people who are indicted, there are some people, probably so many people

out there looking, thinking that they are their leaders.

02:46 They now symbolize the identity of an-, any group to the extent that the prosecution is

ethnic-, is, is influenced by ethnicity, or perceived to be so. What do you think Judge if

this tribunal should close down one day, would I say to a Tutsi? Why don’t you think

that these people would just say, 'This world, this Rwanda, this new Rwanda that the

tribunal has left behind. It’s not worth living. Let us take up arms and do justice to

ourselves.' Don’t you think so?”

03:27 I said, because my perception, my question is informed by the fact that the Gacaca

proceedings in Rwanda target the Hutu. The tribunal ICTR target the Hutu. The

Rwandan legal system targeted the Hutu; the (_______) across the world targeted the

Hutu.

03:46 So where can the Hutu victims find justice? Absolutely nowhere. Well, only France and

Spain have tried because of their citizens who were killed, to make a reasonable and

principled attempt in order to indict these individuals, issue warrants. Now, the

tribunal, what is your position about this? Originally your spokesman joined Rwanda in

condemning the French and the Spanish.

04:21 It's only when a trial chamber in the case of Munyakazi when the Prosecutor tried to

transfer some of the cases to Rwanda, and the trial chamber said, “Look, there can be

no justice in Rwanda.” And among other reasons it said, when the French judges

indicted some RPF soldiers, when Spain indicted them, they insulted and threatened

those judges. If they did that to foreign judges, what about the Rwandan ju-, judges if

they intended doing justice? Even worse.

04:58 And I was the person – I addressed the court about that in our own trial and said,

“Look, to hand over any of these people to Rwanda, by the procedure of this court, we

only harden the perception that indeed it exists the policy of this court to hand over

these people to the victor to immediately sentence them to life imprisonment in

isolation.” Every time there is a conviction here the government of Rwanda intervenes.

But when there’s an acquittal, they condemn.

05:37 Say, “That person ought to be convicted.” They have never shown, neither the

Rwandan justice nor the government of Rwanda has shown that they are ready,

Kagame is ready, to behave and act as a president for all Rwandans. He’s behaved as

the president for some of the Rwandans, not all Rwandans by his conduct towards this

tribunal and towards the Hutu majority and towards the accused in this trial.

06:02 And I pointed this out to the judge, and I pointed this to the court. So, my point of view

is that probably at this point in time, if you ask the Prosecutor, ask the judge, (____), “If

we are to close down today, what would be the hallmark, what would be the legacy?”

06:22 They will name a series of cases, “We tried this (___), we tried this.” Yes, but what are

the principles of law that we’ve laid down in the trial of this case? Yes, some of the

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principles are balanced, some are consistent with the attainment of international legal

principles but some have done a lot of harm.

06:44 And I say joint criminal enterprise has a potential that if anybody should put your name,

say, “Well, you were never there, you were in America,” joint criminal enterprise it is a

web that can sweep just any person depending on the whims and caprice of the judge,

that particular judge where he stands. No, that is not a legacy. That is not even the

principle that can help the world. It would do more harm.

Part 7

00:00 Ronald Slye: You mentioned a number of criticisms of the tribunal. On balance, do

you think that it was a positive or a negative institution with respect to justice and

reconciliation?

00:17 Let me say the mere fact that the institution was created and existed and has operated

on the continent is very, very positive, because for once in our own century, our own

times, dictators on the continent now know that they can be (____), held accountable

for crimes perpet-, perpetrated by them.

00:45 More important, people to whom, people have, who have been elected or people who

have held up themselves as commanders, army officers, others whose major role was

to protect the people, to rule the different countries, now know that if they turn

around and kill their own people or they fail to protect their own people when they had

the capacity to do so, they will be held accountable.

01:21 On that, I can say that it’s positive. And I can say that the mere existence of the tribunal

per se outweighs any other criticism as far as the African continent is concerned. As far

as international justice is concerned, it came too late in the day because there was a

possibility of pre-empting the crisis. So was the Security Council with this (__________)

did this just in order to hide its face and therefore – but better late than never and

today it stands as positive.

02:05 On the development of international law, yes the jurisprudence on rape as a war crime

is a major development. I think it is one of the greatest legacies that this tribunal will

leave, because personally, women and v-, people, vulnerable groups ought to be

protected from warfare. And for them to use women and the vulnerable groups as

instruments of war, it is wrong.

02:35 Whether as the facts evolve the law applies to particular factors is another issue but

the mere principle itself is good. With the, the, the precedents that were laid out in

Nuremberg and Tokyo, this tribunal has followed those precedent to the extent that

the, the, the "victor’s justice" concept has been followed to the letter.

03:02 And that’s a bad precedent that happened so many years ago from 1945, ‘46, ‘47, so

many years ago. And it has set, it set a bad precedent for the world and this tribunal

has just walked along those lines and it’s unfortunate.

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03:18 Now, may, do, do we have another tribunal or wait for another tribunal to come and

put an end to, to, to this, to, to this conduct, to these principles? I do not know. But

again, just as we were saying, in Nuremberg the world was saying, "never again," you

now know why. That, that "never again" was an empty slogan to the extent that we

have victor's justice and to the extent that it has been repeated in this particular court,

it remains an empty slogan.

03:53 And in anything, it leaves us with a perception that whenever victor’s justice is applied,

it enhances impunity for the, the party that feels aggrieved. That they can always take

up arms and repeat the same crimes. To that extent, I think this court, this tribunal has

failed woefully on that.

04:16 And as you say, in order for them and I see this development – unfortunately

development that was developed in the Tadić case, I see that unfortunate development

of joint criminal enterprise as was just another means by the court in order to enhance

the victor’s justice principle was extended further.

04:36 If you can’t get them in any form of accomplice liability, then why not extend this

notion of joint criminal enterprise? Know that it is a web that once you throw it wide

open, the person will be caught somehow – jailed by association.

04:55 So, so, I mean look at Article 6(1) of the statute on individual criminal responsibility.

Because there is no joint criminal enterprise in the statute, how do you fit it, how do

you fit joint criminal enterprise under 6(1)?

05:14 When 6(1) enumerates the conduct, that the enumerated conduct is there. How do you

fit it? Of course they say they fall back on customary international law. But if it

(___________) customary international law and they move back to Nuremberg again

and to the Tokyo trials, where the principle was first admitted but not as in the concept

in which you find it.

05:39 And the manner in which it was discussed in Tadić you find out that even there, it is

victor’s justice looking for a means of criminalising and convicting the particular

individual when it pleases them to do so.

05:58 So on that score, the tribunal has failed because it has set a bad precedent for the rest

of the world or it has developed further a bad precedent that has its origin from

Nuremberg then Tadić, and continues.

06:13 RS: Those who defend joint criminal enterprise, sort of raise the problem of dealing

with atrocities that a lot of people are involved in, and that, that you only have

genocides or crimes against humanity if there’s a very large organizational structure

with both very high level people and mid-level people and low level people involved.

06:40 RS: Do you think that, leaving aside the legal issue you raised about the origins or

the, the legitimacy of joint criminal enterprise in the ICTR statute, do you think as a

general principle it is a good principle or a bad prin-, principle in terms of individual

liability?

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07:00 If it were, if it were applied very restrictively it could be good. Because you know,

especially criminal genocide, the specific intent, specific intent has, it has a higher

threshold. So if we were to, to, to apply it as, in that concept, how do you – especially

with the system, the systemic form of joint criminal enterprise – how, how, how do,

how do you, how do you, how do you get the (_________) on specific intent?

07:34 So, you know, it is has been abused, it has been abused. In fact, I think it might have

been conceived in order to, to, to, in order to remedy a mischief, the way you put it,

but the fact that it has been abused in rare cases.

07:52 And in that, in that, in that particular situation, you find that the judges are so divided,

some of the judges (_____) say that, “We can never apply it,” in the same, in the same

court. Different appeal chambers have come to different conclusions.

08:08 (_______) appeals chamber (_______) followed by the idea (________) – and the

danger for us is this: In this concept, if these courts must be modelled and these

concepts, these principles were applied to a national jurisdiction, in the African context

in the hands of the dictators in power, believe me, you would do substantial injustice. It

would lead to war. It would target just about any person who is perceived to have

taken part in an alleged joint criminal enterprise in any of the three forms. And that is

our worry.

08:48 And that’s why in, in Sierra Leone I pointed out that the judges of the Special Court

should take note that joint criminal enterprise is not part of the statute of the Special

Court for Sierra Leone. They cannot create another form of criminal liability, which is

neither in the statute nor flows from the statute. They were out of their mandate.

09:13 I, I’m waiting for, for what, whatever decision they’ll say about that but I’ll raise it. In

other words, what you’re saying is correct. It was, it was perceived to redress a

perceptible mischief but the fact is that from Tadić it has been abused. It was poorly

applied in Tadić and in many other cases that here these couple of people were

acquitted of all other forms of liability except the joint criminal enterprise. How can

that be?

09:42 RS: Well, in Tadić there were three different categories, right, of joint criminal

enterprise, and the third is the most controversial.

09:47 Yes.

09:48 RS: Let me ask you if you were advising somebody setting up a new tribunal, now, so

you could write the statute, would you include any form of joint criminal enterprise in

that statute whether the first, the second or the third?

10:03 Well, ordinarily there, there’s a problem here. You see like in the case of Mpambara

here, the judges in that case expressed the fear that there’s some form of confusion

between joint criminal enterprise, especially the first and second forms, with other

forms of accomplice liability, in aiding and abetting.

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10:26 And as long as we have on the statute books all forms of aiding and abetting and of

course, and that’s why they derived the notion of criminal enterprise – aiding and

abetting. There’s a lot of confusion there, the law is not certain there and the courts are

not certain there.

10:43 At this time, at this point in time no, at this point in time for me, no. But if they could

really reconcile themselves, maybe and say okay the first form of cr-, of joint criminal

enterprise, maybe even the second, we can incorporate into the laws, there will be no

problem. But the third form is the most controversial, I mean the most controversial of

all.

Part 8

00:00 RS: Let me, let me shift gears. You, you mentioned that you’ve also worked at the

Sierra Leone tribunal.

00:05 Exactly yes.

00:06 RS: You also mentioned that you’re a traditional ruler . . .

00:08 Yes, yes.

00:09 RS: . . . and so we have sort of three different types of models that you may be

familiar with – the international model, the ICTR; the hybrid model, the Sierra Leone

tribunal; and then we have the Gacaca courts, a sort of more traditional form of

justice. Do you think that – which, which one of those is better suited to dealing with

these sorts of atrocities?

00:36 Let me say one thing, the, the model that we have in ICTY (__________) have been the

best because of the fact that you don’t have the, the country in which the crimes took

place interfering unnecessarily either with the court or witnesses.

00:53 But Sierra Leone has emerged as a more successful model. And surprisingly I would say

so because in terms of – I, I mean actual performance, in the sense that the, the

prosecutions are taking place in Sierra Leone and the government has not inter-,

interfered that much. Why? Because all the parties to the conflict were prosecuted.

01:24 You had the Kamajors, CDF Kamajors, you have AFRC and you have RUF and of course

lately Charles Taylor. So, probably this is what I’m (____) about the stability of the

proceedings, that the citizens of Sier-, Sierra Leone see the same fairness in that all the

parties are prosecuted.

01:45 Maybe if they were to prosecute only the AFRC or RUF or the Kamajors, maybe the

potential for instability after that would have been there. But I have been there and I

find that the government cooperates when they subpoena the, the former president

came, the Sierra Leone government.

02:08 Even though they had – the, the, the Special Court is very, very unpopular among the

Sierra Leone people. Because they had a Truth and Reconciliation Commission and even

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though shortly before the elections the, the former vice presidential candidate opened

the doors of the prison and, and set free all the, all the suspects who were there

because they played a major role in the elections and were somehow popular.

Especially the rebels played a major role.

02:35 That will not be a model that anybody want in any other country because all other

African countries are not Sierra Leone and secondly, yes, if this model had all the

parties in the conflict, Yugoslavia has been somehow successful also because all the

parties to conflict have been prosecuted.

02:55 In terms of stability, in terms of the ability of the international community to foresee,

to foresee ten years, 20 years from now, is there potential for conflict? They can see.

Can you see the same about Rwanda? No, so this model remains the best, but for the

fact that all the parties in the conflict (______) and that, that is the difference. So I think

the Yugoslavia model remains the best.

03:23 RS: And why do you think the Yugoslavia model and the Sierra Leone model were

better in that regard than the Rwanda tribunal?

03:30 In the first place, if you find time and, and read some of the proceedings in the, in the

Sierra Leonean, the judges are actually, they actually try to be fair. They give all the

possibilities for the parties to be heard. They conduct joint trials but they make it

known from inception that each accused is being tried as if he were being tried

separately.

03:57 And they will not let a co-accused incriminate another accused in the course of the trial,

because that would lead to a mistrial. Because if they were tried separately that would

never happen. If you sit in this court you will find that the so-called completion strategy

is a factor that has been taken into consideration by this court. And the court has put a

lot of tension, especially on the defense, and the comple-, the completion strategy has

done a lot of injustice.

04:26 They’ll cut the number of witnesses, they cut the cross examination, they (______)

even to look for witnesses. I mean of, of course the international community, the

defense is not always very, very popular with them. They can provide all the resources

with the Prosecutor but with the defense they will not. So they try the completion

strategy here.

04:43 In Yugoslavia there are few cases, yet the international community have told them,

“No, you can close 2010.” But here they put a lot of pressure to stop. Stop. Now, come

to think about it a problem arises, when Yugoslavia, when the trial in Yugoslavia

started, when the trials in Yugoslavia started – when the conflict started, I’m sorry, the

international community jumped in and Bill Clinton . . .

05:19 . . . the bombing, you remember the bombing and you know very well that at the IC-, at

the ICJ, they attempted bringing action against all the states involved but the statute of

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the ICJ, ICJ did not permit them, that they can bring them collectively, NATO countries –

so they had to bring cases against all of them, even though again they didn’t succeed.

05:42 But, the, at – under the same circumstances in Rwanda they look away and pull out

their troops. The same situation now is repeating itself as we move towards the end of

the tribunal. Much as they are trying to say, “No, stop Rwanda, end quickly, do

everything to end quickly.”

06:00 They are asking Yugoslavia tribunal, “Take your time. See that you can, justice is done”

(_______). But you ask yourself what informs this conduct on the part of the

international community? In this type of situation I don’t have the answer, they have

the answer.

06:19 But it’s unfortunate because that perception is there, that you were, you weren't there,

you left the Rwandan, you abandoned them when they most needed you. Now you are

trying to abandon them again to rush the defense of these people or rush other cases,

close the case quickly. The Yugoslavia that has few work cases, you give them more

money, you give them more time.

06:50 What? I cannot really give you an answer to that because I would be speculating if I

were to give any answer to that. But the circumstances are there, the circumstances

are there for one to see. At the end of the day, Rwanda, the quality of justice that is

here will be rushed.

07:12 They will cut one witnesses to about 50, some who had 100 and something when they

cut them to about 50. The Prosecutor has been prosecuting for the past six years,

cutting witnesses. Now in under a year you want the defense to end in some of the

cases.

07:29 And the ambassador at large, UN Ambassador at large at that time was Pierre Prosper;

he came. He held a meeting. I was present in the meeting. Pierre Prosper was telling us,

“Oh I came here, nothing else, the end game. Let me know. So what are you people

doing in order to close the cases?” Of course it is only now of late that Carla Del Ponte’s

spokesperson in his book clearly says that (__) went to the State Department, met

Pierre Prosper, with Carla Del Ponte and he said, “Don’t touch these files, the RPF files.”

08:04 I’m not the one saying it, it’s in the book. So at the time he came here and spoke to us

and I was in a meeting, for me it was, it was, I thought that was, was in good faith. I’m

not saying that what Carla Del Ponte’s spokesperson has written is right, but I’m saying

that at least this is the Prosecutor saying this. This has come from the Prosecutor.

Part 9

00:00 RS: Should we – do you need to?

00:01 No, no, no, proceed.

00:03 RS: You’re okay?

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00:03 Yeah. I, when we finish I will stop them, I will let them wait in here.

00:08 RS: Okay. One of the audiences of this sort of interview, which was mentioned

before, may be school children in India, China, Rwanda. One of the questions they

might have for someone like you is that you are defending people who have been

accused of some of the worst atrocities that we have known. How do you explain

that? How do you justify that to them?

00:34 I would tell them that it is in the interest of, it’s in their interest and the interest of the

international community to know the truth of what happened. And, if the persons ar