THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA

CASE NO.: ICTR-00-56-T

CHAMBER II

THE PROSECUTOR

OF THE TRIBUNAL

v.

AUGUSTIN NDINDILIYIMANA

FRANÇOIS-XAVIER NZUWONEMEYE

INNOCENT SAGAHUTU

AUGUSTIN BIZIMUNGU

MONDAY, 20 NOVEMBER 2006

1310H

CONTINUED TRIAL

Before the Judges:

Joseph Asoka de Silva, Presiding

Taghrid Hikmet

Seon Ki Park

For the Registry:

Mr. Roger Noël Kouambo (Canada)

Mr. Issa Toure

Mr. Abraham Koshopa

For the Prosecution:

Mr. Ciré Aly Bâ

Mr. Segun Jegede

Mr. Moussa Sefon

Mr. Abubacarr Tambadou

Ms. Felistas Mushi

For the Accused Augustin Ndindiliyimana:

Mr. Christopher Black

For the Accused François-Xavier Nzuwonemeye:

Mr. Charles Taku

Mr. Hamuli Rety

For the Accused Innocent Sagahutu:

Mr. Fabien Segatwa

Mr. Seydou Doumbia

For the Accused Augustin Bizimungu:

Mr. Ronnie MacDonald

Court Reporters:

Ms. Kirstin McLean

Ms. Leslie Todd

Ms. Sithembiso Moyo

Ms. Eleanor Bastian

I N D E X

WITNESS

For the Prosecution:

ROMÉO DALLAIRE

Examination-in-chief by Mr. Bâ 20

P R O C E E D I N G S

MR. PRESIDENT:

Good afternoon (inaudible).

Registrar, if you could call the case.

MR. TOURE:

Thank you, Mr. President.

Trial Chamber II of the International Criminal Tribunal for Rwanda, composed of Judge Joseph Asoka de Silva, presiding, Judge Taghrid Hikmet, and Judge Seon Ki Park, is now sitting today, Monday 20 November 2006, for the continuation of the trial in the matter of the Prosecutor versus Augustin Bizimungu, Augustin Ndindiliyimana, François Xavier Nzuwonemeye, and Innocent Sagahutu, case number ICTR 00 56 T.

I thank you, Mr. President.

MR. PRESIDENT:

Thank you.

Mr. Prosecutor, could you kindly enter the appearances, please?

MR. BÂ:

I thank you, Mr. President. Mr. President, Your Honours, the Office of the Prosecutor is represented this morning by Mr. Mussa, trial attorney; Mr. Segun Jegede, trial attorney; Mrs. Felistas Mushi, assistant trial attorney; Madams Faria Rekkas and Anne Bodley, case managers; we have our two legal interns; and Mr. Adamou Allagouma, investigator. My name is Ciré Bâ; I am senior trial attorney. I thank you.

MR. PRESIDENT:

Thank you. The Defence, please?

MR. MACDONALD:

Good morning, Your Honours. At this point in time I want to introduce part of my team and will ask you to for your authorisation so I could get on record the very short statement, given the absence of my client, as you would notice. So my assistant legal assistant, Etienne Mutabazi, and intern, Sarah Bowghanmi. Ronnie MacDonald for General Bizimungu.

MR. PRESIDENT:

(Microphone not activated)

MR. BLACK:

Yes, I'd like the my client is also not here, and I would like permission to state the reasons why as well.

MR. TAKU:

May it please Your Honours, I am chief counsel Taku for the Accused, François Nzuwonemeye. With me today is Haumli Rety, co counsel, and my legal assistant is Mr. Tharcisse Gatarama.

MR. PRESIDENT:

Yes, Mr. Segatwa?

MR. SEGATWA:

Good morning or, good afternoon, Mr. President, good afternoon, Your Honours. My client is also absent. I want to give the reasons for his absence. My team comprises myself, lead counsel, Seydou Doumbia, co counsel, and Mathieu Sahinkuye, legal assistant. I thank you, Mr. President.

MR. PRESIDENT:

Thank you.

MR. BÂ:

Mr. President, I notice that we will have four statements. Time is against us and we are eating into that time. Would it not be possible for the Defence to organise themselves so as to make just one statement? Because I presume that the reasons to be put forward by the various Defence counsel are more or less similar.

MR. PRESIDENT:

Yes, Mr. MacDonald?

MR. MACDONALD:

I don't I don't think so, Your Honour. We there are four accused; I think we should speak for themselves.

General Bizimungu has chosen not to attend this part of the procedures on the grounds that, primo, you've deprived him of his right to confront, face to face, his accuser, Roméo Dallaire, and secondo, by applying rigid time constraints in preference to less restrictive methods of control over Witness Dallaire's cross examination. You have subjugated General Bizimungu's right to a fair trial to political and economic pressures imposed upon you by the United Nations Security Council through the completion strategy.

Moreover, through this Court's recent rulings, namely the decision of October the 20th on reconsideration of the initial ruling of September the 15th, in which ruling you will recall you had denied the Prosecutor's motion to have General Dallaire testify by video conference, well, that was taken away from us, and also, based on your decision of November the 3rd on rescheduling order, all of which clearly illustrates this Court's priorities in accommodating Witness Dallaire's agenda over my client's undeniable right to a fair trial.

From these illustrations, one could conclude to this Court's undefendable abdication of its moral as well as judicial responsibilities in ensuring my client a fair trial. General Bizimungu is not getting a fair trial in this Chamber. For these reasons alone I entirely support his actions. Now, by severely restricting all right to cross examination, Your Honour, you are preventing me from providing effective assistant to my client. Therefore, General Bizimungu has temporarily released myself and Maître St Laurent under obligations as co and lead counsel for his defence.

And I would like to put on record, Your Honour, I have a statement from General Bizimungu, a 12 paragraph statement, where he

MR. PRESIDENT:

Well, you have summarised his intentions so we can accept this document.

MR. MACDONALD:

Well, I will insist on having this read. I know that you have very rigid time preoccupations, Your Honours, but I think that this man should be entitled to speak on record. But if you would allow me, it should take me maybe five minutes. I will read it in French, and

MR. PRESIDENT:

But I can't understand your position. You say that you are not permitted to speak on his behalf and then you are reading his statement.

MR. MACDONALD:

No, I'm not well, in this letter, Your Honour it's dated November the 20th, 2006. And I'll just refer you to paragraph 12, which says and I will have to read it in French: "Through this letter, I wish to notify you that none of my counsel has the powers to represent me in the hearing regarding Dallaire's testimony." (Microphones overlapping)... letter, reasons why he knows that he's not getting a fair trial before this Chamber. And this last illustration, this Dallaire saga is the clearest illustration that we've had here in the last two years, for the reasons I've explained.

So we can't work I can't work in these conditions, and therefore under my professional code of conduct I will refer to section 4 of this Tribunal's code of professional conduct which states that: "Counsel must advise and represent their client until the client duly terminates counsel's position or counsel is otherwise withdrawn, with the consent of the Tribunal." Now, again, if you could give this to Mr. Registrar, I would like to put this on record, sir.

I'm not in a position, Your Honour, to state before this Court that my mandate has been revoked, but definitely suspended. And we've researched this question throughout the rules and statutes and jurisprudence, and it seems that there are no differences between a revocation and a suspension of a mandate. So my position at this point is my mandate is suspended for the time being.

Just one other thing, Your Honour: I've referred to section 4 of the this Court's code of professional conduct. I also have, in my home province of Quebec, which we call (French spoken), and I have the French wording of that section which is 3.02.09, and says the following: "Counsel must stop representing the client at the request of the latter."

So I'm caught in a situation, sir my client, whom I've represented in the last year and a half, two years, he's asking me he's ordering me not to represent him again with respect to the testimony of Witness Dallaire.

MR. PRESIDENT:

Yes, Counsel, I think you are trying to give the impression that this Court has to be controlled by the Accused. When they suspend your appearance, we have to stop proceedings. And when he reopens, we have to go on? Is that what you are saying? Anyway, you have said what you have to say.

Counsel Black, do you want to say what you have to say?

MR. MACDONALD:

Well, I have said partly what I have to say. I am suspecting that you you have your prerogatives, Your Honour. I'm not sure what you're going to do, but I have mine.

MR. PRESIDENT:

I will do what I am permitted to do.

MR. MACDONALD:

Well, sir.

MR. BLACK:

Yes, sir. And to answer your question, no, we're not asking you to suspend these proceedings; you can proceed with the proceedings as you see fit. We're not asking you to delay the trial in any way. That's not our purpose.

I have a statement also instructions from my client which I can read to you. It's not very long. I can read in one minute. It's in French and English; I will read it in English. It's addressed to me, but I'm instructed to read it to you as the reasons why General Ndindiliyimana is not here.

"I wish to remind you that on many occasions I have drawn your attention kind attention to the fact that I was more and more convinced that I would not get a fair and just trial before this Tribunal. Many decisions taken by the Trial Judges in the instant case prove beyond a reasonable doubt that my concern is well founded. It is particularly so in the unfair and highly biased decisions against my Defence taken on 20 October 2006 and 3rd November 2006 in relation to the forthcoming testimony of General Roméo Dallaire. The conditions imposed for his testimony constitute an unacceptable limitation of my right to a fair trial, and it is a clear denial of justice.

"A free and independent deposition by a high level official with whom I worked", that is General Dallaire, "without ever incurring a single reproach from him or his collaborators will give him a forum to tell the Trial Chamber and the world who were the real actors in the Rwandan tragedy. It is only under this latter condition that General Dallaire would very probably tell the truth and avoid reproducing manipulated theories.

"In the letter I wrote to General Dallaire on 12th February 2003, a copy which I ask you to file with the Court, along with this statement, I reminded him that immediately after the attack against the aircraft carrying President Habyarimana, I personally invited him to come and participate with the Rwandan government force high command in handling the crisis. Thus, Roméo Dallaire participated in all the meetings during which decisions were taken."

MR. BÂ:

Objection, Mr. President. Objection. Counsel is making submissions he is giving evidence from the bar. He is testifying to events regarding which he can only testify if he decides to give evidence or if he decides to cross examine General Dallaire.

MR. PRESIDENT:

Yes, Counsel, I think

MR. BLACK:

Well, I'm not going that's the last statement of that nature, sir. "It is therefore incomprehensible and even unacceptable that this person, who could enlighten the Judges and the world on who did what in the Rwandan tragedy and on who truly carries responsibility for what happened, be manipulated and utilised to testify against an innocent person, as I am. Worse than that, the Judges are depriving me of the right to confront this man, face to face, in order to dismantle his lies and have ample time to confront him. The testimony of the widows of Ngulinzira and Kavaruganda call upon the consciences of all who heard them and plead for my direct confrontation of General Dallaire.

"It is true that the absence of transparency in the Rwanda file before this Tribunal is not only linked to the testimony of General Dallaire. There are many more situations where transparency had been denied, to the extent of imposing drastic limitations on contradictory debates. All along in our trial, the Trial Chamber Judges have not hidden their bias in favour of the Prosecutor. They have systematically denied to the Defence their right to appeal against their unjust and inequitable decisions"

MR. PRESIDENT:

So he's speaking about all the trials, not only this one?

MR. BLACK:

No, he is speaking about your decisions in this trial. "All requests for certification of appeal have been systematically denied. Worse than that, the Presiding Judge does not want to entertain any debate on the count of genocide of which I am accused, under the pretext that judicial notice of genocide has been taken in another proceeding.

"Regarding General Dallaire himself, I automatically contest his testimony because a conflict exists between him and I. In fact, I lodged a complaint against him before the Belgian courts.

"Taking all this into account, I consider that my participation and my representation in this trial, when General Dallaire will be testifying, would be equivalent to supporting this mockery of justice, and an acceptance of the serious violation of my fundamental rights to a fair and equitable defence. It is the reason why I have not I have decided not to attend General Dallaire's testimony.

"In addition to that, I formally demand that after" I have something to ask you. "I formally demand that you inform the Trial Chamber that you do not have any longer my mandate to represent me in these proceedings, as long as the Court sits to hear General Dallaire's testimony by video link. These are unacceptable conditions and appear in deliberate violation of my basic rights."

Now, before I continue, Judge, I would like to ask if I take it that the Court maintains its decision of last week of the weekend, of Friday, rejecting our appeals? But before

MR. PRESIDENT:

What do you mean by maintaining a decision? Once a decision is given, that stands.

MR. BLACK:

Yeah, okay. Well, then, just for the record, because I think I have to do this for myself and for the general, I would just like to put on the record what I would be cross examining General Dallaire on, just briefly, as an offer of proof.

I would be cross examining I would like to cross examine him on his appreciation of the capacity and condition of the gendarmerie, disposition of its resources, its men, its joint patrols with the UN, its participation in Operation Clean Corridor, its actions in the swearing in ceremonies, and that would, I believe, take me three days.

MR. BÂ:

Mr. President, this procedure is improper. He cannot give a guideline of his cross examination, even when the cross examination has not yet taken place or started.

MR. BLACK:

Under American law I'm required to do so, and under the British law I'm required to do so. I'm sorry, Mr. Bâ, but those that's required.

MR. PRESIDENT:

Well, Counsel, I think we have already given a decision on the matter. So therefore there is no need to go into all this now. Because you are eating into this precious time that we have allocated for testimony of this witness.

MR. BLACK:

Well, my client was sitting

MR. PRESIDENT:

Counsel, one more thing I will tell you

MR. BLACK:

Yes.

MR. PRESIDENT:

all the time during the testimonies of other witnesses, you have been saying that, "Well, I had a special relationship with Dallaire and I would welcome his testimony." Now when he is permitted to come here, you say you don't want him. What is this? And you say that we are not fair when we call him.

MR. BLACK:

If you would let me finish you will understand why I say that. I need three days to do what I just listed.

And I need one day to cross examine just a minute, Mr. Bâ, Mr. Bâ, would you stop and sit down

MR. BÂ:

Mr. President Mr. Black, it is not the American law that applies before this Trial Chamber. Tell the Court the rule in the Rules of Procedure and Evidence which allows you to do what you are doing, namely to give an outline of your cross examination, even though that cross examination has not yet taken place. This Tribunal is not governed by American law. It is only when the rules here are silent on a given issue that we can refer to the general principles of law and the other legal systems.

MR. BLACK:

The President just asked me why I was saying this; I am explaining, Mr. Bâ.

MR. PRESIDENT:

We have given you a time frame, so you are to work within that.

MR. BLACK:

I'm sorry, sir, I have to explain to you why I can't.

MR. PRESIDENT:

Well, this is not the time for you to explain. You can register your protest at the time when you start the cross examination. Are you first appearing today? That is the purpose of your getting up? You are now dealing with other things.

MR. BLACK:

I have I have instructions to do this. If you're not going to allow me to make submissions, I would like to know that. I need to finish these submissions.

MR. PRESIDENT:

I am not here to give any explanations to anybody. I will run this Court the way I want according to the rules.

MR. BLACK:

I know that, but I need to know, am I going to be able to finish these submissions which I am instructed to make?

MR. PRESIDENT:

(Microphones overlapping)... already said that you are going to appeal, so what is what is there for us

MR. BLACK:

Well, if you'd just be patient, sir. I have limited instructions to appear today for this limited purpose, and if I can just finish.

MR. PRESIDENT:

Yeah, okay.

MR. BLACK:

Thank you. I also intend to cross examine him on his meeting with Jean Pierre and the so called genocide fax and the involvement of the British Army in fabricating that fax.

MR. PRESIDENT:

Well, Counsel, I think this is highly irrelevant. You can

MR. BLACK:

That would take me one day.

MR. PRESIDENT:

Well, I you can cross examine him on all the relevant facts that he's going to speak to, or even other facts that he has not spoken to in this Court.

MR. BLACK:

But I can't I would need to examine his role on the death of Agathe; it would take me one day. The death of the Belgians; one day.

MR. PRESIDENT:

That will give Agathe her life back, when you cross examine him for one day?

MR. BLACK:

His involvement with assisting the RPF in its offensive and shooting down the plane; five days. Authentication of all the documents before us that need to be authenticated (microphone not activated)

THE ENGLISH INTERPRETER:

Microphone, sir.

MR. BLACK:

I have a total of 15 days' questions here, which are essential. His involvement in the death of Agathe, the death of all the VIPs under UN protection, his meetings with my client, his meetings with the army officers on the 6th, 7th, and 8th. It would take me 15 days, at a minimum, to properly cross examine Dallaire. So one day, I can't do it, I can't even begin to do it, and I have no intention to do it.

MR. PRESIDENT:

Thank you.

MR. BLACK:

So my final instructions, sir, is this: I am instructed to request for the recusal of yourself and Judge Park because of your attitude in this trial throughout, your failure to in fact, your rejection of all our motions, your failure to sustain or deny objections when we make them, you fail to give reasons for these reasons for these decisions, the continued limitation of our rights to cross examine various witnesses, your assistance to witnesses when they're in trouble for the Prosecution to help them, condemn the clients, your expressed attitude and Judge Park's expressed physical attitude is un to my client and me gives us the impression of at least an apprehension of bias. And we therefore ask that you consider recusing yourself. Judge Hikmet has not displayed the same amount of bias, in our view, at this point, so we are not asking for Judge Hikmet to recuse herself.

Failing that, I am instructed finally to ask that if you decide not to recuse yourselves, and not consider this motion, that you again consider transferring General Ndindiliyimana's trial to a jurisdiction where he can get a fair trial; anywhere except Rwanda. He's willing to go to Germany, Belgium, Canada, United States, any country in the world except Rwanda. And it's quite clear, now, that this the Security Council has set up a Tribunal whose goal is to protect the UN, because there's no intention of allowing us to explore the role of one of the principal actors in the war, in the tragedy, the UN itself, they have no intention of allowing us to explore that. And the world needs to know what the UN did in Rwanda and why these things happened.

So, I'm sorry, sir, that I'm instructed to suspend in fact, I am suspended as of now. That's my last instruction.

One other thing I don't want to be a sensationalist, because I am always accused of being that. But yesterday I was visited by someone who made a direct threat against me and my client's life. And I cannot work under these conditions. I was told that I'm a dead man and so is my client, that my client is no longer safe in the UNDF and you can laugh if you want

MR. PRESIDENT:

Well, Counsel, it's not the first time I am hearing this.

MR. BLACK:

I don't think it's a laughing matter when somebody threatens to kill me, and you better goddamn well listen.

MR. PRESIDENT:

Well, Counsel, it is your turn to listen.

MR. BLACK:

Then you stop you protect me, because I am not staying here when somebody is trying to assassinate me.

MR. PRESIDENT:

If you have any complaint, you go and make your complaint to the appropriate authority.

MR. BLACK:

(Microphones overlapping)... don't please don't laugh at me.

MR. PRESIDENT:

Please please sit down.

MR. BLACK:

I will sit down, sir, but please don't laugh at me.

MR. PRESIDENT:

Please, show your conduct. You are trying to make this Court a mockery.

MR. BLACK:

No, sir, you have done this yourself.

MR. PRESIDENT:

Please take your seat; you have said what you are going to say.

MR. BLACK:

I am instructed to one thing, I don't want to fight with you anymore.

MR. PRESIDENT:

I am not here to fight. You are now just using using this Court for another agenda.

MR. BLACK:

No, I am not, sir.

MR. PRESIDENT:

That you have demonstrated to this Court now.

MR. BLACK:

You are not taking my -- what I just told you seriously? Please don't laugh at that because it was serious, and I take it seriously. I'm sorry I got angry, but when somebody says that to me last night I take it very seriously. And it was a member of the police here.

So, my instructions, sir and I don't want to fight I don't know what you're going to do. But my instructions are to leave the courtroom because I don't represent anybody here. I don't know if you're going to order me to stay or what, but I don't represent anybody, and my instructions are to leave.

MR. PRESIDENT:

Yes, Mr. Black, you must know that you can't leave the courtroom like that; you are assigned by the registrar to do a job of work, not to

MR. BLACK:

I have no work, sir. I am suspended. I can't do anything here. I'm just a civilian right now. I have no role.

We're not asking you to delay the trial, we're not just taking part. I have no function here whatsoever; nor does Mr. MacDonald. If you order me to stay, I'm staying as just a civilian. I'm not a lawyer here.

MR. PRESIDENT:

Yes, Mr. Segatwa?

MR. SEGATWA:

Obliged, Your Honour. Obviously my task is a difficult one, because after this incident I don't know whether you'll have time to listen to me, but I will crave your indulgence, Your Honour.

My client, Captain Innocent Sagahutu, has not appeared today, at this session. While demonstrating his profound respect for your Court, he would like that his absence be viewed and understood as a reflection of the deep concern that he is experiencing at this point in time; concern which is heightened or compounded by your decision of the 3rd and the 18th of November 2006, denying endlessly the motion filed by the Defence.

Innocent Sagahutu's Defence team is of the view that there was a misunderstanding between your Court and the Defence team, and would like to take this opportunity to seek clarification of the ruling or the opinion of the Chamber, that is, of your Court. Article 19 sub (1) of the statute of the Tribunal provides as follows: "The Trial Chamber shall ensure that the trial is fair and speedy; and ensures that the proceedings continue in conformity with the Rules of procedure and evidence; that the rights of the Accused are fully observed; and the victims and witnesses being duly protected."

While seeking of your distinguished Court adequate time to enable it to enable him to defend himself against the serious charges brought against him by the Prosecutor, and which are to be brought before your Court by General Dallaire, at the time the commanding officer of the UN forces, namely, the UNAMIR deployed in Rwanda in 1994, which is nothing but the universally recognised right of any accused, namely to defend himself under circumstances that are deemed acceptable, respect for the rights of the defence is the ultimate raison d'être of the Court. It is similarly the raison d'être of the Defence.

In other circumstances the Court has shown that it is receptive to the requests of the Defence, which was seeking suitable time for purposes of cross examination, and often adequate time had been allotted by the Court for that purpose, for in the case of witnesses that are of not such crucial importance as General Dallaire, who, quite rightly, is considered as a crucial eyewitness of the events that resulted in the creation of this Tribunal.

Innocent Sagahutu's Defence team would seek clarification by this Chamber of his decision of the 3rd of November 2006, by which decision the Court said it would be prepared to allow additional time to the parties, depending on the circumstances. The Defence does not intend to engage in a defence that is fraught with uncertainty. Because with the scheduling having been set by the Judges, in other words, from the 20th to the 24th of November, and from the 5th to the 8th of December 2006, in our opinion not much (unintelligible) of manoeuvre is available, that is, for allocating additional time, except to pick from the time allotted to some others and to allot such time to the others. Whereas the main purpose of the challenge is on that scheduling, which does not take into account a full and unfettered exercise of the rights of the Defence. Innocent Sagahutu's Defence team notes that there is time for the Prosecution, which is always allotted the time that it requires, or asks for, whereas there is not enough time for the Defence.

Mr. President, you would say that Innocent Sagahutu's Defence team usually doesn't have enough time for purposes of cross examination. But the reason for that is that those who address the Court before it do cover the main issues that it needs to address in the course of its cross examination, and if it were not in a position to do so, that would be that would undermine the interests of Innocent Sagahutu, unless, in the final analysis, the Chamber would decide that there be a severance in his case. And in that respect, I now wish to make a concrete proposal and please don't be frustrated, Mr. President. It is not intended to challenge or question your ruling. But in the initial proposals that were contained in the motion filed by the Prosecutor, the Prosecutor was asking that Mr. Dallaire testify in January and February 2007, and that schedule seemed to fit in or was approved by counsel for General Dallaire, as well as that of the Defence.

Mr. President, Your Honours, let me conclude by saying all we seek is a bit of understanding in compliance with strict observance of the rights of the Defence. I have no doubt at all that that is within your jurisdiction, your authority.

I am grateful to you, Your Honour, Mr. President, for your kind attention.

MR. PRESIDENT:

Counsel, I think with regard to the time allocation, we have not gone this is not our innovation. We have gone according to the Appeals Chambers, where they have given specified times for cross examination. So if the and when you, as lawyers, you most know how to act within the time given to you. When you go for an exam, examination will say only three hours, you have to answer the paper. And you know how to manage your time within the three hours, and you have already passed the exams in those restricted hours. So I can't understand why you need unlimited time to cross examine, unless you want to go into (unintelligible). If you are a good lawyer you must know how to manage the time that is given to you.

Anyway, now that we have listened to your sorry. Sorry, Mr. Taku.

MR. TAKU:

May it please Your Lordships. As you will observe, my client is here today. His presence here today, like in the past, must not in any way or, must not be construed in any way to say that he supports the scheduling order. Indeed, we objected, and objected very vehemently. And Your Lordships evaluated the reasons for objections and nevertheless ruled the way you did. And as you observed, some of the issues raised when we objected are coming out very, very clearly in your own eyes, and that explains why we have been very, very silent when this matter arose.

That said, Your Honours, the issues raised about the potential for a violation of the fundamental rights of the Defence of a fair trial by my colleagues in regard to their clients, I think they are very, very fundamental issues the very foundation on which all that this system of justice is built. In fact, that goes to the heart of the notion of the rule of law.

And all I can say, Your Honours, is that you should take it very, very seriously. Especially as as I think, (unintelligible) of mine, when you said that you were minded to grant more time if need be. I think it was an obvious issue, Your Honours, at the beginning of this trial for Your Honours to give a clear indication that if such further time were to be given, when would that be possible? Because the element of certainty in the defence of a client is very, very important. That is all I can say.

You are very aware that my client has been the victim of violations in the past with counsel, that he didn't have counsel of his choice. But then he always came here to show the respect that he has for this Court. So I ask you to exercise a bit of patience and (unintelligible) Your Honours to accommodate some of the issues some with regard to time. And I say so in very (unintelligible) because we are talking about a situation in Rwanda where people died, and serious allegations have been placed on others. And we want the possibility to defend themselves adequately at this point in time. Thank you, Your Honours.

MR. PRESIDENT:

Thank you, Mr. Counsel. I think what you have said is something reasonable, because we have not even listened to this particular witness. Once the witness gives evidence, we can evaluate what time that should be given, or whether time should be extended. I think in that way I am thankful to you for raising that.

Mr. Segatwa, you have not mentioned anything about your appearance today. Are you appearing for the Accused? Mandate, with regard to the mandate -- have you got a mandate to appear for your client?

MR. SEGATWA:

Obliged, Your Honour. I have received mandate, which is subject to some conditions. We've asked that the Court clarify that portion of its ruling when it says that it is prepared to provide additional time to allow additional time, depending on the circumstances. Is that supposed to mean that in the event of cross examination being conducted by parties, and such parties are not in a position to conclude the said cross examination, will the Bench be prepared to provide it with additional time that it may seek, or it may just deny it that opportunity to cross examination? Because we have two half days for each team, and we are the very last and we may have just half days. And there are only nine half days.

Actually, my client is asking that you specify clarify, so that we don't start the cross examination in circumstances of absolute uncertainty, where we don't have enough time or whether we won't have time at all, and if we don't have enough time we will prepare ourselves accordingly.

For sure, Your Honour, my client hasn't asked me to leave this courtroom. Thank you.

MR. BLACK:

Mr. President, may I have permission to withdraw?

MR. PRESIDENT:

Well, Counsel

MR. BLACK:

I serve no purpose here, I have no mandate, I am nothing here at all. We are not objecting to you proceeding in absentia, you have the right under the rules to do so.

MR. PRESIDENT:

We will make a ruling on that. First we have to do other things. We will continue later.

Please, registrar, please inform the three Accused that their presence is required by the Tribunal under Rule 82 of the Rules of Evidence and Procedure, and report to this Chamber immediately. We will be we will take consider the submissions made by the Defence and we will adjourn for five minutes and come back.

(Court recessed at 1358H)

(Pages 1 to 14 by Kirstin McLean)

1535H

MR. PRESIDENT:

The statement of the Chamber, 20th November 2006: During this session Defence counsel raised the issue of unfairness of the Chamber's position with regard to the conduct of the video link testimony of the witness, Roméo Dallaire. Counsel for Ndindiliyimana went further to accuse the Chamber of bias and pointed specifically to the Presiding Judge and Judge Park. For the last time, the Chamber wishes to remind counsel of their duty to conduct themselves in a respectful manner when addressing the Court. Any issue relevant to the business of the Court may be raised, provided that this is done in full compliance with the relevant rules and regulations governing this Tribunal. Counsel must in this regard abide by any Chamber's ruling, whether they agree with it or not. The only challenge to the Chamber's ruling should be by resort to the appropriate remedies available pursuant to the rules. The Chamber has already warned Counsel Black for his inappropriate behaviour towards the Bench and notes that, despite repeated warnings, counsel persists in his offensive behaviour. His accusation of bias directed to the Bench without following the proper procedure for disqualification, yelling at the Presiding Judge during the proceedings and refusing on several occasions to obey the Judge's orders will no longer be tolerated. Counsel Black has now exhausted the Chamber's patience. The Chamber is ready to make immediate use of Rule 46 of the rules by refusing audience to counsel and instructing the registrar to strike him off the list of counsel eligible to practice before the Tribunal should counsel persist in his offensive conduct. This statement equally applies to the conduct of all counsel in these proceedings.

Registrar, have you contacted the missing Accused?

MR. TOURE:

Thank you, Mr. President. In accordance with the instructions that you gave, the accused persons concerned were notified that their presence at the proceedings is required. The answer they gave is clear: They refuse to attend these proceedings.

I thank you.

MR. PRESIDENT:

Thank you. In view of the refusal of the Accused, the Chamber instructs the Registrar to assign Mr. MacDonald and Mr. Black to represent the interests of the Accused, Bizimungu and Ndindiliyimana, respectively, pursuant to Rule 45 of the rules.

MR. MACDONALD:

If I may add a comment, Your Honour. The problem we have with that is if you read correctly section 45, before I could be sanctioned under either 45 or 46, I have to sign a written undertaking that's quite clear and my position at this particular point, and it is not in defiance of your judgment at all, but it is in the rules, 45 specifically states that if you are going to sanction me, I have to have given a written undertaking. And for reasons I mentioned earlier, Mr. President, I cannot I cannot provide my client professional services if the Court grants me one day to cross examine this witness, Roméo Dallaire. It is impossible. And we've dealt with this extensively. You know my position. So my proposition, and I wouldn't want this Court to see this as any kind of leverage, but my proposition right now is I'm ready to sign this undertaking as long as I get guarantees that I'm going to have sufficient time to cross examine Dallaire, or else I can't. And I'm in an impossible position; I'm caught between a rock and a hard place. I have no mandate from my client.

I respect your decision, Your Honour, but you have to see it on my side also. And 45 gives me an opening or an option. If I'm ready to be sanctioned by you, sir, I have to sign this undertaking, and I can't again, I can't do it unless I have guarantees. And don't see it as leverage or anything else. I'm just asking this Court to reconsider. And if I could just add one thing: You've cited Perlick this morning. With all due respect, Your Honour, Perlick does not rob you from your common sense. Perlick is a decision from the Court of Appeal that applied in that particular case where the Court recognised the fact that the first instance case had discretion to do it. But in this case, we have the most important witness. You have to use your discretion. And, again, Perlick did not rob you from that discretion, Your Honour. And there is no reason why Dallaire shouldn't be recalled here in February or March. We've I think we've dealt in a, I think I could use the term, speedy manner in this particular case compared to other cases. Yes, we've cross examined witnesses in certain cases for two, three, four days when it was needed, but you will recall the last witness that was here, Madam Kavaruganda, I haven't cross examined her for more than two hours. So I don't think we exaggerate, Your Honour, by stating that reconsideration should be an option by this Court.

MR. BLACK:

If I may speak, Mr. President. I am also in a very difficult position because my instructions are clear. If you, as you've done, redesignate me or reimpose me on my client, my client will fire me tomorrow. I will no longer be counsel no matter what you do. So what am I supposed to do? If you insist that you now say I'm imposed under that rule as standby counsel just another phrase you want to use I will be terminated tomorrow, because that's what happened the last time. And, again, if you if you apply that rule, which you could do, how what does that do with my instructions? My instructions from this client are to do nothing and not to act as counsel. So I have a conflict of ethics, and my first duty is to the client. I have to advise you that I don't want to force you to do something unpleasant; I don't want to have something unpleasant happen to me, but never in my life have I gone against my client's instructions. If you would like during this period to impose some other counsel who is willing to accept that position and there are counsel like David Hooper and others who have just been imposed on Dr. Seselj at the ICTY against (inaudible) as standby counsel, then you could do that. But if you impose me, my client will terminate my services completely tomorrow. So I have to tell you that if you order me to sit here in court, I will. But I cannot act; I can't. So if you want to get rid of me one way or the other, I guess that's what is going to happen.

MR. SEGATWA:

Mr. President, please

MR. PRESIDENT:

Counsel, you have nothing to do with this now. This was only with regard to these two. Since you are representing, I don't think that I should give you any more time on this.

MR. SEGATWA:

No, I did not want to speak on that issue. In fact, I wanted to speak on the understanding of your decision because I thought that you were going to respond to our request regarding your discretionary powers to give us more time. I did not understand the answer that you gave to that request. Do you maintain the time limit found in the ruling, or are you going to tell Ndisegimana (sic) that it is clear that we can expect to be allowed more time, additional time for the cross examination. In the event you refuse to consider our motion, I would request that you also give me additional time so that I should be able to contact afresh my client in order to be given instructions from him, instructions that are clear.

In addition to that, Mr. President, there is something which I did not understand in what you said. Perhaps the translation was not quite faithful or perhaps I was distracted. In any case, you cautioned Mr. Black and you also said that that caution also applies to the other counsel. Mr. President, I would like to know in what respect I should do something that should not further offend you. In my utterances, was there anything that showed a lack of respect toward the Trial Chamber? And, if that is the case, I apologise here and now. But in any case, as far as I do remember, I do not know of any of my utterances that may have been an offence to the Trial Chamber.

MR. PRESIDENT:

No, Counsel, there is no application to you. I said in case something happens, all counsel must take this into their consideration in behaving in court, so that is what is applicable to counsel.

And with regard to that time limit, I think I have sufficiently given an explanation to Mr. Taku when Mr. Taku raised that question.

MR. BLACK:

Mr. President, I take it you've are you going to make this 45 order or do you already consider it made?

MR. PRESIDENT:

Yes, Counsel, I think this Chamber is assigning you under Rule 45, and this assignment is to represent the interests of the Accused so there is no question of taking instructions from the Accused. This is only to represent the interests of the Accused. And what Mr. MacDonald referred to as far as signing of the document has no relevance today because you have already signed it at the time of acceptance of your assignment.

MR. BLACK:

Well, then, I would have to advise you, sir, that if you take since you are taking that position, I will have to advise General Ndindiliyimana, and General Ndindiliyimana will terminate my services completely.

MR. PRESIDENT:

Then it is up to Ndindiliyimana to do what he wants.

MR. BLACK:

That is what he will do, so I regret to

MR. PRESIDENT:

Let me refer to Mr. Segatwa: The Court decides the time and not anybody else; not even the Accused. So when the time is allocated and if you use that time for various other things, then that will also go against the people who are asking for more time.

MR. MACDONALD:

May I make a comment, Your Honour, on representations I made. I think it is a very important issue. And by restating under Section 45, you are acknowledging the fact that my mandate was either revoked or suspended, and therefore we have to rely by relying on 45, you have to, as a statutory Tribunal, you have to follow the prescriptions of that section, and it clearly states, sir, that for me to re-engage in a new mandate following the Registrar's demands I have to sign that undertaking, because you could have assigned me to represent anybody else here. And I have to be I have to play my options. And one of my options is, if I'm going to accept to represent that person, I have the possibility of refusing that by not signing this undertaking.

But these are my submissions, Your Honour.

MR. PRESIDENT:

Yes.

MR. MACDONALD:

But just one thing, and I will respect your ruling, whatever it is. The only thing that I would ask, Mr. President, is that in the past, as you know, I have in probably 80 percent of the cases I've opened the parade; I was the first one to cross examine. Now, I understand your ruling, we have a certain amount of days, but I would want to be in a position where if I have an extra day or two days, since my client is going to be the main target, I mean, there is no way around that. I don't think that if we have three days or four days left, I don't think you are going to cut me off to one day. I think you are probably going to exercise your discretion as provided by Perlick and allow me two or three days. So I would ask you in these special circumstances to allow me to cross examine last so I could at least assess my the screening that I will have to obviously do. Mr. Black mentioned something like 15 days. I have a 42 page outline of questions, so I can't even give you an assessment. So that is the situation, Your Honour.

MR. PRESIDENT:

That is the very reason that the Court gave an assessment, Counsel, for you to work within that framework. Anyway, since you have indicated your mind, we will first listen to the evidence and then see how it goes.

MR. MACDONALD:

Very well. Thank you.

MR. PRESIDENT:

Yes. You may call the witness, Counsel.

MR. BLACK:

Just one last word, Mr. President. I just want to be clear. If you purport to use 45(b), you say it's my job is to protect the interests of the Accused, but the interests of the Accused are set out in the letter that I read to you which is not to do anything. Those are his interests; that is how he wants his interests protected. He wants me to do nothing. I can't go against those instructions. I never have in my life and I never will. I'm sorry

MR. PRESIDENT:

Counsel, you may act according to his instructions. If he says not to ask any questions, you may do so.

MR. BLACK:

I won't even listen to the testimony, sir.

MR. PRESIDENT:

Yes, Counsel, you may call the witness and commence the proceedings. You can tell them that we are ready.

THE REGISTRAR:

Yes, we are ready to hear the witness.

MR. PRESIDENT:

Ask the Registrar, please, to swear in the witness.

MR. KOUAMBO:

Yes, Your Honour. Before that, I just want to inform the Chamber that we have Mrs. Marla Doux (phonetic), the representative of the Canadian forces, sitting also at this table on behalf of the government of Canada.

So now I will ask General Dallaire to stand up, to raise his right hand and say after me.

(Declaration made by Roméo Dallaire in English)

MR. PRESIDENT:

Yes, Counsel. You may start now.

MR. BÂ:

Mr. President, in principle, the Prosecution has been allowed two half days. At the beginning of this direct examination, I would like to point the Chamber that the half day of today has somehow been reduced and I believe this should be taken into account for the rest of our direct examination.

Furthermore, the representative of the registry a short while ago announced that that is that Mrs. Marla Doux is in the room and that she represents the government of Canada. I think in the room we should also have Mr. Hervé Yarovsky (phonetic), who is the counsel for General Dallaire.

Registry representative, is Mr. Hervé there? If you can hear me, is he there, Mr. Hervé?

MR. YAROVSKY:

Yes, Mr. Bâ, I'm also sitting at this table.

MR. PRESIDENT:

Is the Defence represented there?

MR. KOUAMBO:

I'm just saying that Mr. Hervé is also sitting at this table. He is the legal lawyer of General Dallaire.

MR. PRESIDENT:

No. My question is whether the Defence is represented is anybody from the Defence represented there?

MR. KOUAMBO:

Yes, Your Honour. Mrs. Nina LeBlanc is also sitting there and Mr. Tamadou is also there for the Office of the Prosecution.

MR. PRESIDENT:

Yes, Mr. Bâ.

MR. BÂ:

Thank you, Mr. President, I believe I have your leave.

ROMÉO DALLAIRE,

first having been duly sworn,

testified as follows:

EXAMINATION-IN-CHIEF

BY MR. BÂ:

Q. Good morning, General Roméo Dallaire. General, do you have any specific occupation at this point in time?

A. I am a senator in the Canadian parliament.

Q. If I understand you correctly, you are no longer serving in the Canadian army as a member as an active member of the Canadian army?

A. I was medically released on the 18th of April in the year 2000.

Q. General, at the time you were retired, what specific duties did you perform in the Canadian army, that is, in the year 2000?

A. I was a serving lieutenant general, three star general, responsible for the officer professional development and the reform of the Canadian officer corps, responding directly to the chief of the defence tasks.

Q. Okay.

THE ENGLISH INTERPRETER:

Mr. President, we are sorry for the interruption. Mr. President, the French booth interpreters who are receiving what is coming in from Canada are complaining that they can hardly hear what is being said by Mr. Dallaire.

MR. PRESIDENT:

Mr. Witness, could you kindly speak into the mike because the reception is not that clear. So please get closer to the microphone when you speak.

BY MR. BÂ:

Q. In 1993, General, did you work for the UN?

A. In July of 1993 I was seconded from the Canadian forces to the UN in a role of a force commander and mission aide for the mission in Uganda and, as such, I held the rank of D1 within the UN.

Q. What was the first assignment entrusted to you by the United Nations; your first mission or your first assignment?

A. My first mission was to command a mission called UNAMOR, which was the mission to monitor the Ugandan/Rwandan border along the line in which the RPF zone was established in Rwanda and to a depth of 20 kilometres in order to report if any materials or troop movements were being conducted out of Uganda into Rwanda in support of the RPF possible campaign.

Q. Okay. Was that mission known as UNAMIR, that is, the one that you conducted or you were in charge of at the border between Uganda and Rwanda? Was it already known at the time as UNAMIR?

A. The first mission, which is the one we are speaking of, was called UNAMOR which was a mission established separately for the conduct of that surveillance of the Ugandan/Rwandan border. The mission of UNAMIR in July was not in existence as the Arusha Peace Accords had not yet been signed, and I subsequently received orders officially that, in fact, UNAMIR was in existence with a mandate on 5 October of the same year.

Q. During that period of July and August, General, did you go to Kigali?

A. In order to review and establish whether there should be a mission, a peacekeeping mission, within Rwanda, in accordance with the request laid out in the Arusha accord that was signed in early August, I was sent on a reconnaissance mission originally to be led by a political officer who had been sitting in Arusha during the negotiations, a Mr. Pedanou (phonetic), who fell ill the day before we left. And so on the 17th of August, I left with a composite team of over 12 personnel to conduct a nearly two week assessment of whether or not a peacekeeping mission was possible and whether it was necessary in response to the requests of the Arusha peace accord.

Q. Thank you, General. As part of that surveillance mission, did you meet those in charge of the former belligerent forces?

A. During the mission I conducted meetings with both the ex belligerents and on the government side with a series of meetings principally with the military personnel, and on the last day I had the opportunity of meeting the president before we left. And on the RPF side I had meetings with the head of the RPF, the chairman, with the head of the military structures and a number of their political and military leaders. I also held clarification meetings throughout that time frame where we on particularly the military side spent considerable time ensuring that we all understood what the protocols meant and so that there would not be any ambiguity between us. During those times a retired Colonel Bagosora led the government side with the chiefs of staff of the gendarmerie and the army and on the other side a gentleman called Pasteur Bizimungu led their team of military and civilian personnel.

MR. PRESIDENT:

Mr. Bâ, since we are working until 8:00, we will have only one break today because of the delay of the proceedings. I propose to have the break by 5:45 to 6:15. Or if you want any adjustment, you can inform the Court.

MR. BÂ:

Yes, sir.

BY MR. BÂ:

Q. Was there an effective ceasefire at the time? That is, in August when you went to Rwanda, was there an effective ceasefire?

A. There was a ceasefire fully effective monitored by the organisation of African Unity observers. They were very light on the ground, about 60 personnel; was made up also of officers from both the RGF and the RPF, and the troops were essentially on either side of the demilitarised zone in their own defensive positions, as were troops on the government side deployed also in other regions of the country and particularly around the capital. There had not been any incidents of ceasefire violations at that time nor up until the time I actually took command of the mission which was on the ground on the 22nd of October.

Q. Thank you, General. I'm going to ask the representative of the registry to show you a map of Rwanda so that you can identify or mark out the positions of the parties, how those positions of the ex belligerents were at the time of the cease fire.

MR. BÂ:

Could the representative of the registry please hand over the map of Rwanda to General Dallaire so you will show us the part of the territory that was occupied by the RPF and the part of the territory occupied by the Rwandan government forces, that is, the FAR.

MR. MACDONALD:

This is not an objection, Your Honour, but do we have a copy of this? I mean, we have binders we have nine binders for everybody of the documents we are going to be producing. I'm assuming you have a copy of that map, Mr. Bâ. Because I can't see from here what is on that map, obviously.

MR. BÂ:

Well, it is the map of Rwanda. There aren't two maps of Rwanda.

MR. MACDONALD:

I just want you to say it is this or that report; no mystery.

MR. BÂ:

It is a map of Rwanda. Maybe this should be put on the screen, and if you have any objection with respect to the reliability of such a map, you could say so. If you think that is not a reliable document, you can make your views known.

MR. MACDONALD:

I'm only saying that because I can't see it. That is all I see is a blur.

MR. PRESIDENT:

He can't see it clearly so if you have an extra map you can give it. Otherwise, just say that you don't have it.

MR. MACDONALD:

I'm just enquiring.

MR. PRESIDENT:

Do you have an additional map for him to go through? That is what he is requesting.

MR. MACDONALD:

I don't have any additional copy, but I can look for them.

BY MR. BÂ:

Q. Are you there, General? Can you do that identification for us, that is, the two areas that were occupied by the parties, the ex belligerents?

A. Yes. If we use this map of Rwanda, which was the maps available to us at that time, the RPF were essentially in the northern part, up here, between the Ugandan border and a zone which was never more than about 10 kilometres.

Q. Sorry, General. Sorry, General. Apparently, the Defence has some objection.

MR. MACDONALD:

(Microphones overlapping) ... the record. He has to either give him a marker and have him mark these regions because here on appeal if you wish to go on appeal, you are not going to know where "here" was, so it has to be identified clearly, and I would ask that a copy of that map be sent here. I don't know Mr. Black had suggested some type of a fax system so we could see the documents that General Dallaire identifies. But I think his attention should be brought to the fact that he has to clearly identify it with a marker, the regions he is referring to.

MR. PRESIDENT:

Yes, Counsel, ask him to mark the areas with a marker.

MR. BÂ:

Well, that is what I was going to do. Well, that's the purpose of this exercise, by the way.

BY MR. BÂ:

Q. So if you can use a marker, General, or several different colours to show us the area occupied by RPF, and maybe write into that particular area the words "RPF."

A. Right. We are going to get a piece of plastic to put over the map so as not to damage it. And also if I may humbly suggest that in the UN report on Rwanda this map is clearly identified with the different zones, that is, the RPF zone, the demilitarised zone and the RGF zone.

I am not going to hold up deliberations because the plastic is not readily available, and so I will do it from memory the general outline of the different zones. And if I follow a line, this zone up here is the RPF zone. And then you have a zone like so that is called the demilitarised zone. And everything south of that is essentially the government zone.

Q. Thank you, General. Maybe we will be using that map later on. Could you go back to your seat and I will move on with my questions.

MR. MACDONALD:

Shouldn't we identify it, Mr. Bâ, either as an ID or P? If we do refer to it later at least we are going to know it's the same map.

MR. BÂ:

What do you want us to identify? What do you mean by identifying?

MR. MACDONALD:

Well, the witness has just drawn something on a map. It needs to be identified. It has to have a number, ID or P or

MR. BÂ:

Well, before I end with the examination in chief, I will do so. We will get back to it. It will be given a number later on.

MR. MACDONALD:

The only way to do it is he has referred to it, he has marked it, you have to identify it. If he comes back to that card later on, we have to know what we are talking about: That is the card you marked earlier on. It is ID. 1 or ID. 2 or ID 5. But if you don't want to do it that way, I'm not insisting.

MR. BÂ:

We will continue, General.

BY MR. BÂ:

Q. At the time, what would be your estimate of the Rwandan government forces when you went there in August 1993?

A. The estimates well, the data that we received from both ex belligerents reflected forces on the RGF side of about 23 to 24,000. These this information under the prospect of a UN mission, a peacekeeping mission, is to be voluntarily provided by the ex belligerents who are seeking full transparency in order to assist the process of implementing the peace agreement.

Q. So you are saying the Rwandan government forces well, what were you told? What were you told?

A. Those what I was told is what I have provided you: A figure of about 23 to 24,000 troops for the actual army of the government side.

Q. In the case of the gendarmerie does that figure include the gendarmerie?

A. No. The gendarmerie figure varied from a figure of 4 to 6,000. Throughout all this, the definitive number, that is to say, the exact number double checked by nominal roles was not conducted nor is it conducted in such operations.

Q. What will be your estimate of the Presidential Guard? That is, in that figure of 22- to 24,000 constituting the Rwandan government forces, how many would be of the Presidential Guard?

A. The figure that I recall of the Presidential Guard was about 600.

Q. Thank you, General.

And the RPF strengths at the time, what would be your estimate?

A. Again, the figures I provide you are the figures that we received from the ex belligerents with nominal verification, and the figure from the RPF was in the order of 11 to 12,000.

Q. Thank you. Are you able to tell us something about the armaments of the ex belligerents? Well, the basis of what you were told by those whom you met?

A. Yes. Well, if we start with the government forces and the listing of weapons are personal weapons, that is, light machine guns and rifles, and then a series of more substantive weapons systems, mortars up to 120 millimetre mortars, artillery pieces, 105 guns, air defence, heavy machine guns, anti aircraft machine guns, attack helicopters, and also a reconnaissance vehicle with a heavy weapons system on them, and each of these weapons systems had a variety of numbers to them that were part of the different battalions or organisations. On the RPF side, essentially light weapons, with also mortars up into the heavy mortar level of 120 millimetre, and anti aircraft missiles, which were not confirmed, but the last data I believe we had were SA-7s.

Q. Thank you, General. In August, when you went to Rwanda, who was in charge of the Rwandan government? Who was the prime minister of Rwanda?

A. At the time in charge of the government well, there was of course the president, Ndindiliyimana, and then there was Madam Agathe, who was