ENGLISH
Original : ENGLISH/ FRENCH
Before Judges:
Claude Jorda, presiding
Lal Chand Vohrah
Mohamed Shahabuddeen
Rafael Nieto-Navia
Fausto PocarRegistry: Adama Dieng
Judgement of: 1 June 2001
THE PROSECUTOR
v.
JEAN-PAUL AKAYESU
JUDGEMENT
Office of the Prosecutor:
Carla Del Ponte
Solomon Loh
Wen-qu Zhu
Mathias Marcussen
Sonja Boelaert-Suominen
Morris AnyahCounsel for the Defence:
John Philpot
André Tremblay
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Translation certified by LCSS, ICTR |
HAG(A)01-001 (E) Corr. 1 (cover page only)
| I. | INTRODUCTION | ||||||
| A. | Trial Proceedings | ||||||
| B. | Proceedings on Appeal | ||||||
| II. | GENERAL ISSUES RAISED ON APPEAL | ||||||
| A. | Admissibility of the Prosecution’s Appeal | ||||||
| 1. | Arguments of the Parties | ||||||
| 2. | Discussion | ||||||
| B. | Preliminary issues relating to Akayesu’s Appeal | ||||||
| 1. | Akayesu’s strategy | ||||||
| 2. | Form of the Prosecution’s Response | ||||||
| III. | AKAYESU’S GROUNDS OF APPEAL | ||||||
| A. | First Ground of Appeal: Akayesu was denied the right to be defended by Counsel of his choice | ||||||
| 1. | Factual and procedural background | ||||||
| 2. | Arguments of the parties | ||||||
| (a) | The right to counsel of one’s own choosing | ||||||
| (b) | The right to defence in person | ||||||
| 3. | Discussion | ||||||
| (a) | The right to counsel of one’s own choosing | ||||||
| (b) | The right to conduct one’s own defence | ||||||
| B. | Second Ground of Appeal: Akayesu was denied the right to a competent Counsel | ||||||
| 1. | Arguments of the parties | ||||||
| (a) | Standards of review | ||||||
| (b) | Evidence of incompetence of Counsel | ||||||
| 2. | Discussion | ||||||
| C. | Third Ground of Appeal: Biased and Partisan Tribunal | ||||||
| (a) | The Trial Chamber was neither impartial nor independent | ||||||
| (i) | Akayesu’s submissions | ||||||
| (ii) | Discussion | ||||||
| (b) | Selective Prosecution | ||||||
| (i) | Akayesu’s submissions | ||||||
| (ii) | Discussion | ||||||
| (c) | Functioning of the Tribunal and approach to the conflict in Rwanda | ||||||
| (i) | Akayesu’s arguments | ||||||
| (ii) | Discussion | ||||||
| D. | Fourth Ground of Appeal: Total Absence of the Rule of Law: Erreurs fatales au jugement de culpabilité | ||||||
| 1. | Sub-Ground One: Improper amendment of the original indictment | ||||||
| (a) | Arguments of the parties | ||||||
| (b) | Discussion | ||||||
| (i) | Absence of inter partes hearing prior to the Trial Chamber’s Decision | ||||||
| (ii) | The merits of the leave granted by the Trial Chamber to amend the original indictment and the possible prejudice suffered by Akayesu | ||||||
| 2. | Sub-Ground Two: Improper treatment of prior witness statements | ||||||
| (a) | The Trial Chamber’s policy of favouring evidence given at trial | ||||||
| (i) | Arguments of the parties | ||||||
| (ii) | Discussion | ||||||
| (b) | Disclosure of evidence and extrinsic evidence | ||||||
| (i) | Akayesu’s arguments | ||||||
| (ii) | Discussion | ||||||
| (c) | Conclusion | ||||||
| 3. | Sub-Ground Three: Non-application of the reasonable doubt standard and substantive factual errors | ||||||
| (a) | Scope of review on appeal | ||||||
| (b) | Issues raised by Akayesu | ||||||
| (i) | Paragraphs 12A and 12B of the Indictment: Charges of sexual violence | ||||||
| a. | Paragraph 460 of the Judgment | ||||||
| (i) | Arguments of the parties | ||||||
| (ii) | Discussion | ||||||
| b. | Testimony of the Accused | ||||||
| (i) | Arguments of the parties | ||||||
| (ii) | Discussion | ||||||
| c. | Impartiality of the Trial Chamber Judges | ||||||
| (i) | Arguments of the parties regarding Judge Pillay’s comments | ||||||
| (ii) | Discussion on Judge Pillay’s comments | ||||||
| (iii) | Arguments of the parties concerning Judge Kama’s Comments | ||||||
| (iv) | Discussion of Judge Kama’s comments | ||||||
| d. | The words used for rape in Kinyarwanda | ||||||
| (i) | Arguments of the parties | ||||||
| (ii) | Discussion | ||||||
| (ii) | Paragraph 14 of the Indictment: the Meeting at Gishyeshye and the call for the killing of Tutsis in Taba | ||||||
| a. | Paragraph 349 of the Judgment | ||||||
| (i) | Arguments of the parties | ||||||
| (ii) | Discussion | ||||||
| b. | Paragraphs 361 and 362 of the Judgment | ||||||
| (iii) | Arguments of the parties | ||||||
| (iv) | Discussion | ||||||
| (iii) |
Paragraph 18 of the Indictment: the killing of Ephrem Karangwa’s brothers and the destruction of his house |
||||||
| (a) | Arguments of the parties | ||||||
| (b) | Discussion | ||||||
| 4. | Sub-Ground Four: Out-of court Evidence | ||||||
| (a) | Arguments of the parties | ||||||
| (b) | Discussion | ||||||
| 5. | Other issues | ||||||
| E. | Fifth Ground of Appeal: Total absence of the Rule of Law | ||||||
| F. | Sixth Ground of Appeal: Improper hearsay evidence | ||||||
| 1. | Arguments of the parties | ||||||
| 2. | Discussion | ||||||
| G. | Seventh Ground of Appeal : Irregularities in the Examination and Cross-Examination | ||||||
| 1. | Limits on Cross-Examination | ||||||
| (a) | Arguments of the Parties | ||||||
| (b) | Discussion | ||||||
| 2. | Prohibition from asking Leading Questions | ||||||
| (a) | Arguments of the parties | ||||||
| (b) | Discussion | ||||||
| H. | Eighth Ground of Appeal: Unlawful disclosure of Defence Witness Statements | ||||||
| I. | Ninth Ground of Appeal: The letter written by Witness DAAX to the judges | ||||||
| 1. | Issues raised | ||||||
| (a) | The Letter dated 3 March 1998 sent to the judges of Trial Chamber I | ||||||
| (b) | Testimony of Witness DAAX | ||||||
| 2. | Conclusion | ||||||
| J. | Tenth Ground of Appeal: Unlawful Detention | ||||||
| 1. | Background | ||||||
| 2. | Discussion | ||||||
| (a) | Violation of the right to be promptly charged | ||||||
| (b) | Violation of the right to be informed of the nature of the charges against him | ||||||
| 3. | Conclusion | ||||||
| K. | Eleventh Ground of Appeal: Appeal Against Sentencing Judgment | ||||||
| 1. | Akayesu’s preliminary prayer | ||||||
| (a) | Arguments of the parties | ||||||
| (b) | Discussion | ||||||
| 2. | First sub-ground of appeal against sentence | ||||||
| (a) | Arguments of the parties | ||||||
| (b) | Discussion | ||||||
| 3. | Second sub-ground of appeal against sentence | ||||||
| 4. | Third sub-ground of appeal against sentence | ||||||
| (a) | Arguments of the parties | ||||||
| (b) | Discussion | ||||||
| L. | Finding on Akayesu’s Appeal | ||||||
| IV. | PROSECUTION’S GROUNDS OF APPEAL | ||||||
| A. | First and Second Grounds of Appeal: Article 4 of the Statute (violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II) | ||||||
| 1. | Arguments of the parties | ||||||
| 2. | Discussion | ||||||
| B. | Third Ground of Appeal: Article 3 of the Statute (crimes against humanity) | ||||||
| 1. | Arguments of the parties | ||||||
| 2. | Introduction to the issue raised | ||||||
| 3. | Discussion | ||||||
| C. | Fourth Ground of Appeal: Article 6 (1) of the Statute | ||||||
| 1. | Arguments of the parties | ||||||
| 2. | Discussion | ||||||
| V. | DISPOSITION | ||||||
| DECLARATION OF JUDGE SHAHABUDDEEN | |||||||
| DISSENTING OPINION OF JUDGE NIETO-NAVIA | |||||||
| ANNEX A: PROCEEDINGS ON APPEAL | |||||||
| A. | Assignment of Counsel to Akayesu | ||||||
| B. | Background to the filings on appeal | ||||||
| 1. | Notices of appeal | ||||||
| 2. | Filings | ||||||
| C. | Hearings on Appeal | ||||||
| D. | Delivery of the Appeal Judgement | ||||||
| E. | Motions filed by Akayesu | ||||||
| F. | Motions filed by the Prosecution | ||||||
| ANNEX B: AKAYESU’S GROUNDS OF APPEAL | |||||||
| A. | First Ground of Appeal: Akayesu was denied the right to be defended by Counsel of his choice | ||||||
| B. | Second ground of appeal: Akayesu was denied the right to a competent Counsel | ||||||
| C. | Third Ground of appeal: Biased and Partisan Tribunal | ||||||
| D. | Fourth ground of Appeal: Total absence of the Rule of Law | ||||||
| 1. | First sub-ground: illegal amendment of the initial indictment | ||||||
| 2. | Second sub-ground: unlawful use of prior statements | ||||||
| 3. | Third sub-ground: the non-application of the criteria of reasonable doubt, errors of fact | ||||||
| 4. | Fourth sub-ground: out-of-court evidence | ||||||
| 5. | Other issues | ||||||
| (a) | Judicial notice of United Nations investigation reports | ||||||
| (b) | Interpretation | ||||||
| (c) | Inaccurate transcripts | ||||||
| (d) | Disclosure of evidence | ||||||
| (e) | Expert witnesses | ||||||
| (f) | Witness protection | ||||||
| (g) | Pressure on witnesses and intervention by the Tribunal | ||||||
| (h) | Informal conversation between a judge and a witness during proceedings | ||||||
| E. | Fifth ground of appeal: Total absence of the rule of law | ||||||
| F. | Sixth ground of appeal: Improper hearsay evidence | ||||||
| G. | Seventh Ground of Appeal: Irregularities in the examination and cross Examination | ||||||
| H. | Eighth Ground of Appeal: Unlawful disclosure of Defence Witness Statements | ||||||
| I. | Ninth Ground of Appeal: the letter of Witness DAAX to the Judges | ||||||
| J. | Tenth Ground of Appeal: Unlawful detention | ||||||
| K. | Eleventh Ground of Appeal: Appeal Against Sentencing Judgment | ||||||
| 1. | First Ground of Appeal Against Sentence | ||||||
| 2. | Second Ground of Appeal Against Sentence | ||||||
| 3. | Third Ground of Appeal Against Sentence | ||||||
| ANNEX C: GLOSSARY | |||||||
| A. | Filings of the parties | ||||||
| 1. | Jean-Paul Akayesu’s Appeal | ||||||
| 2. | Prosecutor’s Appeal | ||||||
| B. | Other references | ||||||