The 22nd Plenary Session of the United Nations International Criminal Tribunal for Rwanda took place in Arusha on 1 October 2009. It brought together the Judges of the Appeals Chamber, Trial Chambers, the Prosecutor and the Registrar. The Plenary was chaired by the President of the Tribunal, Judge Dennis Michael Byron.

During the Session, the Plenary adopted an amendment to the Rules of Procedure and Evidence to include Rule 71 bis: Preservation of Evidence by Special Deposition for Future Trials. This proposal arises from a situation of concern of the Prosecutor’s Office: twelve ICTR indictees are yet to be apprehended and the Tribunal faces an increasing loss of witness evidence, fifteen years after the genocide, which will deteriorate over time.

The proposal was first introduced by the Prosecutor at the 21st Plenary held in May 2009 and was subsequently revised by the Rules Committee, expanded by representatives of the Office of the Prosecutor and Defence Counsel, to take into account concerns raised during the discussions at the 21st Plenary.

This rule aims at securing evidence relating to an indictment to be available for a future trial by special deposition recorded in a proceeding conducted by a single Judge, should a warrant of arrest not been executed within a reasonable time or, in exceptional circumstances, in the time during an arrest, and the transfer of the accused to the Tribunal. The new Rule provides for Duty Counsel to represent the interests of the accused and the right of this Counsel to request the taking of depositions from defence witnesses in the same way as Prosecution can request.

Rule 71 bis applies to a situation where the accused is not before the Tribunal while the evidence is heard: fair trial issues such as the accused’s right to defend himself in person or through legal assistance of his own choosing (art. 20(4) (d)), and the right to cross-examination (Art. 20 (4) (e)) were considered at length by the Judges. The Judges adopted the proposal with 10 out of 11 permanent judges supporting, Judge Liu Daqun voting against) and endorsed the reasoning of the Rules Committee that the proposed rule serves important interests of justice and does not impair the fair trial rights of the accused, more than is necessary to accomplish its objectives.

The Prosecutor had previously expressed his intention to request special deposition proceedings with respect to the four high-level fugitives earmarked for trial before the Tribunal.