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Statement of Judge Pillay, President of the Tribunal

Having had various concerns expressed to me about the treatment of a witness who gave evidence of rape in testimony before one of our Trial Chambers, I have caused all the records of the relevant hearings to be examined.

The case concerned is a case against six accused: Pauline Nyiramasuhuko, Arsene Shalom Ntahobali, Alphonse Nteziryayo, Elie Ndayambaje, Joseph Kanyabashi and Sylvain Nsabimana. They are charged with especially grave crimes such as genocide, conspiracy to commit genocide, complicity in genocide and crimes against humanity and serious violations of Article 3 Common to the Geneva Conventions. One of the accused was a senior government figure, and the others were important figures in the Butare prefecture of Rwanda.

It is noted that public airing of an allegation that judges in this case had laughed in an inappropriate fashion during the testimony of the witness first came on 10 November 2001, in an article entitled “Unprotected Witness” published on the Internet. Various criticisms were leveled at the judges in that article. It is important to note that the article does not allege that the judges were laughing at the witness or at any part of the testimony.[1]

It is also important to note that an examination of the audio-visual record of the hearing on 31 October 2001 shows that the article amounted to a mischaracterization of the scene in the Trial Chamber. It is clear that the Presiding Judge had on a number of occasions, attempted to direct the cross-examination of the witness towards greater relevancy and precision.[2] It is also clear from the audio-visual record that the reactions from the bench described as inappropriate in the article were responses to defence counsel’s questions and arose in the course of dialogue with defence counsel.

Those who sit as judges know that they perform their task under the gaze of many observers. If and when they are criticized in the press and in public, they do not have the luxury of reply and refutation. They may not enter the arena of public debate about their conduct of an ongoing trial. It is therefore imperative that those entrusted with the task of informing the general public of court proceedings do so responsibly.

There may be many aspects of the conduct of a trial that call forth criticism from those who do not have the delicate task of balancing the rights of an accused to a fair trial with the need to protect victims and ensure the integrity of judicial proceedings. The length of time that a witness has to undergo examination by counsel is often a result of other decisions such as the number of accused who are joined in an indictment and the number of accused who are implicated by the testimony of a witness. While there is no hard and fast rule determining the length of a witness’ testimony, the Trial Chambers are concerned to ensure that the examination of witnesses is confined to matters relevant to the facts in issue in the trial.

It would not be appropriate for one judge, including the President of the Tribunal, to discuss the conduct of other judges in their handling of an ongoing trial. Nearly all matters are sub judice and comment, if any, from within the Tribunal must await the conclusion of the proceedings.

The judges of the ICTR are concerned on a daily basis to make the experience of those who give evidence before the Trial Chambers as painless as circumstances allow. The judges were integral to the planning process that has led to ICTR developing a witness protection regime that is sometimes criticized as being too widely protective. When each witness comes to give evidence, he or she is accompanied by a witness protection officer whose responsibility is to ensure the witness is well looked after. Witnesses who come to Arusha to give evidence are assisted at all stages by Tribunal staff.

I welcome the concern shown by commentators to ensure that our witnesses are protected from mistreatment: it is a concern we all have in common. When an accurate appreciation of the facts is allied to that concern, we can rest assured that we are all working for the same cause: to ensure that the integrity of the judicial process remains the way of reaching an understanding of the truth.

Judge Navenethem Pillay

[1] It is instructive to note that although the article did not make such an allegation, subsequent articles based on that article were not so careful. Had care subsequently been exercised in ascertaining the facts before publication of allegations widespread misinterpretation would not have occurred. For example, it was not the case, as reported in one instance, that “ Judges…fell about laughing while a woman victim described to the court how she had been raped…” One report stated that victims’ rights groups had complained that the judges “… had openly made fun of the witness…” Again, reference to the facts would have shown that this was not the case. One news agency took the care to check the facts and check with observers of the proceedings and was able to give a different interpretation to the events. It is in this context, highly unfortunate that the Prosecutor in commenting on the case did not follow her own cautionary initial public statement that “… it is not proper for a prosecutor to comment on the behaviour of a judge or on a case when a trial is in progress…”. Subsequent comments of just that type did not advance the cause of justice.

[2] It is noted that on 31 October 2001, the Presiding Judge intervened no less than 159 times to focus or advance the cross-examination of defence counsel. It is also noted that at various times, the Presiding Judge asked counsel to be sensitive in their examination of the witness: for example, it is noted that on November 7 2001, the Presiding Judge stated: “The Trial Chamber would like to observe the following, arising from the comments of the Prosecutor. One, right at the beginning of this evidence of this witness, counsel, as officers of the Court, were requested by the Trial Chamber to show sensitivities on some of the issues dealing with the testimony of this witness for obvious reasons, right from the word go.”

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