STATEMENT BY JUSTICE HASSAN B. JALLOW
PROSECUTOR OF THE ICTR, TO THE UN SECURITY COUNCIL
4th June 2009

Mr. President,
Your Excellencies,

Since our last report to the Security Council in December 2008 there continues to be intense activity at the ICTR towards the implementation of the Tribunal’s Completion Strategy.  We remain firmly commited to the expectations and proper completion of our mandate.

Within the past six months the Prosecution has commenced the trial of four new cases (Leonidas Nshogoza, Dominique Ntawukulilyayo, Idelphonse Hategekimana and Yussuf Munyakazi.). Proceedings in one of these cases (Nshogoza) have just been completed and the prosecution has closed its case in two others in a relatively short period.  Proceedings continue progressively in respect of the other cases. In addition, the on-going trials in the multi-accused case of Karemera et al and the single-accused case of Ephrem Setako are moving towards  finalization. There are currently six detainees awaiting the scheduling of their cases for trial. The prosecution has prepared these cases and is ready for the commencement of trial.

During the same period seven new cases on appeals have also been filed with the Appeals Chamber of the ICTR.  (Théoneste Bagosora, Aloys Ntabakuze, Anatole Nsengiyumva, Simeon Nchamihigo, Emmanuel Rukundo, Simon Bikindi and Protais Zigiranyirazo). Proceedings have been concluded and judgments awaited in the Renzaho, Kalimanzira, Nsengimana and Nshogoza casesto be delivered by Trial Chambers before 31 December 2009. There are a total of eleven cases pending appeals being prepared by the OTP for hearing.
However, despite the intense activity of the OTP-ICTR Tracking Team no further arrests of any of the 13 outstanding fugitives have been secured in the past six months.

The focus of the OTP in the next six months will be the conclusion of the ongoing trials, the commencement of the trials of the remaining detainees in respect of all of which we are trial ready as and when scheduled by the Chambers, the intensification of our tracking efforts to secure the arrest and transfer of the fugitives to the ICTR, renewed efforts for the referral of some cases by the ICTR to Rwanda and to other competent national jurisdictions and the exploration of new measures to preserve the evidence for the trials of at least the four fugitives earmarked for trial in Arusha when they are eventually arrested.

The arrest of Felicien Kabuga continues to be a top priority for the ICTR. Council members have been briefed regularly on the efforts to effect his arrest and transfer to the ICTR. Incontrovertible evidence – collected by the Joint Task Force comprising Kenya Police and ICTR investigators indicates that Felicien Kabuga entered Kenya in 1994 and was granted a residence permit as well as a permit to carry on business in that country; that he, as a result, purchased property, registered businesses in his own name as well as with others and opened various bank accounts in his name with banks in Kenya. The reports of the said Joint Task Force document several reported sightings of Kabuga in Kenya over a long period. For several years now the ICTR has been engaged in securing the cooperation of Kenya to arrest and transfer Felicien Kabuga to the ICTR for trial and also for his assets and properties located in Kenya to be frozen. This has involved several missions by ICTR officials including myself, to Kenya. My latest mission to Nairobi in this regard was as recently as  March 2009. So far only one property, the family residence of Kabuga in Nairobi known as the “Spanish Villa” has been the subject of any seizure by the Kenyan authorities. On 8th  January 2008 the Director of Immigration of Kenya wrote to the Joint Task Force to inform it that Felicien Kabuga had left Kenya. All efforts including my recent mission to Nairobi in March 2009, to obtain from the Kenyan authorities the particulars and circumstances of his alleged departure from Kenya as well as access to certain government records relating to Kabuga’s assets and activities have been fruitless as the Kenyan authorities have so far failed to comply with our requests.

Consultations are ongoing with the DRC government in order to find ways of effecting the arrest and transfer of the large number of ICTR fugitives in that country. We continue to appeal to the Security Council to call on Kenya, the DRC and all states to cooperate with the ICTR in the arrest and transfer of these indictees. The Tribunal’s legacy, and by extension, the respect for and impact of international humanitarian law depends on the ability of the international community to arrest and give a fair trial to all those indicted for the grave atrocities against their fellow human beings.

The cooperation of member states where the fugitives from justice have been located is critical. Closure of the Tribunal without arrest or transfer of fugitives offers the real danger of maintaining an impunity gap that will be difficult to fill in the absence of a fully operational tribunal and adequate tracking capacity. It is therefore all the more urgent that member states fully cooperate with the tribunal and the international community provide additional support and pressure as appropriate to such member states to ensure the immediate capture and transfer of these fugitives to Arusha for trial.

Following the Appeals Chamber decisions rejecting referral of cases to Rwanda for trial under Rule 11bis of the ICTR Rules, the Government of Rwanda has now enacted additional legislation to meet the remaining concerns of the Appeals Chamber in relation to the protection of witnesses and the recording of testimony of witnesses who may be reluctant to travel to Rwanda to testify. Once enacted and the capacity established for witness protection and video link facilities, my office will consider making further applications before the Trial Chambers in the course of the year for referral of cases of ICTR indictees to Rwanda for trial.

As the concerns of the Trial and Appeals Chambers to transfer of cases also include issuesof capacity in Rwanda, I would urge the Council to call upon member states to redouble their efforts in supporting the capacity building of the Rwandan legal system. Rwanda has the onerous burden of dealing not only with the cases transferred from the Tribunal but from other national jurisdictions as well, in addition to the many other domestic cases of genocide, war crimes and crimes against humanity committed in Rwanda in 1994.

Rwanda has already accomplished much in this area – the abolition of the death penalty, the incorporation of additional fair trial guarantees in the Rwandan law, the upgrading of facilities as well as the training of personnel. These positive efforts should be encouraged by support for further capacity building of the legal sector.

Successful completion of the Tribunal’s mandate, as I have consistently reported, depends on a large extent on the ability of the Tribunal to transfer the cases of nine (9) of the fugitives and some of the detained indictees for trial within Rwanda and other national jurisdictions that also share concurrent jurisdiction with the Tribunal.

The continued and prolonged evasion of justice by the fugitives also poses a challenge to the proper administration of justice, even when they are finally arrested and brought to trial. The longer the interval between the commission of these serious crimes in 1994 and the time of trial, the greater the possibility, from our experience with current cases, that much of the evidence may be lost due to the unavailability of witnesses for various reasons. Yet, understandably, there are no time limits for prosecution of such offences. The indictees will be prosecuted anytime they are arrested, for as long as there is evidence available. Some of the indictees are of such a high level that it has been considered appropriate for their trials to be conducted by an international mechanism. The public interest in the proper administration of justice requires that a fair and proper trial is not subverted by the success of the fugitives in evading justice long enough for the evidence against them to possibly disappear. Especially where the bulk of the evidence is based on the oral testimony of witnesses.

Accordingly my office has proposed amendments to the ICTR rules which would enable the tribunal to preserve the testimony of witnesses in the cases of the fugitives and for such evidence to be available in any subsequent trials if the witnesses are not available at that time. The rule change when adopted will result in proceedings to take special depositions next year from such witnesses in at least four cases of fugitives. These proceedings are expected to be very limited in duration and should not impact adversely on the Completion Strategy.

Building upon the conference of international and national prosecutors held in November 2008, the OTP will be hosting the annual Prosecutors’ Colloquium later in the year to discuss the legacy of the international criminal tribunals in relation to measures against impunity for mass atrocities in the world.  The Colloquium will focus on drawing lessons from the past in the administration of international criminal justice and reflecting on the future of this process at a time when the ad hoc courts are winding down to closure. The Tribunal is also focusing more actively on residual matters relating to archives and public access to documents, continuing support for national prosecutions and appropriate administrative closure and reporting.

We remain firmly committed to concluding the trials of the detainees and to making referral of cases of some of the detainees and fugitives a success.  We do not underestimate the challenge of doing so, particularly in the light of possible loss of experienced staff as the Completion Strategy progresses. 

Thank you Mr. President and distinguished delegates for your attention as well as your support for the ICTR.