08.06.07 - ICTR/JURISPRUDENCE - ICC'S PRACTICES WILL NOT INFLUENCE THE TPI

The Appeals Chamber of the International Criminal Tribunal for Rwanda (ICTR), sitting in The Hague, recently rejected the interlocutory appeal of Joseph Nzirorera who asked the Chamber to prohibit the Prosecution from preparing its witnesses prior to their testimony.
 
Before appearing before the ICTR or the International Criminal Tribunal for the former Yugoslavia (ICTY), the Prosecution and the Defence have an "ultimate" rehearsal with their witnesses. This practice, used since the beginning of the hearings, is not provided by the Rules of the Tribunal. Provided by "custom", it is aimed at "refreshing" their memory and "reassuring" them before entering the Courtroom.
 
Joseph Nzirorera, having been dismissed in the first instance, based his request on a decision of the International Criminal Court (ICC) rendered on 8 November 2006 which prohibits this practice. The Judges of the ICTR Appeals Chamber, who suspected that it was this decision that provoked the request, considered that they are not bound by decisions of other international courts.
 
Nzirorera is tried in the Karemera case. In November 2006, he asked the Trial Chamber III of the ICTR to prohibit the Prosecution from preparing its witnesses prior to their testimony (the witness proofing). Some days later, the Defence of Ngirumpatse, one of his co-accused, joined him in his request.
 
Fro Ngirumpatse, this practice is a form of subornation of perjury. On 15 December 2006, three days after the reject of a similar request by the ICTY in Milutinovic case, the ICTR denied the plaintiffs' request.
 
The plaintiffs asked the ICTR judges to apply the same rules that the ones chosen by the ICC in the Dyilo case, which considered unmistakably that the witness proofing is "unethical and unlawful" and is contrary to deontology or to law in many countries.
 
To "familiarize the witness" with the international proceedings, which is the second argument developed by the ICC, is accepted and considered necessary and is the job of the Victims' Participation and Reparation Section and not the job of the Prosecution or of the Defence, according to the Court.
 
The Judges of both the ICTR and the ICTY justify the "witness proofing", which according to them does not violate the rights of the Accused, by "the specificities of the cases (...) which distinguish them from the national criminal cases" and affirm that this practice can "contribute to a proper administration of justice".
 
At the ICTR, the Judges justify it by the duration of the proceedings, the right of witnesses to "remember details in order to add them to their previous statement" and recall the deontological rules which are imposed to the Prosecution and the Defence.
 
Whereas the Trial Chamber holds that the Pre-Trial Chamber of the ICC should have followed the practice used by the two ad hoc Tribunals, the Appeals Chamber immediately affirms that "there is no doctrine of precedence in international law which requires a Trial Chamber to follow practices adopted by another international court". According to the Appeals Chamber, a Trial Chamber is not bound to follow another Trail Chamber of its Tribunal. Only the decisions rendered by the Appeals Chamber are binding to the Trial Chambers.
 
The question of ties between the different international courts, the TPI and the ICC, seems to be a sore spot. Is there a question of superiority? Which role is the ICC case law supposed to play on the stage of international law? All things considered, the accused of the ICTR, Nzirorera and Ngirumpatse, and the accused of the ICTY, Ojdanic (Milutinovic case), did nothing more than invoking the case law which was advantageous for their defence.
 
AV/PB/CV
 
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