| DAYMUNC |
| Background Guide |
| International Criminal Tribunal for Rwanda - Appellate Review |
International Criminal Tribunal for Rwanda Appellate Chamber Akayesu: on Review Douglas E. Greathouse, Director This year the Dayton Model United Nations Conference is trying something a little different for our judicial body—the Appellate Chamber of the ICTR. Also, for the first time, will be appearances from advocates arguing for their respective clients. The Akayesu case is ideal for this purpose because, as you will see in your research, the case in the Trial Chamber was plagued with anomalies, yet it handed down the first conviction for Genocide in history. Each delegate-participant will serve in the role of a panel judge—each a legal scholar in his or her own right. Our Chamber will review three distinctly different questions, two from the accused and one from the prosecution. First, the Chamber will review issues relating to the accused’s right to counsel. Second, the legitimacy of the entire proceeding has been called into question as nothing more than a poorly conceived show trial. Finally, the prosecution has asked the Appellate Chamber to rethink the rationale behind the acquittal of charges brought under Common Article 3 and for Conspiracy in Genocide amidst overwhelming evidence of guilt. All in all, this should make for an interesting conference. I look forward to observing each of you work in your various deliberations. Following are condensed versions of the various trial briefs prepared by your advocates. Review them carefully to determine the nature of the issues and the various arguments. Copious research aids are provided at the end of this guide to help you prepare. Finally, review the “what to expect” to get an idea how the hearing will be conducted. Good Luck in your endeavors! Memorial of Appellant-Accused John-Paul Akayesu Cori Funk appearing for the Appellant I. The Trial Chamber erred by denying Defendant-Appellant his right to be represented by his counsel of choice. Defendant-Appellant Jean-Paul Akayesu’s first choice of counsel was Johan Scheers. However, because Mr. Scheers was not on the designated roster of counsel that the UN had established as acceptable to represent defendants, Appellant was not permitted to retain him as his preferred counsel. Appellant subsequently was forced to select another person from the approved roster to represent him at trial, one that he believed incapable of properly defending him. On the first day of the trial, Appellant retained Michel Marchand of Canada to represent him. However, once again, the sitting panel refused to recognize Appellant’s chosen counsel. The rationale behind the Chamber’s decision relied solely on the meaning of Article 101 of the United Nations Charter, which states, in relevant part, that when choosing the Secretariat staff, including defense attorneys, “Due regard should be paid to the importance of recruiting the staff on as wide a geographical basis as possible.” Because half of the defense attorneys on the authorized list were from France and Canada, the Registrar would not permit another attorney from Canada, namely Marchand, to be added to the roster. At that time, the Registrar limited further admission of French and Canadian practitioners until some degree of balance from other geographical locations occurred. However, in doing so, the Chamber overlooked the companion charge to ensure that the choice of the Secretariat staff, including defense attorneys, should be “based on the highest standards of efficiency, competence, and integrity.” This criterion was violated because the Chamber failed to address whether or not Appellant’s chosen advocate was appropriate to represent Appellant based on the efficiency, competence, or integrity of the practitioner that clearly takes precedence over maintenance of geographic balance. The consideration of whether or not Marchand’s extensive qualifications as a member of the international criminal defense bar should be available to Appellant, thus permitting a fairer representation, was not even addressed. The Chamber should have allowed either Scheers or Marchand to represent Appellant; instead, it decided to appoint two other attorneys to represent him. Appellant was forced to fire both of the two appointed attorneys because they incompetently represented him. The principle assertion raised by Appellant was that neither of the attorneys appeared for the prosecutor’s closing arguments. The integrity of an international criminal tribunal system where the accused is denied his choice of counsel is weighing in the balance and will be found wanting. II. Appellant-Defendant John-Paul Akayesu’s due process rights were clearly abridged by a Trial Chamber bent making a strong public statement; moreover, the body of evidence and testimony clearly reveals a consistent pattern of prejudgment by the Chamber. First, in its haste to send a symbolic message to future miscreants and a assuage the families of the survivors, the Chamber limited its prosecution to members of the Hutu ethnic group for the crimes committed against the Tutsi ethnic group, and further failed to even address the reality that the Tutsis killed over thirty thousand Hutus prior to the Rwandan genocide. In cases of ethnic conflict, it is critical that individuals from either side who commit proscribed acts must be equally punished to preserve the notion of an impartial Chamber. The failure of the Chamber to act impartially toward Appellant is sufficient basis to reverse the decision below. Second, there is a clear question whether the authority of the United Nations Security Council provided under Article VII of the Charter extends to the creation of tribunals such as the ICTR. The Charter specifically empowers the Security Council to act against threats to the peace and to act to check aggression. These acts are specifically prophylactic in nature and can only be contemplated in a punitive role by stretching the logic beyond all possible recognition. Clearly, if the organic foundation of the Trial Chamber is in question, so must its findings. Third, all three judges exhibited unprecedented bias toward the witnesses testifying against Appellant while simultaneously presenting a persona of ambivalence and indifference toward defense witnesses. For example, Kamy, P.J. expressed sympathy from the bench for the suffering of the Tutsi prosecution witnesses prior to defense’s cross-examination of prosecution witnesses. Aspegren, J., was publicly critical of what he referred to as undue liberties granted to Hutu detainees. As well, Pillay, J., in both press interviews and public appearances, announced her personal agenda of securing protection under the law for women in war. Where such a degree of judicial impropriety is so evident, reversal of the Trial Chamber’s finding is the only option. Countermemorial of Appellee-Prosecutor Amanda Teckman appearing for the Appellee I. The Trial Chamber below correctly denied Defendant-Appellant his counsel of choice. According to Article 20, 4d of the Statute of the ICTR, if the accused does not have sufficient means to pay for counsel of his choosing, “or in any case where the interests of justice so require,” the Trial Chamber will assign counsel to the accused. The document nowhere mentions the indigent accused having the right to choose particular counsel, which would be paid by the United Nations. Several cases, ICTR-96-10-T, ICTR-96-17-T, and ICTY IT-96-21-T specifically established a precedent that provides the possibility for the accused to indicate a preference when the Chamber assigns counsel. The United Nations has a list of approved counsel, over half of which were fluent in French. Even though Appellant’s first choice of counsel, Johan Scheers, was not on this approved list, the court granted his request. However, Scheers did not attend the first trial proceedings, and it was for this reason that the court dismissed him. Moreover, the established precedent does not reach to change of counsel, which only occurs under exceptional circumstances, most notably the furtherance of justice. The court appointed Appellant new counsel based on their criterion that further delay of the trial would hinder justice. This decision was actually in Appellant’s best interest because it allowed new counsel sufficient time to prepare by the trial date without unduly delaying the proceedings. The Trial Chamber adhered to the letter of Article 101 of the United Nations Charter, which states that the choice of defense attorneys must be “based on the highest standards of efficiency, competence, and integrity” and, equally, that they must be taken from “as wide a geographical basis as possible.” The U.N.’s list of accepted counsel provides adequate means to assure the fulfillment of these requirements. Further, Appellant’s dismissal of his counsel on grounds of incompetence is absurd since any practitioner approved for the this list has the training and experience to effectively defend and prosecute proceedings involving international law. Dismissal of Belgian attorney Marchand, Appellant’s alternate choice for counsel, was clearly compliant with a straight reading of the meaning of Article 101 precisely since half of those on the list originated from France and Canada. The prosecution concurs with the Trial Chamber and believes it worked in the interest of justice in its decision to avoid further delay of the trial and in the appointment of replacement counsel. The Chamber’s withdrawal of Appellant’s first choice of counsel, Johan Scheers was completely justified and necessary. The Chamber’s many attempts to accommodate Appellant’s choice of counsel and his numerous dismissals of counsels illustrates the fairness of the proceedings and denies Appellant reason to appeal the Chamber’s final appointment. II. Appellant-Defendant John-Paul Akayesu’s due process rights were not abridged by the Trial Chamber; moreover, the body of evidence and testimony clearly reveals a consistent pattern of fair treatment by the Chamber consistent with well-established jurisprudential norms. First, the Trial Chamber did not limit its prosecution to members of the Hutu ethnic group in an attempt to make a political statement. For those responsible for violating the crimes that fall under the jurisdiction of the Tribunal, it is the Prosecutor’s responsibility to examine the acquired information and then to decide whether a trial should be instigated. Such decisions lie exclusively in the sound discretion of the Prosecutor who must weigh a variety of factors including the availability of evidence, the likelihood of success, and the resources available to him. The Trial Chamber has nothing to do with the selection of defendants. Furthermore, Appellant presents no cognizable evidence demonstrating a relationship between the policy of the Prosecutor and the Appellant allegation of bias by the members of the Trial Chamber. Appellant also fails to indicate how the prosecution’s prejudice could relate to his trial or substantially change its outcome. To prevail, Appellant must demonstrate that some other outcome would have been probably absent judicial error. The prosecution concurs with the findings of the ICTYAppeals Chamber holding which states unequivocally “…the entity responsible for prosecutions has finite financial and human resources and cannot realistically be expected to prosecute every offender which may fall within the strict terms of its jurisdiction. It must of necessity make decisions as to the nature of the crimes and the offenders to be prosecuted.” Second, although there was considerable debate about whether or not the Security Council has the authority to create international tribunals of the sort, this question was decided in the October 1995 Decision of ICTY Appeals Chamber in Prosecutor v. Tadic. Here, the court ruled that the establishment of international tribunals is clearly within the jurisdiction of the Security Council under Chapter VII, Article 41, which states, in relevant part, that “the Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures….” The Article requires only pacific means of conflict resolution—it does not prescribe actions to be taken, to the contrary, it proscribes prohibited actions. Third, the Trial Chamber Judges showed no signs of prejudice against Appellant and treated all witnesses fairly. According to the ICTY Appeals Chamber in The Prosecutor v. Furundzija, “there is a presumption of impartiality which attaches to a Judge,” […and] in the absence of evidence to the contrary, it must be assumed that the Judges of the International Tribunal can disabuse their minds of any irrelevant personal beliefs or predispositions. It is for the Appellant to adduce sufficient evidence to satisfy the Appeals Chamber that [the Judge in question] was not impartial in his case.” Appellant has presented no specific evidence impugning the character of the Judges, instead presents nothing more than unsubstantiated averments. Therefore, the inescapable conclusion can only be that the trial met the nominal jurisprudential standards of impartiality. Amicus Curiae of the International Defense Bar Association Douglas Greathouse appearing for the Interveners The International Defense Bar Association (IDBA) is the principal professional organization of legal practitioners who have indicated a willingness and have the requisite training and experience to represent individuals accused of criminal acts by the various constituted tribunals and the emergent International Criminal Court. Its constituent membership has pledged to uphold the highest standards of professional conduct in all of its endeavors. The IDBA is a recognized NGO in the United Nations system and regularly participates in the work of the Preparatory Commission of the ICC and the Assembly of States Party. The IDBA maintains that the development of a competent and highly qualified defense Bar is essential in assuring the legitimacy of criminal prosecutions and the attendant bodies. Access by the accused to counsel of his or her choice is essential in the process. For this reason, the IDBA urges adoption of the following resolutions in the ultimate findings of this august body: I. An accused person before the International Criminal Tribunal for Rwanda should be entitled to legal assistance by a defense counsel of his or her own choosing who is willing to be assigned to him or her according to the Directive on Assignment of Defense Counsel. II. For this purpose, the accused person should have access to the full list of defense attorneys accepting to be assigned under the Directive on Assignment of Defense Counsel, with their curriculum vitae, and should be afforded a reasonable delay to obtain the required information. III. No accused person should be denied the right to choose legal assistance on the basis of discrimination of any kind. IV. The Registrar should exercise his duties in a neutral and impartial manner. The IDBA hereby requests recognition as an intervenor in this matter and leave to submit its memorial for consideration. In addition, the IDBA requests to present its arguments orally before the Chamber. Memorial of Appellant-Prosecutor Amanda Teckman appearing for the Appellant I. The Trial Chamber erred in its acquittal of Appellant-Defendant from the various charges levied against him under Common Article 3 of the 1972 Protocol to the Geneva Conventions and the improper inclusion of Complicity in Genocide as a lesser included offense of the crime of Genocide. In finding the existence of reasonable doubt with respect to the five counts Apellee was acquitted under Article 4 of the Statute (Common Article 3 of the Geneva Conventions and the Additional Protocol), that the Defendant was a member of the armed forces, that he was expected to support war efforts due to his political position, or that his actions or failure to act directly exacerbated the armed conflict, the Trial Chamber erred in misapplication of the relevant law, which the Chamber clearly interpreted within the context of the abovementioned prerequisites. Neither the existing Conventions, the ICTR Statute, or established ICTY precedent supports this interpretation. The only general requirement, under the Statute, is “that there exist a link…between the crimes committed and the armed conflict”. Therefore, Appellant asserts that even an ordinary citizen taking part in the atrocities of the armed conflict may be held criminally responsible under Article 4 of the Statute. It is unnecessary to prove a relationship to the military, or political expectations, or the indirect nature of the acts to prove the charge—simply stated, persons must be individually accountable for all of their actions or failures to act absent mitigating circumstances. Moreover, while the elements of the offense of Genocide also make the elements of Conspiracy in Genocide and Complicity in Genocide, each should be considered on its own merit, as neither is properly a lesser-included offense of Genocide. For such to be true, clear intent in the language of statute is mandatory, yet the statute is utterly silent to the point. If the Defendant committed the act, he must be punished. Appellee strongly urges reversal of the Trial Chamber’s decision with respect to this matter to prevent the establishment of dangerous precedent. Further, Appellant argues, contra to the holding below, that it is unnecessary to distinguish between external and internal conflict or treat either as mutually exclusive in the determination of the propriety of charging a defendant under the Convention or under the Protocol. While it is a matter of fine academic discourse to debate whether the Rwandan conflict between the Hutu and Tutsi is an external conflict of two disparate groups or an internal conflict within the Rwandan state, the outcome is irrelevant—the same innocents remain dead. For these reasons, the decision of the Trial Chamber to acquit Appellee Akayesu of the various violations of Common Article 3 of the Geneva Conventions and Additional Protocol and the offence of Complicity in Genocide must be overturned and his cause remanded for further trial. Countermemorial of Appellee-Accused John-Paul Akayesu Cori Funk appearing for the Appellee I. The Trial Chamber correctly acquitted Appellant-Defendant from the various charges levied against him under Common Article 3 of the 1972 Protocol to the Geneva Conventions and correctly included Complicity in Genocide as a lesser included offense of the crime of Genocide. Common Article 3 of the Geneva Conventions was written to extend the protection provided under the various Geneva Conventions specifically in the regulation of the conduct of military personnel during internal armed conflict. While it is possible that that Appellant-Defendant may have worn a military jacket and issued military-like directives during the period of conflict, the Prosecutor presented not one scintilla of evidence establishing that he was or every had been a member of the Rwandan—or any other—military forces. Appellant was a public official, indeed the most powerful figure in Taba Commune. However it stretches the imagination to see how a duly elected or appointed political official can also have concurrent status as a military officer in this context. Separation of the political leadership and military chain of command is an absolute in any non-martial government. Therefore, such attempt to hold Appellant to the standards of behavior of uniformed military personnel necessary to support charges under Common Article 3 are specious at best. Further, application of charges under both the Conventions and Common Article 3 is nothing more than a thinly veiled effort to punish Appellee twice for the same act or acts. Such conduct is abhorrent to any notion of justice and cannot be reconciled with any accepted legal standard. While the Prosecutor has broad discretion as to whom he may charge and with what offenses, and certainly to plead in the alternative, it is ultimately the duty of the Trial Chamber to decide which alternative to follow in its deliberations. The decision to proceed under the Conventions rather than Common Article 3 was well within its discretion and must be upheld. Finally, conviction under the Genocide statute carries a mandatory life sentence with no chance of release prior to death. Regardless of the various technical arguments that can be raised about the nature of lesser-included offenses and the like, the debate is pointless. The limited resources of the Tribunal system are better served by avoiding wasteful duplication of effort. WHAT TO EXPECT: The hearing will begin with the customary swearing in ceremony of the judicial panel. Afterward, advocates for Appellant and Appellee will present their opening statements. The Chamber will retire and deliberate to set the order that the arguments will be present along with other administrative matters. One of these will be whether to allow the IDBA to intervene by Amicus Curiae. If the panel decides to permit the intervention, the IDBA has also asked to present oral arguments, and the panel must also determine whether to allow the request. Procedure for oral argument will follow normal practice—counsel for Appellant will argue for fifteen minutes, followed by counterargument by Appellee’s advocate. Five minutes will be afforded to each for rebuttal, if desired. Following the prepared arguments, the panel may question either advocate; however, equal time shall be afforded for rebuttal by opposing counsel. Once oral arguments have concluded, the panel will retire for deliberation until the next scheduled argument period. All three issues must be decided; therefore there will be three oral argument times. The Chamber will set the time for each argument during its first recess. The Chamber may find in a variety of ways. First, the Chamber could speak with one voice on each separate issue. Alternatively, a majority opinion (fifty percent plus one) along with a dissenting opinion is possible. Judges may choose to concur in a separate opinion with all or part of either the majority or dissenting opinion. A concurring opinion reaches the same conclusion but posits an alternative rationale. In this body, a per curium (without rationale) decision may not be rendered. RESEARCH AIDS: Tribunals The International Tribunal for Rwanda Website <http://www.ictr.org> Statute of the Tribunal <http://www.ictr.org/wwwroot/ENGLISH/basicdocs/statute.html> Rules of the Court <http://www.ictr.org/wwwroot/ENGLISH/rules/index.htm> Directive on Assignment of Counsel <http://www.ictr.org/wwwroot/ENGLISH/basicdocs/directiveadc.htm> The International Tribunal for Yugoslavia Website <http://www.icty.org> The Akayesu Case Indictment ICTR-96-4-I <http://www.un.org/ictr/actamond.htm> Trial Decision ICTR-96-4-T <http://www.un.org/ictr/English/judgements/akayesu.html> Tolley, H. Rape and genocide in Rwanda. <http://oz.uc.edu/thro/Rwanda/rwandarapecase2.htm> News stories covering the history of the case. <http://www.hirondelle.org> Chronicles of the case. < http://www.diplomatiejudiciaire.com/UK/Tpiruk/Akayesu.htm> International Law Convention against torture and other cruel, inhuman or degrading treatment or punishment. (1985). <http://fletcher.tufts.edu/multi/texts/bh859.txt> Convention on the prevention and punishment of the crime of genocide. (1948). <http://www.fletcher.tufts.edu/multi/texts/bh225.txt> Final act of the Second Peace Conference. (1907). <http://www1.umn.edu/humanrts/instree/1907a.htm> Geneva Convention (I) for the amelioration of the condition of the wounded and sick in armed forces in the field. (1949). <http://www.fletcher.tufts.edu/multi/tests/bh238.txt> Geneva Convention (II) for the amelioration of the condition of wounded, sick, and shipwrecked members of armed forces at sea. (1949). <http://www.fletcher.tufts.edu/multi/texts/bh239.txt> Geneva Convention (III) relative to the treatment of prisoners of war. (1949). <http://www.fletcher.tufts.edu/multi/texts/bh240.txt> Geneva Convention (IV) relative to the protection of civilian persons in time of war. (1949). <http://www.fletcher.tufts.edu/multi/tests/bh241.txt> Hague (I) convention for the pacific settlement of international disputes. (1899). <http://www.yale.edu/lawweb/avalon/lawofwar/hague01.htm> Hague (I) convention for the pacific settlement of international disputes. (1907). <http://www.yale.edu/lawweb/avalon/lawofwar/pacific.htm> Hague (II) convention respecting the limitation of the employment of force for the recovery of contract debts. (1907). <http://www.yale.law/lawweb/avalon/lawofwar/hague072.htm> Hague (II) convention with respect to the laws and customs of war on land. (1899). <http://www.yale.edu/lawweb/avalon/lawofwar/hague02.htm> Hague (III) convention for the adaptation to maritime warfare of the principles of the Geneva Convention of August 22,1864. (1899 <http://www.yale.edu/lawweb/avalon/lawofwar/hague993.htm> Hague (III) convention relative to the opening of hostilities. (1907). <http://www.yale.edu/lawweb/avalon/lawofwar/hague03.htm> Hague (IV) convention respecting the laws and customs of war on land. (1907).. <http://www.yale.edu/lawweb/avalon/lawofwar/hague04.htm> Hague (IX) convention concerning bombardment by naval forces in time of war. (1907). <http://www.yale.edu/lawweb/avalon/lawofwar/hague09.htm> Hague (V) convention respecting the rights and duties of neutral powers and persons in case of war on land. (1907). <http://www.yale.edu/lawweb/avalon/lawofwar/hague05.htm> Hague (VI) convention relating to the status of enemy merchant ships at the outbreak of hostilities. (1907). <http://www.yale.edu/lawweb/avalon/lawofwar/hague06.htm> Hague (VII) convention relating to the conversion of merchant ships into warships. (1907). <http://www.yale.edu/lawweb/avalon/lawofwar/hague07.htm> Hague (VIII) convention relative to the laying of automatic submarine contact mines. (1907). <http://www.yale.edu/lawweb/avalon/lawofwar/hague08.htm> Hague (X) convention for the adaptation to maritime war of the principles of the Geneva Convention. (1907). <http://www.yale.edu/lawweb/avalon/lawofwar/hague10.htm> Hague (XI) convention relative to certain restrictions with regard to the exercise of the right of capture in naval war. (1907). < http://www.yale.edu/lawweb/avalon/lawsofwar/hague11.htm> Hague (XII) convention relative to the creation of an International Prize Court. (1907). http://www.lib.byu.edu/~rdh/wwi/hague/hague11b.html Hague (XIII) convention concerning the rights and duties of neutral powers in naval war. (1907). <http://www.yale.edu/lawweb/avalon/lawsofwar/hague13.htm> Hague (XIV) declaration prohibiting launching of projectiles and explosives from balloons. (1907). <http://www.yale.edu/lawweb/avalon/lawofwar/hague994.htm> Hague declaration (II) on the use of projectiles the object of which is the diffusion of asphyxiating or deleterious gases. (1899). <http://www.yale.edu/lawweb/avalon/lawofwar/dec99-02.htm> Hague declaration (III) on the use of bullets which expand or flatten easily in the human body. (1899). <http://www.yale.edu/lawweb/avalon/lawsofwar/dec99-03.htm> Moseley, A. (2001). Just War Theory. <http://www.utm.edu/research/iep/j/justwar.htm> Nuremberg Principles: <http://www.sfsu.edu/~mclicfc/nberg.html> Protocol (I) additional to the Geneva Convention of 12 August 1949 and relating to the protection of victims of international armed conflicts. <http://www.fletcher.tufts.edu/multi/texts/bh707.txt> Protocol (II) additional to the Geneva Convention of 12 August 1949 and relating to the protection of victims of non0international conflicts. (1977). <http://www.fletcher.tufts.edu/multi/ttests/bh708.txt> White, A., Hollis, F. W., Low, S., Newel, S., Mahan, A. T., & Crozier, W. (1899). Peace Conference at The Hague 1899: general report of the United States Commission. <http://www.yale.edu/lawweb/avalon/lawofwar/hague99-04.htm> |