The parties to the case against genocide suspect Félicien Kabuga and the Registry of the International Residual Mechanism for Criminal Tribunals have up to Monday, January 24, 2022 to file their submissions on the guidelines on the procedure for the conduct of the trial, the judge of the pre-trial chamber has said.
Judge Iain Bonomy, also the presiding judge of the trial chamber of the International Residual Mechanism for Criminal Tribunals (IRMCT), invited the parties to provide comments on, as well as propose any revisions or additions to the draft guidelines in the case against the alleged financier of the 1994 Rwanda genocide.
According to an order dated December 14, 2021, and issued in Arusha, Tanzania, Judge Bonomy said the trial chamber had prepared the draft guidelines, which were annexed.
Among the rules on motion practice, parties will be required to make motions either orally or in writing. If an oral motion is made, the opposing party can respond orally or be granted a limited time to file a written response, or make oral submissions. If a motion is made in writing, the opposing party shall have 14 days to file a response unless the trial chamber orders otherwise.
The chamber will not accept replies to responses unless of good cause. A party may seek the leave of the chamber to make such a reply, within seven days, specifying the circumstances that amount to a good cause.
Submissions will be made public. If a party files a motion in confidence, it should indicate the rationale for classifying it as such.
The trial chamber, through its senior legal officer, may contact the parties to expedite the briefing schedule, bearing in mind the exigency of the matter and the fairness of the proceedings, and may adjudicate minor matters related to motion practice through informal communications via the senior legal officer, which will be put on the record in a written decision or orally in open court later.
The electronic court management system (e-court) will be used during the trial and all documents will be handled through the e-court. Hard copies will only be allowed if the party is unable to upload them on the e-court due to exceptional circumstances. The tendering party is responsible for providing copies to all the parties involved, including the trial chamber, the Registry, the other party, the witness, and the court reporters and interpreters.
“Any party calling a witness shall upload to and release in e-court any document at least one month prior to using it in court or tendering it as evidence. An English or French translation of any Kinyarwanda document must be uploaded at the same time. To the extent the party is waiting upon an official translation of the document into one of the two working languages of the Mechanism, the party shall submit a draft translation,” the guidelines say.
The Registry shall provide a system for monitoring the use of time as well as a system for the organisation of transcripts. The recording of time will take place during examination-in-chief of each witness, cross-examination, re-examination, questions by judges, and all other matters. A system for the organisation of transcripts will ensure that the documents are organised by date and page number.
The trial shall be conducted in public. However, a party may request a private or closed session, furnishing the and reasons for the request, and the court will determine if it seems necessary.
The chamber will regulate the length of the examination-in-chief of a witness. A party shall be allotted one hour for cross-examination for every hour of direct examination of an opposing party’s witness. A party may apply for additional time to complete the examination.
Every Thursday by 4pm, the party presenting shall provide the court, the Registry, and the other party with an electronic list of the witnesses it intends to call during the coming two weeks. The list shall indicate the order of their testimony, the time estimated for the examination-in-chief of each witness, and any protective measures applicable to the witnesses.
The guidelines state that the calling party must notify the chamber, the Registry, and the other party of any changes that are made to the order of the witnesses and any additional exhibits. It will also provide an electronic list of documents or materials that it intends to use for the examination-in-chief of each witness at least seven days before the start of the testimony.
“The documents must be translated into one of the official languages of the Mechanism and into the language of the accused, except that public documents, such as United Nations Security Council resolutions, United Nations Secretary-General reports, and similar material need not be translated into the language of the accused,” say the rules.
The cross-examining party shall provide, electronically, to the trial chamber, the Registry, and the other party an estimated time for cross-examination and a list of the documents and other material that the party intends to use in cross-examination. However, any document that is not listed or disclosed can be used upon request. The opposing party may request an adjournment to examine the material.
Witness transcripts or statements used as evidence should be submitted not less than six weeks in advance of the witness’s scheduled testimony unless with the permission of the trial chamber.
If expert evidence is needed, the expert will appear only for cross-examination. The expert report should cover everything needed in connection with a party’s case and be fully referenced.
Application of witness testimony by video-conference link shall be made possible but at least six weeks in advance of the witness’ scheduled testimony and after consultation with the Registry.
When referring to a prior statement or testimony, the parties shall provide the exact page and, where available, line references to the statement or transcript in question.
In addition, the cross-examining party should put to the witness the general substance of its case conflicting with the evidence of the witness, rather than every detail that the party does not accept.
The preferred method for tendering evidence is through a witness while the witness is on the stand, the rules say.
Kabuga, who was arrested in France in May 2020 after 25 years on the run, has been detained in The Hague since October 2020 pending trial by the IRMCT.
On December 13, 2021, IRMCT Prosecutor Serge Brammertz updated the United Nations Security Council on the progress of appeals and trials. In Kabuga’s case, Prosecutor Brammertz reported that the trial team had filed its pre-trial brief and responded to significant additional litigation initiated by Kabuga’s family members and associated third parties concerning seized assets.
“My office is ready for and looks forward to the commencement of this trail at the Arusha branch when ordered by the trial chamber,” he asserted.
And with the start of the Kabuga trial approaching, “we look forward to this opportunity to achieve more justice in the courtroom for the victims of the 1994 Genocide against the Tutsi in Rwanda,” Brammertz said.
