On August 30, Colonel Theoneste Bagosora, the former chef de cabinet to the Minister of Defense and allegedly the chief conspirator of the Rwandan genocide, appeared before the UN Rwanda Tribunal as his lawyers again demanded that the Prosecutor turn over any evidence of RPF involvement in the shooting down of former President Juvenal Habyarimana's plane. Early last year, the Tribunal was rocked by the revelation of former prosecution investigator Michael Hourigan's 1997 report suggesting that RPF leader, and current Rwandan President, General Paul Kagame was responsible for the missile attack on President Habyarimana's plane that triggered the genocide. The Report is supposedly based on three members of the « Network, » the secret commando group that shot down the presidential plane.
Chasing the Hourigan Report
Shortly after the Hourigan Report surfaced, defense counsel for two of Bagosora's co-accused, Gratien Kabiligi and Aloys Ntabakuze, filed motions asking the Prosecutor to disclose the Hourigan Report. On June 8, 2000, the judges disclosed the Hourigan Report (which had been sent under seal to Tribunal President Navanethem Pillay) to the prosecution and defense but declined to order disclosure from the prosecution because the defense failed to specify the information it sought and to show the prosecution had such information in its possession.
In October 2000, Bagosora's defense team reopened the matter by requesting specific disclosure of any witness statements or documents from the three « Network » members and by claiming that the report itself « clearly gives grounds to conclude » the prosecutor had such material in its possession.
Bagosora's Defense Strategy
Bagosora's motion sets forth a detailed outline of his defense strategy. First, he argues that « the organization and supply of the Interahamwe [extremist militia] groups was perfectly justified in the context of civil defence, since many believed...that an act of aggression by the RPF was imminent. » Second, he claims that « far from having planned the death of President Habyarimana, he was totally surprised by that event, quite lost, and, for a certain time, completely disoriented as to what to do to prevent the country from sinking into anarchy. »
Thus, Bagosora argues that any evidence of RPF involvement in the presidential plane crash is « extremely relevant » for his defense because it would: (1) show those who believed that « RPF intended at any price to have recourse to armed conflict to conquer power in Rwanda » were right; and (2) « demolish the [prosecution's] inferences...that the suddenness and precision of the measures ordered or undertaken by Bagosora, in the first hours following the [plane crash], demonstrate that he had prior knowledge of it, and that he had made preparations to benefit from the anarchy...in order to execute the genocidal plot. »
Jacques Larochelle, Bagosora's Canadian co-counsel, elaborated on the relationship between the Hourigan Report's evidence and his client's defense at the August 30 hearing: « The Prosecution is bringing political charges against him. He's charged with not having entered into contact with the main Tutsi leaders. If RPF shot down the President's plane, it's easy to understand this charge becomes mitigated....He's accused of preventing implementation of the Arusha accords - that he didn't want peace. If RPF had just shot down the President's plane then the accusation would collapse. »
The Prosecutor's Refusal to Disclose
In February 2001, the judges ordered the prosecution to disclose whether it has or knows of any evidence (including witness statements or documents) « tending to show that the RPF and/or its leaders were responsible for the *plane crash+. » Instead of complying with that order, the prosecution quickly filed a lengthy motion rearguing the relevance and specificity of Bagosora's request for disclosure, even though the judges had clearly decided those issues in Bagosora's favor. In addition, the prosecution claimed it did not have the resources to search its archives for such material and prophesied that « all prosecutions before this Tribunal will grind to a terminal halt if there is judicial precedent enabling every Defendant...to conjure up theories of relevance » and force the prosecution to review all its documents that might shed light on those theories.
To soften its defiance of the disclosure order, the prosecution made a show of compliance by stating « This Prosecutor has knowledge of the existence of no evidence tending to show that the Rwandan Patriotic Front or its leaders were responsible for the death of President Habyarimana. » That didn't fool Presiding Judge Lloyd Williams: in the April 30 hearing, he pointedly told lead prosecutor Chile Eboe- Osuji that the issue was not his personal knowledge, but rather the knowledge of the Office of the Prosecutor.
However, the prosecution's reluctance to comply with the judicial order is essentially political: it does not want to jeopardize the Tribunal's relationship with the Rwandan government - the same reason why the Tribunal has yet to indict any member of the RPF for war crimes, despite the UN Yugoslavia Tribunal's recent indictment of several Bosnian Muslims.
The prosecution admits as much when it invokes « the real likelihood of certain accused persons before this Tribunal having an interest in using the processes of this Tribunal to continue their war of propaganda against the incumbent government of their country. In this effort, such accused persons may hope to obtain some of the non-probative pieces of information from the Office of the Prosecutor on the [plane crash] and make political hay of it, with the suggestion that the information must be credible since it was obtained from the Office of the Prosecutor. While the Prosecution does not function to protect the government of any country...it is submitted that it is an abuse of the processes of this Tribunal for anyone to use it merely for political propaganda. And it is entirely desirable for the Tribunal to protect against such abuses in a proactive sort of way. »
During the August 30 hearing, Eboe-Osuji invoked the specter of accused persons mounting « a war of propaganda » and holding « press conferences from UNDF *UN Detention Facility+. » Of course, those arguments only fuel further speculation about what incriminating documents may be buried in the prosecution's archives. And it unwittingly creates a test of political independence for the judges hearing the Bagosora case. Three-Part Harmony
On September 6, 2001, Colonel Theoneste Bagosora appeared again in court, this time with his co-defendants in the Military Case (Gratien Kabiligi, Aloys Ntabakuze and Anatole Nsengiyumva), as the prosecution asked the judges to « harmonize » three inconsistent witness protection orders for different accused that predate the June 2000 joinder for trial.
Following the lead of the Butare prosecutors and a decision by these judges in the Semanza case, the Military prosecutors asked that they be allowed to disclose a witness's identity and unredacted statement 21 days before the witness testifies - rather than following the general rule requiring such disclosure 60 days before trial. The prosecution justified this blanket request for all of its approximately 150 witnesses by recycling the June 2001 memorandum from the prosecution's witness protection unit that had been filed in the Butare case.
The prosecution argues that disclosing redacted witness statements 60 days before trial gives the defense ample opportunity to prepare their cross-examination. Gershom Otachi Bw'omanwa, Nsengiyumva's Kenyan defense counsel, challenged this with a theatrical display: holding up a heavily redacted witness statement, he showed the judges page after page of blacked-out markings. « Look at that, look at that, how do you make sense of such a statement? »
Raphael Constant, Bagosora's Martinique counsel, said his client appreciated witness protection having had his brother assassinated in Yaounde in 1999 and his sister killed in Brussels in 2000. He then carved out a middle ground between the prosecution and his fellow defense counsel by advocating disclosure of unredacted witness statements (but not witness identity) 60 days before trial. « How could I note the contradiction between witnesses *in cross-examination+...if I do not know everything that has been said? »
At the end of the day-long hearing, Presiding Judge Lloyd Williams scheduled a status conference for November 15 to discuss a trial date, saying « We must make every effort to get this trial started. » Bagosora, who has been in custody since March 1996, has already had three trial dates come and go: October 1997, March 1998, and September 1998. When the Trial Chamber granted the prosecution's request to adjourn trial in March 1998, Judge Yakov Ostrovsky could hardly have foreseen that his impassioned dissent would still resonate three-and-a-half years later: « It is of crucial importance to fulfill [the Tribunal's] mission and before the expiration of our mandate, in May 1999, to begin and complete the trials at least of the primary perpetrators of the Rwandan genocide as well as those *such as Bagosora+ who remain detained for more than two years without trial. »