On 13th May, General Kabiligi's defence team requested that an investigation be opened into the acts of torture allegedly committed on the accused while he was under arrest by the Office of the Prosecutor. This is the first allegation of its kind made to the ICTR. Moreover, the case involves an investigator from the Office of the Prosecutor who has been in trouble with the law in his own country. The Prosecutor has branded the motion « frivolous » and « pointless ». « Acts of torture » These words alone fill the mind with fear. The motion, filed on February 20th by Jean Yaovi Degli, General Gratien Kabiligi's lawyer, deals with acts that allegedly occurred while the former Forces Armées Rwandaises (FAR) officer was under arrest, on July 18th 1997. Its objective is to « formulate a charge and a request for an impartial investigation to be launched by the Tribunal into the acts of torture carried out on General Kabiligi during his questioning by officials from the Office of the Prosecutor on July 19th 1997 in the premises of the prosecution in the ICTR ».

Circumstances of the questioning on July 19th

The acts in question are firstly, that the suspect was questioned by investigators from the Office of the Prosecutor « with his handcuffed hands chained to a restraining belt placed around the man's waist, which prevented him from making any movement », and secondly, that he was threatened with « immediate transfer to Rwanda if he refused to answer the questions » put to him by these investigators. According to the defence, during the questioning in Arusha, « while one of the prosecution officials asked General Kabiligi questions, the other was taking malign pleasure in whispering in his ear, every time the General was reluctant to answer a question, that if he didn't reply, he would immediately be handed over to the Rwandan authorities ».
The suspect is said to have asked : « Do you want to kill me then ? » whereupon, his lawyer maintains, the investigators « burst out laughing because they didn't think they were doing anything serious. Kabiligi saw it as a death threat ». The defence added that « after General Kabiligi had been taken back to the detention centre, Mr.Duclos *an investigator from the Office of the Prosecutor+ came and repeated the same threats that very evening ». The lawyer felt that these actions « had the effect of intimidating and pressurising » his client. They thus fell within the scope of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment adopted by the UN. Jean Degli added that it was « obvious », in his client's case, that « to hear that he would be sent to Rwanda amounted, without doubt, to a death threat », and he pointed out that this threat was « the most serious » in the scale set out by international law.

Request for an investigation

Basing his argument on a number of laws recognised by the UN, Mr Degli asserted that « neither the crime of genocide, nor crimes against humanity in the context in which the ICTR's investigators are acting, nor the privileges and immunities accorded to the latter in their role as UN officials », could justify such actions. Saying that the actions came under criminal law, he gave notice that he would be « lodging a complaint against Duclos, Dodo Kadri and Sidibe, for questioning with the use of physical and moral torture, cruel, inhuman and degrading treatment, and other similar treatment ». The defence will also be asking for an « impartial judicial investigation », to be carried out by an « independent body ». Since the laws used to support this motion operate on the national level, Mr Degli maintains that the ICTR has jurisdiction in the matter, as it is the expression of all the UN member-states, and can be viewed as a « supra-national institution » subject to international legal standards. The Togolese lawyer added that « the ICTR has areas which constitute its own territory under its jurisdiction », and « for which *it+ is solely responsible ».This, he said applies to the detention centre in Arusha, adding that insofar as « the actions were committed as part of the legal proceedings *undertaken+ here, the secondary offence follows the main one » and concluding that it is the ICTR « which can exercise jurisdiction in that area. It has the authority to do anything that makes things run smoothly ». Before the court, Degli (a former deputy secretarygeneral of the International Federation for Human Rights) protested caustically that « it is within the walls of this court that the torturers I'm talking about can be found ». He criticised the lack of qualifications held by officials in the Office of the Prosecutor, and urged scrutiny of their morality. The anti-torture activist then pulled out the stops ; in his eyes, he said, the three investigators had « behaved like gangsters, like Gestapo officers ». He concluded that « if there is any doubt,there must be an investigation », because « refusing to grant this motion would be the equivalent of denying justice » to General Kabiligi. He then warned : « I assure you that other people have undergone similar treatment (...) There have been plenty of slipups and we must at all costs put an end to them ». The investigation sought by the defence, which would last a maximum of two months from the time it was set up, seems to be just an initial step. Jean Degli warned that criminal and disciplinary proceedings may follow, as may an application for compensation or the bringing of the case before the relevant UN authorities.

« A stunt »

In his answer, the prosecuting Trial Attorney deemed the allegations untrue. In court, William Egbe condemned what he called « a stunt » and said « We are witnessing a trial of the prosecution ». The Office of the Prosecutor maintains first of all, that the arrest was made by the Kenyan police and the handcuffing was necessary and legal to prevent any risk of escape. The prosecution denies that any of the suspects taken to Arusha on July 18th were threatened. It states that this transfer was carried out not under the control of investigators from the Office of the Prosecutor, but of Registry security officers.Egbe then attacked the credibility of the defence's allegations, putting forward the lack of detail surrounding the identity of the person accused of threatening the General with extradition to Rwanda while he was being transported to Arusha. The allegations, he said were thus « unfounded and uncorroborated ». The circumstances of the questioning on July 19th were denied : Duclos was not there, but a court orderly was, and he took the handcuffs off the suspect before questioning began. As for the threats made in Gratien Kabiligi's ear, the prosecution says that the recordings of the interview reveal no such sound. From that point on, he said, these allegations had been just a « work of the *accused's+ imagination ». Contextualising the trip and the accused's responsibilities in Rwandan history, William Egbe told the court that the ex-FAR General was merely affronted « that a simple police officer could identify him ».

The General « humiliated »

In Egbe's opinion, Gratien Kabiligi « had not forgiven Duclos for that ». Resuming the story of the photos Duclos had taken when the General was arrested, he stated that the officer, photographed with his wife, had felt « humiliated ». This feeling was all the more intense, he said, « because these people had photos of the atrocities committed in Rwanda », for which they are now being tried. Finally, Egbe stated that the defence's evidence in this case « consisted of newspaper articles written in Canada ». « Are articles evidence ? », he asked, brandishing some press cuttings,which he said were written by people hostile to the Tribunal. The evening visit by the investigator Pierre Duclos was also refuted, described as « an attempt to slow down proceedings and deflect attention from the seriousness of the crimes committed » by the accused.Finally, the prosecution felt that the involvement of a third party, such as an independent committee, whose objective was to start proceedings against the prosecution before the UN authorities, would be a violation of the Statute of the ICTR, specifically Article 1: « The Office of the Prosecutor is not opposed to appeals to the court being made, but insists that this does not involve a break in proceedings. » He requested that the motion be rejected and the accused « warned not to indulge in similar conduct in the future ».

On the soldiers' bench

Defence motions for defects in the form of the indictment and for separate trials were debated on May 14th in the second chamber. The Madagascan lawyer representing Major Aloys Ntabakuze, former commander of the para-commando battalion in Kigali, condemned « the degree of confusion, and the mixing up and vagueness of the crimes mentioned » in the joint indictment of the two soldiers.Asserting that the Office of the Prosecutor « has been unable to find evidence », that the way the crimes had been labelled was legally erroneous, and that the merging of the two cases was « unnatural », Simonette Rakotondramanitra argued thus: « We asked ourselves whether the prosecution had levelled all the charges provided for in the Statute against Ntabakuze, and the answer was 'yes' ». However, in her opinion, « you cannot be the perpetrator of, and accomplice to, the same crime », or « be an accomplice by omission ». Defending the two identical motions, counsel for Natabakuze (General Gratien Kabiligi's former head of military operations in the FAR's High Command) also thought that « in its haste and inability to correctly label *the crimes inquestion+, the Office of the Prosecutor has made do with a ragbag of accusations ». According to him, « this is more like a legal stoning to death », and, « the Office of the Prosecutor should rewrite its indictment ». On the matter of merging the two cases, he maintained that « a compilation of crimes is not the equivalent of making out a joint case ». He felt that « it was not because the two men belonged to the same army that they should be tried together ». Referring to the Nuremberg trials, where organisations were tried as organisations, rather than individuals, he called the prosecution a « legally stateless imitator », adding : « we are not here to judge a Rwandan institution, we're here to judge men, and nothing proves that the Rwandan army, as such », committed a joint criminal enterprise, which would provide the basis in law for merging the two trials.

« According to that logic, all the soldiers should be tried together »

William Egbe, the prosecution's Trial Attorney felt that matters of form rather than substance were being discussed, and that « the question of where, when, and with whom *the accused had acted+ would be covered by the witnesses ». Countering the defence argument that their clients were accused on several counts on the basis of identical crimes, William Egbe underlined the distinctive nature of the criminal enterprise. In his opinion, on the basis of the Statute of the Tribunal, charges of genocide and complicity in genocide can be derived from the same crimes. « Separate acts cannot be created for separate crimes », he added. Regarding the linking of the crimes, the prosecution put forward the hierarchical relationship between the two officers. « If you want to be legally fair and expeditious, they must be tried together. It is in the interests of justice », he concluded.Judge Ostrovsky intervened : « According to that logic, all the soldiers should be judges together. Why these two and no others ? » Replied Egbe « These two soldiers worked very closely together. They expressed the same ideas. The evidence is the same ». On May 11th and 12th, Jean Degli acting for Kabiligi also supported the cancellation of his client's arrest and both lawyers made applications for the return of the accused's personal effects. Three cases and one investigator

This case had been brewing for a long time at the Tribunal, but the way it eventually broke was unexpected. In the motion presented by Gratien Kabiligi's defence, alleging acts of torture committed against him, three investigators are accused : Pierre Duclos, Almahamoud Sidibe and Dodo Kadri. However, one of them, Pierre Duclos, is the subject of allegations in several cases, firstly in his own country, Canada, and now at the ICTR.The 'Poitras' commission set
up in Québec following a police scandal linked to an investigation called « the Matticks case » (a drug-trafficking case that ended in a legal fiasco because it was discovered that evidence had been fabricated by police officers), aimed to find out whether there were problems related to the management of the police force, especially in the criminal investigation department. The commission investigated the question of fabrication of evidence, wether police officers had perjured themselves in court, and wether intimidation of witnesses had taken place. As part of what turned out to be a huge clean-up of the internal running of the Québec criminal investigation department (Sûreté du Québec - SQ), police officer Pierre Duclos was cited as being one of those who « is said to have exerted pressure *on one of their colleagues+ to make him lie to the court to cover up the fabrication of evidence » (La Presse, December
31st 1997). Four days before the date for the hearing in the Kabiligi case, an article in the Canadian newspaper La Presse, (reprinted in Le Devoir) described Duclos as ' a godsend ' for the Rwandan General's defence. It noted that « Duclos, the subject of a disciplinary hearing, was able to find work as a UN investigator » and described how « A Québec criminal investigation department police officer who is the subject of a disciplinary hearing involving perjury and incitement to perjury, was awarded sabbatical leave and took a contract as a UN investigator for the ICTR ». According to the paper, this sabbatical was due to finish on May 22nd. Pierre Duclos' hearings have already started before the committee investigating the SQ. The article states that the police officer was acquitted of the criminal charges brought against him but that « this acquittal has no bearing on the disciplinary charges brought by the SQ's internal investigation department ». It continues :« Quebec lawyers representing the Rwandan witnesses *sic+ at the ICTR have grasped the opportunity to make available to La Presse a motion against the police officer Duclos ». This refers to the allegations of torture in the Kabiligi case.

Jean Kambanda's jailer

The Matticks case, the Kabiligi case ... good things always come in threes. The investigator Pierre Duclos is also in the firing line in the Kambanda case. The confessions made by the former Prime Minister on May 1st this year are obviously a serious blow to the defence in general, and especially for certain defendants. The former head of the Rwandan government admitted to being guilty not only of genocide between April and July 1994, but also of all the crimes established by the prosecution in the charges made against him, which incriminates a number of other of the accused at the ICTR - and he is supposed to return to the stand as a prosecution witness to testify against many of them. For some defence lawyers, no means of discrediting this irritating repentant criminal are to be neglected. Three days after Jean Kambanda's confession of guilt, Georges Rutaganda's counsel, Tiphaine Dickson, together with Kennedy Ogeto, Anatole Nsengiyumva's counsel, signed a press release in which they « expressed their fears » that Kambanda's plea « was invalid ». Backing up their point with observations contained in the Amnesty International report published on April 30th, which questioned the ex-Prime Minister's conditions of detention (see Ubutabera n 35), they wrote : « Due to the fact that Jean Kambanda was been held in an unknown location for nine and a half months before his first appearance, that he did not have the assistance of a lawyer for around nine months, and that he has apparently been guarded by Mr. Pierre Duclos, an ICTR investigator who was formerly a member of the Canadian Sûreté du Québec, who is currently under investigation by a committee of inquiry regarding allegations of fabrication of evidence, perjury, incitement to perjury and obstructing the course of justice, the defence lawyers believe that there are legitimate reasons for questioning the free and voluntary nature of M. Kambanda's confession ». Jean Degli, the counsel of Gratien Kabiligi, whose name also appeared on the press release, has disassociated himself from it, feeling that he was « confronted with a fait accompli », and did not want, « it to appear as if the business (between himself and Duclos) was personal ». However, in a press release published on May 6th to rectify the first, and signed by Tiphaine Dickson and Jean Degli, it was made clear (without any more details being revealed) that the latter,« shared some of concerns about the Kambanda case ».