Prosecuting International Crimes in Africa - PULP - University of ...

92 Chapter 3
present at the trial, 120 unless he waives the right, for instance by refusing
to attend court. 121 Moreover, indigent accused persons have a right to
competent assigned attorneys. However, in principle, the right to free legal
assistance does not confer the right to retain the counsel of one’s choosing.
It only applies to those accused persons who can finically bear the costs. 122
The Tribunal’s Statute and Rules of Procedure and Evidence as further
elucidated in its jurisprudence endeavor to ensure that the rights of accused
are properly balanced with those of victims and witnesses. For instance, in
order to guard against reprisals against victims and witnesses, the ICTR is
mandated to protect them by ordering and implementing appropriate
measures of protection, such as in camera proceedings, the non-disclosure
of their identity to the public, testimony by video-link, and such, while at
the same time ensuring that rights of the accused are respected. 123 The
absence in the ICTR’s Statute of a mandate to offer compensation and
other forms of redress to victims of international crimes underlines the
strides made by the International Criminal Court in incorporating such
rights. Notwithstanding limitations in the Statute, the ICTR’s effort of
trying to reach out to victims in Rwanda in its outreach and other
programmes is salutary.
The ICTR has enriched the existing jurisprudence on the criteria for
determining an accused’s fitness to stand trial. While the ICTY faced
challenges regarding an accused’s fitness to stand trial and the need to
identify the applicable criteria, it appears that the ICTR, in the Ngeze case,
made a notable contribution in identifying such criteria in some detail. 124
120
Prosecutor v Karemera (Case ICTR-98-44-AR73.10) Decision on Nzirorera’s
121
122
123
interlocutory appeal concerning his right to be present during trial 5 October 2007 para
11.
Nahimana et al v Prosecutor paras 93-116.
Prosecutor v Akayesu paras 60-64 & 76.
Arts 19 and 21 Tribunal’s Statute; Rules 69 and 75 Tribunal’s Rules of procedure and
evidence; Prosecutor v Nahimana et al Decision on the Prosecutor’s application to add
124
witness X to its list of witnesses and for protective measures 14 September 2001.
Arguably, the then existing ICTY cases did not provide detail on the applicable criteria,
apart from evaluating the relevant expert reports and the accused’s behavior during the
proceedings. See Prosecutor v Delalić (Case IT-96-21-T) Order on the Prosecution’s
request for a formal finding of the Trial Chamber that the Accused Landzo is fit to
stand trial 23 June 1997; Prosecutor v Talic (Case IT-99-36/1-T) Decision regarding
fitness of the accused to stand trial 29 April 2003 (confidential, but cited in Prosecutor v
Strugar (Case IT-01-42-A) para 45 and fn 120). In the Goering judgment, the IMT
identified the following criteria: (a) whether the accused is sane or insane; (b) whether
the accused is fit to appear before the IMT and present his defence; (b) whether the
accused is able to plead to the indictment; (c) whether the accused is of sufficient
intellect to comprehend the course of the proceedings of the trial so as to make a proper
defence, to challenge a witness and to understand the details of the evidence. The United
States of America, the French Republic, the United Kingdom of Great Britain and Northern
Ireland, and the Union of Soviet Socialist Republics v Hermann Wilhelm Goring et al Order of
the Tribunal granting postponement of proceedings against Gustav Krupp Von Bohlen
15 November 1945 I Trial of the major war criminals 143. Arguably, the IMT
established a stricter threshold – particularly in its requirement that the accused needs