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

Immunity of state officials and prosecution of international crimes 51
ICTY share the same Appeals Chamber, it is clear that the authority stated
in Krštić is binding even on the ICTR.
When President Paul Kagame was called by the defence and required
to submit himself for an interview before the ICTR regarding his role in the
genocide in Rwanda, particularly the role of the Rwandan Patriotic Front
(RPF) in the downing of a plane carrying former President Habyarimana
of Rwanda who died in 1994 due to the incident, 98 the Tribunal held that
Kagame could not testify before it. 99 The defence had argued that RPF was
responsible for the downing of the plane and that it knew of no other
person to testify other than President Kagame who could provide direct
and conclusive evidence on the incident as he was leading the RPF at the
time. 100 The defence demonstrated that it had attempted to secure the
voluntary attendance and appearance of President Kagame but that
Kagame refused. There was therefore no other way of getting evidence
from him except by subpoena. 101
The Trial Chamber denied the motion in its entirety without
discussing whether the defence for Nzirorera had failed to demonstrate
that there was a reasonable belief that President Kagame’s testimony was
likely to give the relevant information sought for the defence’s case.
Arguably, the decision of the Trial Chamber was unreasonable because the
defence for Nzirorera had made attempts to obtain information and
cooperation from President Kagame but to no avail. Besides, the requested
information would have been of considerable assistance to the defence’s
case.
However, in other instances the Trial Chamber of ICTR accepted that
state officials may be compelled to testify before international criminal
tribunals, most notably in the cases against Theoneste Bagosora. 102 In the
Bagosora cases, the Trial Chamber considered it necessary that
‘[g]overnment officials enjoy no immunity from a subpoena, even where
the subject-matter of their testimony was obtained in the course of the
government service’. Consequently, since the defence had made
‘reasonable efforts to secure the witness’s voluntary appearance, a
subpoena ad testificandum is both necessary and appropriate for the fair
98
Prosecutor v Karemera, Ngirumpatse and Nzirorera (Case ICTR-98-44-T) Decision on
Joseph Nzirorera’s Motions for Subpoena to Leon Mugesera and President Paul
Kagame, Trial Chamber III, 19 February 2008 para 3, quoting Joseph Nzirorera’s
Motion for Subpoena to President Paul Kagame, filed on 28 January 2008.
99 Prosecutor v Karemera, Ngirumpatse and Nzirorera paras 1-16.
100 Prosecutor v Karemera, Ngirumpatse and Nzirorera paras 3, 12 and 14.
101
Prosecutor v Karemera, Ngirumpatse and Nzirorera para 12.
102 Prosecutor v Bagosora (Case ICTR-98-41-T) ICTR Trial Chamber, Decision on request
for a subpoena for Major J Biot para 4; Prosecutor v Bagosora et al Decision on Defence
Request to Correct Errors in Decision on Subpoena for Major Biot, Trial Chamber I, 29
August 2006 paras 1-3.