Eyewitness To Hell

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DEFENCE ARGUES FOR DICLOSURE OF PLANE CRASH REPORT

Arusha, May 30th, 2000 (FH) - The French defence lawyer for genocide suspect Ignace Bagilishema on Tuesday urged judges of the International Criminal Tribunal for Rwanda (ICTR) to order disclosure of a sealed document on the death of Rwandan President Juvénal Habyarimana.

"Nothing can justify this document being concealed from the Court and from the defence," argued François Roux, saying he believed it could be vital to his defence strategy. Roux said the shooting down of Habyarimana's 'plane, which served as a trigger for the 1994 genocide, was referred to specifically in his client's indictment.

He also told the court that prosecution reluctance to have the document released was an extra reason why the judges should grant his request. "When I see such vehement opposition from the prosecution, my good sense tells me it is something likely to damage their case. And if that is so, it is likely to be of help to the defence," Roux told the court.

Roux said that, according to press reports, the document implicated the Tutsi-led Rwandan Patriotic Front (RPF) in the shooting down of the Hutu president's 'plane on April 6th, 1994. "It has been insinuated for a long time that it was rather Hutu extremists who downed the plane to justify the genocide, which had been planned in advance," Roux told the court. "Now, if it emerges from this document that the plane was shot down by the RPF, which waged war in Rwanda to take power by force, then that considerably changes the analysis of what happened, and of the role played by my client."

He said such evidence could show that "Bagilishema was the victim of this attack, not one of its instigators". Bagilishema was mayor of Mabanza, in the Kibuye prefecture of western Rwanda, from February 1980 to July 1994. The prosecution says he played a leading role in the massacre of Tutsis who fled to the region during the genocide that took place from April to July 1994.

But the defence says attacks on Mabanza commune were led by outsiders and that Bagilishema did not have the means to counter them. Bagilishema says he asked for military reinforcements, but they were not sent.

On April 7th this year the ICTR's South African president Navanethem Pillay said she had received a UN memorandum concerning the 1994 'plane crash that killed Habyarimana, and had put it under seal.

"Having been made aware that the document related to issues which might in future be raised before a Trial Chamber," she said in a press release, "and after consultation with the other judges, I directed that [...] the document be placed under seal in the President's Chambers immediately upon arrival. Neither I nor any of the other judges has read the document."

Judge Pillay said the document was a 3-page memorandum prepared by former ICTR prosecution investigator Michael Hourigan, "on his own initiative. At the time he wrote it, Mr. Hourigan was working for the Office of Internal Oversight Services (OIOS). The memo was therefore an internal and confidential matter for the OIOS and was not sent to the ICTR."

The document was brought to light after it was leaked to Canadian newspaper the National Post earlier this year. According to the National Post, it shows that the UN received information in 1997 that Tutsi members of the current Rwandan regime and a foreign government may have been behind the shooting down of Habyarimana's 'plane.

Pillay said that the UN in New York had sent the document to the ICTR "so that if this matter is raised before the Tribunal, the appropriate Trial Chamber could decide if the document is relevant for the defence of any of the cases on which the attorneys are working and, if so, determine under what circumstances and conditions the document can be released."

Bagilishema's lawyer argued that it was therefore up to the judges and not the prosecution to turn the document over. After that, and depending its contents, the defence could introduce a motion asking the prosecution to disclose other relevant documents.

However, Tanzanian prosecutor Wallace Kapaya said the defence had failed to prove any direct link between the document and his client's case. "They say they need to know what the document says, but that can't be construed in a vacuum," Kapaya told the court. "You must have a reason."

He said neither of the parties knew what was in the document and that the defence was therefore "on a kind of fishing expedition". But Roux argued he could not be more specific about his reasons without seeing the contents of the document.

Several other ICTR detainees are also demanding that the Tribunal release the documents on the crash andformer mayor of Taba Jeanhis motion on Friday/or open an investigation. These include former military leaders Gratien Kabiligi and Aloys Ntabakuze, -Paul Akayesu and former politician Joseph Nzirorera, who is expected to present .

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