Rwanda: Rape victim in tribunal ordeal

WITNESS TA, A VICTIM OF MULTIPLE RAPE IN 1994, WAS FORCED TO ENDURE A
LONG TWO-WEEK ORDEAL BEFORE AN OUT-OF-CONTROL TRIBUNAL.

If the ICTR archives are ever revisited, the hearing of witness TA will
stand out as a disgraceful moment in the court's history.
For two weeks, from October 24 to November 8, 2001, the woman recounted
the multiple rapes of which she was a victim during the 1994 Rwandan
genocide. Her testimony directly implicates Arsène Shalom Ntahobali and
also includes accusations against his mother, Pauline Nyiramasuhuko, and
"the prefect." After one-and-a-half days of questioning by the
prosecutor, which amounted to almost 100 pages of transcripts, she was
forced to undergo seven days of cross-examination by the various defence
lawyers in the Butare trial, in which six people stand accused. Two of
the cross-examinations were conducted for more than two days before a
chamber, made up of judges Sekule, Maqutu and Ramaroson, that had
completely lost control of the hearing. It was during the first round of
endless questioning, led by Duncan Mwanyumba, the Kenyan lawyer for
Arsène Ntahobali, that the court sunk into sheer disgrace.

BURSTS OF LAUGHTER
The scene began when counsel Mwanyumba launched into a series of
questions regarding the first alleged rape of TA by Shalom Ntahobali,
when he reportedly dragged her behind the prefecture buildings. The
lawyer questioned the witness about how she had been undressed before
the rape. TA replied that "apart from [her] kitenge (cloth wrap) [her]
other clothing was thrown to the ground." The defense counsel continued:

"After that you were naked?"
"I was still wearing a skirt." she replied
Mwanyumba leaned forward, pursed his lips and looked from left to right,
attempting a serious expression.
"Did Shalom remove all your items of clothing from your person?"
"He started to...Sir, I don't really understand your question. Perhaps
you could start with the clothing that he took off me, like I told you?"
replied the witness, disoriented.
Judge Maqutu was already smiling somewhat enigmatically, while President
Sekule interrupted:
"Where are you getting at counsel? She identified the clothes that were
taken off from her body. One, two, three, OK? Then you had another
question where she said that she was still wearing a skirt. So, I don't
know what you want. If you want to know what happened to her skirt,
maybe
you can ask her."
"Did the skirt remain on your person, or was it also removed?" continued
the Kenyan, as one of his colleagues, counsel Poupart, raised his
eyebrows and shook his head.
"I still had it on" replied the witness.
"Describe what happened next", urged Mwanyumba, with a frown.
As the lawyer stood motionless, poised for a response to his question, a
burst of laughter pierced the heavy silence. On the screens of the
close-circuit television, the camera swung round to find the source,
finally resting on the judges. All three were in fits of laughter.
President Sekule quickly suppressed his hilarity and donned an
expression of amused interest, with his thumb on his cheek and his index
finger near his mouth. His body was doubled up and his face was
overcome by the sudden loss of control.
To his right, Winston Churchill Maqutu chuckled openly, staring ahead
toward the witness stand where TA was sitting. He leaned back in his
chair, his pen suspended in the air above his notebook. On the other
side of the President, Arlette Ramaroson was just as overcome. She
clamped a hand over her mouth to hide her amusement, which she would
have shared openly were it not for a quick glance around the courtroom
telling her that it was only the judges who had found something
inexplicably funny at that moment. In an instant, William Sekule took in
the embarrassed stupor on the faces around him. Behind counsel
Mwanyumba, the defence lawyers looked over at the judges, wearing
expressions of perplexed surprise. The Kenyan lawyer, still standing,
torn between both reactions, decided to share the judges' sense of
humour like a bad student unsure of whether people are laughing at his
joke or at him, who chooses to side with the teachers.

"When anyone looks back at this trial..."
"After that, he laid me on the kitenge", replied TA softly. But the
schoolboy atmosphere in court did not die down. With mixture of lechery
and condescendence, Duncan Mwanyumba paused and spoke to the judges:
"Maybe your lordships wanted to say something, at the time..."
"Just go on" replied the President, while Judge Maqutu waved his
upturned hand from left to right towards the desk, with an air of
someone who has had a bellyful and is still laughing about it. In
contrast, the lawyers Poupart and Boyer stood stupefied, dark
expressions on their faces. The first dropped his head on his hand,
leaning heavily, and the second simply lowered his eyes. "What did he
do?"
"He lifted up the skirt that I was wearing," replied TA.
"What did he do next?"
"He started having sex with me."
Silence fell. Counsel Mwanyumba seemed to be thinking. All at once, he
bent over his lectern, leant on his right elbow and fiddled with his
drooping moustache, assuming the pose of a man suddenly inspired.
"I'll take you back. Do you recall earlier saying there had been no
water at the prefecture to drink and to wash with?"
"Yes, that's what I said and it's the truth," retorted the witness.
"Do you remember when you had last taken a bath?" pressed the lawyer The
Prosecutor objected. "Maybe counsel can explain the relevance of that
question?"
"Yes counsel, what are you leading to?" agreed William Sekule.
"Mr President, my client is charged with rape... I'm asking this
question to establish the circumstances in which the rape took place.
The question regarding whether she had taken a bath or not is relevant
beyond the description of the clothing to the conditions prevailing at
the time of the alleged rape."
"Yeah, you are dealing with a very important area, but... we have been
patient... are you suggesting that rape could not have taken place in
such a circumstance, or what?" asked the judge.
"I will be saying so, Mr. President."

Continuing with their inexplicable lightheartedness, the three judges
all burst out laughing once again, as if to say, "This lawyer is a real
clown." From among the astounded defence lawyers, Isabelle Lavoie,
co-counsel for one of the accused, clasped her hands under her chin and
delivered a withering look over the rounded shoulders of counsel
Mwanyumba. The latter continued, in fighting spirit: "I would not want
in twenty years time that when someone else is looking at these
proceedings they will say that "look there is no rape, because this did
not happen. I regret that my questions are detailed but it’s because of
the offence." The argument only served to further confuse the chamber.

"YOU ARE NO DIFFERENT THAN THE INTERAHAMWE"
"Witness TA, do you remember the last time you had taken a bath?"
resumed the lawyer sternly, trying in vain to win the support of the
audience.
"I don't remember the last time I took a shower, and what's more, there
was not even any drinking water" replied the witness.
"Were those the conditions Shalom found you in the first night?"
"Sir, I do not understand what you mean by the conditions. At the time,
it was not even possible to see us as human beings. We were more
considered as objects."
"Did Shalom use any condoms?"
"Sir, this is a different question from your last one. You asked about
the conditions in which we were found. I could reply to the question
regarding the condoms, but it is different from the former question."
"Answer the one about the condom first."
"Sir, I believe I heard 'conditions' [sic]. If you have forgotten this
question, I would ask you to remember."
"Would you say that in the conditions you were in, not having taken a
bath (Shalom interrupts), you smelt?"

The lawyer lifted his head, straightened his back, pulled his gown
straight and joined his hands together before him in a prayer-like pose,
while TA gave a long reply in Kinyarwanda, with renewed irritation in
her voice revealing a certain defensiveness. "It seems clear to me, sir,
that you are no different than the Interahamwe. I will remind you of the
question you asked me. You wanted to know whether Shalom had found us in
the same conditions. Then you asked another question about condoms, yet
the word condom was not used in the first question. It is clear that you
are not much different from the Interahamwe you are defending. Am I
lying? Your question is vague and you need to ask it more clearly so
that I can understand properly and reply." Counsel Mwanyumba pursed his
mouth and moustache. William Sekule, still unable to don a serious
expression, did the same. A short debate ensued between the two men over
the coherence of the cross-examination and "the sensitive nature of all
these things." But when the defence counsel resumed his questions, the
first was still in limbo and the second was doomed.

Their Children".

On day three of the conference, an Ibuka delegate from Canada stood up
and read out excerpts from an article published by Diplomatie Judiciaire
on 10 November, describing an incident that happened on 31 October
before one of the ICTR trial chambers. On the day in question, witness
TA, a victim of sexual violence, was describing her repeated rape by one
of the accused. While attempting to reply to the dubious questions put
to her by the defence counsel, the three judges suddenly burst out
laughing.

KIGALI SHOCKED
Delegates at the conference were stunned. According to one
participant:"there was an immediate, highly emotional reaction and [the
conference attendees] decided that they should organise the signing of a
petition during the session and send it to the Tribunal." Two ICTR
representatives were attending the conference at the time, one from the
Registry and the other from the office of the Prosecutor. The latter,
Martin Seutcheu, has been working as an investigator for the prosecution
for many years. He is also the special assistant to the chief of
investigations and serves as a liaison officer between the ICTR
prosecution and Ibuka, as well as the office of the Prosecutor in
Rwanda. Seutcheu was "incensed" by what had happened in court, and after
checking the written transcripts of the hearing, expressed concern that
"this incident might discourage rape victims from testifying as
witnesses in Arusha." He was therefore hardly surprised by the
repercussions of the affair during the conference. However, by
intervening in the highly charged debates that erupted in Kigali,
Seutcheu clearly underestimated the quagmire ahead. When his turn came
to address the conference, he unwittingly exacerbated the general
incomprehension by giving the impression that rape is of little
importance in Africa. A Cameroonian himself, he pointed out that in his
personal opinion the composition of the chamber - consisting of three
African judges - was perhaps not the most appropriate in such a case.
Moreover, he told delegates, "it is ironic that those present at the
hearing who were most embarrassed seem to have been the non-African
lawyers."

In an interview given after the tumultuous conference, he explained his
position further: "Everything should be done to affirm the universal
character of the Tribunal. To a certain extent, the cultural dimension
can cloud the hearings. Perhaps a real cultural problem exists, which
everyone knows about but refuses to admit. In our African societies,
there is a tendency not to take important issues such as rape seriously.
This has reinforced my conviction that the lesson to be learnt is that
greater thought must be given to the composition of the chambers and to
strengthening their universal character. My speech was badly
misunderstood. People thought I was trying to justify the judges'
behaviour. This was not the case at all. Other people came to see me
afterwards and I was able to explain my position more clearly. The issue
of rape is very important - it is both a strategic and a highly
sensitive matter. We are working for the victims and we have the duty to
protect them. The judges should be aware of this."

THE PRESIDENT INTERVENES
But this was not what the audience understood. Informed of the way
events were unfolding, the ICTR president sent an urgent message to the
conference delegates from New York, which was read out in Kigali on 29
November by the representative of the Registry, Nieves Molina. "Without
in any way prejudging any of the issues involved [in the incident of 31
October], I asked last week for further information to be provided to me
about the treatment of this witness when giving evidence before the
Tribunal. I will examine all the issues on my return (…) I assure you
that all the judges of the ICTR take very seriously the crimes of rape
and sexual violence. We are sensitive to the trauma of rape victims and
the need for particular care in the protection of witnesses who testify
about sexual violence. The ICTR made legal history by bringing in the
first conviction for rape as a crime against humanity and a constituent
part of the crime of genocide. Please be assured that the ICTR will be
vigilant to ensure that all those called before it to give evidence will
be treated with the respect and consideration that they deserve."
Navanethem Pillay seemed to have found the right words to lessen the
tension. "It helped to calm the situation down. Some people applauded.
But it didn't stop the whole affair," commented
one person present.

PROTESTS
On December 1, the Rwandan association for widows of the genocide,
Avega, publicly called for sanctions against the three judges and
defence lawyer Duncan Mwanyumba. Avega's actions were supported by the
association of genocide survivors, Ibuka. Their press release stated
that the judges had "openly laughed at the witness even though they were
well aware that she was the only survivor out of all the women who had
been raped by the accused." The associations also called for the witness
to be given a formal apology "for the treatment that she received". The
information was taken up by the news agencies, causing a snowball
effect, and producing the usual factual distortions. The Ugandan media
jumped on the issue with particular relish, and the 3 December edition
of The Monitor contained a centre-page spread with the headline "UN
Judges Laugh at Rape Victim". The title was shocking, but inaccurate.
For, during the incident in court, the judges had not actually laughed
at the witness, but rather in front of the witness, at a particularly
sensitive moment of her testimony. Two days later, the Kampala newspaper
wrote an editorial on the subject, and the tone was blunt:

"Beyond punishing the perpetrators of the Rwandan genocide, the ICTR was
located in Arusha partly to send a moral message to Africa - that crimes
against humanity won't go unpunished. The ICTR however has been an
abysmal court. (…) Since it was set up in 1994, with its staff of 800
and a budget of $90m, it has only handed down eight sentences, and one
acquittal. The behaviour of the judges therefore points to a structural
problem why the ICTR's results are so dismal. (…) Many internal bodies
tend to become cynical and patronising when dealing with African
questions because our own record is appalling. Thus it is easier for
non-Africans, and an arrogant African judge on the ICTR to assume that
murder (genocide) and rape on the continent are "normal", and therefore
to treat them more lightly than if the court had been sitting in Europe,
trying a European for similar crimes. (…) This action must be punished,
or else the UN and the ICTR will only discredit themselves more in the
eyes of Africans who care about making this a better continent governed
by law and civilised behaviour."

"RACIST" CRITICISM
The protests did not end there. It was then the turn of the collective
of Rwandan women's associations 'Pro-Femmes' to urge the ICTR to
"respect the right of witnesses and levy immediate sanctions against
particular judges." The collective condemned the judges' "behaviour" and
called on the Rwandan government to "keep a close eye on witnesses" who
testify at the Tribunal. It even went as far as suggesting that rape
cases should be heard in camera and in the presence of female judges.
For the time being, the Rwandan authorities have exercised caution and
strategically left it to non-governmental organisations to take the
centre stage. "I am not suggesting that witness TA was mistreated. I was
not there. But she was mishandled," declared Martin Ngoga, the Rwandan
ambassador to the ICTR, in a press conference held on 3 December.

In Arusha, the only public reaction came on 5 and 6 December from the
chief Prosecutor Carla del Ponte. She promised to contact witness TA in
person "because without witnesses like her, there would be no
international justice." She then turned her attention to her own
representatives, since the incident with witness TA had also illustrated
the prosecution's complete failure to intervene and protect its own
witness. The affair has badly shaken the Tribunal, and it now runs the
risk of feeling unjustifiably vulnerable in the future. Contrary to
certain allegations, the Rwanda tribunal does not have a record of
poorly treating its witnesses and it would be too simplistic to make
generalisations based on TA's particular experience. However, the ICTR
must nevertheless face up to and explain the breakdowns in the
functioning of the court which marred the witness' two-week testimony on
several levels. According to numerous members of the Tribunal, certain
judges who came under attack are said to be hurt and offended by the way
the incident has been reported. Some - like Judge Maqutu, who spoke
openly about this - consider that the criticisms levelled against them
are quite simply "racist". Such a reaction is typical of a longstanding
and unfortunately inexhaustible form of ICTR rhetoric.

CONTAGION AND CONFUSION
As for the defence, some lawyers fear that the judges might react at
their expense by limiting their right to cross-examine witnesses. On 5
December, during the Media trial, the testimony of Agnès Murebwayire
partly vindicated their concerns. It also demonstrated another risk,
which might be called the "contagion and confusion effect". As is common
practice in any British court, the defence lawyer Diana Ellis suggested
to the witness that she was lying. This is not the first time this has
happened; her compatriot Steven Kay regularly used similar terminology
during the Musema trial, without causing a stir. Perhaps it was the
context of the moment, created by the entirely dissimilar incident of 31
October; Agnès Murebwayire was outraged by the lawyer's attack,
exclaiming, "I will not be insulted. I request that the term liar be
withdrawn." This time, the Prosecutor stepped in, requesting that his
witnesses be treated "with consideration" and suggesting that certain
words should not be used. "I do not understand a system of
cross-examination where one cannot imply that a lie has been told,"
retorted Ms Ellis. Judge Mose, presiding over the hearing, ended by
recommending that words which may appear pejorative - such as liar -
should be avoided, to the great displeasure of Ms Ellis. The next day,
events turned even worse. Faced with the naturally persistent challenge
to her testimony, Agnès Murebwayire erupted in anger. Accusing the
defence lawyers of making money "on the backs of our dead", she left the
courtroom completely beside herself. Coming right in the middle of the
storm over witness TA, the shadow of such a precedent clearly hovered
over the court. And yet the incidents have nothing in common with each
other, and cannot be linked in any way.

SENSITIVE ISSUES
Diana Ellis summarised the situation thus: "The witness protection unit
must inform witnesses that they will be questioned and will have to
answer the questions. If these questions are improper, it is up to you,
the judges, to intervene. Witnesses do not come to make speeches. If
they do, they could lose their self-control and that doesn't help
anybody. We are saying that certain witnesses have come to tell lies.
And we have the right to say this." Reacting to the blunt but sober
words of the British counsel, another lawyer René Martel felt inclined
to add his own opinion: "Madame has spit out her venom. She has been
caught red-handed. In view of her comments and her personal attacks, the
witness ought to be disqualified." The following day he continued in the
same vein: "She throws insults to the lawyers, and is insolent," before
being interrupted by the president, clearly not inclined to stand for
the Quebeckan's admonishments.

Although Agnès Murebwayire's testimony appeared dramatic, it does not
fundamentally count as the poor treatment of a witness or an ineffective
policing of the hearing. It is, however, a further illustration of the
way such issues have become highly sensitive before the ICTR over the
last few weeks, and of the slippery ground that they have generated.

President Press Release - CTR/INFO-9-3-08.EN - Arusha, 14 December 2001]

--
FIN DEL MENSAJE END OF MESAGGE EINDE BERICHT FIM DA MENSAGEM FINE
DEL MESSAGGIO ENDE NACHRICHT FIN DEL MENSAJE END OF MESAGGE
EINDE BERICHT FIM DA MENSAGEM FINE DEL MESSAGGIO ENDE NACHRICHT
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