Dallaire Testimony-Exchanges Between Black, Defence Counsel, and the Judges and Prosecutor On Lack of A Fair Trial

dallaire-rwanda

The following exchange took place November 20, 2006 at the Rwanda War Crimes Tribunal in the Military II Trial, the trial of the chiefs of staff of the Rwandan Army and Gendarmerie and other officers between defence counsel and the panel of three judges and the prosecutors. It concerns the refusal of the Tribunal to allow defence counsel to properly cross-examine Canadian General Dallaire on his actions in Rwanda. We needed many weeks. They gave us a a couple of days and Dallaire was allowed to testify by video from Canadian Defence HQ in Ottawa and had several senior army officers sitting next to him who refused to leave.  Ronnie MacDonald, a strong defence counsel from Montreal, counsel to the army chief of staff, first set out the reasons why this was a  complete denial of  fair trial for all the accused, that the trial was a travesty, then I, counsel for the chief of staff of the Gendarmerie, began my submissions in which the following exchange took place.  Anyone interested in the UN war crimes tribunals, Rwanda, Dallaire, and how we in the defence at this Tribunal tried to resist the fascist legal machine  will find it interesting.

Mr. Black,

“I have a statement also ‑‑ instructions from my client which I can read to you. It’s not very long. I can read in one minute. It’s in French and English; I will read it in English. It’s addressed to me, but I’m instructed to read it to you as the reasons why General Ndindiliyimana is not here.

“I wish to remind you that on many occasions I have drawn your attention ‑‑ kind attention to the fact that I was more and more convinced that I would not get a fair and just trial before this Tribunal. Many decisions taken by the Trial Judges in the instant case prove beyond a reasonable doubt that my concern is well‑founded. It is particularly so in the unfair and highly biased decisions against my Defence taken on 20 October 2006 and 3rd November 2006 in relation to the forthcoming testimony of General Roméo Dallaire. The conditions imposed for his testimony constitute an unacceptable limitation of my right to a fair trial, and it is a clear denial of justice.

“A free and independent deposition by a high‑level official with whom I worked”, that is General Dallaire, “without ever incurring a single reproach from him or his collaborators will give him a forum to tell the Trial Chamber and the world who were the real actors in the Rwandan tragedy. It is only under this latter condition that General Dallaire would very probably tell the truth and avoid reproducing manipulated theories.

“In the letter I wrote to General Dallaire on 12th February 2003, a copy which I ask you to file with the Court, along with this statement, I reminded him that immediately after the attack against the aircraft carrying President Habyarimana, I personally invited him to come and participate with the Rwandan government force high command in handling the crisis. Thus, Roméo Dallaire participated in all the meetings during which decisions were taken.”

  1. BÂ:

Objection, Mr. President. Objection. Counsel is making submissions ‑‑ he is giving evidence from the bar. He is testifying to events regarding which he can only testify if he decides to give evidence or if he decides to cross‑examine General Dallaire.

  1. PRESIDENT:

Yes, Counsel, I think ‑‑

  1. BLACK:

Well, I’m not going ‑‑ that’s the last statement of that nature, sir. “It is therefore incomprehensible and even unacceptable that this person, who could enlighten the Judges and the world on who did what in the Rwandan tragedy and on who truly carries responsibility for what happened, be manipulated and utilised to testify against an innocent person, as I am. Worse than that, the Judges are depriving me of the right to confront this man, face‑to‑face, in order to dismantle his lies and have ample time to confront him. The testimony of the widows of Ngulinzira and Kavaruganda call upon the consciences of all who heard them and plead for my direct confrontation of General Dallaire.

“It is true that the absence of transparency in the Rwanda file before this Tribunal is not only linked to the testimony of General Dallaire. There are many more situations where transparency had been denied, to the extent of imposing drastic limitations on contradictory debates. All along in our trial, the Trial Chamber Judges have not hidden their bias in favour of the Prosecutor. They have systematically denied to the Defence their right to appeal against their unjust and inequitable decisions” ‑‑

  1. PRESIDENT:

So he’s speaking about all the trials, not only this one?

  1. BLACK:

No, he is speaking about your decisions in this trial. “All requests for certification of appeal have been systematically denied. Worse than that, the Presiding Judge does not want to entertain any debate on the count of genocide of which I am accused, under the pretext that judicial notice of genocide has been taken in another proceeding.

“Regarding General Dallaire himself, I automatically contest his testimony because a conflict exists between him and I. In fact, I lodged a complaint against him before the Belgian courts.

“Taking all this into account, I consider that my participation and my representation in this trial, when General Dallaire will be testifying, would be equivalent to supporting this mockery of justice, and an acceptance of the serious violation of my fundamental rights to a fair and equitable defence. It is the reason why I have not ‑‑ I have decided not to attend General Dallaire’s testimony.

“In addition to that, I formally demand that after” ‑‑ I have something to ask you. “I formally demand that you inform the Trial Chamber that you do not have any longer my mandate to represent me in these proceedings, as long as the Court sits to hear General Dallaire’s testimony by video link. These are unacceptable conditions and appear in deliberate violation of my basic rights.”

Now, before I continue, Judge, I would like to ask if ‑‑ I take it that the Court maintains its decision of last week ‑‑ of the weekend, of Friday, rejecting our appeals? But before ‑‑

  1. PRESIDENT:

What do you mean by maintaining a decision? Once a decision is given, that stands.

  1. BLACK:

Yeah, okay. Well, then, just for the record, because I think I have to do this for myself and for the general, I would just like to put on the record what I would be cross‑examining General Dallaire on, just briefly, as an offer of proof.

I would be cross‑examining ‑‑ I would like to cross‑examine him on his appreciation of the capacity and condition of the gendarmerie, disposition of its resources, its men, its joint patrols with the UN, its participation in Operation Clean Corridor, its actions in the swearing‑in ceremonies, and that would, I believe, take me three days.

  1. BÂ:

Mr. President, this procedure is improper. He cannot give a guideline of his cross‑examination, even when the cross‑examination has not yet taken place or started.

  1. BLACK:

Under American law I’m required to do so, and under the British law I’m required to do so. I’m sorry, Mr. Bâ, but those ‑‑ that’s required.

  1. PRESIDENT:

Well, Counsel, I think we have already given a decision on the matter. So therefore there is no need to go into all this now. Because you are eating into this precious time that we have allocated for testimony of this witness.

  1. BLACK:

Well, my client was sitting ‑‑

  1. PRESIDENT:

Counsel, one more thing I will tell you ‑‑

  1. BLACK:

Yes.

  1. PRESIDENT:

‑‑ all the time during the testimonies of other witnesses, you have been saying that, “Well, I had a special relationship with Dallaire and I would welcome his testimony.” Now when he is permitted to come here, you say you don’t want him. What is this? And you say that we are not fair when we call him.

  1. BLACK:

If you would let me finish you will understand why I say that. I need three days to do what I just listed.

And I need one day to cross‑examine ‑‑ just a minute, Mr. Bâ, Mr. Bâ, would you stop and sit down ‑‑

  1. BÂ:

Mr. President ‑‑ Mr. Black, it is not the American law that applies before this Trial Chamber. Tell the Court the rule in the Rules of Procedure and Evidence which allows you to do what you are doing, namely to give an outline of your cross‑examination, even though that cross‑examination has not yet taken place. This Tribunal is not governed by American law. It is only when the rules here are silent on a given issue that we can refer to the general principles of law and the other legal systems.

  1. BLACK:

The President just asked me why I was saying this; I am explaining, Mr. Bâ.

  1. PRESIDENT:

We have given you a time frame, so you are to work within that.

  1. BLACK:

I’m sorry, sir, I have to explain to you why I can’t.

  1. PRESIDENT:

Well, this is not the time for you to explain. You can register your protest at the time when you start the cross‑examination. Are you first appearing today? That is the purpose of your getting up? You are now dealing with other things.

  1. BLACK:

I have ‑‑ I have instructions to do this. If you’re not going to allow me to make submissions, I would like to know that. I need to finish these submissions.

  1. PRESIDENT:

I am not here to give any explanations to anybody. I will run this Court the way I want according to the rules.

  1. BLACK:

I know that, but I need to know, am I going to be able to finish these submissions which I am instructed to make?

  1. PRESIDENT:

(Microphones overlapping)… already said that you are going to appeal, so what is ‑‑ what is there for us ‑‑

  1. BLACK:

Well, if you’d just be patient, sir. I have limited instructions to appear today for this limited purpose, and if I can just finish.

  1. PRESIDENT:

Yeah, okay.

  1. BLACK:

Thank you. I also intend to cross‑examine him on his meeting with Jean Pierre and the so‑called genocide fax and the involvement of the British Army in fabricating that fax.

  1. PRESIDENT:

Well, Counsel, I think this is highly irrelevant. You can ‑‑

  1. BLACK:

That would take me one day.

  1. PRESIDENT:

Well, I ‑‑ you can cross‑examine him on all the relevant facts that he’s going to speak to, or even other facts that he has not spoken to in this Court.

  1. BLACK:

But I can’t ‑‑ I would need to examine his role on the death of Agathe; it would take me one day. The death of the Belgians; one day.

  1. PRESIDENT:

That will give Agathe her life back, when you cross‑examine him for one day?

  1. BLACK:

His involvement with assisting the RPF in its offensive and shooting down the plane; five days. Authentication of all the documents before us that need to be authenticated (microphone not activated) ‑‑

THE ENGLISH INTERPRETER:

Microphone, sir.

  1. BLACK:

I have a total of 15 days’ questions here, which are essential. His involvement in the death of Agathe, the death of all the VIPs under UN protection, his meetings with my client, his meetings with the army officers on the 6th, 7th, and 8th. It would take me 15 days, at a minimum, to properly cross‑examine Dallaire. So one day, I can’t do it, I can’t even begin to do it, and I have no intention to do it.

  1. PRESIDENT:

Thank you.

  1. BLACK:

So my final instructions, sir, is this: I am instructed to request for the recusal of yourself and Judge Park because of your attitude in this trial throughout, your failure to ‑‑ in fact, your rejection of all our motions, your failure to sustain or deny objections when we make them, you fail to give reasons for these reasons ‑‑ for these decisions, the continued limitation of our rights to cross‑examine various witnesses, your assistance to witnesses when they’re in trouble for the Prosecution to help them, condemn the clients, your expressed attitude and Judge Park’s expressed physical attitude is un ‑‑ to my client and me gives us the impression of at least an apprehension of bias. And we therefore ask that you consider recusing yourself. Judge Hikmet has not displayed the same amount of bias, in our view, at this point, so we are not asking for Judge Hikmet to recuse herself.

Failing that, I am instructed finally to ask that if you decide not to recuse yourselves, and not consider this motion, that you again consider transferring General Ndindiliyimana’s trial to a jurisdiction where he can get a fair trial; anywhere except Rwanda. He’s willing to go to Germany, Belgium, Canada, United States, any country in the world except Rwanda. And it’s quite clear, now, that this ‑‑ the Security Council has set up a Tribunal whose goal is to protect the UN, because there’s no intention of allowing us to explore the role of one of the principal actors in the war, in the tragedy, the UN itself, they have no intention of allowing us to explore that. And the world needs to know what the UN did in Rwanda and why these things happened.

So, I’m sorry, sir, that I’m instructed to suspend ‑‑ in fact, I am suspended as of now. That’s my last instruction.

One other thing ‑‑ I don’t want to be a sensationalist, because I am always accused of being that. But yesterday I was visited by someone who made a direct threat against me and my client’s life. And I cannot work under these conditions. I was told that I’m a dead man and so is my client, that my client is no longer safe in the UNDF ‑‑ and you can laugh if you want ‑‑

  1. PRESIDENT:

Well, Counsel, it’s not the first time I am hearing this.

  1. BLACK:

I don’t think it’s a laughing matter when somebody threatens to kill me, and you better goddamn well listen.

  1. PRESIDENT:

Well, Counsel, it is your turn to listen.

  1. BLACK:

Then you stop ‑‑ you protect me, because I am not staying here when somebody is trying to assassinate me.

  1. PRESIDENT:

If you have any complaint, you go and make your complaint to the appropriate authority.

  1. BLACK:

(Microphones overlapping)… don’t ‑‑ please don’t laugh at me.

  1. PRESIDENT:

Please ‑‑ please sit down.

  1. BLACK:

I will sit down, sir, but please don’t laugh at me.

  1. PRESIDENT:

Please, show your conduct. You are trying to make this Court a mockery.

  1. BLACK:

No, sir, you have done this yourself.

  1. PRESIDENT:

Please take your seat; you have said what you are going to say.

  1. BLACK:

I am instructed to ‑‑ one thing, I don’t want to fight with you anymore.

  1. PRESIDENT:

I am not here to fight. You are now just using ‑‑ using this Court for another agenda.

  1. BLACK:

No, I am not, sir.

  1. PRESIDENT:

That you have demonstrated to this Court now.

  1. BLACK:

You are not taking my — what I just told you seriously? Please don’t laugh at that because it was serious, and I take it seriously. I’m sorry I got angry, but when somebody says that to me last night ‑‑ I take it very seriously. And it was a member of the police here.

So, my instructions, sir ‑‑ and I don’t want to fight ‑‑ I don’t know what you’re going to do. But my instructions are to leave the courtroom because I don’t represent anybody here. I don’t know if you’re going to order me to stay or what, but I don’t represent anybody, and my instructions are to leave.

  1. PRESIDENT:

Yes, Mr. Black, you must know that you can’t leave the courtroom like that; you are assigned by the registrar to do a job of work, not to ‑‑

  1. BLACK:

I have no work, sir. I am suspended. I can’t do anything here. I’m just a civilian right now. I have no role.