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Intemational Criminal Tdbunal Rwanda for pour Tribunal P6nallntemadonal le Rwanda INTHEAPPEALS CHAMBER Before: Judge Patrick Robinson, Presiding Judge Mehmet Gtiney Judge Fausto Pocar Liu Judge Daqun Judge Theodor Meron Regisbar: Adama Dieng Date: 7 June2010

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ffice of the Prosecutor Hassan Jallow A. Alex Obote-Odora George Mugwanya W. Inneke Onsea Renifa Madenga Madeleine Schwaa Abubacarr Tambadou EvelynKamau William Mubiru Priyadarshini Narayanan AishaKagabo

Counselforthe Defence Peter Erlinder, E. Lead Counsel Andr6 Tremblay, Co-counsel Intemational Cdminal Bar Fabio Maria Galiani Virginia Lindsay C.

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Pursuant Rule74 of the Rulesof procedure Evidence to and (RpE),the Executive Committee the International of criminalBar("lcB")respectfully requests leaveto file submissions relation the pending in to request Aloys by Ntabakuze injunctive for refiefland submits following supportof this the in request leaveto file amicus for submissions: I. INTRODUCTION l. The circumstances the casesubjudice areof greatconcernto the of Members the International of criminalBarandto everycounselwho practices beforeany international tribunal, whetherthey represent the defence victims.Thisis especially for counselappearing or true before the International Criminal Courtfor two reasons:(1)the nationality the of perpetrator the victimcantrigger jurisdiction, or irrespective the territory of whereinthe crimeswere committed, investigations needto be so will conducted manypartsof the world,and sometimes areaswherethe in in government lessthanenthusiastic is aboutthe investigations; (2) lt is and not unusual counselfor either defence for victims for the or who are participating ICCpre-trial in proceedings haverelevant to arguments and complaints relating crimes to committed the governments control by who the territory whereinvestigations to be conducted.2 need 2. TheAppeals chamber's decision thiscasewiil havean immediate in impact the ability Counsel on of around worldto conduct the theirwork independently confidence theirprotected with in statusand therefore on the proper functioning all of the international of criminat courts and tribunals notjust on the ICTR. Forthatreason, is important the and it that submissions the lcB be considered of whendeciding motion. this

Nlabakuze's Extremely Urgent request Injunctions for against government the of I Aloys Rwanda theillegal for p. anestof andinvestigation against counsel, Erlinder, lead for statements in thecourse appellant's made of defencearticles 20,28&29 thestatute 19, of andrule54of theRPE(hereinafter'Mr. Ntabakuze's Request"). ' A thirdsource interest ICBmembers of for is thatthesolution thecase sub judicecould of principles rules international relevant ICCcases consofidate and of law in (b), undeiarl.21, ICCStatute.


with in co-counsel thiscaseand consulted our interviewed Having facts: the members, ICBnotesthe following

duringthe to as was assigned LeadCounsel Mr. Ntabakuze 4 . PeterErlinder six for as trialin thiscaseand hascontinued LeadCounsel approximately years. on and convicted 3 on was acquitted 31 charges 5 . At trial,Mr. Ntabakuze of of the of charges genocide, appeal whicharethe subject the casesub judice. briefon 25 May2009,and an amended filedhis appeal 6 . Mr. Ntabakuze briefon 24 June2009. appeaf on fromhis co-defendants 24 June severance requested 7 . Mr. Ntabakuze on was denied 24 July2009' 2009. The request and by Sincethattime,initialbriefing all threeco-accused prosecution are havebeenfiled. Oralarguments not yet scheduled responses by requested co-appellants into withtranslation French of because delays to is Bagasora notexpected file his reply and Bagasora Nsengyiumva. or beforeSeptember October. an g. sincelastseptember, Ntabakuze not beenprovided has Mr. to opportunity meetwithhiscounsel. a on the emailed Registry 13 May2010,submitting work 10.LeadCounsel to to pfanand asking authorization travel Arushaon or about22May in for in with Mr. Ntabakuze orderto reviewall of the pleadings orderto consult and of madein the briefs the co-appellants the in lightof the arguments legalaidfor fivedaysof prosecution. Leadcounselrequested

consultations Arushain orderto complete in finalpreparations the for appeal and determine whether thereis a basisfor additional motions. I l. Mr. Ntabakuze expected meetwith his attorney to duringthe week beginning May2010. 31

12.Mr. Ntabakuze's LeadCounsel originally intended traveltoArusha to on Thursday, May,butwas delayed to a courthearing an unrelated 27 due in casewhichhad beenscheduled shortnotice 28 Mayand because at tor he hadscheduled meeting thefollowing for a Monday complete steps to the necessary be properly to authorized appear the Rwandan to in national court. 13.Mr. Ntabakuze's LeadCounselwas in arrested Kigale, Rwanda Friday, on 28 May2010and has nowpleaded guiltyto charges genocide not of ideology underarticle 3(2)of LawNo. 18/2008, "LawRelating the the to Punishment the Crimeof Genocide of ldeology," adopted July2008by 23 the Rwandan Parliament. Article 3(2)provides follows: as
"Thecrimeof genocide ideology characterized any behaviour is in manifested factsaimedat deshumanizing a personor a groupof by [sic] p€rsons withthe samecharacteristics the following in manner: (2) marginalising, laughing one'smisfortune, at defaming, mocking, boasting, despising, degrading createing aimingat negating [sic]confusion the genocide whichoccurred, stiring takingrevenge, [sic]up ill feelings, altering testimony evidence the genocide or for whichoccurred;

The statements whichform the basisof the prosecution in substance are identical statements to madeduring course his representation Mr. the of of Ntabakuze the case subTudice. Erlinder a memberof the in Mr. is International Criminal Bar. 14.LeadCounsel 62 yearsold and in ill health.Mr. Ntabakuze is livesin fearthat his LeadCounsel notsurvive jail stayin Rwanda. actual will the

15.Counsel around worldwho are authorized appearbefore the to internationaltribunals nowlivingin actual fearthattheymay no longer are be ableto fulfilltheirmandates security. in B. THE INTERNATIONAL BAR IS AN APPROPRIATE CRIMINAL ORGANISATION ACT AS AN AMICUSIN THE PRESENTMATTER TO 16.Rufe74 RPE,entitled"AmicusCuriae" states: "A Chamber may,if it considers desirable the proper it for determination the case,inviteor grantleaveto any State, of organization personto appearbeforeit and make or by submissions any issuespecified the Chamber." on Bar is 17. The lnternational Criminal ("lCB") an association national of and professional associations, regional associations, bar legal individual members non-governmental lt and organisations.3is dedicated to particularly the rightto a fair the advancing goalsof the lCC,focusing on participation victims, persons, rightto meaningful the for trialfor accused of and andthe independence Counsel LegalRepresentatives appearing beforethe Court.a

18. substantial A number Counsel appear cases of who in before ICTR, the including Erlinder, members theICBandareincluded the are Mr. of on list before lnternational Registrar's of counsel authorized appear to the granted Criminal been leave submit Court.ICBhasbefore to amicus by observations theICCAppeals Chamber.s
3.The ICBwas formally established the Conference Montr€al June2002.Morethan at in of were in attendance the founding the lCB, representing associations, at of 350counsel bar counsef associations NGOsfrom48 countries.Hallers, als.,eds., Ihe position the and et of defenceat the new lntemationalCriminalCouft and the roleof the Nethedands fhe hosf as state,2002 p. vii. at 4 The development sucha Bar association anticipated rules of was in 20 and 21 of the ICC (RPE), whichdirectthe Registrar'tocooperate" Rulesof Procedure Evidence and with'any body of counseland legalassociations" promotethe independent representative to in specialization training lawyers the law of the Statute and andthe Rules'andto consult of with any independent representative body of counsel'fiJorpurposessuch as' management of related the Codeof Professional to the legalaidesystem, and in matters Conduct. 5 SeefCG-O1104-O1tO6-1289, on Decision "Motion Leaveto File Proposed for AmicusCuriae Criminal Pursuant Rule 103of the Rulesof Procedure Bar to Submission the lnternational of 22 and Evidence", April2008.

with are concerned the situation Lead of 19.ICBmembers in particular mechanism, which because the nature the ICCtriggering of of Counsel to whichis governed thosewho mayor by extends jurisdiction territory the Evenwhenthe maynot be happywiththe creation jurisdiction. of government referred who has itselfto the lCC,thereare oftenindividuals governments are guiltyof war crimes who in are participating the referring humanity whowantto usethe international and courts and crimes against justice for and as a means hiding theirown crimes. as a toolof victor's appearing before international all courtsand tribunals Thefearof Counsel Kagame's actions relation Mr. Ntabakuze's in to Lead is thatGeneral thosein othergovernments threaten to defence embolden Counselwill whichis necessary ensure fair the to teamsand destroy independence trialsand an endto impunity. in 20.The ICBrespectfully submits the issues thiscaserelating that to will functional immunity, equality armsandthe rightto counsel choice of of frombeingaddressed an association Counsel by of suchas the benefit lCB. The ICBbrings together lawyers fromthe lCC,the ICTR,the ICTY from systems overthe all and bar associations individuals national and who represent and victiminterests, world. Our members, boththe defence justicesystem.Theirvoicesoften part are an important of the international leadeffortsto discover truth,no matterthe context. The ICBwouldbe the to an appropriate organization present thoseviewsso as to assistthe in Appeals Chamber itswork. THEAPPEALS WILLASSIST CHAMBER IN C. AMICUS SUBMISSIONS THE ISSUESSUB JUDICE RESOLVING will 21.The submissions whichare proposed address issues whichhavenot by Theyrelate basicissues to beenraisedin the pleadings the parties. whichwill impactuponall international national and criminal cases, thosein situations before International the Criminal including Courtand around world. Theseissues central the otherinternational tribunals are to of the and of maintaining independence counsel the ability counsel to

safelyand effectively represent theirclientsin an international systemthat is seento be fair and unbiased. granted 22,1f leave,the lcB proposes filesubmissions an expedited to on basisaddressing following the issues and/or any otherissuesrequested by the Court: A. Whether equality armsguarantees retevant of are whendefining the scopeof functional immunity the circumstances thiscase. In in of otherwords,whetherit matters that a formerprosecutor suchas carla del Ponteor the currentlcrR or rcc prosecutors make can identical statements thosemadeby Mr. Ntabakuze's to Lead counseland be protected immunity, by whilea defence counsel who is activeon a casebeingargued before lcrR is not the protected. B. Whether arrest Mr. Ntabakuze's counsel the of lead constitutes a breachof the rulesgoverning functional the immunity defence of counsel actingbeforelcrR andthe conditions a fairtrial. for prosecutor Government c. whether the actions the Rwanda of / amountto obstruction the course justiceat the lcrR by of of depriving Ntabkuze's de factorepresentation disrupting Mr. of and the proceedings just in thiscase,butin any casein which not counselor investigators seekto travelwithinRwanda. D. whetherthe fearsexpressed counselappearing othercases by in beforethis and otherinternational courtsand tribunals are reasonable, if so,whether and thosefearsundermine the independence counsel the rightto a fair and unbiased of and trial.

CONCLUSION Fortheforegoing reasons, lcB respectfully the requests the Appeals that grantthis request allowa shorttimefor the filingof submissions Chamber and on the aboveissuesor anyof themor anyotherissues whichthe Appeal Chamber findsmay be of assistance. Dated this7'"day of April2010 At The Hague, Netherlands


C' ?r'-tkuua,

V'rgi Counselfor the Executive Committee theInternational of Criminal Bar

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[_JChamber (names) !

(Art.27 of the Directive the Registry) for

I . GEI{ERAL I]{FORMATION o be completed by the Ghamberc ll I ll TrialChamber ffil'rialChamber R. N. Kouambo N. M. Diallo To: / JLSD I orc,JPU Ll r. A.Talon LJ OIC, (Appealsffeam lV) C. K. Hometowu P.Besnier From:

lll n triatChamber C. K. Hometowu

/ ChamberTheHague X Appeals K. K. A. Afande R. Muzigo-Morrison Griminal International Office X Other: U Prosecutor's Bar (names)


vs. TheProsecutor Aloys NTABAKUZE

A CaseNumber: ICTR-98-41-

Document's 7 June2010 date: 7 June 2010 Transmitted: Dates: No.of Pages: 07 OriginalLanguage: X English I Frepoh :. n Kinyarwanda .,' BAR CRIMINAL neOUeSr OFTHEINTERNATIONAL Titleof = Z PURSUANTJS CURIAE SUBMISSIONS TO FORLEAVE FILEAMIGUS Document: <AND OF RULE74OFTHERULES PROCEDURE EVIDENCE r-6<-€ Type: Document TRIM Level: Classification fromnon-parties E Indictment n Warrant ! Correspondence n exParte fromparties of Decision ! Affidavit ! Notice Appeal Seal n Under Confidential/ n Strictty Disclosure ! Order ! AppealBook E flConfidential I JudgementXlMotion I Bookof Authorities X pubtic ll - TRANSIATIOI{ STATUS ON THE FILING DATE (To be translation. actionregarding CMSSHALLtakenecessary the QffibAt

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verston. and only hereby submits theoriginal, will not submit anytranslated fi fitingParty translation. in is material provided annexto facilitate fl Reference Target Language(s): I Kinyarwanda ! French E English

translation. regarding CMSSHALLNOTtakeanyaction as versionforfiling, follows: BOTHthe originaland the translated hereby submits I fitingParty


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D French D French

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translation. regarding CMSSHALLNOTtakeanyaction language(s): in version(s) duecourse thefollowing in the will I fitingParty be submitting translated I Kinyanvanda fl French KlxoLv F|LLil{ THEBoxEsBELow translation. DEFENCE overseeing is translation. is overseeing The OTP for service to is The document submitted an accredited to: for is The document submitted translation (fees to translation willbe submitted DCDMS): / Section the ICTR Arusha. of Services n fne Language person: of / of Section theICTR TheHague. Name contact Services Thetanguage fl of below: Name service: see for service translation; details f] nn accredited Address: person: Nameof contact E-mail lTel.l Fax: of Name service: Address: Tel. E-mail/ / Fax: lll . TRANSLATION PRIORITISATION (For Offlcial use ONL COMMENTS date: priority ! Required



date: n Hearing

deadlines: n Otner
GMSI (Updatedon 22 January20'l0l

1 LISH/cms/cms.doc ictr.org/ENG on NB: This form is available : http://www.