Boredom and distraction in Canada's first war crimes trial

Enter room 5.01 at the Montreal Courthouse and abandon all illusion: Desire Munyaneza's trial has little chance of changing the face of international criminal justice. Though the Rwandan has been charged with the most serious crimes the international community has yet defined - genocide, crimes against humanity, and war crimes - his scope of responsibility is limited, and the case is not being tried well. The case against Desire Munyaneza began with an investigation by the Royal Canadian Mounted Police more than five years ago [IJT-65]. Officers traveled to Rwanda and gathered statements and other evidence from survivors of the 1994 civil war and genocide. Attorneys for the crown, having considered the information at hand, decided to make Munyaneza's a test case for war crime prosecutions in Canada. This retroactive application of a law for crimes committed extra-territorially is a first for Canada: Munyaneza's indictment covers crimes that did not take place on Canadian soil and that occurred before the 2000 Crimes Against Humanity and War Crimes Act came into force.

A snail's pace

While defense team lawyers Laurence Cohen and Richard Perras have both practiced criminal law extensively, neither Richard Roy nor Pascale Ledoux, the two lawyers overseeing the government's case, has significant trial experience. In fact, Perras has previously represented defendants at the International Criminal Tribunal for Rwanda. The trial began on March 26, 2007, nearly a year and a half after Munyaneza's arrest. He was denied interim judicial release and remains in custody in a local detention center, where he sustained injuries following a violent attack by a fellow inmate [IJT-66].

The courtroom has slowly emptied in the weeks following the trial's opening. In the three months leading up to the court's adjournment by Justice Andre Denis for its two-month summer recess on June 15, twenty-six witnesses from two continents had testified before the court. Fourteen of these witnesses - most of them imprisoned themselves for their participation in the genocide - made depositions before a rogatory commission in Rwanda in January and February 2007. Munyaneza's lawyers have also requested a rogatory commission, which, if granted, would likely take place in early 2008. With all the legal, administrative and logistical delays no verdict is expected before the middle of next year, no verdict is expected before the middle of next year.

The adversarial system takes time

There are several reasons for this. By its very nature, the adversarial system takes longer than other judicial models. In Belgium, for example, a Rwandan genocide trial that began nearly one month after Munyaneza's has already arrived at a verdict [IJT-66-70-71].

Judge Denis' courtroom is a model of decorum. Sitting as a single judge without a jury, he has shown nearinfinite patience, unfailing courtesy and a mean wit in both of Canada's official languages, English and French. He intervenes rarely, leaving the lawyers to their work. Perhaps because of this, the lawyers have allowed their examinations to wander - often becoming lost in detail or asking excessively vague or complex questions.

Prosecutors' examinations lack focus

The courtroom has no map of Rwanda - and, more specifically, none of the Butare Prefecture, where Munyaneza allegedly committed the crimes with which he is charged. Witnesses, though asked to describe specific locations, are never invited to identify them on a map - one of many aspects of the trial to cause confusion among the trial's observers. This as much as anything may explain the decline in public interest in the case, if interest can be judged by courtroom attendance.

During the first week of the trial for example, prosecutor Pascale Ledoux asked a Rwandan Tutsi, who was testifying for the Crown, to describe his experiences as he and a friend fled the genocide for neighboring Burundi. The court was given a 25-minute account of their tortuous journey south, during which they hid out in banana plantations and caves as they made their way on foot to the border. His friend was killed by Hutu Interahamwe militiamen before they reached Burundi. A heart rending story - but one in which Munyaneza was not implicated. Ledoux presented no further evidence linking Munyaneza to the death.

"Munyaneza finished them off"

On another occasion, prosecutor Richard Roy examined a man (known only as witness 13 to protect his identity) about an Interahamwe attack on a church. Munyaneza is accused of being one of the architects of the massacre, which led to the deaths of up to 500 Tutsis. Witness 13 testified that he himself has been sentenced to death in Rwanda for his own role in the murders. Roy asked how the victims were killed. "They [the Interahamwe] first used guns, others used clubs and those who did not die immediately, it was Munyaneza using his pistol that finished them off," the witness told the court.

Church massacre

Roy had prepared the witness for trial and therefore knew what he had to say. He continued, "Okay. Now, from the place where the people were being killed, from where you're seeing this, there's what distance?" Roy then took the witness through of series of questions designed to determine precisely how close he had been to the massacre. He asked the witness to describe the situation around the church. When he had completed this line of questioning, Roy returned to Munyaneza and his alleged victims. "And do you remember who killed them?" he asked, to which Witness 13 replied, "They were killed by Desire." Roy continued, "Okay. Talking about Desire, how was he dressed that day, if you remember?" Roy asked no further questions about Munyaneza's role in the church massacre: nothing about what Munyaneza might have said or the orders he might have given - nothing, in short, to strengthen credibility of Witness 13's testimony or underline the defendant's criminal responsibility.

The next witness, known as Witness 14, identified himself as having worked for Munyaneza's family, testified about the murders of half a dozen people near an Interahamwe roadblock near the University laboratory in Butare. The witness responded to Roy's direct questioning by alleging that Munyaneza and another Interahamwe member were in charge of the situation: "They took them [the victims] behind the laboratory where there were pits for dirt for the sweeping and they shot them there." Roy asked who had done the shooting. Witness 14 replied that it was Munyaneza and two others who "shot at the same time." Roy said "Okay". But judge Denis interjected, as Roy began his next question: "How many people were shot at that time?" Witness 14 responded, "six people."

"I saw Desire kill people"

Witness 14's most damningly direct testimony against Munyaneza came, as it often does with prosecution witnesses in this case, while he was being cross examined: "I repeat the question I asked you a few minutes ago... you did see Desire kill somebody, that is in your memory and that is clear for you?" the defense asked. Witness 14 replied, "I saw Desire kill people behind the laboratory."

One thing is certain in this trial: if you are seeking a careful prosecutor's dissection of Munyanzena's actions, not to mention his motivations or his character, Courtroom 5.01 is not the place to look.