A former defense investigator at the Rwanda Tribunal’s trial of Jean de Dieu Kamuhanda, Léonidas Nshogoza, was found guilty of contempt yesterday and sentenced to 10 months imprisonment for repeatedly meeting with and disclosing protected information about two witnesses.
Although this was a much different offense than that of another former defense investigator, Joseph Nzabirinda, who in 2007 pled guilty to murder charges for his involvement in the genocide, it is nonetheless important as it brings up the difficult problem of witness protection measures before international tribunals.
The ICTR has the power to order that particular witness be classified as ‘protected’ for reasons of security, and has often done so. At trial, the witness will generally testify live under an alias, screened off from the public viewing gallery; any identifying information will be given in closed session, or else redacted from the public record if mistakenly given in open session.
However, in the past some have argued that while such measures are taken at the court’s seat in Arusha, Tanzania, the Tribunal has failed to protect witnesses after their testimony, which has in turn had a chilling effect on the willingness to testify.
While the full Nshogoza judgment is not yet publicly available, it was alleged during trial that in the context of Kamuhanda’s appeal, Nshogoza met with protected witnesses in violation of a court order not to do so and in the presence of third parties (at times sympathetic to Kamuhanda) discussed their testimony, and bribed them to recant. Ignoring the obviously glaring problem of investigators allegedly bribing witnesses to falsify testimony, in a society that is still struggling to overcome the ramifications of the 1994 genocide of 800,000 Tutsis and moderate Hutus, disclosing a witness’ identity even by simply meeting with them in a public place can itself have serious implications.
Nshogoza’s conviction is a step in the right direction for the ICTR, but it is also an example that needs to be taken into serious consideration when creating or implementing witness protection procedures in other instances. While the ICC in particular has recognized this in shoring up its protection unit, the lines between bringing an accused to justice, protecting their rights, but also protecting the safety of witnesses, will forever be precarious ones to walk.
