The other members of three-bench judges were: Asoka de Silva (Sri Lanka) and Emile Short (Ghana).
“The Chamber is not satisfied that Rwanda can ensure Mr Hategekimana’s right to obtain the attendance and examination of witnesses on his behalf under the same conditions as the witnesses against him,” the judges ruled in their unanimous 24-page decision.
In the ruling, the Chamber considered it possible that, pursuant to Rwandan law, Mr Hategekimana “may face life imprisonment in isolation without adequate safeguards in violation of his right not to be subjected to cruel, inhuman or degrading punishment’’.
On June 6,another ICTR Chamber rued that the 63-year-old former businessman Gaspard Kanyarukiga would not receive a fair trial if transferred, adding that the suspect would not be able to call witnesses residing outside Rwanda “to an extend and in a manner which will ensure a fair trial.”
Late last month, another Chamber rejected the Prosecution’s request to transfer trader, Yusuf Munyakazi (73), on similar grounds.
However, all three Chambers have acknowledged in their separate decisions that Rwanda has made significant progress in rebuilding its judicial system in post-genocide, including abolishing the death penalty since last year.
In addition to submissions by the Prosecution and the Defence, the judges considered briefs from the Rwandan government, the Kigali Bar Association, Human Rights Watch and the International Criminal Defence Attorneys Association, which had been given amicus curiae(friends of the court) status.
The other two accused targeted for transfers and their decisions are awaited are: former Mayor Jean Baptist Gatete and former Inspector of Judicial Police, Fulgence Kaysihema. The latter is still at large.
The prosecution’s transfer motions are within the framework of the ICTR’s exit strategy, which wants to transfer some cases to national jurisdictions in order to finish by the end of the year all first instance trials as directed by the Security Council. However, the Prosecutor last week asked the Security Council for additional one year to complete the work.
Headquartered in Arusha, northern Tanzania, ICTR has so far, delivered 30 convictions and five acquittals.
Eight accused, held in Arusha, are currently awaiting their trials.
One is detained in Europe and is awaiting his transfer to the ICTR, whereas 13 suspects are still on the run, including Felicien Kabuga, the alleged financier of killings, which according to UN estimates claimed lives of about 800,000 people, mostly ethnic Tutsis and moderate Hutus.