According to Schabas, these decisions by the United Nations tribunal “show that we have not understood the balance between international justice and national systems. We must show more respect towards national courts”.
According to him, the decision from 6 June of British courts to extradite to Rwanda four defendants wanted by Kigali is “a great step forward”. “Everything is not perfect in Rwanda” he admits, but it is, according to him, “a democracy which respects human rights and the judges (British NDLR) considered that these extraditions were not a problem”.
The British decision came shortly after two ICTR chambers rejected, at the end of May and at the beginning of June, three transfer requests of defendants to Rwanda filed by the prosecutor. The judges in Arusha believe that Rwanda did not offer sufficient guarantees for fair trials.
The ICTR judges, according to Schabas, “say that the material basis to try genocide is missing in Rwandan law. But it is in the institutional law of 1996. If it were indeed repealed by a law from 2004, the latter has the same provisions”. As for the detention conditions which were criticized - Article 4 of the law of 2007 prescribes that life imprisonment could be served in isolation -, Schabas points out that “in London, the defence counsels never used this argument. And the judges considered that the 2007 law offered enough guarantees”.
Lastly, relating to the possible pressure on defence witnesses, “this question exists since the creation of the ICTR in November 1994 and it has not stopped, for as much, trials from taking place”.
According to Des Forges, who came to Arusha to expose the reservations of her organization on Rwandan justice, the problem of the legal basis to try genocide arises in Rwanda because of two institutional laws that are in conflict. In addition, the possibility of isolation “is incorporated in the Rwandan criminal code and, I believe, in the last revision of the gacaca laws”, she pointed out.
Especially, she considered that “we must concentrate on what is really happening. Admittedly, enormous progress has been made, but I say that the judgments of the ordinary courts in Rwanda are rendered on political bases”.
The historian, the coordinator of the report of reference on Rwandan genocide, Leave None to Tell the Story, reminds that the guarantees of independence which the law offers to the judges are regularly violated. She notably cites three examples: firstly the recent move, decided on a political level, of two judges of the Supreme Court to the prosecution. Then, a meeting, on 10 May, of leaders of the Rwandan Patriotic Front (RPF), party of President Paul Kagame, where would have been expressed the intention “to reward or punish the judges according to their results”. Lastly, the fact that, whereas the Rwandan law prohibits the membership of judges to a political party, “the majority of them are members of the RPF, and hide it”.
Challenged by the Ambassador of Rwanda in Belgium, Joseph Bonesha, who asked her “to accompany the extradition process rather than to oppose it, so that are tried in Rwanda Rwandans who committed genocide on other Rwandans”, for pedagogical purposes for the population and in regards to the victims, Mrs. Des Forges answered that “we are all in agreement to say that the solution of the “victim” country is to be privileged. But it is necessary to be wary of prejudices: at the end, will this obvious solution be satisfactory for the victims? ”
Attacked for her sources and the “bias” of her examples, as she was in Arusha by the prosecutor, Des Forges returned for more complete developments to the forthcoming publication of a report of a hundred pages for Human Rights Watch on this subject.