In its decision of 26 September, the Appeals Chamber of Paris orders from ICTR additional information considering that it could not come to a conclusion about the transfer request in light of the documents provided.
The former prefect of Gikongoro Laurent Bucyibaruta and Abbot Wenceslas Munyeshyeka have been prosecuted in France, since 1995 for the first and 2000 for the second, on the basis of quasi-similar facts to those reproached by the ICTR. But the tribunal wants it to be on the basis of these indictments that they be tried.
They have been placed under judicial supervision.
In June 2006, France had given its agreement to try the two men making it possible to consider a transfer of the cases on the basis of article 11 bis of the ICTR Rules of Evidence and Procedure to reduce the workload of the ICTR, which must finish its mandate by the end of 2008.
The ICTR had then delivered a first arrest warrant on 20 June 2007 against the two accused requiring France to arrest them while waiting for a first instance chamber of the international tribunal, designated to rule on the transfer, to render its decision. France had refused to hold them in detention estimating that the indictment was not precise enough.
It is on the second arrest warrant of the ICTR which, changing its strategy, requested the transfer of the two men to its tribunal while awaiting the first instance chamber to rule on article 11bis, that the Appeals Chamber of Paris refuses today to rule on.
Would the Appeals Chamber of Paris be fastidious or would the ICTR not have been rigorous enough?
The French court considers, first of all, that the conditions urgently required by article 40 of the ICTR Rules of Evidence and Procedure, called upon by the tribunal for the arrest and preventative detention, are not met since the two accused have never sought to be withdrawn from the authorities since the beginning of the proceedings.
It then raises an error of pen or of translation of the ICTR indictment which requires, concerning the crime against humanity, a "generalized AND systematic attack" (whereas the English version of the Statute uses the conjunction "or"). But this question has already been settled by the jurisprudence of the international tribunal. The Akayesu judgment of 1998 declared that the French version of article 3 of the Statute suffers from a mistranslation.
A modification of the text would have seemingly been necessary.
Then the French court calls upon problems relating to article 9 of the Statute of the ICTR which treats of the legal principle "non bis in idem" (double jeopardy) according to which a person cannot be tried and convicted twice for the same crime.
The question is raised from two points of view: prosecutions which have already begun in France against both defendants and the judgment in absentia of Wenceslas Munyeshyeka in Rwanda in 2006.
In this same occasion, the Appeals Chamber of Paris requests that the international tribunal assure it that if it will proceed or not with the transfer procedure of article 11 bis of its rules.
It seems to consider that if the ICTR would try itself Munyeshyeka and Bucyibaruta then there would be a contest of jurisdiction between France and the international tribunal.
However, can the fact that national courts are suppose to discharge themselves in the benefit of the ad hoc tribunal, can France call upon article 9 of the Statute whereas it has not yet rendered a judgment against the two men?
The problem is different for the judgment rendered in absentia (because of the absence of the defendant at his trial) in 2006 by a Rwandan military court which sentenced Munyeshyeka to life in prison. In this case, the proceedings and the judgment finished their full process.
However, article 9-2 of the Statute opens the possibility to the international tribunal of prosecuting again if the facts for which Munyeshyeka was tried are qualified as ordinary crimes, or if "the national court proceedings were not impartial or independent, were designed to shield the accused from international criminal responsibility, or the case was not diligently prosecuted".
The Appeals Chamber of Paris still raises inconsistencies in the dates mentioned in the indictment of Wenceslas Munyeshyeka, and the facts complained against Laurent Bucyibaruta which would go up at 1993, date for which France is not qualified under the terms of the law of adaptation of the Statute of the ICTR of May 1996.
The necessary documents must be provided for 15 November and the French court will render its decision on the execution of the arrest warrant on 21November.
AV/PB/MM
© Hirondelle News Agency