The Hague, 1st december 2007 (FH) - For the second time in its history, the International Criminal Tribunal for Rwanda (ICTR) delivered, last week, a transfer order to a national court on the basis of article 11 bis of its Rules of Evidence and Procedure; but if this procedure is the only one which should enable it to complete its mandate by the end of 2008, it is not obvious to all.

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Laurent Bucyibaruta and Wenceslas Munyeshyeka will be normally tried by French courts. The first transfer, that of Michel Bagaragaza, had being annulled by the Ministry of Justice and the Dutch federal prosecutor estimating that it did not have jurisdiction.

According to article 11 bis of the ICTR Rules of Evidence and Procedure, so that a national court is declared competent to try its cases, several points are examined: the jurisdiction of the state, its willingness and its provision to accept the case; the non subjugation to the death penalty; the respect of a fair trial; the protection of witnesses and the possibility of follow-up of the procedure by observers sent by the ICTR prosecutor.

These are the conditions of various chambers of the international tribunal that are currently examining to grant or not the transfer of four cases to the Rwandan authorities. The concerned cases are: Ildephonse Hategekimana, Gaspard Kanyarukiga, Yussuf Munyakazi and Fulgence Kayishema.

Besides the prosecutor and the judges, many are those who are opposed to these transfers. The lawyers have expressed their concerns, Amnesty International clearly stated its dissension, Human Rights Watch (HRW) will soon be heard as Amicus Curiae (friend of the court) in the case of Fulgence Kayishema. All criticize the lack of guarantees of the Rwandan criminal procedure (fair trials and defence rights, in particular). Only Rwanda seems to hold to with it, to make it a question of principle, and regards these probes as "propaganda".

Kigali, however, believed, after having abolished the death penalty this summer, that the last obstacle had been crossed before being able to welcome these defendants. Since the end of the genocide, considerable work has been done to rebuild the legal system with the assistance of non-governmental organizations, notably Belgian ones.

On 30 August 1996, the organic law "on the organization of prosecution for infringements constitutive of the crime of genocide or crimes against humanity, committed as of 1 October 1 1990" was passed. Faced with an always increasing number of prisoners, and with ordinary laws not making it possible to prosecute the génocidaires, the entry into force of the law was urgent. Although Rwanda ratified the Convention on the Prevention and Punishment of the Crime of Genocide of 1948, it had not given itself incriminations and sentences to sanction it.

The project was the subject of a debate between the government and the deputies on the questions of non-retroactivity of criminal law, the categorization of the accused and the plea of guilty. The Rwandan code of criminal procedure of 23 February 1963, was modified for the first time on 17 May 2004. The second reform of 22 April 2006, further improved the procedure.

Its 1st article affirms that "criminal trials must be rendered public in all justice and impartiality, to respect defence rights to action, the adversary principle, to respect the principle of the equality of the parties in the trial before the law, to be founded on the evidence provided in legal manners and to respect deadlines". The latter are now clearly mentioned in connection with various phases of the procedure, which was not the case before.

But while the law of 1996 created the jurisdiction of specialized chambers within first instance and military courts for category 1suspects, Rwanda proposed to the ICTR that its defendants be tried by the High Courts of the Republic and with the possibility of appeal before the Supreme Court.

The High Courts of the Republic were established by the Constitution of June 2003. Its article 143 establishes four levels of jurisdictions: the Supreme Court, the High Courts of the Republic, First Instance Courts and District Courts. Theoretically, the High Courts are qualified to try crimes of genocide and crimes against humanity but not those committed between 1 October 1990 and 31 December 1994. The choice to bypass this restriction is certainly explained by the status of the persons prosecuted by the ICTR. This creates fears of a justice on two levels and a difference between category 1 defendants and those transferred from the ICTR and other suspects sought by Interpol who would be extradited, remarked an NGO on mission there.

The Supreme Court is generally qualified to receive the appeal of judgments from the High Courts of the Republic and the Military High Court. Prior to 2004, it was the equivalent of a French or Belgian Supreme Court and could, thus, only receive issues of law. It can receive other extraordinary matters.

Within the framework of the law of 30 August 1996 (article 24), the appeal recourse for judgments rendered on the genocide by the specialized chambers is only possible on questions of law or flagrant factual errors. However, before the Supreme Court a second examination of the case is possible.

© Hirondelle News Agency