22.02.08 - ICTR/ANALYSIS - ICTR SEEMS AT STANDSTILL IN WAITING FOR DECISIONS ON TRANSFERS

The Hague, 22 February 2008 (FH) - The first instance chambers of the International Criminal Tribunal for Rwanda (ICTR) are still examining the requests from the prosecutor to transfer four accused to Rwandan courts. The requests have been before the chamber since July 2007.
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 Their decisions will be very important for the future of this tribunal, to which the Security Council ordered to finish its first instance trials by 31 December 2008.

Ten accused are still waiting to be tried. If they cannot be transferred, to Rwanda or to another national jurisdiction, the work of the tribunal will be inevitably prolonged by several years.

The first of the four transfer motions to Rwandan courts was filed on 11 June 2007 and targets Fulgence Kayishema, a police inspector still at large. Chamber III was referred just a month afterwards to try the case.
Since 2 October, 2007, the ICTR president has referred to it two other cases, those of Ildephonse Hategekimana and Yussuf Munyakazi. Chamber I is handling the case of Gaspard Kanyarukiga since the same date. The three motions, distinct, were filed on 7 September 2007.

Logically the first decision should thus relate to Kayishema. Questioned by the chamber, the Rwandan government filed in October 2007 amicus curiae brief arguing its capacity to try the accused of the international tribunal. Human Rights Watch (HRW), an international non-governmental organization submitted a report unfavourable to the transfer in January 2008.

HRW is active in control of the implementation of human rights in more than 75 countries. It has participated in the monitoring of the Rwandan legal system since 2005 and assisted in the substantial reforms between 2002 and 2004.

The organization, in collaboration with the FIDH, published an investigation at the end of the genocide ("Leave None to Tell The Story", Karthala edition, April 1999) which was used as a basis for the prosecution.

The NGO has on many occasions contributed to the ICTR as a material witness. This time, on the basis of research supervised by Alison Des Forges, she develops in thirteen arguments to her opposition to the
transfer of Kayishema.

According to HRW, "Rwanda has made notable progress in improving its judicial system". It in particular created a procedural system to satisfy the conditions posed by the ICTR on the matter of the transfers. However, according to NGOs, "serious obstacles to fair and credible prosecutions remain in Rwanda, especially for persons accused of genocide and other crimes of political importance".

In its report, HRW states that there may exist shortfall in domestic law depriving of material jurisdiction to prosecute the defendants of the 1994 genocide. Indeed, the institutional law of 30 August 1996, known as the "genocide law", was repealed by that of 19 June 2004 on the traditional Gacaca courts. However, the latter does not give a definition of the crime of genocide.

The 2003 law punishes the crime of genocide, crimes against humanity and war crimes, but it "does not appear to be retroactive in operation", according to HRW. Lastly, the "transfers" law of 16 March 2007, which
organizes the prosecution of accused from the ICTR or other foreign courts, does not tackle the question. Could Rwanda, then, prosecute the crime of genocide committed in 1994?

HRW also fears that the transfers violate article 20 of the ICTR statute which governs the rights of the defendants. It denounces, in this direction, a gap between Rwandan legal theory and its non-implementation.
It affirms that Rwanda "cannot guarantee" that the defendant will benefit from the intervention of defence witnesses under the same conditions as those for the prosecution, that the presumption of innocence will be preserved and, because the courts "remain subject to political influence", that they be tried by an independent and impartial court.

To conclude, it considers that "prolonged solitary confinement" that it compares to torture or a cruel, inhuman and degrading punishment "potentially violates the Convention Against Torture and article 7 of the
ICCPR".

On the question of legal representation for the parties, Human Rights Watch predicts difficulties because of the many threats uttered against lawyers and the lack of financial means, Hirondelle addressed itself to
Lawyers Without Borders (LWB), a Belgian NGO expert on the matter.

Lawyers Without Borders has had programs of legal aid for defendants as well as for victims of the 1994 genocide since 1996. It also brings an institutional support to the bars and ensures a financing of lawyers so that they intervene in genocide trials.

Chantal Van Cutsem, an official for the Rwanda program of LWB, points out that "trials have already taken place for first category defendants for many years, and lawyers defend them. Justice in Rwanda is perhaps not perfect but it works".

Lawyers Without Borders start from the argument that the transfers of accused from the international tribunal to Rwanda will be done and plans to ensure a monitoring of these trials "to verify their fairness". This
monitoring will be integrated into its follow-up program of traditional courts already in progress.

It does not plan for an "exclusive activity" for the transferred because the other procedures also need support and the NGO fears a "two level justice" between the defendants who have waited for a long time in Rwandan prisons to be tried and transferred from the ICTR or the accused who will be extradited from other countries.

The accused that will be transferred will be tried according to Rwandan criminal law, which lawyers are already following training sessions organized by the ICTR at the bar of Kigali.

The Rwandan law of 2007 on the transfers does not prevent the participation of foreign lawyers. Thus, as LWB already practised in the past, a partnership between a Rwandan lawyer and a foreign lawyer could be considered for certain cases.

Until now the only transfer procedure on the basis of article 11 Bis of the rules of evidence and procedure of the international tribunal has led towards France. To refuse Rwanda to try its citizens could be a snub that
is all the more severe.

SC/GF

© Hirondelle News Agency