The Hague, 3 June 2008 (FH) - First Instance Chamber III of the International Criminal Tribunal for Rwanda (ICTR) rejected on 28 May the first of four transfer requests of defendants to Rwanda.

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The transfer procedure of ICTR defendants to national jurisdictions is envisaged under Article 11 (a) of the Rules of Procedure and Evidence (RPE) of the Tribunal which prescribes their conditions.

This procedure pursues various goals. The International Criminal Tribunal for the former Yugoslavia (ICTY) has used it 13 times until now to transfer to courts of the countries of the former Yugoslavia, in fact, defendants who were not high ranking officials.

It thus made it possible to reduce the number of cases to be tried before the UN tribunal, and to consequently save these defendants time of detention and particularly long procedures.

As the ad hoc tribunals have been ordered to end their first instance activities by the end of the year, Article 11 (a) has its importance within the framework of the completion strategies.

But not for the ICTR which has until now only proceeded to two transfers, to France. Michel Bagaragaza (former Rwandan tea authority boss) traveled through Europe before finally returning to Arusha. Norway initially considered, was disqualified by the ICTR judges because its penal code did not include the crime of genocide. Then, The Netherlands, which had initially volunteered to try him, finally desisted by asserting a lack of jurisdiction.

Meanwhile, the prosecutor referred to the chambers five other transfer cases concerning four prisoners and a defendant at large, who should this time go to Rwanda. The First Instance Chamber III has just rejected one of them, the one relating to Yussuf Munyakazi.

In its decision of 28 May, the First Instance Chamber started by analyzing if the level of responsibility for Yussuf Munyakazi could not constitute an obstacle to the transfer.

Indeed, while the prosecutor has a discretionary power to choose which defendant would be subjected to such a procedure, the Tribunal affirmed the Judges is instructed by resolutions 1503 and 1534 of the Security Council to transfer defendants of intermediate or subordinate rank.

Neither the Rules of the ICTR nor its Statute mention it, contrary to Article 11 (a) c) of the RPE of the ICTY, which prescribes that the referred chamber must "hold into account (...) the gravity of the alleged crimes and hierarchical position of the defendant".

It is jurisprudence, of the ICTY mainly, which defines who can be regarded as intermediate or subordinate rank.

Studying only the facts mentioned in the indictment, the Chamber considered that Munyakazi, a well-off farmer, businessman and militia leader of the MNRD in Bugarama, southern Rwanda, did not have a significant military rank nor an official political role. It concluded from it that the "level of responsibility is comparable to many of those referred to national jurisdictions".

Moreover, compared to the former prefect of Gikongoro, southern Rwanda, Laurent Bucyibaruta, one of the only two to be transferred, Munyakazi is of lower status.

Then, although there is no doubt that Rwanda can receive an ICTR defendant, according to the principle posed by paragraph A) of Article 11 (a) which authorizes the transfer only to the countries where the crime was committed, or in which the defendant was arrested or to where would have jurisdiction and would be willing and able to accept such a case, there are other conditions that the Rules imposed to analyze.

The Chamber "must satisfy itself that the death penalty will not be imposed". Rwanda, precisely in the hope of being able to receive defendants from the ICTR, abolished capital punishment by the institutional act 31/2007 of 25 July 2007. Henceforth, the most important sentence is life imprisonment, a sentence served in isolation and which has already been denounced by human rights organizations.

But the abolition is not enough. "The penalty structure (...) must provide an appropriate punishment for the offences with which the Accused is currently charged" and "conditions of detention (...) must accord with internationally recognised standards", supports the Chamber. The standards concerned are, inter alia, the International Covenant on Civil and Political Rights (Civil Pact) of 1966, African Charter on Human and Peoples' Rights and the entirety of the principles for the protection of all the people subjected to an arbitrary form of detention or imprisonment adopted in December 1988.

The problem lies there. Article 4 of the Rwandan law of 2007 provides that life imprisonment, which can have particular provisions added, notably for the crimes of torture, murder, genocide and crimes against humanity, can be served in isolation.

However, the Chamber considered that "the prohibition of contact" can be authorized only if "disciplinary or protective reasons may be necessary" thus in "in exceptional circumstances and for limited periods".

To finish, it mentioned minimum guarantees to be studied such as the appreciation of the proportionality of the sentence, a right of revision by a legal body and the access to particular activities "to ensure appropriate human contact and mental and physical stimulation".

Considering the crimes for which Munyakazi is prosecuted (genocide or alternatively complicity in genocide and extermination as a crime against humanity) and the absence of the enumerated guarantees, the Chamber concluded that the sentence structure is not adequate.

In addition to these two retained elements, the Chamber refused the transfer, not being convinced that the defendant would benefit from a fair trial and it does not believe in the independence of the Rwandan justice system.

While the President of the ICTR, Dennis Byron, has already announced that the procedures in first instance were expected to encroach on to next year, the Tribunal, if it does not grant transfers to Rwanda, the only country to have volunteered to receive defendants, will not take time before it finds itself in difficulty. Seven prisoners still hope for the opening of their trials, two have not yet been transferred to the ICTR and thirteen arrest warrants have not yet been executed.


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