Three of the five transfer requests subjected to the First Instance Chambers of the ICTR have until now been rejected. The prosecutor has appealed the refusal of the judges in the cases relating to Yussuf Munyakazi and Gaspard Kanyarukiga.
These requests remain crucial for the completion strategy of the tribunal which obtained a one year extension of its activities in first instance, until the end of 2009. Without counting the thirteen persons still wanted, there are eight waiting to be tried. More than three chambers will be able to try in the year to come. Up to now the majority of the individual trials have lasted more than a year.
After having decided to abolish capital punishment, which constituted a major hurdle to the international tribunal declining jurisdiction, Rwanda, however, developed a very particular procedure to try the ICTR defendants who must be transferred within the framework of the completion strategy of the tribunal.
In order to determine the international requirements to receive such transfers, Rwanda worked in collaboration with the office of the prosecutor of the International tribunal. However, it seems that this procedure still does not satisfy the criteria of the international judges since they have not authorized any of the transfers.
The prosecutor's appeal in the Munyakazi case was filed on 12 June 2008. In July, the Rwandan government, as an amicus curiae (friend of the court), filed a report in support. These documents resemble each other and both show the same defence to the objections retained by the first instance judges.
The ICTR prosecutor as well as the government of Rwanda state the transferred defendants will not risk, if they are convicted, imprisonment in isolation as the First Instance Chamber fears.
Indeed, the law on the abolition of capital punishment which envisages this form of imprisonment does not apply to transfer cases, which are entirely governed by the special law of 16 March 2007 known as of the "transfer law". Moreover, in a two-page statement, the Rwandan government "promised" that none of the defendants transferred will be sentenced to prison in isolation. Lastly, the Rwandan Supreme Court was referred to render a decision on the constitutionality of this sentence.
Thus, the maximum sentence incurred before the ICTR will be the maximum faced before Rwandan courts in the transfer cases only. It could, thus, be that persons accused of genocide from lower ranks, from category 1 for example before the ordinary courts, face a sentence higher than that of their leaders tried under the terms of the special law on transfers.
The second disputed issue relates to the questioned independence of the single judge who will be appointed to the High Court to try the ICTR defendants.
The Rwandan government assures it will be the most experienced judges who will be assigned to the first cases and that in any case the magistrates are used to these types of cases.
But it is astonished that in the Kanyarukiga and Hategekimana case the First Instance Chambers considered that "the necessary guarantees are in place for impartial trials in which the single judge composition of the High Court cannot be a bar for transferring cases".
The ICTR prosecutor defends that the independence concerns each judge individually and not collectively. He adds that "there is no rule of international law that trials for violation of international humanitarian law cannot be conducted by a single judge".
The third and last attacked point by the appellants relates to the presentation and the protection of the witnesses.
The Rwandan government estimates that the international judges did not appreciate to their just value the various stages reached "to promote the obtaining of witnesses and evidence".
It intends to use the same processes that it already developed for the testimony of witnesses before the ad hoc tribunal and affirms to be able, thus, to ensure the same guarantees. Moreover, he reminds that it already handles the safety of the witnesses in the national genocide and war crimes trials.
The prosecutor adds that there is no objective evidence to support the fear of the First Instance Chamber that the defence cannot work with its witnesses under the same conditions as the office of the prosecutor.
"The structures and procedures are in place and in many respects have been tested", affirms the government of Rwanda in its report.
He reminds, finally, that, on 17 June 2007, before the United Nations Security Council, the ICTR president, Judge Denis Byron and Hassan Jallow, the prosecutor, had both praised "the efforts (...) for facilitating the flow of witnesses from Rwanda for the trials before the ICTR".
© Hirondelle News Agency