Arusha, 12 January 2009 (FH) - The International Criminal Tribunal for Rwanda (ICTR) has just refused for the fifth time to transfer to Rwanda persons accused of genocide even if Rwanda stated its intention to adapt its legal system to the requirements of the international community.

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The judges again justified their decision by their fears in regards to the protection of the witnesses and not wanting the defendant to risk life imprisonment in isolation.

In the light of this reasoning, the European courts also rejected the requests for extradition of Rwanda against its nationals residing abroad and suspected of having taken part in the genocide. Only Great Britain has for the moment agreed to extradite four Rwandan nationals suspected of genocide: V. Bajinya, C. Munyaneza, E. Nteziryayo and C. Ugirashebuja. In June, after a meticulous examination, the British court had not found any reason to oppose it. This decision is in appeal.

On the contrary, the Court of Appeal of Paris has just refused to extradite Isaac Kamali, who was naturalized French in 2002. Two identical decisions were made before concerning Pascal Simbikangwa by the Court of Appeal of Mamoudzou de Mayotte, where he had been arrested in October, and Marcel Bivugabagabo by the Court of Appeal of Toulouse. The latter has been under detention awaiting a decision on the extradition since January.

Claver Kamana is still awaiting a decision. The Court of Appeal of Chambéry had given a favourable opinion to his extradition, but in a "rare circumstance", according to Philippe Gréciano, counsel in several cases of this type, the court of appeal quashed and cancelled the decision of the court of Savoy considering that it "had not exerted its duty of control of the founded good of the extradition". The case is, henceforth, between the hands of the Court of Appeal of Lyon.

Germany also refused to deliver suspects of the genocide Onesphore Rwabukombe and Callixte Mbarushimana. The German judges considered that the refusal of the ICTR to transfer cases to Rwanda "for the motive that the human rights were not guaranteed", was not "an example", explained Greciano to the Hirondelle Agency, but "that it was about the affirmation of a basic principle of a constitutional value", which authorized them to declare inadmissible the requests from Kigali without even examining them on their basis.

The lawyer sees notably two obstacles to these extraditions. According to him, the Rwandan requests contain many errors of law present at various stages of the trials. "That reveals the existence of a cultural gap between the legal practices and traditions which does not leave the international community insensitive when it is a question of doing a work of justice and truth in a spirit of memory and reconciliation". Thus, the position of the ICTR in its refusal to transfer some of its cases to Rwanda with the procedure of article 11 bis of its Rules of Procedure and Evidence is "symbolic".

Indeed, to agree to extradite a suspect of the genocide to Rwanda as the ICTR affirms that the human rights are not guaranteed there (problems with fair trials, the protection of the witnesses, life imprisonment in isolation), would engage the credibility and the responsibility for the rules of law on the international scene and especially before the European Court of Human Rights to the risk of being convicted (the case of Bozano v. France 1986).

To that are added the criticisms of NGOs such as Human Rights Watch or Amnesty international. The latter, in a report from 2007, rejected the extraditions "as long as Rwanda will not have proved its capacity and its will to carry out the trials in a fair and impartial manner and to protect the victims and the witnesses". To the critics of the ICTR, Amnesty adds "obviously unreasonable" expectations to try the defendants and the absence of a "mechanism allowing to follow the application of the sentences of the prisoners transferred to Rwanda".

But on the list of the 93 suspects of the genocide outside of the country for which Rwanda has issued international arrest warrants, at least eleven have already been identified, notably in Europe.

Emmanuel Bagambiki was acquitted by the ICTR in 2006, Rwanda stated that its wants to prosecute him for other acts. André Sebatware appeared in 2002 before the ICTR as a defence witness in the trial of Eliézer Niyitegeka. Wenceslas Munyeshaka and Laurent Bucyibaruta are prosecuted by French courts. The seven other suspects were the subject of extradition proceedings by various European countries who for the moment have all rejected them.

A French organization entitled the Collective of the Civil Parties for Rwanda raised the problem recently by requesting the French judges to assume their responsibilities and try themselves these defendants.

Amnesty International "exhorts" that all countries which until now have declared that they do not have jurisdictions to take care of these kinds of cases, "to re-examine their legislation and, if necessary, to modify it so that their national courts can try crimes falling within the jurisdiction of the ICTR".


© Hirondelle News Agency