Arusha, April 20, 2012 (FH) – On Thursday, Pastor Jean Uwinkindi became the first genocide suspect transferred by the International Criminal Tribunal for Rwanda (ICTR) to Kigali to face trial before the High Court of his native country. The Tribunal had turned down previous such requests on grounds that the accused may not get a fair trial in Rwanda. But although it authorized this transfer, its decision provides for a monitoring mechanism. The mechanism is not yet fully in place, and this case will put it to the test.

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Uwinkindi has waged a months-long battle to try to stop his transfer, arguing that the rights of the defence are not guaranteed in Rwanda. In a last-ditch attempt his lawyers last week introduced a motion citing recent developments in the case of opposition leader Victoire Ingabire before the High Court in Kigali. She walked out of her trial on April 16 to protest what she called systematic violation of her rights. But the Appeals Chamber threw out Uwinkindi’s motion on grounds that, unlike other trials in Rwanda, his case would benefit from a “robust monitoring mechanism” under the supervision of the ICTR. The judges also stressed that the transfer could be revoked in case of violation of the rights of the defence.

The Tribunal, which is striving to meet completion targets for its work, authorized the transfer in a June 2011 decision, confirmed by the Appeals Chamber in December. The decision called on the ICTR Registry to open talks with the African Commission on Human and People’s Rights (ACHPR) with a view to appointing it as monitor. However in February 2012, former ICTR president Khalida Rashid Khan stayed Uwinkindi’s transfer and ordered the Registrar to look for new monitors, after talks with the ACHPR hit difficulties. Judge Khan cited submissions from the Registrar in which he noted "continued complications in reaching an agreement with the ACHPR", including "difficulties at securing funding and discrepancies between the understanding of the Referral Chamber and the conditions now sought by the ACHPR".

However on April 5, 2012, the new President of the Tribunal, Judge Vagn Joensen, ruled that Uwinkindi should be transferred to Rwanda “within 14 days of the filing of this decision” and instructed the Registrar to immediately resume negotiations with the ACHPR. He also directed the Registrar to appoint ICTR legal staff as “interim monitor” until the ACHPR or other organization is appointed as monitor. The Tribunal Registrar has now appointed two ICTR staff as interim monitor. They will be based in Kigali.

In its June 28 decision, the Referral Chamber provided eight guidelines requiring the observer, for example, to “monitor on a full-time basis and report to the President (of the Tribunal) through the Registrar on the progress of the referred case in general, and on adherence of international fair trial standards with special emphasis to availability and protection of witnesses before, during and after the proceedings.”

The observer also has to “monitor detention conditions ensuring that they are in accordance with international standards both during and after the trial and appeal of the accused, if convicted by a competent court.” Furthermore, the monitor has to identify and report to the President through the Registrar any incidents of violations of Rules, and in particular, those relating to the protective measures of witnesses ordered by the Tribunal.

The Referral Chamber also requested Rwanda to “provide the ACHPR monitors with access to court proceedings, documents, records, persons and locations, including the detention facility where the accused will be housed, throughout the territory of Rwanda as may be needed for the effective conduct of their monitoring.” Rwanda has stressed that the trial for Uwinkindi and other accused that may come from the ICTR and even other states would be fairly conducted, according to international standards.

The ICTR is currently deliberating a request for the transfer of another detainee, former militiaman Bernard Munyagishari, to Rwanda for trial. He is now the only detainee in its custody still awaiting trial. The Tribunal is striving to conclude all its first-instance trials by July 2012.