Arusha, August 20, 2012 (FH) –The UN’s International Criminal Tribunal for Rwanda (ICTR), created more than fifteen years ago to try those most responsible for the Rwandan genocide, is set to close by the end of 2014 at the latest. As part of its closure strategy, the Tribunal is not only handing over some of its residual tasks to a UN-appointed Mechanism for International Criminal Tribunals (MICT), but also transferring cases to Rwanda of detainees whose trials have not yet started and of some ICTR fugitives. So is this just because of necessity, or does it reflect a real shift in Rwanda’s ability to hold fair trials?

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Rwanda has assured the international community that trial of cases referred to it will be conducted in accordance with international standards. “When we made these commitments, we meant to live up to them,” Rwandan Prosecutor General Martin Ngoga said recently. “We will do our best not to disappoint the international community that trusted us in these cases.”

In the past, there has been strong resistance to sending cases to Rwanda because of human rights concerns, but Kigali has made reforms to its legal system in recent years, including abolishing the death penalty.

For Corinne Tertsakian of Human Rights Watch, the reforms are not just cosmetic. “They have made procedures more efficient and cut the time that people are held in preventive detention,” she told Hirondelle. “But our main concern remains the lack of independence of the judiciary. The authorities always have ways to intervene, and they do not hesitate to do so, especially in cases of a political nature.”

Belgian NGO Avocats sans Frontières (lawyers without borders, ASF), which worked in Rwanda from 1996 to 2012, has also ended its opposition to transferring cases, but remains vigilant. “In terms of the regulatory framework and the judicial system itself there has been a lot of progress,” says Chantal van Cutsem, ASF strategic coordinator for the Great Lakes region. “But then it's a question of judicial practice. It's there we see things that need to be improved, especially in cases relating to freedom of expression and civil liberties.”

Van Cutsem says improvements are needed both to improve judicial qualification of facts in the  prosecutor's office and amongst Rwandan lawyers “who need to make sure that all the guarantees of a fair trial are there... guarantees that are not always granted by judges.”

ICTR and national jurisdictions

The ICTR's transfer of Rwandan genocide cases to national jurisdictions was authorized by the UN as early as 2003 to help ease the Tribunal’s workload and move it towards completion. UN Security Council Resolution 1503 (2003) urged the ICTR to “formalize a detailed strategy to transfer cases involving intermediate and lower-rank accused to competent national jurisdictions, as appropriate, including Rwanda, in order to allow the ICTR to achieve its objective.”

Following this Resolution, ICTR judges made amendments to Tribunal Rules, laying down procedures and conditions. All referral cases are to be decided by a Trial Chamber of the ICTR, which must satisfy itself that “the accused will receive a fair trial in the courts of the State concerned and that the death penalty will not be imposed or carried out”.

The prosecutor submitted a first transfer request in 2006 in the case of former Tea Authority boss Michel Bagaragaza, who had concluded an agreement with the prosecution and been sent to The Hague for security reasons. The prosecutor sought first to have him tried in Norway, and then in the Netherlands, but neither came to fruition. 

Two cases were transferred to France in 2007, involving Father Wenceslas Munyeshyaka, former priest in charge of Sainte Famille parish in Kigali, and ex-governor Laurent Bucyibaruta. Both are living on French territory and neither has yet been brought to trial.

In Africa, only Rwanda expressed willingness to receive cases from the Tribunal. Addressing the UN Security Council in December 2006, ICTR Prosecutor Hassan Bubacar Jallow said all African countries he had approached had “pleaded capacity and resource constraints” and that “Rwanda remains the main possible destination for the referral of cases”. 

The same year, the ICTR Prosecutor filed requests for five cases to be transferred to the Rwandan judiciary. However, the judges rejected them unanimously on the basis of fair trial concerns. Their decisions were upheld on appeal. In one of the decisions, for example, judges said: “The Chamber is not satisfied that (Gaspard) Kanyarukiga will receive a fair trial if transferred to Rwanda. It is concerned that he will not be able to call witnesses residing outside Rwanda to the extent and in a manner which will ensure a fair trial.”

Rwandan reforms

Thereafter, Rwanda made changes to its laws, including abolition of the death penalty. Believing that Rwanda was ready to prosecute the cases in accordance with international standards, ICTR Prosecutor Jallow again filed three referral requests in November 2010, involving ICTR detainee Pastor Jean Uwinkindi and two fugitives.

Citing law reforms in Rwanda, the ICTR approved the referral of the Rwandan pastor in June 2011, and the decision was confirmed on appeal in December 2011. Uwinkindi was finally transferred to Rwanda in April 2012, the first such case ever.

As a condition for approving Uwinkindi's transfer, ICTR judges said the Tribunal should set up a monitoring mechanism to ensure that his rights are respected in Rwanda. It was wrangling over monitoring that delayed his effective transfer, since negotiations with the African Committee on Human and People’s Rights to conduct the monitoring had hit problems. The ICTR has now set up a temporary arrangement, designating two of its own lawyers to act as monitors in Kigali.

Since Uwinkindi, the ICTR has approved the transfer to Rwanda of another detainee, Bernard Munyagishari, although he remains on appeal. He is the last person in ICTR custody whose trial has not yet started.

The decision to transfer Uwinkindi may have influenced that of the Canadian judiciary which also decided to hand over to Kigali another Rwandan genocide suspect, Léon Mugesera, in early 2012, ending his 15-year battle against extradition.

The trials of Mugesera and Uwinkindi have not yet started. So it remains to be seen if they will be fair, in a country that is still heavily criticized for its human rights record and its treatment of political opponents. It also remains to be seen whether the ICTR can implement an effective monitoring process.