In the appeal, both the defence and prosecution have submitted Notices of Appeal, to challenge the referral decision given on June 6, 2012, by a Referral Chamber. But appeal proceedings have not been concluded because of translation problem of languages from English to French.
Only the prosecution has managed to lodge its appeals brief, while the defence have not yet submitted its elaborative grounds of appeal as they are compelled to wait for translation of the ruling and the prosecution’s brief into French.
In its Notice of Appeal, the defence opposes the transfer of Munyagishari case on claims that the scale used by ICTR prosecutor, Hassan Bubakar Jallow, in choosing who should be transfer to Rwanda for trial was wrong.
According to Resolution 1503 (2003), the UN Security Council recommended to ICTR to transfer cases to national jurisdiction involving “intermediate or lower ranked” persons.
But in the notice in question, Munyagishari’s lawyer, Philippe Moriceau, states that his client, who was President of Interahamwe and Secretary of MRND, a Rwandan ruling party in 1994, in Gisenyi prefecture, North Rwanda, could not fit into that category.
The counsel further alleges that his client cannot call witnesses as easily as could be for the prosecution. He claims most of defence witnesses living outside Rwanda feared to appear before the Rwandan court to give their testimony in favour of the accused.
On the other hand, in its appeals brief signed by Senior Trial Attorney James Arguin, the prosecution is disputing the imposition of some conditions in the referral decision, which should be fulfilled subject to its implementation.
They include provision of written guarantee by President of Kigali Bar Association to the authority of the Tribunal that Munyagishari should remain indigent, shall be assigned a lawyer with experience in international justice, including eliciting testimony from witnesses and via video-link.
The prosecution submits that the Kigali Bar Association, which administers Rwanda’s legal aid program, has lawyers with international experience and given that its members have been using video link technology in domestic cases.
“Eliciting testimony from witnesses who live abroad or via video-link technology does not require any unique skill. From an advocacy standpoint, the manner of questioning the witness is exactly the same as a witness who lives in the country and testifies in person,” Arguin argues.
Other conditions required the Prosecutor General of Rwanda to provide, among others, bonding written concession to ICTR President and that of the Mechanism for International Criminal Tribunals (MICT) that joint criminal enterprise shall not be included as a mode of liability pursued against Munyagishari.
The Rwanda Prosecutor General, Martin Ngoga, has already responded to the matter in his letter dated August 6, 2012. He states, “You have my solemn assurance that Rwanda shall not seek to reintroduce joint criminal enterprise as a mode of liability in this referred case.”
Joint criminal enterprise (JCE) is a theory of liability for a group of people having a common plan, design, or purpose to commit a crime. If this form of liability is proved, the accused can be convicted of all completed crimes within the scope of such common plan, as well as all crimes that he did not intend but that were a foreseeable consequence of the common plan.
Ngoga further assures that “the trials in these referred cases will be fair and, through this fair and public administration of justice, Rwanda will take another significant step forward on the path toward national reconciliation and healing.”
Munyagishari is charged with conspiracy to commit genocide, genocide or, in the alternative, complicity in genocide, murder and rape as crimes against humanity. The Tribunal has so far ordered the transfer of eight cases to Rwanda for trial, but two of them are pending on appeal.