ICTR Refuses to Transfer Munyakazi to Rwanda

by Kevin Jon Heller

Last month, I noted that the ICTR Prosecutor had “disowned” Human Rights Watch for daring to criticize his request to refer Yusuf Munyakazi to Rwanda for trial. I guess he’ll now have to disown Trial Chamber III, as well, because on Monday it agreed with HRW and rejected the referral:

Chances of genocide suspect and former Rwandan Interhamwe militia leader Yussuf Munyakazi of being tried on home ground were diminished on Wednesday when the United Nations war crimes tribunal rebuffed opposition application to hold the trial in the small east African state.

Mr Munyakazi is facing charges of the 1994 Rwanda genocide in which UN estimates show that over 800,000 people, mostly ethnic Tutsis and moderate Hutus were allegedly murdered by his armed forces between April and July.

The 73 year-old former farmer and businessman was arrested in the neighbouring Democratic Republic of Congo (DRC) in 2004, prior to being brought before the International Criminal Tribunal for Rwanda (ICTR).

He allegedly masterminded and in some instances, actually participated in the killing of the Tutsis who had sought sanctuary in numerous churches in Rwanda’s Bugarame commune.

The Trial Chamber’s decision is comprehensive and well-reasoned. National referrals are governed by Rule 11bis, which provides in relevant part that “[i]n determining whether to refer the case… the Trial Chamber shall 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 Trial Chamber began by noting that Rwanda had, in fact, abolished the death penalty. It pointed out, however, that defendants convicted in Rwandan courts of torture, murder, genocide, and crimes against humanity will be sentenced to life imprisonment “with special conditions” — namely, life imprisonment in permanent isolation from other prisoners. Such punishment, the Trial Chamber held, was inconsistent with international standards for detention, which require imprisonment in isolation to be an exceptional punishment “applicable only where necessary and proportionate” and to be imposed with numerous procedural safeguards, such as periodic judicial review to determine whether isolation remains necessary. Those safeguards are completely absent from Rwandan law.

Although the isolation ground would likely have been enough to deny the referral, the Trial Chamber offered two additional grounds for denying it:

  • One judge would have presided over Munyakazi’s trial, making the court particularly susceptible to political pressure from the Rwandan government — which has a long history of undermining the independence of the judiciary. (A panel of three judges, the Trial Chamber noted, would likely satisfy Rule 11bis. At present, however, Rwandan law does not provide for such panels.)
  • The Rwandan government has consistently harassed, arrested, detained, and sometimes even killed witnesses for the defense, making it unlikely that Munyakazi would have the ability to secure and examine witnesses “under the same conditions as witnesses against him,” a right guaranteed by Article 20 of the ICTR Statute. Moreover, the Trial Chamber noted that the Rwandan government has done nothing to help defendants in Rwandan courts obtain witnesses who are located outside of Rwanda.

The Trial Chamber’s decision obviously represents a significant setback for the ICTR’s completion strategy. Rwanda will now have to make additional, and likely time-consuming, changes to its criminal-justice system if it wants to receive the 17 suspects the ICTR intends to transfer. That said, the decision will no doubt help legitimize the completion strategy itself, which many have criticized — including an ICTR appellate judge — as being far less concerned with fairness to defendants than with dissolving the ICTR as quickly and cheaply as possible. At the administrative level, those criticisms may still hold. Fortunately, at least for now, the Trial Chamber seems disinclined to play along.


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