Guest Post: Gone But Not Forgotten–The Ongoing Case of Jean Uwinkindi at the ICTR and MICT

[Oliver Windridge is a British lawyer specialising in international criminal and human rights law. The views expressed herein are those of the author and do not necessarily reflect the views of the United Nations or any other organisations affiliated to the author.]

A sometimes forgotten aspect of the International Criminal Tribunal for Rwanda’s work is the transfer of 10 of its 13 outstanding cases back to Rwanda and to France for domestic prosecution. To be precise, of the 13 outstanding cases, the ICTR have transferred two currently detained accused to France (Bucyibaruta and Munyeshyaka) and two to Rwanda (Uwinkindi and Munyagishari). The remaining nine accused remain at large, of which the ICTR transferred seven to Rwanda for domestic prosecution if and when they are arrested (Sikubwabo, Ryandikayo, Ntaganzwa, Ndimbati, Munyarugarama, Mpiranya, Kayishema), while the Bizimana and Kabuga cases remain at the ICTR, or rather the Mechanism for International Criminal Tribunals (MICT), the mechanism established to carry out functions, including trying outstanding cases, after the completion of the ICTR and ICTY mandates. But even if sometimes forgotten, transferred cases are likely to come back into the spotlight this year with MICT President Theodor Meron’s landmark 13 May 2015 decision to constitute a new referral chamber to examine whether Jean Uwinkindi, the first ICTR accused to be transferred to Rwanda, should remain in Rwanda for trial or be brought back under the auspices of the MICT for trial.

As background, in 2011 Uwinkindi became the first ICTR accused to be transferred to Rwanda for domestic prosecution under Rule 11 bis of the ICTR Rules of Procedure and Evidence. This transfer was a watershed for the ICTR, and in particular the ICTR Prosecutor, who had tried and failed on several previous occasions to transfer cases to Rwanda, all of which were subsequently tried at the ICTR ( See Munyakazi, Gatete, Kanyarukiga and Hategekimana).

Uwinkindi opposed the transfer mainly on fair trial concerns, however the Trial Chamber found that Rwanda had markedly improved its criminal justice system since denying previous applications for transfer mentioned above, and granted the Prosecution’s request to transfer, which was subsequently affirmed by the Appeals Chamber . In order to allay concerns over potential post-transfer issues, particularly over the availability and protection of witnesses, the transfer decision included a monthly monitoring system, designed to ensure any material violation of Uwinkindi’s fair trial rights in Rwanda would be brought to the attention of the ICTR President so that action, including possible revocation could be considered by the ICTR (and now MICT). The monitoring system also allowed the ICTR/MICT to examine any issues over future financial constraints including any failure by the Rwandan authorities to make counsel available or disburse funds. Therefore, since 2011 the ICTR/MICT has received monitoring reports on a monthly basis (all the reports can be accessed at the bottom of this page.). Importantly, in its 2011 referral decision the ICTR also granted Uwinkindi permanent standing to petition the ICTR/MICT.

On 16 September 2013, Uwinkindi filed a request for revocation of the 2011 referral decision, stating that the Ministry of Justice of Rwanda had failed to make the necessary funds available for his defence to allow his team to contact defence witnesses and hire defence staff and that his counsel had not been paid since February 2013. On 12 March 2014, MICT President Meron, sitting as a single judge, dismissed Uwinkindi’s request for revocation, finding that the submissions on various funding issues had been either rendered moot or were still the focus of ongoing negotiations and may be subject to further review within the Rwandan courts. President Meron did not however rule out the filing of further requests for revocation should the circumstances warrant.

In March 2015, the MICT monitor filed its March 2015 report, in which it stated, inter alia, that in a meeting between Uwinkindi and the monitor Uwinkindi requested the MICT President to recall his requests for transfer of the case from Rwanda “to another jurisdiction where ₣heğ could get a fair trial” (March Monitoring Report, paragraph 60). In the same meeting Uwinkindi expressed his displeasure with counsel assigned to him, expressing his desire to be represented by counsel of his choice, including Mr. Gatera Gashabana his former counsel and asserting lack of fair trial rights in Rwanda ( I recommend reading the whole report, it makes for very interesting reading).

This led President Meron, under the auspices of Uwinkindi’s ongoing standing to petition the MICT, and noting that he was not represented by counsel, to consider Uwinkindi’s claims in the March report as renewed application for revocation of his transfer. This decision to consider Uwinkindi’s request as a an application to revoke can be seen as the MICT taking a wide and pragmatic approach to Uwinkindi’s claims. The result of which is that President Meron has ordered the creation of a new referral panel to consider Uwinkindi’s application to revoke his transfer and bring the case back to the MICT, albeit somewhat strangely describing the referral panel as a “Trial Chamber” despite not being a trial and the 2011 chamber being referred to as “referral chamber”. Nevertheless, the referral panel/trial chamber will be composed of MICT Judges Joensen, also the ICTR President, presiding alongside Judge Sekule and Judge Arrey. What is the difference between this application and the previous applications which were dismissed by President Meron? Although not explicitly examined in the 13 May 2015 decision, it may well be a question of time; over a year has passed since Uwinkindi’s last request for revocation and, according to Uwinkindi, the same issues of mounting a proper defence continue to bedevil his case, something which at some point the MICT must at the very least look into.

Interestingly, the 13 May 2015 decision considers the March 2015 report the trigger to create the referral panel, and does not mention Uwinkindi’s 28 December 2014 revocation application that was supplemented by further submissions on 16 January 2015, although a subsequent 5 June 2015 decision by President Meron ordered Uwinkindi’s latest request for revocation to be referred to the referral panel also.

Since the creation of the referral panel matters have progressed swiftly with Judge Joensen assigning himself as pre-trial judge (again using the confusing term “trial”) on 21 May 2015 and on 22 May 2015 setting out a time line for the submission of briefs, response and replies that will be triggered once Uwinkindi is appointed counsel. On 22 June 2015 the MICT Registry appointed Uwinkindi’s former counsel Mr. Gashabana as counsel in this matter meaning Uwinkindi must file his brief in support of the revocation request within 30 days of assignment of counsel, and the MICT OTP and Rwanda must file their responses within 30 days of Uwinkindi’s brief, and Uwinkindi must file his reply within 10 days of the responses, meaning that, roughly, the case should be fully briefed by the end of August 2015.

What should be made of this development? I would argue that the 13 May 2015 Decision to form a referral chamber should be seen as a landmark decision for the ICTR/MICT. Not only is it the first referral panel created to consider a transferred persons request at the ICTR/MICT, the decision also demonstrates a welcome degree of pragmatism by treating Uwinkindi’s latest remarks to the MICT monitor as an application to revoke, although this could be seen as inevitable given that in the 15 months or so since his last application was dismissed very little has improved according to Uwinkindi. Also, at a very basic level the very fact that the matter is before the MICT should be welcomed. Some feared that with the referral in 2011 we would not see or hear of Uwinkindi again; his case disappearing into the Rwandan justice system. But we see the ICTR and now MICT living up to its promises by sending monitors and regularly considering Uwinkindi’s requests for revocation of the transfer, and on this occasion ordering assessment by a panel of judges.

It is also important to recognise that although still very much a lever that has to be pulled by Uwinkindi, the ICTR’s decision to grant Uwinkindi permanent standing to petition the ICTR/MICT has also worked, obviating the need for subsequent chambers to examine jurisdictional issues and removing the chance for parties to oppose revocation applications, although how this permanent standing is viewed in Rwanda I do not know. This framework of ongoing standing again indicates a level of continued commitment and involvement by the ICTR and demonstrates a potential middle ground between retaining a case at an international tribunal and an international tribunal washing it hands completely of a case.

Whilst we do not know what will happen, what seems clear enough is that should the Trial Chamber uphold the request Uwinkindi’s case would come back before the MICT for trial. If the Trial Chamber were to reject the request Uwinkindi’s case would continue to be tried in Rwanda. Either way the decision will presumably be subject to appeal, indicating that a final decision is unlikely very quickly.

What impact will this decision have on other cases? For Bernard Munyagishari the other ICTR accused currently facing trial in Rwanda, who has also petitioned the ICTR/MICT for revocation of his transfer, it does provide a possible future route for consideration although it should be noted that so far his applications have been denied by President Meron. (The cases transferred to France, Munyeshyaka and Bucyibaruta, are not subject to any requests for revocation at present.)

But in addition to the impact of Uwinkindi’s case on Munyagishari and the ICTR/MICT, does this transfer framework have future application elsewhere? The answer is likely dependent on the nature of the tribunal. Arguably the two main elements driving the transfer of ICTR cases are the maturation of the Rwandan criminal justice system to a point where it could take on domestic prosecution of ICTR accused, and the expiration of the ICTR’s mandate. Similar factors are likely to occur for future ad-hoc tribunals with limited mandates and possibly a large number of accused. For permanent tribunals however the ICTR transfer framework’s application is less obvious. Transfers at the ICTR only gained traction some 15 years into its life and towards the end of its mandate. Given the permanency of the ICC and the hope that cases can be handled quicker, the need to transfer cases due to the maturation of the domestic criminal justice system and closure of the tribunal may not be applicable to the ICC (although could the ICC impose limited mandates per situation?). Furthermore, where the approach of the ICC Prosecutor has often been to indict only those at the very top, again the likelihood of a number of accused eligible for transfer some years on seems less likely. So with an open ended mandate and smaller number of accused per the ICC is realistically unlikely to follow this transfer framework. For example, with recent discussion on a new Special Criminal Court for Central African Republic (SCCAR), could the ICC transfer cases to the SCCAR but use the ICTR transfer framework to retain jurisdiction to hear applications for revocation from accused? Unlikely, as applying the ICTR transfer framework, this would only occur for accused indicted before the ICC who are then transferred- requiring significant ICC resources to investigate and issue indictments.

This brings me to my final point. Irrespective of the nature of the tribunal, the ICTR transfer framework is very much a Prosecution-led approach and requires significant work from the Prosecutor to investigate, issue indictments and prepare cases that could be tried at the international level. Therefore practically, is it likely future Prosecutors will be willing to do the amount of work done by the ICTR Prosecutor before then pushing for transfer? Where resources are limited it seems unrealistic to expect Prosecutors at international tribunals to take cases all the way to the door of the court, only then to transfer them to domestic courts.

In conclusion, it appears the transfer framework has succeeded in retaining a link between Uwinkindi’s domestic trial and the ICTR/MICT through its monthly reports and the permanent standing granted to Uwinkindi allowing the ICTR/MICT to consider requests at any time. In short, the transfer framework seems to have worked irrespective of what the referral chamber will decide, although it is difficult to describe the transfer framework as an outright victory given that Uwinkindi’s allegations relate to the alleged failure of the Rwandan system to uphold his fair trial rights, a transfer which the ICTR itself sanctioned. As to future application, ad-hoc international tribunals with set mandates and a large number of accused could apply a similar framework but for permanent tribunals such as the ICC, unless it sets strict mandates to its situations, with an open ended mandate and smaller number of accused per situation the need to transfer cases as done by the ICTR is unlikely to arise. In any event, whether this transfer framework remains a ICTR/MICT model or finds a broader use in the future, Uwinkindi’s case once again demonstrates the fine balance between prosecutions at international tribunals and domestic prosecution of international crimes.