Saturday, May 31, 2008

ICTR: Denial of Request to Transfer Munyakazi’s Case to Rwanda

On Wednesday, the International Criminal Tribunal for Rwanda denied a request to transfer Yussuf Munyakazi's case to Rwanda. This has serious implications for the Tribunal's completion strategy. The Trial Chamber's decision is here; Hirondelle News's report is here. Here's the ICTR press release:

On 28 May 2008, the Trial Chamber issued its decision, denying the application for referral of Yussuf Munyakazi case to the Republic of Rwanda on mainly two grounds. Born in 1935 in Kibuye, Munyakazi was a businessman and farmer in Cyangugu Province.

First, the Trial Chamber acknowledged that the Republic of Rwanda has abolished the death penalty which will not apply to the referred cases. However, the Trial Chamber was concerned about the sentence of life imprisonment in isolation which replaces the death penalty in the Rwandan law. The Trial Chamber was of the view that certain safeguards listed in the Decision should be put in place to make such a penalty conform with international human rights standards.

Secondly, the Trial Chamber expressed serious concern about the fair trial right of the Accused, with specific reference to the independence of the tribunal that would try the case if referred, and the ability of the Accused to call witnesses in his defence and the witness protection program in place. Specifically, the Tribunal was concerned that there is a lack of sufficient guarantees against outside pressure on the judiciary and that, based on the past actions of the Government, the independence of the judiciary would not be respected.

On 7 September 2007, the Prosecutor filed a motion for referral of the case to the Republic of Rwanda. On 2 October 2007, Trial Chamber III was designated to consider the motion. The Trial Chamber granted amicus curiae status to the Republic of Rwanda, the Kigali Bar Association, Human Rights Watch and the International Criminal Defence Attorneys Association, while denying such request from IBUKA & AVEGA, and from ADAD (Organisation of ICTR Defence Counsel). On 24 April 2008, the Trial Chamber heard the parties and the amici curiae in open session.

The Trial Chamber composed of Judges Inés Mónica Weinberg de Roca, presiding, Lee Muthoga and Robert Fremr was particularly concerned in view of the fact that the High Court hearing the referred case would be composed of a single Judge who would be less likely to be able to resist any pressures than a panel of three or more judges. The Trial Chamber also highlighted that the factual findings of that single Judge could only be reviewed by the Supreme Court in the case of a miscarriage of justice. The Trial Chamber stated that its concerns regarding the independence of the tribunal would be substantially reduced if the High Court was composed of three or more Judges. With regard to witnesses, the Trial Chamber was concerned by the fact that the Accused may not be able to call witnesses due to their fears for their safety and in addition, the witness protection program is understaffed, run by the Prosecutor and the Police whom a Defence witness may not consider as neutral bodies.

In summary the Trial Chamber found that Rwandan penalty structure does not meet internationally recognised standards and was not satisfied that the right of the Accused to a fair trial would be respected if the case was referred. However, the Chamber acknowledged the positive steps already taken by Rwanda to facilitate referral, and indicated that if Rwanda continued along this path, the Tribunal will hopefully be able to refer future cases to Rwandan courts.

Both parties have the right to appeal the Decision. They have 15 days to file any such notice.

Yussuf Munyakazi was jointly indicted in 1997, with Bagambiki and Imanishimwe. In 2000, the Trial Chamber granted the severance of his case, and the indictment was subsequently amended in 2002, charging the Accused for genocide and alternatively complicity in genocide, and extermination as a crime against humanity.

He was arrested on 5 May 2004 in the Democratic Republic of Congo (DRC) and transferred to the UN detention facility in Arusha on 7 May 2004. During his initial appearance on 12 May 2004, Yussuf Munyakazi pleaded not guilty to charges brought against him by the Prosecutor that he participated in the1994 Rwanda genocide.