A Trial Chamber of the International Criminal Tribunal for Rwanda has rejected a prosecution application to transfer a case to the national courts of Rwanda: http://www.mediafire.com/?szgcwgxuu2d. The judges cite a number of factors: although Rwandan law has abolished the death penalty, it leaves open the possibility of life imprisonment in solitary confinement, which would be unacceptable; trials in Rwanda are to take place before a single judge, which the ICTR Trial Chamber says does not provide sufficient guarantees of independence and impartiality; the Rwandan government has a history of trying to influence judges improperly, as can be seen in its difficult relationship with the International Criminal Tribunal for Rwanda, and its criticism of French and Spanish judges who have attempted to exercise jurisdiction over crimes committed in Rwanda; Rwanda has an inadequate witness protection programme. In their concluding remarks, the Trial Chamber says that it acknowledges improvements in Rwanda's justice system, and that if this continues it will be prepared to transfer cases in the future.
The decision is a new element in the debate about the relationship between national courts and international jurisdictions. The International Criminal Court is said to be 'complementary' to national jurisdictions, and to operate only when they are 'unwilling or unable' to provide adequate justice. Here we have a case of an international tribunal deciding that a national system is not 'able', the first such decision that I know of.
Some of the international NGOs have opposed transfer of cases to Rwanda, as they have opposed extradition of suspects to Rwanda by other countries. A big impunity gap is opening up. The International Criminal Tribunal for Rwanda is about to close its doors. The Security Council does not want the Tribunal to start any more trials. This is why the Prosecutor is applying to transfer cases to the national jurisdictions.
Few countries have the legal wherewithal to try crimes committed in Rwanda, under universal jurisdiction, and even fewer have the political will to do so. Rwanda is virtually the only country that wants to prosecute those suspected of genocide, which is understandable enough. Yet if the International Tribunal refuses to transfer cases to Rwanda, and if national judges follow suit by denying extradition to Rwanda, how will the suspects be brought to justice and where will they be tried? I wish these NGOs could provide us with workable, and not just theoretical, answers to this question.
Africa Rights and REDRESS are holding a conference on these questions in Brussels on 1 July, at which I will be one of the participants.