ICTR Prosecutor files applications for referrals 08 Nov 2010
The Prosecutor at the International Criminal Tribunal for Rwanda (ICTR) has filed three new requests for the referral of cases to Rwanda.

On 4 November 2010, the Prosecutor at the International Criminal Tribunal for Rwanda (ICTR), Hassan B. Jallow, filed applications for the referral of three cases to Rwanda for prosecution. The requests concern Jean-Bosco Uwinkindi, Fulgence Kayishema and Charles Sikubwabo.

According to Rule 11bis of the ICTR’s Rules of Procedure and Evidence, if an indictment has been confirmed by the Tribunal a Trial Chamber may be designated by the President to consider referrals to a state where the crimes alleged were committed, to a state where the accused was arrested, or to a state willing and with jurisdiction to prosecute. In determining whether to refer a particular case, the Trial Chamber must satisfy itself that the accused will receive a fair trial and that the death penalty will not be imposed or carried out.

The requests for referral comprise the second time that the Prosecutor has attempted to transfer cases to the jurisdiction of Rwanda. In 2007, five applications were filed to transfer the cases of Idelphonse Hategekimana, Gaspard Kanyarukiga, Yussuf Munyakazi, Jean-Baptiste Gatete and Fulgence Kayishema. The requests were all unanimously rejected on the basis of fair trial concerns and upheld on appeal.

The national jurisdiction of Rwanda

Following the adoption in 1996 of the Rwandan ‘Organic Law on the Organization of Prosecutions for Offenses Constituting the Crime of Genocide or Crimes Against Humanity Committed Since October 1, 1990’, and the abolition of the death penalty in July 2007, it was assumed that Rwanda would be ready to begin prosecuting suspects referred from the ICTR. Such practice would have eased the substantial workload of the Tribunal and assisted in the achievement of its Completion Strategy, as detailed by the UN Security Council. Nevertheless, fair trial concerns have blighted such progress.

In addition to creating obstacles to referral from the ICTR, fair trial concerns have also prevented the extradition of accused Rwandan suspects to the national jurisdiction of Rwanda from other states. In 2009, the UK High Court ruled that four UK residents could not be extradited to face charges in Rwanda owing to a “real risk” that they would suffer a “flagrant denial of justice by reason of their likely inability to adduce the evidence of supporting witnesses” and the risk of interference in the judiciary by the government of Rwanda.

Jean-Bosco Uwinkindi is a former Pastor who was arrested in Uganda in June 2010 and faces charges of genocide, conspiracy to commit genocide and extermination as a crime against humanity. The two other accused subject of the current referral requests remain at large, both charged with various counts of genocide and crimes against humanity.

Rwandan Genocide Background Document

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