Ingrid Burke, Pitt Law '11, traveled to the ICTR in Tanzania with Professor Charles Jalloh through Pitt Law's Center for International Legal Education...
As part of a group of Pitt Law students, I recently had the opportunity to spend three days observing the inner workings of the International Criminal Tribunal for Rwanda (ICTR) in Arusha, Tanzania. During my visit, I met numerous ICTR representatives, including members of the Office of the Prosecutor (OTP), the Registry, and various defense teams and judicial chambers. However, I was most excited by the opportunity to meet with Prosecutor Hassan Bubacar Jallow and defense counsel representatives because of my curiosity about the status of the cases remaining to be decided by the ICTR.
The ICTR was created in 1994 by the United Nations Security Council to prosecute violations of international law committed during the Rwandan genocide. To date, the ICTR Trial Chambers have completed the trials of 50 accused individuals and are in various stages of completing an additional 16 trials. At present, 11 fugitives remain at large. The ICTR Appeals Chamber in the Hague has completed the trials of 31 accused individuals and expects to complete another 19 trials by the end of 2013. While the Appeals Chamber has another two and a half years to reduce its caseload, the ICTR's trial chamber has only until the end of 2011, in accordance with the Tribunal's most recent Report on the completion strategy of the ICTR (closure report). This leaves open an important question: are Rwandan courts suitable for the transfer of lower to mid-level, at-large indictees?
Even before visiting the ICTR, I had formed an opinion on this question. While Rwanda's ability to fairly try and punish genocide defendants has been debated in recent years, I believed that it would be most beneficial for the Tribunal to transfer its remaining lower to mid-level cases to Rwanda's national jurisdiction upon closure. While Prosecutor Jallow reaffirmed this belief, it was challenged by representatives of the defense counsel.
Procedurally, the ICTR has primary jurisdiction over individuals charged with genocide, war crimes, and
crimes against humanity. While Rwandan courts may exercise jurisdiction over genocide suspects by indicting and prosecuting them, the ICTR retains the right to request the transfer of such individuals to its chambers for prosecution. This broad jurisdictional grant was deemed necessary for the sake of uniformity and the Tribunal's ultimate effectiveness. However, the ICTR now has an interest in transferring cases of lower to mid-level indictees to the Rwandan national courts due to its impending closure. Key ICTR officials have manifested this interest in both express and implied actions. For instance, Prosecutor Jallow sought to refer five cases to Rwandan national courts, but in each case, the Prosecutor's transfer request was denied on the basis of fair trial concerns. The ICTR has also implied a desire to transfer appropriate cases to Rwandan national courts pending reform of the country's judicial system. The Prosecutor and the Tribunal's president have given speeches on the topic, and the ICTR has published press releases concerning its efforts to rebuild the Rwandan judicial system.
The ICTR's interest in transferring cases to Rwandan courts can also be traced to evolving language in the ICTR's Rules of Procedure and Evidence (RPE). The RPE were amended to include Rule 11 bis, which gives the Tribunal discretion to transfer cases to appropriate national jurisdictions. Rule 11 bis serves the dual purpose of granting the Tribunal jurisdiction over the most notorious indictees while allowing it to reduce its caseload by transferring indictees charged with less serious crimes to other jurisdictions. In the rule's original form, there were only a few jurisdictions designated as appropriate for the transfer of ICTR cases. In its amended form, Rule 11 bis establishes three options for transferring cases at the ICTR President's discretion. The ICTR may transfer the case to the state where the crime was committed, the state where the defendant was arrested, or a state that has jurisdiction and is willing and able to hear the case. The language of Rule 11 bis has changed several times since being added to the RPE, and each evolution seems to be intended to ease the transfer of cases to Rwanda.
As mentioned above, the Prosecutor has unsuccessfully attempted to transfer cases to Rwanda's national courts on five separate occasions. These cases were rejected for several reasons, including concerns over the appropriateness and applicability of punishments for genocide, the adequacy of protection for defense witnesses, witnesses' ability to enter Rwanda to testify, and ethnic biases that could affect the trials' impartiality. Nevertheless, when I asked Prosecutor Jallow about future attempts to transfer cases to Rwanda under Rule 11 bis, he seemed confident that the cases would be accepted. At the time, he had planned to file another Rule 11 bis case early this summer. However, according to the most recent closure report, he now expects to hold off on filing a new Rule 11 bis request for the transfer of cases to Rwanda until the end of 2010:
Consultations are ongoing with Rwanda with a view to resolving a number of issues related to witness protection and other matters raised by the Trial Chambers and the Appeals Chamber in their decisions on prior requests for referrals under Rule 11 bis. The Prosecutor intends to file further applications for referral of fugitives' cases to Rwanda. It is expected that the applications will be made towards the last quarter of 2010.Some of the concerns surrounding the original transfer requests have been alleviated, as the Tribunal recently trained Rwandan legal professionals and established a witness protection program with video link capabilities. However, the recent arrest of American defense counsel and JURIST Forum contributor Peter Erlinder may have thrown the Prosecutor's plans into disarray.
The Tribunal's various defense teams were less assured about Rwanda's capacity to fairly adjudicate cases. They expressed concern about the fairness of trials, citing a well-documented trend of difficulties faced by defense counsel in locating and obtaining evidence. Rwanda also has a history of witness intimidation and harassment, which poses a serious threat to defense teams and their ability to fairly advocate for their clients.
The ICTR is currently divided on the issue of case transfers. On the one hand, Rule 11 bis seems to be constructed with the intention of ultimately transferring cases to Rwanda. On the other hand, the language of Rule 11 bis is contradicted by case law, i.e., the five previous refusals of Rule 11 bis cases.
In light of Rwanda's progress, concern expressed by defense counsel, while well-founded, is likely outdated. In reality, the ICTR has done a great deal to address the problems that led to fair trial concerns in the five previous Rule 11 bis cases. Accordingly, it is my opinion that transfer of the Tribunal's lower to mid-level cases to Rwanda is in the best interest of both Rwanda and the international community. As a consequence of the genocide, Rwanda's government was dismantled, and afterward, the judiciary was forced to rebuild. Since the end of violence, the Tribunal has played an active role in rebuilding Rwanda's institutions by providing funding, training, and promises of future monitoring. If Rwanda accepts the transfer cases, its judicial infrastructure will become more stable and experienced. In turn, judicial stability will promote reconciliation and peace, because the judiciary has proven itself as the sole governmental body capable of treating the issues that have plagued the country's recent past. Rwandan courts will also have easier access to evidence and witnesses than the ICTR. Currently, there are costs associated with transporting witnesses and evidence from Rwanda to Tanzania. In addition to wasting money and prolonging the judicial process, these costs could be burdensome for other jurisdictions if Rwanda declines to accept the transfer cases. Finally, there are public policy grounds for supporting the transfers of suitable cases to Rwanda. The international community's recognition of Rwanda's judicial and political stability will promote foreign investment and trade, thereby facilitating economic growth and, ultimately, domestic business and entrepreneurship.
The international community will benefit from the transfer of cases to Rwanda, as well. A successful closure to the ICTR would constitute a welcome return on the international community's investment, since the ICTR has been funded by foreign governments since its inception. Furthermore, it would lend legitimacy to international criminal tribunals. Prior to 1994, tribunals like the ICTR and the International Criminal Tribunal for the Former Yugoslavia (ICTY) did not exist. The United Nations Security Council based these tribunals' creation on its Chapter VII power to take non-military action to restore international peace and security. This was a tenuous basis for authority, and there was a significant risk that the tribunals' legitimacy would be challenged. However, the tribunals have had many successes, and their legacies have important implications for the future of international criminal law. The satisfaction of the Security Council's original goals of national reconciliation and restored peace in Rwanda would set an important precedent for the effective adjudication of future international atrocities.
While it is impossible to predict the outcome of the Prosecutor's Rule 11 bis case, I side with Prosecutor Jallow in hoping that it will be successfully transferred to Rwanda. This is in the best interest of both the Rwandan judiciary's stability and the benefit of international criminal law in the future.
Photos: David Kaplan