The Transfer Cases of the ICTR to the Republic of Rwanda : The challenges of implementing Rule 11 bis

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Title: The Transfer Cases of the ICTR to the Republic of Rwanda : The challenges of implementing Rule 11 bis
Author: Ng, Likim
Contributor: University of Helsinki, Faculty of Law
Publisher: Helsingfors universitet
Date: 2014
Language: eng
Thesis level: master's thesis
Discipline: International law
Kansainvälinen oikeus
Abstract: This thesis addresses the complex process of transferring cases from the International Criminal Tribunal for Rwanda (ICTR) to Rwanda. After a decade of prosecuting the leaders and organisers of the 1994 Rwandan Genocide that killed an estimated 500,000 to 1 million ethnic Tutsis, the Security Council of the United Nations called for the closure of the Tribunal. In an effort to complete all trial activities, the Completion Strategy has involved transferring the indictments of low to mid-level accused to national jurisdictions for trial. With donor fatigue, frustration with the efficiency of the Ad-Hoc tribunals and the desire for states to manage their own issues, there is a shift in enforcement of international criminal law away from international tribunals. The outcome is that national courts will be increasingly responsible for the accountability of international crimes and the application of fair trial rights. As a result, the importance of cases being prosecuted domestically with the appropriate level of fair trial standards and the capacity of national systems will be increasingly important. To transfer a case to a national court, the ICTR has to be satisfied that the court by which the case is referred to has the jurisdiction to adjudicate the case. Moreover, it has to confirm that the standards of trial in respect to fairness are satisfactory. Once the case has been transferred, the ICTR can appoint a monitor to observe the proceedings in the national court. This thesis aims to determine whether the transfer cases to Rwanda were decided with the appropriate fair trial standards. To determine this, this thesis examines the decisions of the ICTR, relevant legislation, Reports of the Monitor as well as academic discussions. Further this thesis demonstrates the importance of capacity building efforts as well as legal reform to improve standards. Improvement of fair trial and penalty standards in Rwanda has involved the creation of new witness protection programs, the abolishment of the death penalty and reform of the Genocide Ideology law. However, this thesis has shown the most challenging part of capacity building by a foreign body is the sensitive and cautious way these issues need to be approached. This thesis concludes that, from the creation of new witness protection programs, video link technology, building of new prisons, judicial training and reforms in legislation, Rwanda has developed the capacity to hold a fair trial. Moreover, twenty years after the genocide, Rwanda has become a neutral territory to hold trials for the transferred cases. However, this author is concerned that these improvements will only affect the handful of cases, which will be transferred. Many Rwandans will not have access to the same safeguards, protection and facilities. Despite these possible inequalities, the correct decision to transfer the cases to Rwanda is a step forward towards ending impunity. It means that Rwanda is willing and able to prosecute their crimes. Following the ICTR’s approach towards strengthening fair trial and penalty standards in Rwanda will be a valuable lesson for the future of International Criminal Law, particularly in light of increased domestic prosecutions.

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