In its Resolution 1503 (2003), the United Nations Security Council urged the International Criminal Tribunal for Rwanda ("ICTR”) to formalize a strategy in order to allow it to achieve its objective of completing investigations by the end of 2004, all trial activities at first instance by the end of 2008, and all of its work in 2010 ("Completion Strategy”).

Under this strategy, ICTR Prosecutor, Hassan Bubacar Jallow, has concentrated on the prosecution and trial of senior leaders while seeking to refer other cases involving ‘intermediate’ and ‘lower-rank’ accused to national jurisdictions, including Rwanda.

This is in compliance with the statement of direction from the Security Council urging the Tribunal to efficiently use its limited resources, and existence, to try senior leaders suspected of being most responsible for crimes within its jurisdiction.

Following Resolution 1503(2004), ICTR judges amended the Rules of Procedure and Evidence, allowing them forthwith to decide whether to transfer the case against a particular accused to a national court.

Referral is permissible to the national courts of a State (a) in whose territory the crime was committed (territoriality), or in which the accused was arrested (custody, which establishes a ‘linkage’, i.e. not ‘strict’ universal jurisdiction), or to any other state willing and able to accept such a case (universal jurisdiction).

Needless to say, the Completion Strategy of the ICTR rests significantly on the referral of ‘intermediate’ or ‘lower rank’ accused to national jurisdictions. Since 2007, the Prosecutor has made five referral requests for cases to be transferred to Rwanda, including the case of one accused still at large, Fulgence Kayishema, and four accused in the Tribunal’s custody (Gaspard Kanyarukiga, Idelphonse Hategekimana, Yussuf Munyakazi and Jean-Baptiste Gatete).

In all five cases, judges of the ICTR issued decisions unanimously denying the Prosecutor’s requests for referral.

Grounds for denial fall in one of two categories: first, the possibility that an accused transferred to Rwanda may face the penalty of life imprisonment in isolation which, in turn, may violate international standards; second, findings by Trial Chambers that, if transferred, the accused will not receive a fair trial in Rwanda.

These findings were confirmed on appeal in at least three of the five cases.

The Appeals Chamber found no error of law or fact in the determination by the Trial Chambers that, if transferred, the accused may face difficulties in the securing the attendance of witnesses in their defence due to a) the reluctance of defence witnesses to travel to Rwanda to testify, and b) that witnesses for the defence may face security problems in Rwanda. 

As a result, according to the Prosecutor, "the cases of these four detainees as well as of the thirteen fugitives all now fall back within the workload of the ICTR, unless alternative arrangements for trial are made.”

There are several ways to look at the decisions issued by the ICTR in these "referral to Rwanda” cases. As a lawyer, it is tempting to analyse the opinions of the learned judges, to highlight inconsistencies (where, e.g., judges in one case find that reliance on a single judge, rather than a panel of judges, to decide cases in Rwanda is sufficient; yet other judges in the same tribunal concludes that it is problematic), or to examine whether the decisions meet the requirements under the rules of the Tribunal and international standards, and make my own findings on the merits of each referral case.

For students and academics alike, this is an excellent topic for research and publication, and I may well take it up for that purpose.

Here, however, I wish to discuss a feature of the ICTR that is not found in any domestic legal system: the lack of accountability.

Accountability, or the lack of it, is separate and different from "independence”.  Judicial independence suggests freedom from external influences or authority in conducting the business of the court (that is, to ensure that trials are conducted in a fair and expeditious manner).

What the judges have done in the "referral to Rwanda” cases is to ignore very specific directions of the very organ that established the Tribunal in the first place.

I find it difficult to imagine that, having accepted as valid the proposition that most defence witnesses for cases before the ICTR reside outside Rwanda, and that these witnesses would be reluctant to travel to Rwanda to testify for fear of arrest, there could be a change in circumstances that would justify a new finding that cases may now be transferred to Rwanda.

There is little, if anything, that the Government of Rwanda can do to reassure fearful and reluctant defence witnesses. In my view, Rwanda has taken every step to satisfy the requirements for cases to be transferred to its courts in accordance with the Completion Strategy.

The death penalty, once considered the biggest obstacle, has been repealed. A Transfer Law was passed that incorporate the substantive provisions of the ICTR statute on jurisdiction and extending to any accused transferred under that law, the same rights guaranteed in proceedings before the ICTR.

Witness protection mechanisms are in place, under conditions imported extensively from the ICTR rules, with the difference that, this time, witness protection is enforced by domestic law enforcement authorities.

It is, perhaps, questionable whether, by bending over backward to satisfy ICTR demands, the Transfer Law is not open to a challenge on its legality before domestic courts in Rwanda, on the basis that it infringes upon the constitutional guarantee of equal treatment before the law.

I find it very disturbing that, on the one hand, judges agree that, because no transfer has taken place to date, it is sufficient that a state demonstrates that it is adequately prepared to receive cases (i.e. the necessary legal framework is in place), and, on the other, for the same judges to conclude that defence witnesses will be reluctant to come to testify as a result of the negative perception that they may have.

Such a finding is unsubstantiated, speculative, and entirely hypothetical.

Be it as it may, the United Nations Security Council is in an embarrassing situation as a result of the judges’ decisions. If, as ICTR judges suggest, Rwanda is not an appropriate forum for the backlog of "intermediate” and "lower rank” cases, where else to send them?

It is no secret that the ICTR Registry is struggling to find countries willing to – a; enforce the sentences of accused already convicted, or – b; host those accused who been acquitted following trial.

No country in Africa is willing to have anything to do with these cases. Judiciaries in the region have their own challenges to grapple with, and there is little interest or incentive for other countries to take-over where the ICTR has left.

ICTR judges have effectively frustrated a policy decision by the Security Council to bring the work of the ICTR to an end, and the Security Council cannot hold the judges accountable for their decisions.

The current situation is reminiscent of the Barayagwiza "blunder” when ICTR judges ordered the release of the accused because his pre-trial rights had been violated, only to backtrack in the face of intense outcry both within Rwanda and beyond.

Damage control mechanisms such as those affect public confidence in the integrity of the court.

Judges are bad at policy not just when they have little sensitivity to public opinion but also when they fail to use common sense, and share the dominant values of society at a particular time.

Member States of the United Nations that have kept the ICTR alive are tired and dissatisfied. The lessons have been learned and the mistake will not be repeated.

In the words of the United Nations Assistant Secretary-General for Legal Affairs, Ralph Zacklin, ad hoc Tribunals have been "too costly, too inefficient and too ineffective.”

The decisions of the ICTR in the "referral to Rwanda” case are symptomatic of the problem with international tribunals.

Because these tribunals are said to embody the highest standard of independence and impartiality, judges are often too conscious not to be perceived as biased, hence allowing human rights activists and skilful attorneys to distract them from the true source of their mandate.

In the process, these tribunals continue to take too much time and too much money, thereby severely limiting their own usefulness. The United Nations Security Council would do well to reign on the ICTR judges and instil a sense of accountability.

The author is a former Legal Officer of the ICTY. The views expressed herein are his alone.