Transfer or Transformation?: A Review of the Rule 11 bis Decisions of the International Criminal Tribunal for Rwanda

Abstract

On 8 October 2008, the Appeals Chamber of the UN International Criminal Tribunal for Rwanda (ICTR) upheld the decision not to transfer the case of Yussuf Munyakazi to Rwanda. This was followed by two consistent decisions relating to Gaspard Kanyarukiga and Ildephonse Hategekimana. In application of Rule 11 bis of the ICTR’s Rules of Evidence and Procedure, the Trial and Appeals Chambers were not persuaded that the accused would receive a fair trial in Rwanda. Rule 11 bis governs the transfer, to competent national jurisdictions, of individuals indicted but not yet tried by the ICTR. This rule was intended to create a bridge between the practice of international criminal law and domestic criminal justice processes by ensuring that domestic courts have an adequate legal framework to try international crimes and provide suitable fair trial guarantees. Following changes to Rwandan legislation, on 28 June 2011 a newly constituted referral bench ruled in favour of transferring the case of Jean Uwinkindi to Rwanda. These differing decisions by the ICTR on the transfer of cases provide