The trouble with transfers: an analysis of the referral of Uwinkindi to the Republic of Rwanda for trial.

AuthorMorris, Jennifer Wren
  1. Overview

    On June 28, 2011, in Prosecutor v. Uwinkindi, (1) the International Criminal Tribunal for Rwanda ("ICTR" or "Tribunal") invoked a procedural rule to transfer a genocide case from the Tribunal to the Rwandan judiciary for the first time. (2) This decision was approved on appeal, (3) and Uwinkindi now sits before the High Court of Rwanda as the first person to be indicted by the ICTR, but prosecuted by Rwanda. (4) The ICTR has since approved the transfer of seven more accused genocidaires to Rwanda, six of whom remain at large. (5)

    The transfer mechanism, Rule 11 bis, was adopted in 2004 as part of a completion strategy, which allowed the ICTR to transfer cases to national judiciaries. But, prior to Uwinkindi, the Tribunal had denied similar applications for transfer due to the failure of the Rwandan judiciary to meet the requisite conditions. Two key elements were at issue: (1) the assurance that the accused would receive a fair trial (6) and (2) certainty that the death penalty would not be imposed. (7) The Rule 11 bis jurisprudence illustrates that the Tribunal struggled in determining the appropriate standard for evaluating whether the fair trial element would be satisfied. In so doing, the Tribunal came full circle, beginning and ending with a rigid statutory analysis.

    Under this framework, the Tribunal evaluated the rights conferred to the accused under Rwanda's Transfer Law--a law written specifically for the purpose of fielding cases transferred from the ICTR. However, as recognized early on by the Tribunal, this law did not reflect the reality of fair trial and sentencing in Rwanda. Consequently, the Tribunal engaged in an alternative inquiry into the factual reality of the circumstances in Rwanda. Due to flaws in the structure of the factual inquiry and pressure to transfer, the Tribunal reverted to the statutory framework analysis to approve Uwinkindi's transfer. This shift is particularly interesting because the Tribunal's original concerns regarding the realities of fair trial in Rwanda remained unresolved. Through a monitoring mechanism included in Rule 11 bis, the ICTR will monitor the proceedings which, coupled with international scrutiny, is predicted to ensure that Uwinkindi will receive a fair trial. However, the ICTR's approval of transfer has led other countries to begin extraditing accused persons to Rwanda, which persons will not enjoy the benefits of monitoring or high-level international scrutiny. In the end, the Tribunal's decision to transfer has undermined any possibility of effecting real change in the Rwandan judiciary, and those who are soon to be extradited may be unintended casualties of the U.N.'s completion strategy.

    This Note will provide a brief overview of the Rwandan genocide, the U.N.'s establishment of the Tribunal, and efforts to bring the Tribunal to a close. It will then examine the transfer applications that preceded Uwinkindi, the shifts in precedent that ultimately led to transfer, and, in conclusion, will assess the wisdom of the transfer itself. This approach focuses on the parallel, but sometimes contravening, goals of maintaining the provision of due process and fairness through the structure of an international court and the preservation and improvement of this process in the courts of the country where the crime occurred.

  2. Background

    1. The Rwandan Genocide

      The western world is familiar with Hollywood's version of Rwanda's 1994 tragedy through Hotel Rwanda, a popular film which tells the story of one man's efforts to protect a group of Tutsis from becoming victims of genocide. (8) But history's details prove difficult to capture in a three-hour movie.

      Ancestors of the Hutu and Tutsi people settled in Rwanda more than two thousand years ago. (9) It was not until the twentieth century when these settlers began to acquire their Hutu and Tutsi labels, which were used to identify Rwandans as cultivators or pastoralists, respectively. (10) For many years, these two groups coexisted, creating and sharing the same language, religious beliefs, and cultural identity. (11) In the 1920s, Belgian colonialism led to the bifurcation of the Hutu and Tutsi, and the origin of their labels was soon forgotten. (12) The colonialists appointed Tutsis into official positions of the newly created administrative machine, while they relegated Hutus to mass labor. (13) To enforce this order, the Belgians implemented a group registration system, under which all adult Rwandans were required to carry identification cards stating their ethnicity. (14) In the 1950s, decolonization pressure led to a restructuring of the Tutsi-led administration, which included Hutu integration into that system. (15) But with integration came revolution, (16) and so began a lengthy period afflicted with sporadic warfare in Rwanda. (17)

      On April 6, 1994, the presidents of Rwanda and Burundi were killed when the plane they were flying in was shot down by an unidentified party. (18) Hotel Rwanda accurately portrays what happened next: widespread civilian-executed genocide, resulting in the death of 500,000 to 800,000 Tutsis, together with a far smaller number of moderate Hutu victims. (19) During the early stages of the genocide, U.N. peacekeeping troops were present in Rwanda; but having foreseen the horrors to come, countries began to evacuate their troops and diplomats, leaving the Tutsis alone to fight against their own genocide. (20) In July of 1994, the Rwandan Patriotic Front (RPF), a rebel force of Tutsi exiles, took control of the country through military force. (21) Paul Kagame led the RPF in that movement and later assumed the presidency. (22) While the atrocities certainly receded under RPF control, they did not end. (23) Rather, the Hutu and Tutsi swapped roles as perpetrators and victims. Following the RPF takeover, the U.N. High Commissioner launched an investigation that revealed RPF-led civilian massacres, political assassinations, and summary executions, with Hutus as the victims. (24) Human Rights Watch also documented these crimes and concluded they were "wide-spread, systematic and involved large numbers of participants and victims." (25)

    2. RPF Detention Campaign

      In a multifaceted plan to bring about justice, the new Tutsi regime launched an aggressive arrest and detention campaign that resulted in the arrests of more than 130,000 Hutus by 1998. (26) But Rwanda's channels for justice had been destroyed along with its people, and holding formal trials for the myriad suspects proved impossible. (27) Accordingly, the Rwandan government reached out to the United Nations for help, asking that a tribunal be established to adjudicate genocide cases. (28)

    3. United Nations Intervention and the Creation of the Tribunal

      The Security Council (29) responded by passing Resolution 95 5, (30) which established the International Criminal Tribunal for Rwanda (ICTR). (31) Despite Rwanda's initial request for assistance, there was some dissension over the U.N.'s execution of it. The debate surrounding the passage of Resolution 955 included Rwandan resistance regarding the extent of the Tribunal's jurisdiction. (32) Specifically, Rwanda opposed: (1) the ICTR's broad subject matter jurisdiction over international humanitarian law; (33) (2) the temporal jurisdiction, which extended to the end of 1994; and (3) the Tribunal's refusal to impose the death penalty. (34) Instead, Rwanda hoped the ICTR's subject matter jurisdiction would be limited to the crime of genocide, thereby excluding the prosecution of any war crimes or crimes against humanity committed by the Tutsi-led RPF. (35) Rwanda also lobbied to minimize the Tribunal's temporal jurisdiction to conclude in mid-July 1994, the date when the genocide ended and the RPF crimes began. (36) This jurisdictional dispute reflects the difference between objectives of Rwanda and those of the international community. The new government, comprised of survivors of the genocide, sought widespread prosecutions and hoped that the ICTR would be another weapon in its arsenal. (37) Perhaps driven by a mix of post-genocide guilt and philanthropy, the U.N. had its own, broader objective: "reconciliation and ... the restoration and maintenance of peace." (38) And, to that end, broad subject matter and temporal jurisdiction were imperative. The text of Resolution 955 suggests that the U.N.'s further-reaching interests superseded those of the Rwandan survivors who had requested U.N. assistance. (39) Under this language, the Tribunal was given primary jurisdiction over genocide and crimes against humanity (40) occurring in Rwanda during 1994. (41) This Note addresses both the existence of substantive and procedural fairness, as well as the appropriateness of available penalties. These elements must be present to allow transfer to a national jurisdiction. (42)

      International criminal law was established to end impunity, (43) and a primary purpose for the creation of the ICTR was clearly to ensure that Rwanda's genocidaires would not be allowed to act with impunity. Importantly, the U.N.'s decision to override Rwanda's jurisdictional requests evidences its concern that the potential for impunity (i.e., the role as the persecutors) was not exclusive to Hutus. In another decision to override Rwanda, the U.N. refused to include the death penalty as a possible punishment. (44) The mission then was not only to fight impunity, but to do so in accordance the latest principles of human rights--some of which Rwanda neither abided by nor agreed with. (45) Its desires disregarded by the organization that had abandoned it in the midst of the horror, Rwanda did not respond with cooperation and compliance. (46) This difference in perspectives on what principles should govern justice has been the source of continued tension between the ICTR and Rwanda. (47) The Tribunal may have won the first battle by appointing itself with broad jurisdiction and refusing to impose the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT