By Björn Elberling

This seems to be a busy week in international criminal law. Yesterday, ICTR Trial Chamber III denied a Prosecution request to transfer the case of Yussuf Munyakazi to a Rwandan national court under Rule 11bis of the Rules of Procedure and Evidence. The decision is available here. The main worries of the Trial Chamber were that Rwanda’s penalty structure does not meet "internationally recognised standards" (Rwanda has abolished the death penalty, but has replaced it with lifelong imprisonment in isolation) and that Munyakazi might not receive a fair trial. The Chamber was worried about the independence of the judiciary in the face of government pressure (interestingly, the Chamber explicitly referred to the Barayagwiza "Reconsideration" Decision, thus coming close to officially accepting that that Decision was the result of government pressure – see para. 41 of the decision); and it feared that the Defence might be unable to obtain defence witnesses and secure their safety. The Chamber does, however, acknowledge the "positive steps" undertaken by Rwanda and states that "the Tribunal will hopefully be able to refer future cases to Rwandan courts" (para. 67). The Prosecution has 15 days to appeal appeal the decision; I would be surprised if they do not do so. (See also, somewhat related, Kevin Jon Heller’s post on the Prosecution "disowning" Human Rights Watch) 11bis Referrals are an interesting phenomenon – so far, they seem to have worked both as a carrot and as a stick: At the ICTR, Bagaragaza intensively cooperated with the OTP in exchange for a promise "not to detain or prosecute him on African soil" – this didn’t really work out in the end as both attempted referrals – first to Norway, then to the Netherlands – failed on jurisdiction reasons; just last week, Bagaragaza was transferred back to the ICTR Detention Facility from the ICTY Detention Unit where he had been detained previously. At the ICTY, two accused, Rajic and Zelenovic, pled guilty rather than have their cases transferred to Sarajevo. The connection between referral and guilty plea was not officially acknowledged and in fact explicitly denied by the parties in Rajic, but the timing says otherwise. (See Rajic judgment here, Zelenovic judgment here) The Trial Chamber decision precludes the possibility of using Rule 11bis-referrals in the latter capacity at the ICTR. Also, it renders the completion strategy, which calls for all trials in first instance to be finished by the end of the year, even more unrealistic than it already was, given that there are currently altogether nine indictees whose trial has not even started yet.