This contribution discusses the mismatch between States’ duties to cooperate with the International Criminal Tribunal for Rwanda (ICTR) and the reality of State non-cooperation. It focuses on two issues of cooperation which have been particularly important to the Tribunal: the arrest of fugitives by States, and the referral of cases to national jurisdictions under the Tribunal’s completion strategy. The articles demonstrates how Rwanda has used cooperation - which it knows is indispensable for the Tribunal’s functioning - as a bargaining chip to obtain certain concessions from the Tribunal, but argues that also the ICTR itself and the international community should receive a portion of the blame for State non-cooperation.
Cf. Peskinsupra note 4 184 (noting that ‘among many ICTR staff members doubts emerged about the autonomy of the tribunal from Rwandan pressure’).
Reyessupra note 3 55.
Even before2005however States had exercised universal jurisdiction over Rwandan génocidaires who were not indicted by the ICTR. See Luc Reydams ‘Belgium’s First Application of Universal Jurisdiction - the “Butare Four” case’ 1 Journal of International Criminal Justice (2003) 428. Other States such as the Netherlands found that they did not have jurisdiction over crimes of genocide committed in Rwanda in 1994. See Cedric Ryngaert ‘Universal Jurisdiction over Genocide and Wartime Torture in Dutch Courts: an Appraisal of the Afghan and Rwandan cases (2007)’ 2 Hague Justice Journal (2007:2) 13.
In early2012two cases concerning two accused still at large were referred to Rwanda: The Prosecutor v. Fulgence Kayishema Case No. ICTR-01-67-R11bis Decision on the Prosecutor’s request for referral of case to Rwanda 22 February 2012; The Prosecutor v. Charles Sikubwabo Case No. ICTR-95-1D Decision on the Prosecutor’s request for referral of case to Rwanda 26 March 2012. It is noted that the Uwinkindi decision has not henceforth made referrals automatic. A referral decision continues to be based on the merits of each case. See Munyagishari referral decision para. 41 (‘The Chamber is obligated by Rule 11 bis to satisfy itself that Munyagishari specifically will receive a fair trial in the courts of Rwanda. The referral of one accused does not necessitate that all subsequent requests under Rule 11 bis must be automatically granted. The facts pertaining to each request vary and the Chamber shall consider the merits of the Accused’s arguments particularly those that have not previously been advanced. Nonetheless the Chamber is bound by the Appeals Chamber interpretation of the law.’) (citation omitted).
In this respect‘Rwanda has expressed its intention to introduce new legislation that would allow the panel for any case referred for trial in Rwanda to include judges from foreign or international courts. The Chamber expects this to happen upon referral of this case and finds that this measure would further enhance the Accused’s fair trial rights.’Id. para. 114.