^* Associate Legal Officer, Office of the Prosecutor, International Criminal Tribunal for the former Yugoslavia. The views expressed herein are those of the author alone and do not necessarily reflect the views of the International Tribunal or the United Nations in general.

^* This text was reproduced and reformatted from the text appearing at the International Criminal Tribunal for Rwanda website: (visited February 10, 2009)<http://69.94.11.53/ENGLISH/cases/Munyakazi/decisions/081008.pdf>

¹ Prosecutor v. Munyakazi, Case No. ICTR-96-36-R11bis, Decision on the Prosecution’s Appeal Against Decision on Referral Under Rule 11bis (October 8, 2008) [hereinafter Munyakazi Decision].

² S.C. Res. 827, U.N. Doc. S/RES/827 (May 25, 1993).

³ S.C. Res. 995, U.N. Doc. S/RES/995 (Nov. 8, 1994).

⁴ These crimes include, among other, war crimes, crimes against humanity and genocide.

⁵ S.C. Res. 1503, U.N. Doc. S/RES/1503 (Aug. 28, 2003). The Rule allows a designated Trial Chamber to refer a case to a competent national jurisdiction for trial if it is satisfied that the accused will receive a fair trial, and that the death penalty will not be imposed or carried out. Rule 11bis(A) contemplates possible referral to either the state where the crimes occurred, the state of the arrest of the accused, or any other state having jurisdiction, and that is willing and adequately prepared to accept such a case. Rwanda is the most obvious first choice for transfer, but any other competent national jurisdiction will be appropriate.

⁶ The Rules were amended to add the Rule 11bis in the 14^th Plenary of Judges held from April 23 to 24, 2004 in Arusha, Tanzania.

⁷ Rule 11bis provides:

(A)If an indictment has been confirmed, whether or not the accused is in the custody of the Tribunal, the President may designate a Trial Chamber which shall determine whether the case should be referred to the authorities of a State:

(i)in whose territory the crime was committed; or

(ii)in which the accused was arrested; or

(iii)having jurisdiction and being willing and adequately prepared to accept such a case, so that those authorities should forthwith refer the case to the appropriate court for trial within that State.

(B)The Trial Chamber may order such referral proprio motu or at the request of the Prosecutor, after having given to the Prosecutor and, where the custody of the Tribunal, the accused, the opportunity to be heard.

(C)In determining whether to refer the case in accordance with paragraph (A), the Trial Chamber shall satisfy itself that the accused will receive a fair trial in the courts of the State concerned and that the death penalty will not be imposed or carried out.

⁸ The current trial calendar of the ICTY predicts that trials will extend well into, if not to the end, of 2010. See President of the International Tribunal for the Former Yugoslavia, Letter Dated 21 November 2008 from the President of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 addressed to the President of the Security Council, ¶ 2, delivered to the Security Council pursuant to Council Resolution 1534 (2004), U.N. Doc. S/2008/729 (Nov. 24, 2008).

⁹ The other cases that were requested to be transferred to Rwanda are: Prosecutor v. Kayishema, Case. No. ICTR 2001-67-I (June 11, 2007); Prosecutor v. Hategekimana, Case No. ICTR-2000-55-I (Sept. 7, 2007); Prosecutor v. Kanyarukiga, Case No. ICTR-2002-78-R11bis (Sept. 7, 2007); and Prosecutor v. Gatete, Case No. ICTR-2000-61-I (Nov. 28, 2007). Fulgence Kayishema is still at large.

¹⁰ Munyakazi Decision, supra note 1, ¶¶ 9-11.

¹¹ Id. ¶ 11.

¹² Id. ¶¶ 22, 32.

¹³ Prosecutor v. Munyakazi, Case No. ICTR-96-36-R11bis, Prosecution Appeal Brief (June 27, 2008).

¹⁴ Munyakazi Decision, supra note 1, ¶ 45.

¹⁵ Id. ¶ 21.

¹⁶ The other two are decisions in Kanyarukiga and Hategekimana cases.

¹⁷ In addition to requesting referrals for the five mentioned cases, the OTP of the ICTR has also requested referral in the case of Prosecutor v. Bagaragaza to Norway pursuant to Rule 11bis, which was denied. The analysis of these decisions is beyond the scope of this introductory note. In the Bagaragaza case, the Chamber denied the Prosecutor’s request to transfer his case to Norway because the concerned State had no jurisdiction to try the accused under international crimes. See Prosecutor v. Bagaragaza, Case No. ICTR-2005-86-I (May 19, 2006). This decision was upheld by the Appeals Chamber. For similar reasons, the Chamber decided to revoke the subsequent referral of the Bagaragaza case to the Netherlands. Bagaragaza has in the meantime entered a guilty plea. ICTR has successfully transferred two accused to France, and has handed over a number of files of potential indictees to Rwanda.

¹⁸ Even the current ICTR trial calendar contemplates first instance trials extending into 2009.

¹⁹ President of the International Criminal Tribunal for Rwanda, Letter Dated 21 November 2008 from the President of the International Tribunal for Rwanda addressed to the President of the Security Council, ¶ 24, delivered to the Security Council pursuant to Council Resolution 1534 (2004), U.N. Doc. S/2008/726 (Nov. 21, 2008). See also supra note 9. 20 According to the Security Council’s resolutions 1503 (2003) and 1534 (2004), the prosecution of individuals before the ICTR should be focused on those who allegedly were in positions of leadership, and those who allegedly bear the greatest responsibility for the genocide. See S.C. Res. 1503, supra note 5; and S.C. Res. 1534, U.N. Doc. S/RES/1534 (March 26, 2005).

²¹ The request for the referral of the case against one of the fugitives, Fulgence Kayishema, has already been made.

²² However, if denial of referral for Fulgence Kayishema is confirmed on appeal then that number will increase to thirteen.

²³ This is no doubt in part due to the recent capture of among others, fugitive Radovan Karadžić, accused of genocide, war crimes and crimes against humanity committed in Bosnia and Herzegovina.

²⁴ S.C. Res. 1824, U.N. Doc. S/RES/1824 (July 18, 2008).

²⁵ S.C. Res. 1837, U.N. Doc. S/RES/1837 (Sept. 29, 2008).

²⁶ The two Tribunals share the same Appeals Chamber, and until 2004 they even had the same prosecutor.

²⁷ Preamble to S.C. Res.1824, supra note 24, and S.C. Res.1837, supra note 25.

²⁸ See supra note 20, ¶ 38.

²⁹ Press Release, International Criminal Tribunal for the former Yugoslavia, ICTY Weekly Press Briefing - 21 January 2009, available at< http://www.icty.org/sid/10040> (last visited Jan. 31, 2009).

¹ Prosecutor’s Notice of Appeal (Rule 11bis (H)), 12 June 2008 (“Notice of Appeal”); Appeal Brief (Rule 11bis (H)), 27 June 2008 (“Appeal Brief”).

² Decision on the Prosecutor’s Request for Referral of Case to the Republic of Rwanda, 28 May 2008 (“Rule 11bis Decision”).

³ Amended Indictment, 29 November 2002.

⁴ Prosecutor’s Request for the Referral of the Case of Yussuf Munyakazi to Rwanda pursuant to Rule 11bis of the Rules of Procedure and Evidence, 7 September 2007.

⁵ Defence Response to the Prosecutor’s Request for the Referral of the Case of Yussuf Munyakazi to Rwanda Pursuant to Rule 11bis of the Tribunal’s Rules of Procedure and Evidence, 2 October 2007.

⁶ Designation of a Trial Chamber for the Referral of Yussuf Munyakazi to Rwanda, 2 October 2007.

⁷ Order for Submissions of the Republic of Rwanda as the State Concerned by the Prosecutor’s Request for Referral of the Indictment against Yussuf Munyakazi to Rwanda, 9 November 2007; Decision on the Application by the Kigali Bar Association for Leave to Appear as Amicus Curiae, 6 December 2007; Decision on the Application by the International Criminal Defence Attorneys Association (ICDAA) for Leave to File a Brief as Amicus Curiae, 6 December 2007; Decision on the Request by Human Rights Watch to Appear as Amicus Curiae, 10 March 2008.

⁸ Rule 11bis Decision.

⁹ Defence Brief in Response to the Prosecution’s Appeal, 10 July 2008 (“Response”). Munyakazi also filed a request for extension of time to file his response, Defence Request for Extension of Time to File Brief in Response to the Prosecutor’s Appeal, 14 July 2008 (“Motion for Extension of Time”).

¹⁰ Prosecutor’s Reply to “Defence Brief in Response to the Prosecutor’s Appeal”, 14 July 2008 (“Reply”).

¹¹ Request of International Criminal Defence Attorneys Association (ICDAA) for Permission to File an Amicus Curiae Brief Concerning the Prosecutor’s Appeal of the Denial, by Trial Chamber III, of Request for Referral of the Case of Yussuf Munyakazi to Rwanda Pursuant to Rule 11bis of the Rules (Rules 74 and 107 of the Rules of Procedure and Evidence), 17 June 2008; Request of the Republic of Rwanda for Permission to File an Amicus Curiae Brief Concerning the Prosecutor’s Appeal of the Denial by Trial Chamber III, of the Request for Referral of the Case of Yussuf Munyakazi to Rwanda Pursuant to Rule 11bis of the Rules, 30 June 2008.

¹² Decision on Request from the International Criminal Defence Attorneys Association (ICDAA) for Permission to File an Amicus Curiae Brief, 15 July 2008; Decision on Request by Rwanda for Permission to File an Amicus Curiae Brief, 18 July 2008.

¹³ Amicus Curiae Brief on Behalf of the Government of Rwanda, 28 July 2008 (“Rwanda Amicus Brief”).

¹⁴ Defence Response to the Amicus Curiae Brief on Behalf of the Government of Rwanda, 4 August 2008 (“Response to Amicus Brief”). The Appeals Chamber notes that Munyakazi appended several annexes to his response. These include a HRW report from July 2008 entitled “Law and Reality: Progress in Judicial Reform in Rwanda” (“Report”), an article from the newspaper UMOCO from the issue of 12-27 March 2008, and a letter dated 15 July 2008 from the detainees at the United Nations Detention Facility in Arusha (“UNDF”) to the President and Judges of the Tribunal. The Appeals Chamber will not consider this new evidence because it is not part of the record of the case and has not been admitted pursuant to Rule 115 of the Rules. See Prosecutor v. Radovan Stanković, Case No. IT-96-23/2-AR11bis.1, Decision on Rule 11bis Referral, 1 September 2005 (“Stanković Appeal Decision”), para. 37; Prosecutor v. Paško Ljubičić, Case No. IT- 00-41-AR11bis.1, Decision on Appeal against Decision on Referral under Rule 11bis, 4 July 2006 (“Ljubičić Appeal Decision”), para. 40; Prosecutor v. Gojko Janković, Case No. IT-96-23/2-AR11bis.2, Decision on Rule 11bis referral, 15 November 2005 (“Janković Appeal Decision”), para. 73. The Appeals Chamber also notes that it declined to admit the same HRW report as additional evidence under Rule 115 of the Rules in another case. See The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-2002-78-R11bis, Decision on Request to Admit Evidence of 1 August 2008, 1 September 2008.

¹⁵ The Prosecutor v. Michel Bagaragaza, Case No. ICTR-05-86-AR11bis, Decision on Rule 11bis Appeal, 30 August 2006 (“Bagaragaza Appeal Decision”), para. 9; Prosecutor v. Zeljko Mejakić et al., Case No. IT-02-65-AR11bis.1, Decision on Joint Defence Appeal against Decision on Referral under Rule 11bis, 7 April 2006 (“Mejakić Appeal Decision”), para. 60.

¹⁶ Prosecutor v. Radovan Stanković, Case No. IT-96-23/2-PT, Decision on Referral of Case under Rule 11bis, 17 May 2005 (“Stanković 11bis Decision”), para. 32; Mejakić Appeal Decision, para. 48; Ljubičić Appeal Decision, para. 48.

¹⁷ Stankovic´ Appeal Decision, para. 34; Prosecutor v. Savo Todović, Case No. IT-97-25/1-AR11bis.2, Decision on Savo Todović’s Appeals against Decision on Referral under Rule 11bis, 4 September 2006, para. 99.

¹⁸ The Prosecutor v. Wenceslas Munyeshyaka, Case No. ICTR-2005-87-I, Decision on the Prosecutor’s Request for the Referral of Wenceslas Munyeshyaka’s Indictment to France, 20 November 2007, para. 21; Stankovic´ 11bis Decision, para. 55; Prosecutor v. Zeljko Mejakić et al., Case No. IT-02-65-PT, Decision on Prosecutor’s Request for Referral of Case pursuant to Rule 11bis, 20 July 2005, para. 68.

¹⁹ Bagaragaza Appeal Decision, para. 9. See also Ljubičić Appeal Decision, para. 6.

²⁰ Bagaragaza Appeal Decision, para. 9. See also Ljubičić Appeal Decision, para. 6.

²¹ Munyakazi makes this request both in the Response (see para. 2), and also in the Motion for Extension of Time.

²² See Practice Direction on Formal Requirements for Appeals from Judgement, 4 July 2005, para. 5. See also The Prosecutor v. Tharcisse Muvunyi, Case No. ICTR-00-55A-A, Decision on Muvunyi’s Request for Consideration of Post-Hearing Submissions, 18 June 2008 (“Muvunyi Decision”), para. 4; The Prosecutor v. Athanase Seromba, Case No. ICTR-2001-66-A, Order Concerning the Filing of the Notice of Appeal, 22 March 2007, p. 3; Mikaeli Muhimana v. The Prosecutor, Case No. ICTR-95-1B-A, Order Concerning the Filing of the Notice of Appeal, 22 February 2006, p. 3.

²³ Response, para. 2; Motion for Extension of Time, para. 3.

²⁴ Proof of Service – Arusha, indicating that the Appeal Brief was served upon Munyakazi and his Counsel on 30 June 2008.

²⁵ See Filing of an Additional Material in the 11bis Appeal of Yussuf Munyakazi, 11 August 2008.

²⁶ See Defence Response to the Additional Material Filed in the Rule 11bis Appeal, paras. 2-5.

²⁷ Rule 11bis Decision, para. 24.

²⁸ Organic Law No. 11/2007 of 16 March 2007 Concerning Transfer of Cases to the Republic of Rwanda from the International Criminal Tribunal for Rwanda and From Other States (“Transfer Law”).

²⁹ Organic Law No. 2007 of 25 July 2007 Relating to the Abolition of the Death Penalty (“Abolition of the Death Penalty Law”).

³⁰ Rule 11bis Decision, para. 19.

³¹ Rule 11bis Decision, paras. 28, 29, 32.

³² Rule 11bis Decision, para. 25. The Appeals Chamber notes that the Trial Chamber was not always consistent in its findings, stating at paragraph 28 that a transferred accused “could” be subject to life imprisonment, while paragraphs 29 and 32 indicate that a transferred accused “would” be subject to life imprisonment.

³³ Rule 11bis Decision, paras. 24, 26, fn. 46.

³⁴ Rule 11bis Decision, para. 26.

³⁵ Rule 11bis Decision, para. 26.

³⁶ Rule 11bis Decision, para. 27.

³⁷ Rule 11bis Decision, para. 29.

³⁸ Rule 11bis Decision, para. 30.

³⁹ Rule 11bis Decision, para. 31.

⁴⁰ Rule 11bis Decision, para. 32.

⁴¹ Notice of Appeal, paras. 1-4; Appeal Brief, paras. 4-16; Reply, paras. 5-8.

⁴² Notice of Appeal, para. 3; Appeal Brief, paras. 4-16.

⁴³ Notice of Appeal, para. 3; Appeal Brief, paras. 5-10.

⁴⁴ Notice of Appeal, para. 4; Appeal Brief, paras. 4-16.

⁴⁵ Response, para. 3.

⁴⁶ Response, para. 6.

⁴⁷ Response, paras. 9, 10.

⁴⁸ Rwanda Amicus Brief, para. 10.

⁴⁹ Rwanda Amicus Brief, para. 11. The statement is appended to the Rwanda Amicus Brief as Annex 2.

⁵⁰ Rwanda Amicus Brief, para. 12, referring to Tubarimo Aloys v. The Government, Case. No. RS/INCONST/Pe´n. 0002/08/CS, 29 August 2008. The decision in this case was in fact rendered on 29 August 2008. The Rwandan Supreme Court declined to consider the constitutionality of Article 4 of the Abolition of Death Penalty law, which provides for the penalty of solitary confinement, until such time as legislation which governs the execution of this provision is enacted into law.

⁵¹ Rwanda Amicus Brief, para. 13.

⁵² Response to Amicus Brief, para. 3.3.

⁵³ Response to Amicus Brief, para. 3.3.

⁵⁴ Rule 11bis Decision, para. 39.

⁵⁵ Rule 11bis Decision, para. 40.

⁵⁶ Rule 11bis Decision, paras. 40-48, referring to the reaction of the Rwandan government to the decision in The Prosecutor v. Jean-Bosco Barayagwiza, Case No. ICTR-97-19, Decision, 3 November 1999 (“Barayagwiza Decision”), and its condemnation of Judge Bruguière of France for issuing a report investigating the shooting of President Habyarimana’s plane, and Judge Arieu of Spain for issuing an indictment against forty high-ranking RPF officers.

⁵⁷ Rule 11bis Decision, para. 48.

⁵⁸ Notice of Appeal, para. 6; Appeal Brief, paras. 18, 19; Reply, paras. 9-11.

⁵⁹ Notice of Appeal, para. 7; Appeal Brief, paras. 18, 19.

⁶⁰ Notice of Appeal, paras. 8, 9; Appeal Brief, paras. 20-25.

⁶¹ Notice of Appeal, para. 12; Appeal Brief, paras. 26-29.

⁶² Response, para. 15.

⁶³ Response, para. 16.

⁶⁴ Response, paras. 17, 18.

⁶⁵ Response, para. 18.

⁶⁶ Amicus Brief, paras. 14, 15.

⁶⁷ Amicus Brief, para. 16, citing The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-2002-78-R11bis, Decision on Prosecutor’s Request for Referral to the Republic of Rwanda, 6 June 2008 (“Kanyarukiga 11bis Decision”), paras. 3442 and The Prosecutor v. Ildephonse Hategekimana, Case No. ICTR-00-55B-R11bis, Decision on Prosecutor’s Request for the Referral of the Case of Ildephonse Hategekimana to the Republic of Rwanda, 6 June 2008 (“Hategekimana 11bis Decision”), paras. 38-46.

⁶⁸ Response to Amicus Brief, paras. 4.1-4.3. The Appeals Chamber notes, however, that these examples are derived from the UMOCO article, which the Appeals Chamber has found to be inadmissible in these proceedings. See supra fn. 14.

⁶⁹ International Covenant on Civil and Political Rights (adopted 19 December, 1966, entered into force 23 March 1976) 999 UNTS 171 (“ICCPR”), Articles 19, 20; African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM 58 (“ACHPR”), Article 7. Rwanda ratified the ICCPR on 16 April 1975 and the ACHPR on 15 July 1983.

⁷⁰ Rule 11bis Decision, para. 47.

⁷¹ Opinion No. 6 (2004) of the Consultative Council of European Judges (CCJE) to the Attention of the Committee of Ministers of Fair Trial Within a Reasonable Time and Judge’s Role in Trials Taking into Account Alternative Means of Dispute Settlement, CCJE (2004) OP No. 6, 22-24 November 2004, para. 61, referring to Recommendation No. R (87)18 of the Committee of Ministers of Member States Concerning the Simplification of Criminal Justice (Adopted by the Committee of Ministers on 17 September 1987 at the 410th Meeting of the Ministers’ Deputies), para. III.d.2.

⁷² Article 24(1) of the Statute. See also Sylvestre Gacumbitsi v. The Prosecutor, Case No. ICTR-2001-64-A, Judgement, 7 July 2006, para. 7, quoting The Prosecutor v. Elizaphan Ntakirutimana and Gérard Ntakirutimana, Cases No. ICTR96-10- Aand ICTR-96-17-A, Judgement, 13 December 2004, para. 11 (citations omitted) and para. 8, quoting Prosecutor v. Radislav Krstić, Case No. IT-98-33-A, Judgement, para. 40 (citations omitted); Juve´nal Kajelijeli v. The Prosecutor, Case No. ICTR-98-44A-A, Judgement, 23 May 2005, para. 5. See further Mikaeli Muhimana v. The Prosecutor, Case No. ICTR- 96-13-A, Judgement, 21 May 2007, paras. 7, 8; Prosecutor v. Milomir Stakić, Case No. IT97-24-A, Judgement, 22 March 2006, para. 8; Prosecutor v. Mitar Vasiljevic´ Case No. IT- 98-32-A, Judgement, 25 February 2004, para. 6.

⁷³ Rule 11bis Decision, paras. 41-46.

⁷⁴ The Prosecutor of the Tribunal indicated to the United Nations Security Council on 17 June 2008 that “Rwanda continues to cooperate effectively with the Tribunal”. UN Doc. S/PV.5697, p. 15 and UN Doc. S/PV.5796, p. 11. President Byron also indicated to the United Nations Security Council on 17 June 2008 that “Rwanda has continued to cooperate with the Tribunal by facilitating a steady flow of witnesses from Kigali to Arusha”. UN Doc. S/PV.5697, p. 10.

⁷⁵ Rule 11bis Decision, para. 48, fn. 89, referring to Brief of Amicus Curiae, International Criminal Defence Attorneys Association (ICDAA) Concerning the Request for Referral of the Accused Yussuf Munyakazi to Rwanda pursuant to Rule 11bis of the Rules of Procedure and Evidence (“ICDAA Amicus Brief”), para. 8, citing Country US State Department’s Report on Human Practices – 2006, submitted to the United States Congress by Secretary of State Condoleeza Rice, released by the Bureau of Democracy, Human Rights and Labor, March 6, 2007 (“U.S. State Department Report 2007”).

⁷⁶ ICDAA Amicus Brief, para. 8, citing U.S. State Department Report 2007.

⁷⁷ The amicus curiae brief submitted by HRW refers to interviews with 25 high-ranking Rwandan judicial officials stating that the courts were not independent, but provides no information about the basis for this view, or any cases of actual attempts to interfere with the judiciary. See Brief of Human Rights Watch as Amicus Curiae in Opposition to Rule 11bis Transfer, 17 March 2008 (“HRW Amicus Brief”), para. 51.

⁷⁸ See Notice of Appeal, paras. 21-24; Appeal Brief, paras. 40-42; Reply, paras. 13, 14, discussed infra, para. 46. See Stanković Appeal Decision, where the Appeals Chamber held at paragraph 52 that it was satisfied that the monitoring procedures and the revocation mechanism under Rule 11bis(F) “was a reasonable variable for the Referral Bench to have included in the Rule 11bis equation”. See also Janković Appeal Decision, paras. 56, 57.

⁷⁹ Rule 11bis Decision, para. 59.

⁸⁰ Rule 11bis Decision, para. 66.

⁸¹ Rule 11bis Decision, paras. 60, 61.

⁸² Rule 11bis Decision, para. 62.

⁸³ Rule 11bis Decision, para. 62.

⁸⁴ Rule 11bis Decision, para. 63.

⁸⁵ Rule 11bis Decision, para. 64.

⁸⁶ Rule 11bis Decision, para. 64.

⁸⁷ Notice of Appeal, paras. 14-20; Appeal Brief, paras. 30-39; Reply, paras. 10-12.

⁸⁸ Notice of Appeal, para. 17; Appeal Brief, para. 32.

⁸⁹ Notice of Appeal, para. 18; Appeal Brief, para. 33; Reply, para. 12.

⁹⁰ Appeal Brief, paras. 34, 35.

⁹¹ Notice of Appeal, para. 19; Appeal Brief, para. 37; Reply, para. 10.

⁹² Response, paras. 20-24.

⁹³ Response, para. 26.

⁹⁴ Rwanda Amicus Brief, para. 17.

⁹⁵ Rwanda Amicus Brief, paras. 18-20.

⁹⁶ Rwanda Amicus Brief, paras. 22, 23.

⁹⁷ Rwanda Amicus Brief, paras. 24, 25.

⁹⁸ Response to Amicus Brief, para. 5.1.

⁹⁹ Response to Amicus Brief, paras. 5.2, 5.3.

¹⁰⁰ Response to Amicus Brief, para. 5.5.

¹⁰¹ Response to Amicus Brief, para. 5.5.

¹⁰² HRW Amicus Brief, paras. 89-102; ICDAA Amicus Brief, paras. 83, 85. The Appeals Chamber also notes the case of Aloys Simba v. The Prosecutor, where the Trial Chamber found that the Rwandan authorities had interfered with Defence Witness HBK, resulting in his refusal to testify. See Aloys Simba v. The Prosecutor, Case No. ICTR-01-76-A,Judgement, para. 47, referring to The Prosecutor v. Aloys Simba, Case No. ICTR-01-76-T, Judgement, paras. 49-50.

¹⁰³ HRW Amicus Brief, para. 96.

¹⁰⁴ HRW Amicus Brief, para. 37.

¹⁰⁵ Rule 11bis Decision, para. 61, referring to HRW Amicus Brief, paras. 30-40.

¹⁰⁶ Rule 11bis Decision, para. 62.

¹⁰⁷ Janković Appeal Decision, para. 49.

¹⁰⁸ ICDAA Amicus Brief, para. 87; HRW Amicus Brief, para. 87.

¹⁰⁹ See HRW Amicus Brief, para. 38. See also footnote 16 of the Response, citing the example of The Prosecutor v. Simeon Nchamihigo, Case No. ICTR-01-63, where 91% of the defence witnesses came from abroad, The Prosecutor v. André Ntagerura, Case No. ICTR-96-10, where 100% of the defence witnesses came from abroad, and The Prosecutor v. Samuel Imanishimwe, Case No. ICTR-97-36, where 100% of the defence witnesses were from abroad.

¹¹⁰ See HRWAmicus Brief, para. 104, indicating that in interviews with two dozen Rwandans living abroad, no one was willing to travel to Rwanda to testify for the defence. See also the statement by the Rwandan Minister of Justice regarding the immunity for witnesses granted under Article 14 of the Transfer Law, cited in the HRW Amicus Brief at para. 39, and quoted by the Trial Chamber in para. 61 of the Rule 11bis Decision. The Appeals Chamber finds that this statement, which according to HRW, was widely circulated in the diaspora, may contribute to the unwillingness of witnesses residing outside of Rwanda to return to Rwanda to testify. However, the Appeals Chamber finds that the Trial Chamber referred to this quote out of context, as it cited it to demonstrate that the Government would condone the arrests of witnesses who had testified for the Tribunal after their return to Rwanda. The Minister was in fact speaking about the immunity guaranteed under Article 14 of the Transfer Law to witnesses testifying in transfer cases. Moreover, the Trial Chamber discusses these arrests in the same paragraph as it discusses genocidal ideology, thus implying that defence witnesses who were arrested upon returning to Rwanda after their testimony were arrested for harbouring genocidal ideology. There is no indication that this was the case, and the Minister’s statement did not relate to genocidal ideology.

¹¹¹ Rwanda Amicus Brief, para. 23. Rwanda is a party to the agreement of Mutual Legal Assistance in Criminal Matters of the East Africa Police Chiefs Organisation with many states in the region and elsewhere including Kenya, Uganda, Tanzania, Burundi, Djibouti, Eritrea, Seychelles and Sudan, and has a Mutual Legal Assistance Protocol with states under the Convention Establishing the Economic Community of the Great Lakes Countries (CEPGL). Rwanda has also negotiated an extradition Memorandum of Understanding with the United Kingdom, and it is cooperating with many justice systems including those of New Zealand, Finland, Denmark and Germany.

¹¹² Security Council Resolution 1503 states at paragraph 1 that the Security Council “[c]alls on the international community to assist national jurisdictions, as part of the completion strategy, in improving their capacity to prosecute cases transferred from the ICTY and the ICTR [...]”. S/RES/1503 (2003). See Stanković Appeal Decision, paragraph 26, where the Appeals Chamber approved of the Trial Chamber’s consideration of Security Council Resolution 1503 and interpreted this paragraph of the resolution as implicitly including cooperation with respect to witnesses.

¹¹³ Rule 11bis Decision, para. 65.

¹¹⁴ See supra para. 30. See also Stanković Appeal Decision, where the Appeals Chamber held at paragraph 52 that it was satisfied that the monitoring procedures and the revocation mechanism under Rule 11(F)bis “was a reasonable variable for the Referral Bench to have included in the Rule 11bis equation”. See also Janković Appeal Decision, paras. 56, 57.

¹¹⁵ See Stanković Appeal Decision, where the Appeals Chamber held at paragraph 52 that it was satisfied that the monitoring procedures and the revocation mechanism under Rule 11(F)bis “was a reasonable variable for the Referral Bench to have included in the Rule 11bis equation”. See also Janković Appeal Decision, paras. 56, 57.

¹¹⁶ Notice of Appeal, paras. 21-24; Appeal Brief, paras. 40-42; Reply, paras. 13, 14.

¹¹⁷ Response, para. 27.

¹¹⁸ Response, para. 28.

¹¹⁹ Rule 11bis Decision, paras. 53, 54, 59 and fn. 120.

¹²⁰ Rule 11bis Decision, para. 59.

¹²¹ See supra paras. 30, 44.