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20 Afr. J. Int'l & Comp. L. 1 (2012)

handle is hein.journals/afjincol20 and id is 1 raw text is: TRANSFER OR TRANSFORMATION?: A REVIEW OF THE RULE 11 BIS DECISIONS OF THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA NICOLA PALMER* . INTRODUCTION 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 Kanyarukiga2 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 * Global Justice Research Fellow at St Anne's College, University of Oxford and convenor of the Oxford Transitional Justice Research (OTJR) group. 1 Prosecutor v Yussuf Munyakazi (Decision on the Prosecutor's Appeal against Decision on Referral under Rule 11 bis) ICTR-97-36-R1 Ibis, Ap Ch (8 October 2008) (hereinafter Munyakazi Rule II bis Appeal judgment). 2 Prosecutor v Gaspard Kanyarukiga (Decision on the Prosecutor's Appeal against Decision on Referral under Rule II bis) ICTR-2002-78-RI Ibis, Ap Ch (30 October 2008) (hereinafter Kanyarukiga Rule II bis Appeal judgment). 3 Prosecutor v Ildephonse Hategekimana (Decision on the Prosecutor's Appeal against Decision on Referral under Rule II bis) ICTR-00-55B-RI Ibis, Ap Ch (4 December 2008) (hereinafter Hategekimana Rule II bis Appeal judgment). The transfer of Jean-Baptiste Gatete was also refused by the Trial Chamber and was not appealed: Prosecutor v Jean-Baptiste Gatete (Decision on the Prosecutor's Request for Referral to the Republic of Rwanda) ICTR-2000-61 -1, T Ch I (17 November 2008). 4 Prosecutor v Jean-Bosco Uwinkindi (Decision on the Prosecutor's Request for Referral to the Republic of Rwanda) ICTR-2001-75-RI Ibis, T Ch (28 June 2011) (hereinafter Uinkindi Rule II bis Trial judgment). African Journal of International and Comparative Law 20.1 (2012): 1-21 Edinburgh University Press DOI: 10.3366/ajicl.2012.0018 © African Society of International and Comparative Law www.eupjournals.com/ajicl 1

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