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International Criminal Tribunal for Rwanda: Prosecutor V. Kanyarukiga–Decision on Prosecutor's Request for Referral to the Republic of Rwanda

Published online by Cambridge University Press:  27 February 2017

Ruth Frölich
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International Legal Materials , Volume 47 , Issue 5 , October 2008 , pp. 740 - 765
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Copyright © American Society of International Law 2008

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References

Endnotes

page 741 note 1 The decision is under appeal.

page 741 note 2 The Rules were amended to add the Rule 11 bis in the 14thPlenary of Judges held from 23 to 24 April 2004 in Arusha, Tanzania.

page 741 note 3 S.C. Res. 1503, U.N. Doc. S/RES/1503 (Aug. 28, 2003) (the Security Council called on the International Tribunals for the former Yugoslavia and for Rwanda to take all possible measures to complete all trial activities in the first instance by the end of 2008 and in the appeals stage by the end of 2010).

page 742 note 4 Rule 11 bis 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 tried 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.

page 742 note 5 Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-2002- 78-R11bis, Decision on Request for Referral, ¶ 104 (June 6, 2008) [hereinafter the Kanyarukiga Decision];

page 742 note 6 Id.

page 742 note 7 The other cases requested to be transferred to Rwanda are: Prosecutor v. Fulgence Kayishema, Case. No. ICTR 2001-67-I (June 11, 2007); Prosecutor v. Yussuf Munyakazi, Case No. ICTR-96-36-R 11 bis (September 7, 2007); Prosecutor v. Idelphonse Hategekimana, Case No. ICTR-2000-55-I (Sept. 7, 2007); and Prosecutor v. Jean-Baptiste Gatete, Case No. ICTR-2000-61-I (Nov. 28, 2007.). Fulgence Kayishema is still at large.

page 742 note 8 Prosecutor v. Laurent Bucyibaruta, Case No. ICTR 2005-86- I, Decision Relative a la Requête du Procureur aux Fins de Renvoi de l'Acte d'Accusation Contre Laurent Bucyibaruta aux Autorites Francaises [Decision Relating to the Request of the Prosecutor for Purposes of Referral of the Bill of Indictment against Laurent Bucyibaruta to the French Authorities] (Nov. 20,2007); Prosecutor v. Wenceslas Munyeshyaka, Case No. ICTR 2005-87-1, Decision on the Prosecutor's Request for the Referral of Wenceslas Munyeshyaka's Indictment to France (Nov. 20, 2007).

page 742 note 9 ICTR Prosecutor's Hassan Jallow's assessment to the Security Council on 13 May 2008, S/2008/322, ¶ 48.

page 742 note 10 Prosecutor v. Yussuf Munyakazi, Case No. ICTR-96-36-R1 1 bis, Decision on the Prosecutor's Request for Referral of the Case to the Republic of Rwanda, (May 25, 2008) Since the filing of the Kanyarukiga decision, the Chamber has also delivered a decision in the case Prosecutor v. Idelphonse Hategekimana, Case No. ICTR-00-55B-R1 Ibis, Decision on the Prosecutor's Request for Referral of the Case to the Republic of Rwanda, (June 19, 2008), denying the transfer for similar reasons as in Kanyarukiga. 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. Michel Bagaragaza, Case No. ICTR-2005-86-I (19 May 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. The analysis of these decisions is beyond the scope of this introductory note.

page 742 note 11 Even the current ICTR trial calendar contemplates first instance trials extending into 2009.

page 742 note 12 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 2; and S.C. Res. 1534, U.N. Doc. S/RES/1534 (March 26, 2005).

page 742 note 13 The request for the referral of the case against one of the fugitives, Fulgence Kayishema, has already been made, see supra note 6.

page 742 note 14 Attempts at more efficient courtroom calendar, streamlining of charges, Chambers exercising firmer control over proceedings, re-deployment of resources and additions of new ad litem judges as well as referrals of case dossiers to Rwanda are also measures that have been taken to expedite the proceedings before the Tribunal.

page 742 note 15 This was the main obstacle for referrals to Rwanda.

page 742 note 16 The Kanyarukiga Decision, supra note 5, ¶¶ 25-31.

page 742 note 17 See, e.g., id.¶¶ 26, 31, 34, 38, 68.

page 742 note 18 Id. ¶ 61.

page 742 note 19 Id. ¶¶ 43-45.

page 742 note 20 Id. ¶¶ 56-58.

page 742 note 21 Id. ¶¶ 45, 69

page 742 note 22 Id. ¶16.

page 742 note 23 Id. ¶ 19.

page 742 note 24 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, Article 3, provides for prosecutions of only “crimes falling within the jurisdiction of the Tribunal.“

page 742 note 25 Since Kanayarukiga has been accused only of genocide and crimes against humanity, the Chamber did not need to consider the legal framework for war crimes.

page 758 note 1 Decision on Confirmation of an Indictment against Gaspard Kanyarukiga, 4 March 2002, p. 2.

page 758 note 2 T. 22 July 2004 p. 7.

page 758 note 3 The Prosecutor's Request for the Referral of the Case of Gaspard Kanyarukiga to Rwanda Pursuant to Rule 11 bis of the Tribunal's Rules of Procedure and Evidence, 7 September 2007 (below referred to as the “Prosecution Request“). Four similar transfer requests have been filed and assigned to Chambers of the Tribunal: The Prosecutor v. Fulgence Kayishema, The Prosecutor's Request for the Referral of the Case of Fulgence Kayishema to Rwanda Pursuant to Rule 11 bis of the Tribunal's Rules of Procedure and Evidence, 11 June 2007; The Prosecutor v. Yussuf Munyakazi, The Prosecutor's Request for the Referral of the Case of Yussef Munyakazi to Rwanda Pursuant to Rule 11 bis of the Tribunal's Rules of Procedure and Evidence, 7 September 2007; The Prosecutor v. Idelphonse Hategekimana, The Prosecutor's Request for the Referral of the Case of Idelphonse Hategekimana to Rwanda Pursuant to Rule 11 bis of the Tribunal's Rules of Procedure and Evidence, 7 September 2007; The Prosecutor v. Jean-Baptiste Gatete, The Prosecutor's Request for the Referral of the Case of Jean-Baptiste Gatete to Rwanda Pursuant to Rule 11 bis of the Tribunal's Rules of Procedure and Evidence, 28 November 2007. Fulgence Kayishema is at large, whereas the other three accused are at the ICTR detention facilities in Arusha. A decision has been rendered in one of these cases, see The Prosecutor v. Yussuf Munyakazi, Decision on the Prosecutor's Request for Referral of Case to the Republic of Rwanda (Referral Bench), 28 May 2008, in which transfer was denied.

page 758 note 4 Réponse de la Défense à la requête du Procureur portant transfert de l'Accusé Gaspard Kanyarukiga au Rwanda, 16 November 2007 (“Defence Response“). See also Prosecutor's Reply to this Response, 5 December 2007 (“Prosecution Reply“), after having sought an extension on 22 November 2008. The Chamber has according to case law discretion to consider late submissions. It has considered the Reply without making a formal decision on the request for extension, which is hence moot.

page 758 note 5 Designation of Trial Chamber for the Referral of the Case of Gaspard Kanyarukiga to Rwanda (President), 2 October 2007.

page 758 note 6 Decision on Prosecution Request to Amend the Indictment (TC), 14 November 2007. The Amended Indictment withdrew the count of conspiracy to commit genocide, clarified the modes of participation and provided better particulars of the charges against Kanyarukiga. The Defence did not oppose the amendments.

page 758 note 7 The Prosecutor v. Savo Todović, Decision on Rule Referral (AC), 23 February 2006, para. 14 (a Referral Bench must base its considerations concerning the referral of a case on the operative indictment); The Prosecutor v. Milan Lukić and Sredoje Lukić, Decision on Milan Lukić Appeal Regarding Referral (AC), 11 July 2007, para. 12.

page 758 note 8 See The Prosecutor v. Athanase Seromba, Judgement (TC), 13 December 2006, and Judgement (AC), 12 March 2008. An indictment against Fulgence Kayishema was issued on 10 July 2001. As mentioned above (footnote 3), the Prosecutor has also requested that his case be transferred to Rwanda.

page 758 note 9 Decision on the Request of the Republic of Rwanda for Leave to Appear as Amicus Curiae (TC), 9 November 2007; Decision on Amicus Curiae Request by the International Criminal Defence Attorneys Association (ICDAA) (TC), 22 February 2008; Decision on Amicus Curiae Request by the Kigali Bar Association (TC), 22 February 2008. In its Decision on Defence Request to Grant Amicus Curiae Status to Four NonGovernmental Organisations (TC), 22 February 2008, the Chamber denied such status to three non-governmental organisations but accepted the Defence request with regard to Human Rights Watch, which had demonstrated an intention to provide submissions by doing so in Rule 11 bis proceedings before another Chamber. See also Decision on Amicus Curiae Request by Human Rights Watch (TC), 29 February 2008 (considering its request moot, as such status had already been granted). Requests from three other organisations were denied, see Decision on Amicus Curiae Request by the Organisation of Defence Counsel (ADAD) (TC), 22 February 2008, and Decision on Amicus Curiae Request by Ibuka and Avega (TC), 22 February 2008.

page 759 note 10 Amicus Curiae briefs were filed by the Republic of Rwanda on 22 November 2007 (“Rwanda's Brief), by Human Rights Watch on 27 February 2008 (“HRW Brief’), and by ICD AA on 29 February 2008 (“ICDAA Brief). On 21 April 2008, Rwanda requested the Chamber to consider its response of 6 March 2008 to Human Rights Watch in the Kayishema case as also being part of the submissions in the Kanyarukiga case (“Rwanda's Response to HRW“), and the Chamber has done so. The Kigali Bar Association filed its brief on 17 March 2008 (“Kigali Bar Brief), after the deadline. On the same date, it sought an extension of time. The Chamber has considered the Kigali Bar Brief without issuing a formal decision to that effect. The request for extension is therefore moot (see similarly footnote 4).

page 759 note 11 The Prosecution filed its Response to ICDAA on 7 March 2008 (“Prosecution Response to ICDAA“). In a request of 11 April 2008, it asked the Chamber to consider its Response of 21 January 2008 to Human Rights Watch in the Kayishema case as part of the submissions in the Kanyarukiga case (“Prosecution Response to HRW“). The Chamber has done so. The Defence filed its submissions on the ICDAA Brief on 13 March 2008.

page 759 note 12 The Chamber notes that an oral hearing took place in The Prosecutor v. Yussuf Munyakazi (footnote 3 above), see T. 24 April 2008 pp. 1-83.

page 759 note 13 It is recalled than unlike its ICTY counterpart, Rule 11 bis of the ICTR Rules does not require that the Chamber “shall, in accordance with Security Council resolution 1534 (2004), consider the gravity of the crimes charged and the level of responsibility of the accused”, see ICTY Rule 11 bis (C).

page 759 note 14 The Prosecutor v. Radovan Stankovic, Decision on Rule 11 bis Referral (AC), 1 September 2005, para. 40 relating to the equivalent provisions in the ICTY Rules of Procedure and Evidence (“as a strictly textual matter, Rule 11 bis (A) does not require that a jurisdiction be “willing and adequately prepared to accept” a transferred case if it was the territory in which the crime was committed … But that is beside the point, because unquestionably a jurisdiction's willingness and capacity to accept a prepared case is an explicit prerequisite for any referral to a domestic jurisdiction … Thus, the “willing and adequately prepared” prong of Rule 11 bis (A)(iii) of the Rules is implicit also in the Rule 11 bis(B) analysis“). See also The Prosecutor v. Mitar Rašević and Savo Todović, Decision on Savo Todović's Appeal Against Decisions on Referral under Rule 11 bis (AC), 4 September 2006, para. 88.

page 759 note 15 Letter of 5 September 2007 from the Rwandan Prosecutor General to the ICTR Prosecutor (Annex A to the Prosecution Request). The letter also contains assurances that Kanyarukiga will be afforded a fair trial and that, if convicted, he will not be subject to the death penalty.

page 759 note 16 The Prosecutor v. Michel Bagaragaza, Decision on Rule 11 bis Appeal (AC), 30 August 2006, para. 9, referring to The Prosecutor v. Zeljko Mejakić et al., Decision on Joint Defence Appeal Against Decision on Referral under Rule 11 bis (AC), 7 April 2006, para. 60. See also The Prosecutor v. Milan Lukić and Sredoje Lukić, Decision on Referral of Case Pursuant to Rule 11 bis etc. (Referral Bench), 5 April 2007, paras. 44-45; The Prosecutor v. Rahim Ademi and Mirko Norac, Decision for Referral to the Authorities of the Republic of Croatia Pursuant to Rule 11 bis (Referral Bench), 14 September 2005, paras. 32 and 46); The Prosecutor v. Gojko Janković, Decision on Referral of Case under Rule 11 bis (Referral Bench), 22 July 2005, para. 27; The Prosecutor v. Zeljko Mejakić et al., Decision on Prosecutor's Motion for Referral of Case Pursuant to Rule 11 bis (Referral Bench), 20 July 2005, para. 43; The Prosecutor v. Mitar Rašević and Savo Todović, Decision on Referral of Case under Rule 11 bis etc. (Referral Bench), 8 July 2005, para. 34.

page 759 note 17 Rwanda's Brief, para. 9, citing Article 6 of the Rwandan Penal Code of 18 August 1977 as subsequently amended (Annex D to the Prosecution Request): “Toute infraction commise sur le territoire Rwandais par les Rwandais ou des étrangers est punie conformement àla loi Rwandaise, sous réserve de l'immunité diplomatique consacrée par les conventions ou les usages internationaux.“

page 759 note 18 Prosecution Request, paras. 18-33; Rwanda's Brief, paras. 11-16; HRW Brief, paras. 18-24; Prosecution Response to HRW, paras. 9-20; Rwanda's Response to HRW, paras. 21-25.

page 759 note 19 See footnote 16.

page 759 note 20 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, Annex B to the Prosecution Request.

page 759 note 21 Organic Law No. 08/96 of 30 August 1996 on the Organisation of the Prosecution of Offences Constituting the Crime of Genocide or Crimes Against Humanity Committed Since 1 October 1990 (“1996 Genocide Law“) (Annex C to the Prosecution Request); Organic Law No. 16/ 2004 of 19 June 2004 Establishing the Organisation, Competence, and Functioning of Gacaca Courts (“2004 Gacaca Law“).

page 759 note 22 HRW Brief, paras. 22-23 (noting that Rwandan courts convicted 204 persons for crimes of genocide between January 2005 and September 2007 under the 2004 Gacaca Law and the Penal Code). Human Rights Watch also argues that Law 33/bis/2003 Punishing the Crime of Genocide, Crimes against Humanity and War Crimes (“2003 Law“), which contains very specific definitions in Articles 2 (genocide), 5 (crimes against humanity) and 6 (war crimes) does not seem to have retroactive effect. The Republic of Rwanda has confirmed that the 2003 Law is irrelevant in relation to transferred cases as it is applicable only for crimes that are committed after its entry into force (Rwanda's Brief, para. 26 c).

page 759 note 23 Article 105 of the 2004 Gacaca Law states that the 1996 Genocide Law, as well as another law establishing Gacaca courts and all previous legal provisions “contrary to this organic law, are hereby abrogated”.

page 759 note 24 The Republic of Rwanda ratified or acceded to the Convention of 9 December 1948 on the Prevention and Punishment of the Crime of Genocide on 16 April 1975; the Geneva Convention of 12 August 1949 relative to the Protection of Civilian Persons in Time of War on 5 May 1964; the Additional Protocols to the Geneva Conventions on 19 November 1984; and the Convention of 26 November 1968 on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity on 16 April 1975 (“1968 Convention“).

page 759 note 25 The Rwandan Constitution, adopted in Referendum of 26 May 2003 (Annex F to the Prosecution Request contains excerpts). Article 190 continues “except in case of non compliance of one of the parties”. This proviso appears inapplicable in the present context.

page 760 note 26 The formulation “more binding than … laws” is not clear but suggests that the conventions carry more weight than ordinary legislation and may prevail in case of a conflict with domestic law. The submissions do not specifically address this issue, which is not decisive to the Chamber's findings.

page 760 note 27 The preamble reads: “Considering that the crime of genocide and crimes against humanity are provided for by the International Convention of 9 December 1948 relating to repression and punishment of the crime of genocide''; “Considering the Convention of 26 November 1968 on imprescriptibility of war crimes and crimes against humanity”. (Some stylistic changes have been made in the available English translation.)

page 760 note 28 See, for instance, Recueil de jurisprudence contentieux du genocide (elaborated by Avocats Sans Frontières in co-operation with the Supreme Court of Rwanda et al.), Volume V pp. 13 et seq. (Higiro et ah, judgment of 14 March 2003, Court of First Instance, Butare); Volume VII pp. 41 et seq. (Mbarushimana et at, judgment of 7 January 2005, Court of First Instance, Gisenyi); pp. 163 et seq. (Bayingana et al, judgment of 29 July 2005, High Court of Cyangugu); pp. 257 etseq. (Ndinkabandietal., judgment of 20 July 2005, Supreme Court, referring to the Genocide Convention, the applicable Geneva Convention and the Convention of 1968).

page 760 note 29 Rwanda's Brief, para. 14; Rwanda's Response to HRW, para. 25.

page 760 note 30 The Chamber recalls that neither the Genocide Convention nor the Geneva Conventions and Protocols define crimes against humanity (which prior to the ad hoc Tribunals’ Statutes had its basis in customary international law). The definition of crimes against humanity in the 1968 Convention is only partial. Neither the parties nor the amici have addressed this issue. The Chamber is satisfied that the reference to the ICTR Statute in Article 3 of the Transfer Law (which includes a reference to Article 3 in the ICTR Statute), remedies any lacuna that may exist. Finally, there is no need for the Chamber to consider the legal basis of war crimes (Article 4 of the ICTR Statute) in Rwandan law, as they do not form part of the Indictment against Kanyarukiga.

page 760 note 31 Article 25 of the Transfer Law reads: “In the event of any inconsistency between this Organic Law and any other Law, the provisions of this Organic Law shall prevail” (Annex B to the Prosecution Request).

page 760 note 32 Defence Response, paras. 38-39, 43.

page 760 note 33 This also seems to follow from Rwanda's Brief, para. 14 (“The Republic of Rwanda deferred to the jurisdiction of the ICTR and will not exercise concurrent jurisdiction to prosecute the accused otherwise than in accordance with a referral by the ICTR pursuant to Rule 11 bis, and in conformity with the [Transfer Law]“). Under these circumstances, and in light of the Chamber's conclusion not to grant transfer in the present case, it is not necessary to go further into this issue.

page 760 note 34 Prosecution Request, paras. 23-25, referring to the Rwandan Penal Code (Annex D to the Prosecution Request). In particular, Article 91 encompasses, amongst other forms, complicity by instigation, complicity by aiding and abetting, and complicity by preparing the means to commit the crime.

page 760 note 35 Footnote 16 above; Prosecution Request, paras. 26-33.

page 760 note 36 Submissions concerning solitary confinement will be addressed below, paras. 94-96.

page 760 note 37 Law No. 13/2004 of 17 May 2004 Relating to the Code of Criminal Procedure (Annex G to the Prosecution Request).

page 760 note 38 Rwanda's Brief, paras. 46-48.

page 760 note 39 Defence Response, paras. 40-42 (remaniement de Vacte de l’accusation), see also paras. 35-37.

page 760 note 40 The Prosecutor v. Michel Bagaragaza, Decision on Rule 1 Ibis Appeal (AC), 30 August 2006, para. 17 (“The Appeals Chamber agrees with the Prosecution that the concept of a ‘case' is broader than any given charge in an indictment”, holding that the authorities in the referral State need not necessarily proceed under their laws against each act or crime mentioned in the Indictment in the same manner that the Prosecution would before the Tribunal); The Prosecutor v. Radivan Stankovic, Decision on Referral of Case under Rule 11 bis (Referral Bench), 17 May 2005, para. 74, referring to the adaptation of indictments under the Transfer Law of Bosnia and Herzegovina (see also paras. 24, 45-46).

page 760 note 41 Organic Law No. 31/2007 of 25 July 2007 Relating to the Abolition of the Death Penalty (Annex E to the Prosecution Request). Article 2 reads: “The death penalty is hereby abolished”, whereas Article 3 provides: “In all the legislative texts in force before the [entry into force] of this Organic Law, the death penalty is substituted by life imprisonment or life imprisonment with special provisions”. The Defence is therefore not correct when it argues (Response, paras. 28, 40) that legislation concerning death penalty still applies in Rwanda. The concerns that capital punishment may be reintroduced (Defence Response, paras. 43-44) are speculative. A reintroduction of the death penalty would be a basis for revocation of the transfer order under Rule 11 bis (F).

page 760 note 42 This was the point made by the ICTR Prosecutor in his address to the Security Council on 15 December 2006 (“Rwanda … is not yet ready in the sense of fulfilling the conditions of transfer, to receive from the ICTR cases of indictees for trial“). Icdaa's submission that the statement referred to the issue of fairness before Rwandan courts (Brief, para. 18) is inaccurate. This follows clearly from the context of the Prosecutor's statement (“The indications are that the death penalty, a major obstacle to the transfer of any case to Rwanda, will be abolished not just in relation to the cases of the ICTR, but across the board. A soon as that is accomplished I shall be requesting the transfer of cases … I hope this can be done in the first half of 2007“).

page 760 note 43 Prosecution Request, paras. 36-74; Defence Response paras. 48-55; Rwanda's Brief, paras. 31-40; HRW Brief, paras. 12-15; Kigali Bar Brief, paras. 7-8; ICDAA Brief, paras. 18-27.

page 760 note 44 The Republic of Rwanda ratified the ICCPR on 16 April 1975 and the ACHR on 15 July 1983. The Prosecution points out that Rwanda also has accepted scrutiny under the optional program established under the African Union, the New Partnership for Africa's Development review (NEPAD). Among the objectives of this program is the promotion of sustainable development, good governance and human rights (Prosecution Request, para. 73).

page 760 note 45 The Prosecution argues that the Republic of Rwanda's “compliance action under treaties and programmes mentioned above enables Rwanda to draw from the expertise of the members of those bodies in an effort to progressively enhance her compliance with human rights obligations, including those in relation to fair trials and due process'’ (Prosecution Request, para. 73). This is not entirely convincing. Rwanda's third periodic report under Article 40 of the Covenant, which was expected on 10 April 1992, was submitted on 23 July 2007 and has not been examined by the Human Rights Committee. Rwanda has not accepted the Optional Protocol to the ICCPR concerning individual communications. The Chamber does not have available any information about the reports submitted under the ACHR.

page 761 note 46 Rwandan Constitution of 2003, Title II:”Fundamental Human Rights and the Rights and Duties of the Citizen” (Annex F to the Prosecution Request).

page 761 note 47 The Republic of Rwanda refers to Article 1 (3) of Law No. 20/2006 of 22 April 2006 Modifying and Complementing the Law No. 13/2004 of 17 May 2004 Relating to the Code of Criminal Procedure, and provides the following quote (Rwanda's Response to HRW, para. 30): “Criminal judgments must be held in public audience, be fair, impartial, comply with the principle of self-defence, cross-examination, treat litigants equal in the eyes of the law, based on evidence legally produced and be rendered without any undue delay.“

page 761 note 48 Annex B to the Prosecution Request, which contains the text of Article 13 in Kinyarwanda, English and French. Some minor inconsistencies in the English version have been corrected above.

page 761 note 49 This is, for instance, the view of Human Rights Watch. In addition to long-standing knowledge of the situation in Rwanda, this non-governmental organisation has been monitoring the judicial system there since 2005 (HRW Brief, paras. 3-4, 17). Referring to Rule 94 (B) of the Rules of Procedure and Evidence, the Republic of Rwanda requests the Chamber to take judicial notice of the progress made in its legal system (Rwanda's Response to HRW, para. 8, 9 and 42 c). However, Rule 94 (B) is not applicable as it refers to adjudicated facts “from other proceedings of the Tribunal”.

page 761 note 50 See, in particular, Defence Response, paras. 43-47 (about “insecurite juridique“); HRW Brief, paras. 12 and 13 (“On their face Rwanda's laws comply with the fair trial provisions of Article 20 of the Statute … Nevertheless, these laws are inconsistently applied'’); ICDAA Brief, para. 22 (“Basic principles of fairness are very often ignored within the Rwandan national judicial system, either in theory or practice, or both'’).

page 761 note 51 Rwanda's Response to HRW, in particular paras. 7, 11-12 (with quotes), 15, 31.

page 761 note 52 See similarly (in relation to monitoring) The Prosecutor v. Radovan Stankovic, Decision on Rule 11bis Referral (AC), para. 50 (“The question, then, is how much authority the Referral Bench has in satisfying itself that the accused will receive a fair trial. In the view of the Appeals Chamber, the answer is straightforward: whatever information the Referral Bench reasonably feels it needs, and whatever orders is reasonably finds necessary, are within the Referral Bench's authority, so long as they assist the Bench in determining whether the proceedings following the transfer will be fair. The Referral Bench must bear in mind the considerable discretion that the Rule affords the Prosecutor, but always the ultimate inquiry remains the fairness of the trial that the accused will receive“). Rwanda's Response to HRW, para. 12 quotes Decision on Referral of Case under Rule 11 bis in Stankovic (Referral Bench), 17 May 2005, para. 68 However, that passage is simply the conclusion after a discussion which is not confined to applicable laws (see, for instance, para. 67 of the Referral Bench's decision).

page 761 note 53 Below, Section D (paras. 98-103).

page 761 note 54 Prosecution Request, paras. 46-57; Defence Response, paras. 48-55; Rwanda's Brief, paras. 34-40; HRW Brief, paras. 49-54; Prosecution Response to HRW, paras. 39-44; Rwanda's Response to HRW, para. 33; ICDAA Brief, paras. 7-10; Prosecution Response to ICDAA, para. 6.

page 761 note 55 Rwandan Constitution of 2003 (Annex F to the Prosecution Request).

page 761 note 56 Detailed provisions about the Superior Council are found in Organic Law No. 02/2004 of 20 March 2004 Determining the Organisation, Powers and Functioning of the Superior Council of the Judiciary (Annex K to the Prosecution Request). Furthermore, Organic Law No. 07/2004 of 25 April 2004 Determining the Organisation, Functioning and Jurisdiction of the Courts contains rules about the appointment and removal of judges as well as disciplinary powers.

page 761 note 57 Law No. 13/2004 of 17 May 2004 Relating to the Code of Criminal Procedure (Annex G to the Prosecution Request). See similarly Article 64 (1) of Organic Law No. 07/2004 of 25 April 2004 Determining the Organisation, Functioning and Jurisdiction of the Courts: “Courts shall be independent and separate from other state institutions.“

page 761 note 58 Prosecution Request, paras. 55-56. The Code was promulgated pursuant to Law No. 09/2004 of 29 April 2004 Relating to the Code of Ethics for the Judiciary.

page 761 note 59 Defence Reply, paras. 50-51. According to Article 147 of the Constitution, the President and Vice-President of the Supreme Court are elected by the Senate and proposed by the President of the Republic after consultation with the Cabinet and the Supreme Council of the Judiciary. They are removed by the Chamber of Deputies or the Senate. Under Article 148, the President of the Republic, after consultation with the Cabinet and the Superior Council, submits a list of candidates for the Supreme Court to the Senate, which by an absolute majority elects the candidates.

page 761 note 60 Defence Reply, para. 49; ICDAA Brief, paras. 24-26.

page 761 note 61 The Chamber notes that the official policy of Rwanda seems to avoid public references to ethnicity. See, for instance, oral hearing in The Prosecutor v. Yussuf Munyakazi (T. 24 April 2007 pp. 55-56) where Counsel for the Republic of Rwanda, in relation to a question from the Bench about the composition of the High Court, answered: ”… But, with due respect, I will not be going into the discussion of ethnic balance. It is against the policy of my country, it is against the constitution of my country, and I will not be doing that.” See also id. p. 37.

page 761 note 62 The Chamber does not take a position on the exact percentage of acquittals, which may differ according to whether not only the ordinary courts but also Gacaca proceedings are included in the calculation. It simply observes that the acquittal rate is considerable. Often cases reported in Volume VII (2004-2005) of Recueil de jurisprudence contentieux du genocide (footnote 28 above), five involved an acquittal of some type. In The Prosecutor v. Yussuf Munyakazi, Counsel for the Republic of Rwanda referred to an acquittal rate in his country of “close to 40 per cent” (T. 24 April 2007 p. 31, see also pp. 37, 38).

page 761 note 63 HRW Brief, paras. 49-54 and ICDAA Brief, paras. 7-10. The Briefs also refer to “genocidal ideology”which is considered below (paras. 45, 54-55, 71-72) but has -been taken into account also in the present context.

page 761 note 64 One example is an incident of alleged executive interference with the High Court, mentioned in HRW Brief, para. 53.

page 761 note 65 Defence Response, para. 53; Prosecution Reply, paras. 31-33.

page 761 note 66 Rwanda's Brief, paras. 36 and 40, referring to Organic Law No. 07/2004 of 25 April 2004 Determining the Organisation, Functioning and Jurisdiction of the Courts. It provides for single judges in Articles 7 (Lower Instance Court), 16 (Higher Instance Court) and 26 (“The High Court of the Republic shall hear cases in the first instance while being constituted of a single judge assisted by a registrar. However, in the course of hearing appeals from decisions of lower courts, it shall be constituted of three judges assisted by a court registrar“).

page 672 note 67 Prosecution Request, paras. 15, 43-45; Defence Reply, para. 53. Rwanda's Brief, paras. 17-19; HRW Brief, paras. 73, 83-85.

page 672 note 68 Rwanda's Brief, para. 19. A similar argument was unsuccessfully put forward in Prosecutor v. Mitar Rasevi ćand Savo Todovi ć, Decision on Savo Todović's Appeals Against Decisions on Referral under Rule 11 bis (AC), 4 September 2006, paras. 86, 88-91.

page 672 note 69 Rwandan Constitution of 2003 (Annex F to the Prosecution Request).

page 672 note 70 Law No. 13/2004 of 17 May 2004 relating to the Code of Criminal Procedure (Annex G to the Prosecution Request). Article 44 further clarifies that it is the Prosecution which bears the burden of proof, and that an accused must put forward a defence only once the Prosecution has established a prima facie case.

page 672 note 71 Prosecution Request, paras. 37(ii), 67-68; Rwanda's Brief, para. 32 (b); HRW Brief, paras. 16 (a)(ii), 41-48, 111 (b); Prosecution Response to HRW, paras. 4, 37; Rwanda's Response to HRW, paras. 28 (b), 32.

page 672 note 72 For instance, Allenet de Ribemont v. France, Judgment of 10 February 1995, European Court of Human Rights, paras. 32- 47.

page 672 note 73 The statement (“the architects of the genocide literally made everyone a direct or indirect participants“) formed part of a paper delivered at a conference in The Hague in December 2006. HRW Brief, para. 46.

page 672 note 74 HRW Brief, paras. 47-48.

page 672 note 75 Article 18 (3) of the Rwandan Constitution reads: “The right to be informed of the nature and cause of charges and the right to defence are absolute at all levels and degrees of proceedings before administrative, judicial and all other decision making organs” (Annex F to the Prosecution Request).

page 672 note 76 Prosecution Request, paras. 65-66; Defence Response, paras. 67-69; Prosecution Reply, paras. 44—48; Prosecution Response to HRW, paras. 53-62; Rwanda's Response to HRW, paras. 31; Kigali Bar Brief, paras. 6-18; ICDAA Brief, paras. 37-40, 55-76.

page 672 note 77 Prosecution Request, 59, 63; Defence Response, paras. 66-72; Prosecution Reply, paras. 60-64; Rwanda's Brief, para. 22; HRW Brief 69-74, 84, 111 (c); Prosecution Response to HRW, paras. 53-57; Rwanda's Response to HRW, paras. 7.1, 28; ICDAA Brief, paras. 42-46; Prosecution Response to ICDAA, paras. 17-18.

page 672 note 78 Rwanda's Brief, para. 22 and, more generally, Kigali Bar Brief.

page 672 note 79 HRW Brief, paras. 73-74.

page 672 note 80 Prosecution Request, paras. 62-63; Rwanda's Brief, paras. 22-26; HRW Brief, paras. 75-78, 111 (f); Prosecution Response to HRW, paras. 58-60; ICDAA Brief, paras. 33-36, 47-54; Prosecution Response to ICDAA, paras. 13-15.

page 672 note 81 See Rwanda's Brief, para. 25 (RwF 250 million); HRW Brief, para. 76 ($500,000); ICDAA Brief, para. 35 ($468,000).

page 672 note 82 Prosecutor v. Radovan Stankovi ć, Decision on Rule 11 bis Referral (AC), 1 September 2005, para. 21 (“Having satisfied itself that the State would supply defence counsel to accused who cannot afford their own representation, and having learned that there is financial support for that representation, die Referral Bench was not obligated in its opinion to itemize the provisions of the BiH budget“).

page 672 note 83 Prosecution Request, paras. 65-66; Defence Response, paras. 67-69; Prosecution Reply, paras. 44-48; HRW Brief, paras. 16 (a)(iii), 79-84, 111 (g) and (h); Prosecution Response to HRW, paras. 53-62; Rwanda's Response to HRW, paras. 7.2, 31:7; ICDAA Brief, paras. 37-40, 55-76; Kigali Bar Brief, paras. 6-18.

page 672 note 84 The factual circumstances of some of the purported problems are disputed, and the Chamber does not fully accept the description of all events. For instance, Léonidas Nshogoza (ICDAA Brief, para. 57), a lawyer who was then serving as investigator for an ICTR Defence team, was on 11 February 2008 indicted by the ICTR and charged with contempt of court. The descriptions of the incidents involving Defence Counsel Callixte Gakwaya (ICDAA Brief, para. 66) and Defence Minister Marcel Gatsinzi (HRW Brief, para. 82) are also not complete.

page 672 note 85 ICDAA Brief, paras. 55-56. Neither is the Chamber convinced by the purported lack of specific funding of security for Defence teams (ICDAA, paras. 59-60).

page 672 note 86 Some of these factors are mentioned as possible explanations for delays in Rwanda's Response to HRW, paras. 31.7.

page 672 note 87 HRW Brief, paras. 79, 81; ICDAA Brief, para. 72. One example is judicial antecedents, for instance guilty pleas or judgements involving Prosecution witnesses.

page 672 note 88 HRW Brief, paras. 79,81; ICDAA Brief, para. 71. The illustrations in ICDAA Brief, paras. 69 (Defence Counsel followed by government officials during investigations) and 70 (Defence Counsel photographed while interviewing a witness) are worrying. However, such incidents do not appear sufficiently widespread to prevent transfer.

page 672 note 89 Prosecution Request, paras. 41-42, 69; Defence Brief, paras. 56-66; Prosecution Reply, para. 65; Rwanda's Brief, paras. 27; HRW Brief, paras. 15 (i), 16 (c), (d), (e), 25-40, 83-105, 111 (b), (i), (j) and (k); Prosecution Response to HRW, paras. 4, 21-36, 63-66; Rwanda's Response to HRW, paras. 31.2-31.6; ICDAA Brief, paras. 80-102; Prosecution Response to ICDAA, paras. 21-24; Kigali Bar Brief, paras. 19-23.

page 672 note 90 Prosecutor v. Rahim Ademi and Mirko Norac, Decision for Referral to the Authorities of the Republic of Croatia Pursuant to Rule 11 bis (TC), 14 September 2005, paras. 49-50.

page 672 note 91 Law No. 13/2004 Relating to the Code of Criminal Procedure (Annex G to the Prosecution Request).

page 672 note 92 HRW Brief, para. 26 refers to Article 128 of Loi No. 15/2004 portant modes et administration de la preuve, which enables Rwandan courts to take measures to protect witnesses who provide information or cooperate with the prosecuting authorities.

page 672 note 93 A statement by the Rwandan Minister of Justice in 2006 to the effect that witness protection is not appropriate in the Rwandan context (HRW Brief, para. 26) predates the adoption of the Transfer Law. The Chamber's attention has also been drawn to a decision by the Higher Instance Court of Gasabo, which included names of protected witnesses (HRW Brief, para. 28). However, one such decision does not form a basis to conclude that officials will not respect orders to be given under the Transfer Law. (The decision ordered the detention of Leonard Nshogoza, a Defence investigator charged at the ICTR with contempt of court, see footnote 84 above).

page 672 note 94 HRW Brief, paras. 27 and 85; ICDAA Brief, para. 83.

page 763 note 95 HRW Brief, para. 85; Prosecution Response to HRW, para. 64.

page 763 note 96 According to Human Rights Watch, the funding for the first three quarters of 2007 amounted to $132,000 (HRW Brief, para. 85).

page 763 note 97 Defence Response, paras. 63-66; HRW Brief, paras. 89-109; Prosecution Response to HRW, paras. 67-78; Rwanda's Response to HRW, paras. 11-12,15-16,31;ICDAABrief, paras. 80-93.

page 763 note 98 The Prosecutor v. Gojko Jankovi ć, Decision on Rule 11 bis Referral (AC), 15 November 2005, para. 49.

page 763 note 99 Human Rights Watch has referred to specific incidents where allegation of ill-treatment did not lead to investigations (HRW Brief, paras. 90-94). This is certainly a matter of concern. However, the incidents do not reveal a general pattern and does not in the Chamber's view prevent transfer under the specific regime established by the Transfer Law.

page 763 note 100 HRW Brief, paras. 27, 86, 87; ICDAA, paras. 83-86; Prosecution Response to HRW, para. 65. The two amid refer not only to the police but also to “political authorities”. It is unclear what is meant by that.

page 763 note 101 Second preambular paragraph and Article 9 (1) of the Rwandan Constitution of 2003 (Annex F to the Prosecution Request).

page 763 note 102 Law No. 33 bis/2003 of 6 September 2003 Repressing the Crime of Genocide, Crimes Against Humanity and War Crimes. According to Article 4, imprisonment between 10 and 20 years may be imposed on “any person who will have publicly shown, by his or her words, writings, images, or by any other means, that he or she has negated the genocide committed, rudely minimized it or attempted to justify or approve its grounds, or any person who will have hidden or destroyed its evidence”.

page 763 note 103 As pointed out by the Prosecution (Response to HRW, para. 29), it follows from human rights case law that prohibiting negation or revision of the Holocaust does not constitute a violation of freedom of expression under Article 10 of the European Convention of Human Rights and Article 19 of the ICCPR.

page 763 note 104 HRW Brief, paras. 30-40 and 99 (arguing that the concept has been considered to cover “a broad spectrum of ideas, expression, and conduct, often including those perceived as being in opposition to the policies of the current government'' and “questioning the legitimacy of detention of a Hutu''; and mentioning lists of hundreds of persons and organizations considered guilty of holding or disseminating “genocidal ideology”, including Care International, BBC and Voice of America).

page 763 note 105 Defence Brief, para. 61; HRW Brief, paras. 38-40, Prosecution Response to HRW, paras. 76-78; 103-105; Rwanda's Response to HRW, paras. 31.18 and 31.19; ICDAA Brief, paras. 94-102.

page 763 note 106 Rwanda's Response to HRW (para. 31.19, quoted below in footnote 107). See on the other hand ICDAA Brief, para. 100 about “safe conduct” (“sauf-conduit“).

page 763 note 107 ICDAA Brief, para. 101 (“ICDAA's conclusion, based on its members’ experience, is that almost no witness from abroad will be willing to go back to Rwanda in order to testify at the request of a defence team.“); HRW Brief, para. 38 (“The right to present witnesses is seriously undermined by the fact that many Rwandan witnesses living abroad are unwilling to testify in Rwandan courts“). Quoting a statement by the Minister of Justice in February 2007 about how immunity for witnesses “will be a step towards their being captured. They will have to sign affidavits on which their current address will be shown and that would at any other time lead to their arrest'', Human Right Watch continues (para. 39): “This comment, widely circulated among Rwandans in the diaspora, served only to confirm the fears of many Rwandans that the immunity guaranteed by the transfer law was in fact a falsehood to facilitate their later arrest and forced return to Rwanda”. In its Response to HRW (para. 31.19), Rwanda does not dispute the accuracy of the Minister's statement but submits that “the information as to the where abouts of fugitives has always been available, yet not each of the fugitives has been tracked down and captured yet. More importantly, some of the fugitives have been removed from Interpol red notice simply because the ICTR needed them as witnesses in various cases. This has always been done even without any legally binding provision. We submit that the provisions on safe conduct of witnesses shall be strictly observed in all proceedings involving transferred cases. Thus there should be no room for speculation or worries as expressed under paragraph 39 and 40 of the HRW Brief.“

page 763 note 108 Defence Response, para. 61 (“Or, la plupart des témoins de la défense de Kanyarukiga sont localisés à l'étranger et ceux de l'interieur par peur des représailles risquent de se retracter“). See also HRW Brief, para. 38 (“One experienced defence lawyer estimated that as many as 90 percent of the witnesses called by his clients and other accused persons reside outside Rwanda.“). In its Response to HRW, Rwanda challenges the reliability of this estimate (para. 31.18). Leaving aside the exact percentage of Defence witnesse residing abroad in the various trials, the Chamber accepts that it is generally high and has no basis for disputing the Kanyarukiga Defence statement about its witnesses.

page 763 note 109 In The Prosecutor v. Radovan Stankovic, Decision on Rule 11 bis Referral (AC), the Appeals Chamber accepted (para. 26) that the Referral Bench had taken into account that Bosnia and Herzegovina had ratified the European Convention on Mutual Assistance in Criminal Matters when considering the steps taken by that country to promote the obtaining of witnesses and evidence. Reference was also made to Security Council resolution 1503 (2003), which obliges the international community to assist national jurisdictions in improving their capacity to prosecute cases transferred from the ICTY and the ICTR (operative paragraph 1). According to the Appeals Chamber, “this instruction implicitly includes cooperation with respect to witnesses'’ (id.). In the present case, the Chamber is not convinced that this in itself will be sufficient to ensure the availability of Defence witnesses. (About availability of witnesses, see also The Prosecutor v. Milan Lukić and Sredoje Lukić, Decision on Referral of Case Pursuant to Rule 11 bis with Confidential Annex A and Annex B (Referral Bench), 5 April 2007, para. 85.)

page 763 note 110 Rwanda's Brief, para. 20 (courtroom equipped with “Audiovisual recording“); Prosecution Response to HRW, paras. 66 and 78, quoting Amicus Curiae Brief of Rwanda, submitted on 10 January 2008 in the Rule 11 bis proceedings in Prosecutor v. Hategekimana (p. 7: “Audiovisual recording: There are video-link facilities which will be used to receive testimony of any witness residing abroad who may be unable or unwilling to physically appear in court“). See also Prosecutor v. Yussuf Munuyakazi, T. 24 April 2008 p. 70, where Counsel for Rwanda confirmed that there were no practical or procedural obstacles limiting courts to hear witnesses by video-link.

page 763 note 111 About fear, see The Prosecutor v. Bagosora et al., Decision on Video-Conference Testimony of Kabiligi Witness Delta and to Hear Testimony in Closed Session (TC), 1 November 2006, paras. 2-3; Decision on Video-Conference Testimony of Kabiligi Witnesses YUL-39 and LAX-23 and to Hear Testimony in Closed Session (TC), 19 October 2006, paras. 2-5; Decision on Video-Conference Testimony of Kabiligi Witnesses KX-38 and KVB-46 (TC), 5 October 2006, paras. 2-6.

page 764 note 112 This has been a relevant factor in ICTR case law. See Prosecutor v. Bagosora et al, Decision on Prosecution Request for Testimony of Witness BT via Video-Link (TC), 8 October 2004, para. 15 (reiterating “the general principle, and the Chamber's strong preference, that most witnesses should be heard in court“); Decision on Testimony by Video-Conference (TC), 20 December 2004, para. 4 (emphasizing “the general principle, articulated in Rule 90 (A), that ‘witnesses, shall, in principle, be heard directly by the Chamber'“); Decision on Testimony of Witness Amadou Deme by Video-Link (TC), 29 August 2006, para. 3.

page 764 note 113 The Prosecutor v. Zigiranyirazo, Decision on Interlocutory Appeal (AC), 30 October 2006, para. 19 (“the Appeals Chamber accepts that the Trial Chamber's general concern over its ability to assess the credibility of a key witness is an important interest“). See also The Prosecutor v. Zejnil Delalic et al, Decision on the Motion to Allow Witnesses K, L and M to Give Their Testimony by Means of Video-Link Conference (TC), 28 May 1997, para. 18.

page 764 note 114 See, for instance, the following judgments of the European Court of Human Rights: Delcourt v. Belgium, Judgment, 17 January 1970, Series A, No. 11, paras. 27-38, in particular para. 28; Bönisch v. Austria, Judgment, 6 May 1995, Series A, No. 92, paras. 28-35, particularly para. 32 (referring to the need for equal treatment as between the hearing of a Prosecution witness and a Defence witness); Dombo Beheer B.V. v. The Netherlands, Judgment, 27 October 1993, Series A, No. 274, paras. 30-35, in particular para. 33 (“each party must be afforded a reasonable opportunity to present his case -including his evidence - under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent“).

page 764 note 115 Defence Response, para. 46; HRW Brief paras. 15 (b), 55-60, 111 (c); Prosecution Response to HRW, paras.45-48.

page 764 note 116 Article 93 of the 2004 Gacaca Law provides: “(1) The judgement can be subject to review only when: (1) the person was acquitted in a judgement passed in the last resort by an ordinary court, but is later found guilty by the Gacaca Court; (2) the person was convicted in a judgement passed by an ordinary court, but is later found innocent by the Gacaca court … The Gacaca Court of Appeal is the only competent Court to review judgements passed under such conditions.“

page 764 note 117 This conclusion means that the Chamber accepts the Prosecution submissions. In the present case, Rwanda has not explicitly addressed the issue of double jeopardy but it follows from its Response to HRW (para. 14) that it “re-iterates the Prosecutor's position, in its entirety, on all issues pertaining to legal framework as well as jurisdiction of Rwandan Courts”. Furthermore, during the oral hearing in The Prosecutor v. Munyakazi, Counsel for Rwanda confirmed that a case dealt with under the Transfer Law cannot be heard by the Gacaca jurisdictions, see T. 24 April 2008 p. 66.

page 764 note 118 The Prosecutor v. Radovan Stankovic, Decision on Rule 11 bis Referral (AC), 1 September 2005, para. 34, as well as Referral Bench practice (see, for instance, footnote 120 below).

page 764 note 119 Rwandan Constitution of 2003 (Annex F to the Prosecution Request).

page 764 note 120 The Prosecutor v. Milorad Trbić, Decision on Referral of Case under Rule 11 bis with Confidential Annex (Referral Bench), 27 April 2007, para. 40, relying on The Prosecutor v. Milan Luki ćand Sredoje Luki ć, Decision on Referral of Case Pursuant to Rule 11 bis with Confidential Annex A and Annex B (Referral Bench), 5 April 2007, para. 64.

page 764 note 121 Prosecution Request, para. 78; Defence Reply, para. 88; Rwanda's Brief, para. 49-52; HRW Brief, paras. 16 (f), 106-109, 111 (1); Prosecution Response to HRW, paras. 79-80; ICDAA Brief, paras. 104-117; Prosecution Response to ICDAA, para. 25.

page 764 note 122 See Articles 93-100 of the Code on Criminal Procedure concerning “preventive detention” (Annex G to the Prosecution Request) and Rwanda's Brief, paras. 50-51.

page 764 note 123 Prosecution Request, paras. 78-79; Defence Brief, paras. 30-32, 87-90; Rwanda's Brief, paras. 28-30, 52; HRW Brief, paras. 15 (c), 16 (g), 61-67,110,111 (d) and (m); Prosecution Response to HRW, paras. 49-52; Rwanda's Response to HRW, para. 35; ICDAA Brief, paras. 118-126; Prosecution Response to ICDAA, paras. 25-31; Kigali Bar Brief, paras. 24-27.

page 764 note 124 Some minor stylistic changes have been made in the English translation of the text. Furthermore, Article 23 (3) and (4) provide for notification and investigation if an accused dies or escapes from prison.

page 764 note 125 Rwanda's Brief, paras. 28-29.

page 764 note 126 Work remained in Mpanga prison when visited by a researcher from Human Rights Watch in November 2006 (HRW Brief, para. 110). It is the Prosecution's position that both institutions are commensurate with internationally accepted standards (Prosecution Response to ICDAA, para. 27). According to Rwanda, the ICTR Prosecutor found the Kigali Prison facilities acceptable in October 2007 (Rwanda's Brief, para. 29).

page 764 note 127 Defence Brief, paras. 87-88; ICDAA Brief, paras. 127-133.

page 764 note 128 Organic Law No. 31/2007 of 25 July 2007 Relating to the Abolition of the Death Penalty (Annex E to the Prosecution Request). See above, para. 25.

page 764 note 129 Defence Response, paras. 33-35; HRW Brief, paras. 61-67 (referring to ICCPR Article 7); Prosecution Response to HRW, in particular paras. 49-50; Rwanda's Response to HRW, para. 35.2.

page 764 note 130 Rwanda's Response to HRW, para. 35.2 (“We agree with HRW that prolonged solitary confinement may be in breach of certain provisions of the Convention against torture. We submit, however, that there is no prolonged solitary confinement in Rwandan prisons'’). The ICCPR Human Rights Committee has adopted General Comment 20, para. 6 (“The Committee notes that prolonged solitary confinement of the detained or imprisoned person may amount to acts prohibited by Article 7“). Similar statements have been made in connection with the Committee's consideration of reports from states under Article 40 and individual communications under the Optional Protocol. Under the European Convention on Human Rights, the Court have established similar principles in several cases, for instance Ramirez Sanchez v. France, Judgment, 4 July 2006, paras. 120-150, in particular para. 136 (“substantive reasons must be given when a protracted period of solitary confinement is extended“) and 145 (“The Court nevertheless wishes to emphasise that solitary confinement, even in cases entailing only relative isolation, cannot be imposed on a prisoner indefinitely. Moreover, it is essential that the prisoner should be able to have an independent judicial authority review the merits of and reasons for a prolonged measure of solitary confinement“). In the present case, the parties have not addressed these issues.

page 764 note 131 The lack of clarity was illustrated during the oral hearing in The Prosecutor v. Yussuf Munyakazi, T. 24 April 2008 pp. 63, 66-67, 76-77.

page 765 note 132 Defence Response, paras. 83-86, 95-101.

page 765 note 133 Prosecution Request, paras. 75-79; Rwanda's Brief, paras. 41-45; ICDAA Brief, paras. 134-148; Prosecution Response to ICDAA, paras. 39-47.

page 765 note 134 The Prosecutor v. Radovan Stankovic, Decision on Rule 11 Bis Referral (AC), 1 September 2005, paras. 50, 53, 57.

page 765 note 135 Letter of 2 June 2006 from the President of the African Commission on Human and People's Rights to the ICTR Prosecutor (Annex M to the Prosecution Request).

page 765 note 136 Places of detention are not only subject to monitoring under Article 19, but also inspection in pursuance of Article 23 (see above para. 90 concerning The International Committee of Red Cross or an observer appointed by the ICTR President.

page 765 note 137 Rwanda's Brief, para. 42.

page 765 note 138 Rwanda's Brief, para. 44.