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International Criminal Tribunal for Rwanda Tribunal Penal International pour le Rwanda Arusha International Conference Centre P.O.Box 6016. Arusha. Tanzania - B.P. 6016, Arusha. Tanzanie UN~W NA~NS Tel: 255 27 2550407-1 1 2504367-72 or 1 212 963 2850 Fax: 255 27 2504MWX2504373 NATONS UNOeS 0r 1 212 983 2648149 TRIAL CHAMBER I11 Before : Judge Ines M. Weinberg de Roca, Presideing Judge Lee Gacuiga Muthoga Judge Robert Frernr Registrar : Mr Adama Dieng Date filed: 28 July 2008 THE PROSECUTOR v. Fulgence KAYISHEMA Case No ICTR-01-67-I RESPONSE to the PROSECUTOR'S REQUEST FOR THE REFERRAL OF THE CASE OF FULGENCE KAYISHEMA TO RWANDA PURSUANT TO RULE 11 BZS OF THE TRIBUNAL'S RULES OF PROCEDURE AND EVIDENCE Office of the Prosecutor For the interests of the Accused Hassan Bubacar Jallow Jwani Timothy Mwaikusa Bongani Majola Inneke Onsea Francois Nsanzuwera Florida Kabasinga 1. Introduction In the interests of the accused, Fulgence Kayishema, this response to the Prosecutor's Request for the Referral of the Case of Fulgence Kayishema to Rwanda Pursuant to Rule llbis of the Tribunal's Rules of Procedure and Evidence (hereinafter referred to as "the Motion"), respectfully requests that the said request of the Prosecutor should not be granted or approved on the grounds and reasons that are shown herein below. 2. Factual Background 2.1: The indictment against the accused, known as FULGENCE KAYISHEMA, was first filed in this Tribunal on 10 June 2001 and confirmed on 4 July 2001. Subsequently, on 11 June 2007, the Prosecutor filed the Motion seeking referral of the case to the Republic of Rwanda for trial. 2.2: The accused is all this time still at large; he has not been arrested. In the circumstances, no defence counsel has been assigned to him and there is no defence team constituted for him. 2.3: On 27 October 2007, a request was made to the President of the Tribunal to appoint counsel to represent the interests of the accused in the referral proceedings. On 13 November 2007 the President referred this request to the Trial Chamber. On 2 May 2008 the Chamber rendered its decision on the referral of the request to appoint defence counsel and directed that counsel be appointed to represent the interests of the accused in the rule 1 lbis referral proceedings. It is pursuant to that decision of the Chamber that this particular counsel was assigned the responsibility that includes the writing and filing of this Response. Perhaps it is worth noting that even the Prosecutor made a similar request in paragraph 81(b) of the Motion: that the Registrar be required to designate counsel to watch over the interests of the accused in this matter. 2.4: Having said that, we should point out right at the outset, the big handicap with which this Response is made. The handicap is that there having been no contact ever with the accused, who is at large, this counsel has had no opportunity of making any appraisal of how the accused himself would have reacted to the Motion for referral of his case to Rwanda. This response submission, therefore, is premised on the assumption that transferring this case to Rwanda will not be in the best interests of the accused person not because he is Fulgence Kayishema, but because the same arguments would be made against transfer even if the accused was somebody else. 3, No Reason to Take the Accused Away from the ICTR 3.1: In the Motion the Prosecutor has endeavored to paint a rosy picture of the laws and the legal system of the Republic of Rwanda: that they guarantee the accused a fair trial. That picture has no factual substance to support it. Even assuming that all what is stated in the Motion about the system in Rwanda was true (only assuming, because we submit here that it is not), that in itself is not a sufficient reason for transferring the case of the accused from the jurisdiction of the ICTR to the jurisdiction of the courts in Rwanda. 3.2: In the Motion, the Prosecutor does not state why he chose this particular case for transfer to Rwanda. The reason for seeking to take this take this particular case out of the jurisdiction of the ICTR has not been given by the Prosecutor; one can say that no reason has been given because there is no good reason; there is in fact no reason at all for seeking transfer of this case to Rwanda. It is the sheer exercise of discretion by the Prosecutor that has come upon this case as one suitable for transfer to Rwanda. But its human rights record makes Rwanda an unsuitable jurisdiction to transfer this (or any other) case to; this much has been observed by none other than Ms. Sylvana Arbia who was ICTR Chief of Prosecutions until a few days before she made the observation.' One thing that may certainly result from the transfer of this case to Rwanda is the trial of the accused in this case in absentia. Rwandan law and practice allows trial of accused persons in absentia; this much has been confirmed by the Prosecutor General of the Republic of Rwanda at the oral hearing of another rule 1lbis transfer motion before this same Trial ~hamber.~The accused in this case is still at large. We fear that if this case is '~irondelleNews Agency: 18 April 2008 2 See: Prosecutor v. Yussuf Munyakazi, ICTR-97-36A-I, Transcript of 28 April 2008 transferred to Rwanda a lot of injustice is bound to occur, all of which will be avoided if the case is not transferred there. 4. Abolition of the Death Penalty in Rwanda 4.1: The Prosecutor states in paragraph 28 of the Motion that Rwanda has abolished the death penalty. The Motion was filed in June 2007. By then the statement that Rwanda had abolished the death penalty was certainly not correct because the Organic Law on the Transfer of Cases, upon which that statement was based, did not abolish the death penalty in Rwanda. As admitted by the Prosecutor in paragraph 26 of the Motion, that law does not prescribe sentences for each (or any) crime; it only states that a sentence of life imprisonment shall be the heaviest penalty that may be imposed upon a convict in a case transferred from the ICTR. It is common knowledge, though, that the death penalty was abolished in Rwanda by the Organic Law Relating to the Abolition of the Death Penalty which was passed sometime in July 2007. All the same, it is submitted here that the said abolition of the death penalty does not, in itself, render the jurisdiction in Rwanda a suitable one for trial of a case like this one. 4.2: It is pertinent that the persons standing accused before the ICTR have, on numerous occasions expressed their worry and concern, expressed through several correspondences to the UN and to the ICTR authorities, that the abolition of the death penalty in Rwanda does not provide any guarantee of security against attack upon the life of prisoners by other means, especially the kidnappings and disguised murders.' As a recounted by Human Rights Watch in a fairly recent report (Annex B to this Response), such occurrences have been rampant in Rwanda and they render support to the detainees' expressed worries. 4.4: The Prosecutor states in paragraph 33 of the Motion that pursuant to article 21 of the Organic Law on the Transfer of Cases, in the event of a conviction, life imprisonment Letters to the UN secretary General: 16 February 2004, 10 January 2007; Letters to UN and ICTR Authorities: 29 March 2003,03 April 2006; Letters to the ICTR President: 10 June 2002,24 May 2004, 14 June 2004, 12 July 2004,15 July 2004,19 September 2004,19 February 2005,23 January 2007,28 March 2007,06 August 2007. Copies of some of these letters are attached to this Response and collectively marked as Annex A. is "the muximum sentence" that may be imposed on an accused person transferred from the ICTR. There is, however, a significant ambiguity regarding sentence that can bring great prejudice to an accused person transferred to Rwanda for trial. Besides merely stating that life imprisonment shall be the maximum sentence that may be imposed on an accused transferred from the ICTR, the Organic Law on the Transfer of Cases does not abolish or prescribe any sentences. This much is admitted by the Prosecutor in paragraph 26 of the Motion. Sentences are prescribed by other laws; for the offences with which the accused, Fulgence Kayishema, is charged the sentence is prescribed by the Organic Law Relating to the Abolition of the Death Penalty. For the offences of genocide and crimes against humanity, offences which the accused in this case is charged with, this law prescribes the sentence of imprisonment for life with special provisions, expressed in the French text of that law as "la paine de reclusion criminelle a perpetuite". 4.5: As it is, therefore, the law on the abolition of the death penalty has replaced the death sentence by "the sentence of life imprisonment" or by "la paine de reclusion criminelle a perpetuite ", which may translate as "the sentence of criminal imprisonment for life" (article 3). Both refer to life imprisonment. However, there is a difference between the two in that the latter, "the sentence of criminal imprisonmentfor life" is a sentence of life imprisonment with certain conditions stipulated under article 4 of that law.

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