Trial Chamber II Before: Judge Florence Rita Arrey, Presiding Emile Francis Short Robert Fremr Registrar: Adama Dieng Date: 20 April 2011 THE PROSECUTOR v. • Jean-Bosco UWINKINDI Case No. ICTR-200l-75-Rule 11 bis PROSECUTOR'S CONSOLIDATED RESPONSE TO: (1) Defence Response to the Prosecutor's Request for the Referral ofthe case of Jean Uwinkindi to Rwanda Pursuant to Rule 11 bis ofthe Rules of Procedure and Evidence; (2) Amicus Curiae Briefof Human Rights Watch in opposition to Rule 11 bis Transfer; (3) Amicus Curiae Brief ofthe International Association of Democratic Lawyers (IADL) Pursuant to Rule 74 (Rules of Procedure and Evidence); and (4) International Criminal Defence Attorneys Association (ICDAA) Amicus Curiae Brief • The Prosecution The Defence Hassan Bubacar Jallow Claver Sindayigaya James J. Arguin lain Edwards George Mugwanya Bettina Spilker Inneke Onsea Abdoulaye Seye Francois Nsanzuwera • TABLE OF CONTENTS INTRODUCTION 1 SUBMISSIONS 3 A. Double jeopardy principles are inapplicable because the Accused's Gacaca Court convictions were vacated in deference to the Tribunal's superior jurisdiction 3 B. Referral pursuant to Rule 11 bis requires a Trial Chamber to be satisfied that the Accused will receive a fair trial in the national jurisdiction; this standard is necessarily prospective and, as such, based on probabilities, not certainties 6 C. Rwanda's judiciary is independent and fully capable of securing the Accused's right to a fair trial, including his right to the • presumption of innocence 8 1. Defence allegations of judicial corruption are wildly exaggerated.....9 a. The Defence distorts the Ombudsman's 2008 Report 9 b. The Defence twists Chief Justice Cyanzayire's statement 11 n. Defence allegations of political interference are unsubstantiated 13 a. No evidence links Rwanda to the alleged assassinations 13 b. No evidence supports Defence allegations of political interference with judicial decisions 15 c. ChiefJustice Busingye's alleged statement about political interference is false, and the statement attributed • to the Bizimungu trial judge is unsubstantiated 20 ui. Rwanda extends the presumption of innocence to all accused 23 D. Rwanda has a proven track record of cooperation with defence teams from the ICTR and other jurisdictions, and its Transfer Law provides defence teams and witnesses with broad immunity from arrest and prosecution 26 -- 1 -- 1. Rwanda cooperates with defence teams and their investigations; Defence allegations of official interference with defence investigations are unsubstantiated 27 11. The immunities available under Rwanda's Transfer Law render the nameless Defence witnesses' alleged fears unrealistic; and, in any event, there are readily-available alternatives for live testimony to address even these unrealistic fears 33 E. Rule 11 bis's monitoring and revocation provisions are meaningful safeguards to the Accused's right to a fair trial. 38 CONCLUSION 42 • ADDENDUM • -- 11 -- ~ITl_ INTRODUCTION 1. The Defence and its amici have submitted nearly 2000 pages of materials in opposition to the Prosecutor's application to refer this case to Rwanda for trial. Many of these submissions have been heard before in connection with the prior round of Rule 11 bis proceedings and already have been addressed in the Prosecutor's initial application and Rwanda's amicus curiae brief. Additional submissions relating to an indigent accused's ability to secure free legal assistance and present a full defence in connection with any referred case will be addressed in the amici curiae brief to be filed by the Kigali Bar Association. 2. This consolidated response will not retread the same ground. Instead, the Prosecutor submits this consolidated response to address two threshold issues • raised by the Defence. First, contrary to the Defence submissions, double jeopardy principles do not bar referraL In deference to the Tribunal's superior jurisdiction, the Accused's Gacaca Court convictions were vacated by the higher court and, thus, are no barrier to referral. Second, the standard for referral under Rule 11 bis provides, in relevant part, that the "Trial Chamber shall satisfy itself that the accused will receive a fair trial in the courts of the State concerned ...." Contrary to the Defence submissions, the rule does not say or in any way suggest that referral can only be granted if it is shown - by proof beyond reasonable doubt - that the accused will receive a fair trial in the courts of the State concerned. Indeed, because the rule's focus is on a trial that has not yet occurred, it must be interpreted with reference to likelihoods or probabilities, not absolute certainties or • proof beyond reasonable doubt. 3. In addition, the Prosecutor submits this consolidated response to address three common themes running through all of the opposing briefs. First, contrary to the Defence submissions, Rwanda's judiciary is free and independent. The Defence and its amici's attempts to portray it as a bastion of political influence and corruption are grounded on outright falsehoods, gross misrepresentations, and half­ truths. Second, the broad immunity conferred on defence teams and witnesses under Rwanda's Transfer Law renders the Defence and its amici's professed fears of -- 1 _. arrest and prosecution under the Genocide Ideology Law unrealistic. The Chamber should not suspend reality by crediting subjective fears of arrest and prosecution where no realistic threat of arrest and prosecution exists. And, even if these subjective fears were credited, readily-available alternatives exist for the Defence in any referred case to obtain live witness testimony. Third, the safeguards for monitoring and revocation of referral provided by Rule 11 bis are not toothless defenders of an Accused's fair trial rights. Indeed, recent amendments to Rule 11 bis give these provisions even more bite by expanding the Referral Chamber's authority proprio motu to appoint monitors and initiate revocation. 4. Before turning to the merits of these issues, however, there is one irony in the Defence submissions that bears particular note. The Defence and its amici have • liberally criticized the so-called "political climate" in Rwanda as being hostile toward free and open debate. Yet, in these proceedings, it has been the Defence that has attempted to stifle free and open debate on the merits of the Prosecutor's application. The Defence, for instance, opposes Rwanda's invitation to the Chamber to conduct a site visit to see first-hand the conditions under which the Accused would be tried and, if convicted, serve his sentence. The Defence offers no reasoned explanation for its opposition; it merely says a site visit would be a "waste of time." 1 5. Additionally, in contrast to the Prosecutor's assent to amici submissions both supporting and opposing referral, the Defence has objected to amici it perceives as supporting referral, including the Kigali Bar Association. The Defence also opposed • Rwanda's attempt to file a limited response to correct false allegations that the Defence lodged against Rwanda's judiciary. Regrettably, the Chamber acquiesced to the Defence request to prevent Rwanda from filing a response. It should not acquiesce to the Defence attempt to prevent the Chamber from conducting a site visit, particularly where many of Defence and its amici's submissions are premised on unsubstantiated and amorphous allegations of an allegedly hostile "political I The Prosecutor v. Jean Uwinkindi, Case No. ICTR-2001-75-R11bis, Defence Response to the Prosecutor's Request for the Referral of the Case of Jean Uwinkindi to Rwanda pursuant to Rule 11 bis ofthe Rules of Procedure and Evidence, 14 March 2011, para. 429 (Defence Response). .. 2 .. climate" in Rwanda. The Chamber should see for itself that no such environment exists in today's Rwanda. SUBMISSIONS A. Double jeopardy principles are inapplicable because the Accused's Gacaca Court convictions were vacated in deference to the Tribunal's superior jurisdiction. 6. Contrary to Defence submissions, double jeopardy principles do not bar referral of this case.s In deference to this Tribunal's superior jurisdiction, the Accused's Gacaca court convictions were vacated by the higher court, the Gacaca Courts of Appeal, and, thus, are no barrier to referraL 7. Under Rwandan law, Gacaca proceedings are not initiated by the Prosecutor • General, but by the Gacaca courts themselves.s The Gacaca courts, which are organized both on the administrative level of the cell and the sector.! are comprised of Gacaca lay judges or Inyangamugayo. These judges are authorized by law to carry out investigations, initiate prosecutions, conduct trials, and impose sentences." 8. Gacaca prosecutions are initiated through an information gathering process that takes place at each cell within a sector. Within each cell, lists of persons killed during the genocide are complied, together with lists of the suspected perpetrators of these crimes." Based on these lists, the Gacaca lay judges of the cell place the accused into one of the categories set out in the Gacaca Law, which varies according • to the type of crime committed and the extent of the accused's alleged 2 Defence Response, paras. 32-75. 3 Articles 34, 36, 37 and 39 of the Organic Law No. 16/2004 of 19 June 2004 establishing the organisation, competence and functioning of Gacaca Courts charged with prosecuting and trying the perpetrators of the crime of genocide and other crimes against humanity, committed between October 1, 1990 and December 31, 1994, Official Gazette, Special No. of 19 June 2004 (as modified and complemented by Organic Law No. 28/2006 of 27 June 2006, Organic Law No. 10/2007 of 1 March 2007 and Organic Law No. 13/2008 of 19 May 2008) (Gacaca Law) 4 Each sector is composed of several cells. Every sector has a Gacaca court, but also every cell has its Gacaca Court. 5 Articles 34, 36, 37 and 39 of the Gacaca Law. 6 Article 33 of the Gacaca Law.