At the invitation of the government of Rwanda, and with the support of the International Criminal Tribunal for Rwanda (ICTR), against the background of several requests for transfer of cases from ICTR to Rwanda, a delegation from ILAC visited Kigali and Arusha for two weeks in August and September of 2007, with the purpose of assessing the readiness of the Rwandan judicial system to handle such cases. The ILAC report was issued in December 2007.
During the three-month period of the 1994 genocide between 800,000 and one million Rwandans were brutally slaughtered. The killings were to a large extent carried out by civilians, creating an extraordinary number of both victims and perpetrators. This sheer scale of violence laid disastrous effects on the entire Rwandan society, including the justice system.
Prison populations exploded and the judicial system was left in ruins with very few lawyers either alive or in country. The Rwandan government had to rebuild the system from the ground up. Rwanda’s legal system originally derived from the Napoleonic Code but widespread judicial reforms in 2004/5 created a hybrid legal system of civil law and common law.
The genocide’s large scale also lead to various national and international justice responses. Domestically, the Rwandan government introduced an informal justice process known as gacaca, designed to foster community reconciliation and provide individual punishment. While there are valid concerns about the fairness of these proceedings, gacaca worked to drastically trim massive prison populations. Ordinary domestic courts also feel genocide’s heavy burden with approximately 17,000 genocide cases still awaiting trial. This number will likely decrease, however, as additional legislative reforms redirect these court cases back to gacaca.
As an international justice response, the United Nations Security Council established the International Criminal Tribunal for Rwanda (ICTR). The ICTR sits in Arusha, Tanzania and has completed about 33 cases against Rwanda’s most high-ranking perpetrators. In 2003, the Security Council called on the ICTR to complete all trials by 2008 and all appeals by 2010. As a consequence, the ICTR will need to transfer some of its indicted cases (less than fifteen) to domestic jurisdictions. Rwanda vigorously wants these cases and there are currently four requests pending for transfer to Rwanda. There are also a host of additional genocide cases residing in foreign countries with possible extradition proceedings underway.
The ICTR Rules of Procedure and Evidence (Rules) only permit a case transfer when the court is satisfied that the defendant will receive a fair trial without possibility of the death penalty. Both these Rules and domestic Rwandan law allow the ICTR to monitor any transfer trials and also revoke a transfer case that does not receive a fair trial.
In May 2007, the Rwandan government invited the International Legal Assistance Consortium (ILAC) to assess the needs of the Rwandan judicial system, both for longerterm, sustainable development and also for shorter-term, intensive development to potentially receive ICTR transfers or foreign extraditions. This assessment was also asked to provide specific, prioritized recommendations on ways to enhance and build the justice system. Following an additional endorsement from the ICTR, ILAC sent a six2 member assessment team to Rwanda and Arusha from 25 August – 7 September 2008.
Broadly speaking, the assessment found that despite impressive capacity building and effective legal and judicial reforms, Rwanda’s judicial system still suffers under the shadow of the genocide. There is a very concrete, basic lack of qualified human and financial resources. Prison conditions are also particularly disconcerting. There is a need for in-depth legal training, a legal library, better trial monitoring, and other issues. While this assessment is discussed in greater detail below, it does not attempt to provide any conclusions to the ICTR or national jurisdictions on possible transfers and extraditions. These are determinations to be made by the respective judicial bodies.
The report does provide, however, specific capacity building recommendations that are targeted at identified needs. These recommendations are also prioritized to fit within Rwanda’s short-term (2008) and medium-term (2009 – 2011) needs. Short-term needs are particularly aimed at creating the capacity to handle ICTR transfer cases or foreign extradition cases but are designed to be consistent with a longer-term approach that addresses the thousands of other court cases plaguing the justice system. For a quick and concise look at short-term and medium-term recommendations, please turn to Section 7. Capacity Building Recommendations.
Finally, this report proposes an estimated budget (see Annex 3) for implementing these recommendations. It is the intention that this report might also serve as the basis for a future donor’s conference to enhance the Rwandan judicial system, to be held by early next year before Rwanda’s needs become even more urgent.