INTRODUCTION

The Rwandan Prosecutor General, Martin Ngoga, leant forward to emphasize his point, ‘Justice in this country has been contextual. What they call double standards is justice in a contextual environment.’ He was responding to the 2007 decision by the International Criminal Tribunal for Rwanda (ICTR) not to transfer genocide-related cases to the Rwandan domestic courts. Rule 11 bis of the Rules of Evidence and Procedure of the ICTR 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 had an adequate legal framework to try international crimes and provide suitable fair trial guarantees. However, on 8 October 2008, the Appeals Chamber of the ICTR upheld the decision not to transfer the case of Yussuf Munyakazi from the jurisdiction of the ICTR to the Rwandan national courts. This was followed by two consistent decisions relating to Gaspard Kanyarukiga and Ildephonse Hategekimana, respectively.

The Trial Chambers were not persuaded that the accused would receive a fair trial in Rwanda. Supported by an influential amicus curiae brief from Human Rights Watch (HRW), it was successfully argued that the accused would be unable to raise an effective defence before the Rwandan national courts. This occurred despite the promulgation of specific legislation in Rwanda governing the transfer of cases from the ICTR and the extensive domestic prosecution of the international crimes of genocide, crimes against humanity, and war crimes at a national level through the formal criminal courts, both civilian and military, and on every hill across the country through the gacaca courts. Given Rwanda's use of international criminal law within its own legal structures, the decision by the ICTR judges not to transfer cases to the national courts suggests that, from the Tribunal's perspective, the promulgation and application of such laws has not secured the country's domestic rule of law. Meanwhile, inside Rwanda, these decisions raise the important question as to what role has international law played in their domestic setting?