Jesse Melman


The International Criminal Tribunal for Rwanda’s (ICTR or Tribunal) Rule of Procedure and Evidence 11bis allows the Tribunal to transfer accused persons to domestic courts in order to expedite the hearing of the thousands of genocide cases still waiting on the ICTR’s overloaded docket. So long as certain baseline requirements are met, Rule 11bis, on its face, does not distinguish between domestic Rwandan courts and other jurisdictions. However, despite granting requests for transfer to other countries’ courts, the Tribunal has repeatedly denied applications for transfer to Rwanda notwithstanding numerous requests. Further, behind such requests lies the pressing need to resolve all outstanding cases before the Tribunal’s looming 2013 termination date. This Note explores the requirements for a successful transfer to a domestic jurisdiction set forth in Rule 11bis and how the Government of Rwanda has labored, through legislated judicial reform, to meet those requirements. After analyzing the history and founding principles behind the formation of the ICTR, the Note then explores how the Tribunal has applied the 11bis requirements for transfer applications to countries other than Rwanda and to Rwanda itself, as well as the International Criminal Tribunal for the former-Yugoslavia’s (ICTY) application of the Rule. Finding an inconsistent application of the Rule between applications for transfer outside Rwanda and to Rwanda itself, the Note offers a more comprehensive balancing test that the ICTR should consider when determining whether to transfer cases to domestic courts. Finally, this Note argues that in weighing countervailing judicial interests expressed in the formation of the ICTR against specific due process concerns, the Tribunal may, in specific cases, be able to transfer cases to Rwanda, thus contributing to the overall interests of justice and the utilitarian goal of unloading the Tribunal’s docket.

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