The Failed Referral of Michel Bagaragaza from the ICTR to the Netherlands

Abstract

On 31 August 2009, the trial of Michel Bagaragaza before the International Criminal Tribunal for Rwanda (ICTR) fi nally began. That may come as a surprise, as the case of Bagaragaza, who is charged with (complicity in) committing genocide in his capacity as the head of the entity that controlled the Rwandan tea industry, was one of the ICTR cases slated for referral to States under Rule 11bis of the ICTR Rules of Procedure and Evidence. As is well-known, Rule 11bis was adopted by the ICTR Judges in the framework of the ICTR Completion Strategy. It is basically a ‘reverse complementarity’ rule that allows referrals to any State which has jurisdiction over a particular case (including universal jurisdiction – potentially any State therefore) which is able and willing to take up the case. How the case of Bagaragaza eventually ended up with the ICTR again is the subject of this brief note. After Bagaragaza had voluntarily surrendered to the ICTR in 2005, the ICTR Prosecutor sought to have his case transferred to Norway pursuant to Rule 11bis. Since Norway’s criminal code did not specifi cally prohibit genocide (with which the ICTR had charged Bagaragaza), and the accused would thus have to be tried under common law (for murder), the Tribunal refused to honor the Prosecutor’s request for deferral in a remarkable decision. The Prosecutor did not relent in his efforts to have Bagaragaza’s case transferred, however. After he managed to win over the Dutch Government to accept a transfer, he again requested the Tribunal to have Bagaragaza’s case transferred. This time round the Prosecutor