Insight The ICTR Appeals Chamber Dismisses the Prosecutor’s Appeal to Transfer Michel Bagaragaza for Trial to Norway By
October 3, 2006
Volume 10, Issue 25
On 30 August 2006, the Appeals Chamber of the International Criminal Tribunal for Rwanda (ICTR, or the Tribunal), sitting in The Hague, dismissed an appeal by the ICTR Prosecutor against the 19 May 2006 Decision of Trial Chamber III, which denied a Prosecution motion to transfer the case of The Prosecutor v. Michel Bagaragaza for trial in Norway. In dismissing the Prosecutor’s appeal, the Appeals Chamber agreed with the reasoning and conclusion of the Trial Chamber that it would be inappropriate to transfer Bagaragaza’s case to Norway because that country lacks jurisdiction to try the Accused for the serious violations of international law including genocide, for which he has been charged.
The Prosecutor’s initial motion to transfer Baragaraza’s case was brought under Rule 11bis of the Tribunal’s Rules of Procedure and Evidence, which deals with the transfer for trial before national courts of persons indicted by the Prosecutor of the ICTR. The issue of transfer to national jurisdiction of persons indicted before the Tribunal has become increasingly prominent since the United Nations Security Council adopted Resolution 1503 (2003) requiring the formulation of a strategy enabling the transfer of cases involving intermediate and lower-rank accused to competent national jurisdictions, so that the Tribunal can complete all investigations by end of 2004, all trials by end of 2008, and all appellate proceedings by 2010.
In light of the ICTR “Completion Strategy,” the Security Council adopted Resolution 1534 (2004) which called on the Prosecutors of both ad-hoc international criminal tribunals (the ICTR and the ICTY, which is the similar tribunal for Yugoslavia) to review their respective caseloads “with a view to determining which cases should be proceeded with and which should be transferred to competent national jurisdictions.” The Bagaragaza case was the first Rule 11bis Motion filed by the ICTR Prosecutor seeking an order for transfer to national jurisdiction of someone accused of genocide in Rwanda.
On 28 July 2005, the ICTR Prosecutor filed an Indictment against Michel Bagaragaza which contained three counts – Conspiracy to commit genocide, Genocide, and in the alternative, Complicity in Genocide. The Indictment was confirmed by a single Judge of the Tribunal on the same day. The Indictment alleged that from January to July 1994, the accused was a senior public official who held the position of Director-General of the government office that controlled the tea industry in Rwanda. He was also a member of the Prefectoral Committee of the Mouvement Républicain National pour la Démocratie (MRND), the ruling Party that established and controlled the civilian youth militia, the Interahamwe. The militia have been blamed for carrying out most of the ethnic killings during the Rwandan genocide. More specifically, it is alleged that Bagaragaza agreed upon a genocidal plan with various other political figures to kill members of the minority Tutsi ethnic group; he attended meetings at which he and other leading members of the ruling party gave speeches which incited the majority Hutu people to kill Tutsis; and, through his surbodinates in the tea industry, provided training and material support and assistance (arms, ammunition, finance, fuel and transport) to soldiers and civilian militia to carry out the killings of Tutsi people. According to the Indictment, Bagaragaza did all these actions with intent to destroy, in whole or in part, the minority Tutsi population solely on the basis of their ethnic composition.
On 16 August 2005, the accused voluntarily surrendered to the Tribunal. Before his surrender, he concluded an agreement with the Prosecutor that would allow him to be transferred for trial before a suitable national court, instead of at the Tribunal. On 15 February 2006, the Prosecutor filed a Motion under Rule 11bis of the Rules, for the trial to be transferred to the Kingdom of Norway. On 20 February 2006, the Defence filed a Response in which it did not oppose the request for transfer, but argued that additional guarantees should be provided to ensure that the Accused receives a fair trial when transferred.
On 21 February 2006, the President of the Tribunal, acting under Rule 11bis (A), designated Trial Chamber III composed of Judge Dennis C.M. Byron (Presiding), Judge Jai Ram Reddy, and Judge Joseph Asoka N. de Silva to consider the Prosecution Motion. On 23 March 2006, the Trial Chamber ordered the Parties and invited the Kingdom of Norway to make further submissions relating, in particular, to whether the Kingdom of Norway has jurisdiction to try the crimes charged in the Indictment confirmed against the Accused. The Chamber also noted that other persons, organizations or States could, pursuant to Rule 74, seek leave to make submissions before the Chamber.
II. THE ARGUMENTS OF THE PARTIES AND THE KINGDOM OF NORWAY BEFORE THE TRIAL CHAMBER
In their respective submissions to the Trial Chamber, the Prosecution, the Defence and the ICTR Registrar canvassed several legal issues, some of which were not addressed in the Trial Chamber’s Decision. The first issue related to whether in deciding the motion for referral, the ICTR Trial Chamber should take into account the “gravity of the crimes charged and the level of responsibility of the Accused.” That language was introduced into ICTY Rule 11bis after the UNSC adopted Resolution 1534 (2004) and addressed it to both ad-hoc Tribunals. However, ICTR Rule 11bis does not contain a similar provision. The Prosecution argued that the text of ICTR Rule 11bis is clear, and in accordance with the rules of treaty interpretation contained in the Vienna Convention on the Law of Treaties, there is no need to resort to the UNSC resolution in order to understand the Rule’s meaning. Furthermore, the Prosecution argued that the ICTR judges were aware of the course of action adopted by their colleagues at the ICTY who amended their Rules following the adoption of Resolution 1534. The judges, however, chose not to change the ICTR Rules, therefore implying their intention that the gravity of the crimes charged and the accused person’s level of responsibility should not be taken into account in determining whether an order for referral to a national court should be made. The Defence agreed with the Prosecution that the Chamber should not take the level of responsibility of the accused or the gravity of the crimes into account because this would violate the presumption of innocence.
On the issue of jurisdiction, the Prosecution argued that the Kingdom of Norway could exercise jurisdiction under the third limb of Rule 11bis, in the sense that it is a country that ”has jurisdiction and is willing and adequately prepared” to try the Accused upon referral. It ruled out both Rwanda and Tanzania for other reasons. The Defence submitted that Norway could exercise jurisdiction under the principle of absolute universal jurisdiction. The government of Norway submitted that although its domestic law does not contain any provisions on genocide or complicty in genocide, nonetheless, the Accused could be tried under the Norwegian General Civil Penal Code as an accessory to homicide or for negligent homicide based on the allegations contained in the Indictment. If convicted, argued Norway, the Accused would be liable to imprisonment for a term not exceeding twenty-one (21) years.
With respect to fair trial, both Parties agreed that Norway had ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) and incorprated its provisions into national law in 1999. Article 6 of the Convention guarantees the right to a fair trial. The Parties also stipulated that the death penalty could not be imposed or carried out in Norway for the crimes charged against the Accused.
III. THE TRIAL CHAMBER’S DECISION
In its Decision, the Trial Chamber considered that the first issue for determination was whether Norway had jurisdiction to try the crimes charged against Michel Bagaragaza. The Chamber reasoned that if Norway did not have jurisdiction, there would be no need to consider the other requirements for transfer to national jurisdiction. The Chamber noted that its reference point must be the definition of “jurisdiction” contained in the Statute of the Tribunal. It went on to hold that the ICTR Statute provides for a certain subject-matter jurisdiction and that the domestic law of a proposed Referral State must contain similar offences in order to ground an order for transfer under Rule 11bis.
The Trial Chamber concluded that Norway lacked subject-matter jurisdiction to try Michel Bagaragaza for the crimes alleged in the Indictment because there is no provision under Norwegian criminal law specifically prohibiting genocide or complicity in genocide. Furthermore, the Chamber noted that both the Prosecution and Norway agreed that upon transfer, the Accused could only be tried as an accessory to homicide or for negligent homicide, offences which differ in their elements and gravity from genocide, complicity in genocide, and conspiracy to commit genocide. It therefore dismissed the Motion for Referral and noted that there was no need to consider whether the Accused would receive a fair trial if transferred to Norway, or whether the death penalty could be imposed or carried out upon his conviction in that country.
IV. THE DECISION OF THE APPEALS CHAMBER
In dismissing the Prosecution’s appeal against the decision of the Trial Chamber, the Appeals Chamber reasoned that under its Statute, the ICTR has jurisdiction to transfer indictees only to jurisdictions where they could be tried for serious violations of international criminal law. Since both Parties and the Kingdom of Norway recognised that Bagaragaza could only be tried for ordinary crimes when transferred to Norway, and not for violations of international humanitarian law, the Appeals Chamber concluded that it cannot sanction the proposed transfer. The Appeals Chamber emphasized that this is particularly the situation where the accused faces a charge of genocide which, unlike homicide, is designed to protect a “national, ethnical, racial or religious group, as such,” rather than individuals.
The Appeals Chamber’s decision in Bagaragaza confirms that in determining whether to order the transfer of cases from the ICTR to national jurisdiction for trial pursuant to Rule 11bis, the Trial Chamber must first address a threshold jurisdictional issue. The Chamber must be satisfied that upon transfer, the accused would be tried for the same types of serious violations of international humanitarian law that the Tribunal was established to try and punish. Only where the Trial Chamber answers the jurisdictional question in the affirmative could it proceed to examine the other requirements for Rule 11bis transfers, namely, whether the accused will receive a fair trial upon transfer, and whether the death penalty could be imposed or applied. For the purposes of Rule 11bis transfers therefore, it is insufficient for the Prosecution to establish that the conduct alleged against the accused in the Indictment could be qualified as an ordinary crime under domestic law.
The conclusion of the Appeals Chamber is consistent with the raison d’etre for the establishment of international ad-hoc tribunals with jurisdiction over a specific genre of criminal violations, i.e., those violations that are grossly inhumane in their nature or scope, that offend collective human conscience, and the prosecution and punishment of which are in the interest of international society as a whole. Approaching such offences as ordinary crimes triable under domestic law risks trivialising their nature as well as the significance of the events that took place in Rwanda in 1994.
About the author
Alhagi Marong is a Legal Officer, Chambers Support Section, UN-ICTR. LL.B (Hons), B.L. (Sierra-Leone); LL.M., D.C.L (McGill). The views expressed in this paper are those of the author and should not directly or indirectly, be attaributed to the United Nations or the International Criminal Tribunal for Rwanda. I wish to thank Roland Adjovi and Charles Jalloh for providing comments on an earlier draft of the paper.
The Prosecutor v. Michel Bagaragaza, “Decision on Rule 11bis Appeal” 30 August 2006; See also The Prosecutor v. Michel Bagaragaza, “Decision on the Prosecution Motion for Referral to the Kingdom of Norway,” 19 May 2006, http://www.ictr.org/default.htm
 Rule 11bis (A) of the Rules of Procedure and Evidence of the ICTR provides: “If an Indictment has been confirmed, whether or not the accused is in the custody of the Tribunal, the President may designate a Trial Chamber which shall determine whether the case should be referred to the authorities of a State:
in whose territory the crime was committed; or
in which the accused was arrested; or
having jurisdiction and being willing and adequately prepared to accept such a case.”
 U.N. Security Council Resolution 1534 (26 March 2004), paragraph 4. See also U.N. Security Council Resolution 1503 (28 August 2003), preambular paragraph 8 on the Completion Strategy.
The Prosecutor v. Michel Bagaragaza, “Indictment”, filed on 28 July 2005.
 In relevant part, Rule 11bis (A) provides: “If an Indictment has been confirmed, whether or not the accused is in the custody of the Tribunal, the President may designate a Trial Chamber which shall determine whether the case should be referred to the authorities of a State:…”
 The three judges are all permanent judges of the Tribunal. Judge Byron (St Kitts & Nevis), sits in Trial Chamber III; Judge Reddy (Fiji Islands), sits in Trial Chamber I; and Judge de Silva (Sri-Lanka), sits in Trial Chamber II.
The Prosecutor v. Michel Bagaragaza, “Order for Further Submissions Concerning the Motion for Referral of the Indictment to the Kingdom of Norway”, 23 March 2006.
 Rule 74 provides: “A Chamber may, if it considers it desirable for the proper determination of the case, invite or grant leave to any State, organization, or person to appear before it and make submissions on any issue specified by the Chamber.”
 Paragraph 5 of Resolution 1534 calls on each of the Tribunals, “in reviewing and confirming new Indictments, to concentrate on the most senior leaders suspected of being most responsible for crimes within the jurisdiction of the relevant Tribunal….” The idea that international criminal courts and tribunals should focus on trying leaders and worst offenders is given further support in Article 1(1) of the Statute of the Special Court for Sierra-Leone which gives the Court competence “to prosecute persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra-Leonean law committed in the territory of Sierra-Leone since 30 November 1996…”
 The Prosecution argued that even though Rwanda would have territorial jurisdiction consistent with Rule 11bis because it was the state within which the crimes were committed, that country may not meet the other requirements of rule 11bis including the guarantee that the death penalty will not be imposed or carried out, and that the accused will receive a fair trial. With respect to Tanzania, the Prosecution argued that transfer to this country would violate the host country agreement which provides in Article XX(1) that Tanzania shall not exercise jurisdiction over persons who have been transferred to the ICTR in respect of acts or omissions that they might have been suspected or accused of committing before they came into Tanzania.
 The Norwegian authorities proposed two possible provisions under its General Civil Penal Code (Act No. 10 of 1902, as amended on 1 July 1994) which could cover the allegations made against Michel Bagaragaza. Section 233, second paragraph, provides that “Any person who causes another person’s death, or is accessory thereto, is guilty of homicide and shall be liable to imprisonment for a term of not less than six years. If the offender has acted with premeditation or has committed the homicide in order to facilitate or conceal another felony or to evade the penalty for such felony, imprisonment for a term not exceeding 21years may be imposed. The same applies in case of repeated offences and also when there are especially aggravating circumstances.” Section 239 which deals with negligent homicide, provides as follows: “Any person who negligently causes the death of another person, including by the use of a motor vehicle, shall be liable to imprisonment for a term not exceeding three years, or under exceptionally aggravating circumstances for a term not exceeding six years. Under expecially extenuating circumstances fines may be imposed.”
 The Chamber cited the Statute of the International Criminal Tribunal for Rwanda, annexed to United Nations Security Council Res. 955 (8 November 1994), Article 1 (competence of the Tribunal); Article 2 (Genocide); Article 3 (crimes against humanity); Article 4 (war crimes); Article 5 (personal jurisdiction); and Article 7 (territorial and temporal jurisdiction). According to the Chamber, these provisions together encompass the material, personal, territorial and temporal jurisdiction of the Tribunal.
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