First ICTR Transfer to a National Court

by Kevin Jon Heller

In a first for the Tribunal, the ICTR has officially transferred a case to a national court:

The International Criminal Tribunal for Rwanda (ICTR) ordered that Michel Bagaragaza, the former head of Rwanda’s national tea industry who is accused of involvement in the mass slaughter, be tried by a court in the Netherlands.

“The chamber orders the case of prosecutor v. Michel Bagaragaza to be referred to the authorities of the Kingdom of the Netherlands,” the tribunal said in a ruling.

It ordered its prosecutor to hand over evidence supporting the indictment to Dutch prosecutors within 30 days.

Bagaragaza, currently detained at the UN’s detention facilities in
The Hague, surrendered to the court in 2005 and pleaded not guilty to three genocide and related counts stemming from his alleged participation in the 1994 slaughter of some 800,000 people.

Bagaragaza is alleged to have conspired with tea factory employees and others in the murders of hundreds of Tutsis. Minority Tutsis and moderate Hutus were massacred by Hutu extremists during the slaughter.

Tutsis had sought refuge from the massacres near a tea factory and a cathedral in Rwanda’s northern Gisenyi region, according to the ICTR indictment.

Bagaragaza is also accused of having helped create, fund, train and arm radical Hutu Interahamwe militia, which have been blamed for most of the killings, by instructing tea factory employees to give them fuel, weapons and ammunition.

Last year, the Appeals Chamber refused an ICTR request to transfer Bagaragaza to Norway for trial, because it concluded that Norwegian criminal law did not adequately criminalize genocide

As part of its completion strategy, the ICTR also intends to transfer 17 defendants — 5 in custody, 12 still at large — to Rwanda for trial, although those transfers are contingent upon Rwanda formally abolishing the death penalty. The lower house of the Rwandan Parliament has passed a bill to that effect; the penal code is currently being amended to reflect the bill. Presumably, then, transfers to Rwanda will begin soon — a troubling prospect, as Amnesty International has pointed out:

Although Rwanda has begun a process to abolish the death penalty, Amnesty International opposes the transfer of cases to Rwanda at this time on the basis that government is unable to guarantee full security to returned suspects before, during and after their detention and that the Rwandan legal system cannot guarantee suspects the right of fair trial in accordance with internationally-recognized law and standards, in particular:

The right to trial within a reasonable time or release from detention. Amnesty International has documented several cases of people, accused of crimes of genocide, who have been in pre-trial detention for more than 12 years.

The right not to be subjected to torture or other cruel, inhuman or degrading treatment. Rwanda has not ratified the UN Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment. Amnesty International believes that there is a real risk that transferred persons would be exposed to torture or other ill-treatment.

The right to trial by a competent, independent and impartial tribunal established by law. Over the last two years, Amnesty International and other international organisations have documented the lack of independence, competence and impartiality of Gacaca courts. Although Gacaca courts do not have jurisdiction to try the suspects transferred from ICTR, this situation raises serious concern regarding the approach of the Rwandan judiciary in dealing with cases of people suspected of involvement in the genocide.

Moreover, recognizing that the Rwandan authorities are already experiencing long-delays in prosecuting of more than 48,000 other persons suspected of involvement in genocide, war crimes and crimes against humanity, there are serious concerns about the capacity of Rwandan legal system to take on additional cases.

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