Problems with ICTR Transfers to National Jurisdictions

As part of its completion strategy, the ICTR intends to transfer 41 cases to national jurisdictions. Most of the transfers will be to Rwanda, which recently eliminated the death penalty. The ICTR has already requested four such transfers: Ildephonse Hategekimana, Gaspard Kanyarukiga, Yussuf Munyakazi, and Fulgence Kayishema.

The ICTR’s efforts to transfer cases to other national jurisdictions, however, have yet to meet with any success. Last month, the prosecutor had to ask the ICTR to annul the transfer of Michel Bagaragaza to the Netherlands because a Hague District Court held in a similar case — involving Joseph Mpambara — that Dutch criminal law does not provide for universal jurisdiction over genocide.

This is, moreover, the second time that the the ICTR’s efforts to transfer Bagaragaza have gone awry. In May 2006, the Trial Chamber refused a prosecution request to send him to Norway on the ground that Norway had not specifically criminalized genocide:

In this case, it is apparent that the Kingdom of Norway does not have jurisdiction (ratione materiae) over the crimes as charged in the confirmed Indictment. In addition, the Chamber recalls that the crimes alleged – genocide, conspiracy to commit genocide and complicity in genocide – are significantly different in term of their elements and their gravity from the crime of homicide, the basis upon which the Kingdom of Norway states that charges may be laid against the Accused under its domestic law. The Chamber notes that the crime of genocide is distinct in that it requires the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”. This specific intent is not required for the crime of homicide under Norwegian criminal law. Therefore, in the Chamber’s view, the ratione materiae jurisdiction, or subject matter jurisdiction, for the acts alleged in the confirmed Indictment does not exist under Norwegian law. Consequently, Michel Bagaragaza’s alleged criminal acts cannot be given their full legal qualification under Norwegian criminal law, and the request for the referral to the Kingdom of Norway falls to be dismissed.

Bagaragaza’s case does not bode well for the ICTR’s completion strategy — at least insofar as it wants to avoid transferring all of its pending cases to Rwanda. (According to reports, Rwanda is now Bagaragaza’s likely destination.) The list of countries that expressly provide for universal jurisdiction over genocide is quite small, including Austria, Belgium, Canada, Finland, France (if committed in the former Yugoslavia or in Rwanda), Germany, and New Zealand. A number of others provide for universal jurisdiction over genocide’s underlying crimes, such as Chile, but the Trial Chamber’s decision regarding Norway indicates that such jurisdiction is not enough to justify transfer. Whether any of the acceptable countries will accept ICTR transfers remains to be seen; to date, only France has agreed to do so.