The ICTR transfers Michel Bagaragaza to the Netherlands for Trial

Introduction

On April 13, 2007, Trial Chamber III of the United Nations International Criminal Tribunal for Rwanda ("ICTR"), acting under Rule 11bis of the Rules of Procedure and Evidence ("Rules"),[1] ordered that the indictment against Michel Bagaragaza be transferred to the Netherlands for trial. The Chamber also ordered that Bagaragaza be physically transferred to the custody of the Dutch authorities within 30 days of its decision.[2] This decision marks the first time the ICTR - or any international criminal tribunal - has ordered the transfer of a genocide suspect for trial by a national court. In light of the Security Council's requirement that the ICTR complete all trials by 2008,[3] requests for referral to national courts under Rule 11bis are likely to increase in number and frequency. As such, Trial Chamber III's interpretation and application of the requirements for transfer under the Rules, though not binding,will provide an important reference point for similar requests in future.

Procedural History

On May 19, 2006, a differently constituted ICTR Trial Chamber denied the Prosecutor's motion for referral of Bagaragaza to Norway, a decision that the Appeals Chamber confirmed on August 30, 2006.[4] Both the Trial and Appeals Chambers held that Norway lacked subject-matter jurisdiction to try Bagaragaza for the serious international crimes charged in the indictment. On November 30, 2006, yet another bench of Trial Chamber III granted the Prosecutor's Motion to amend the indictment filed against Bagaragaza to add a war crimes charge for killing and causing violence to health and physical or mental well being as a serious violation of Article 3 common to the Geneva Conventions (1949) and Additional Protocol II (1977).[5]

On December 12, 2006, the Prosecutor filed a motion to refer the amended indictment to the Netherlands pursuant to Rule 11bis.[6] In its decision of April 13, 2007, Trial Chamber III held that the Netherlands had jurisdiction and was willing to accept Bagaragaza's case for trial, that Bagaragaza would receive a fair trial, and that under Netherlands law, the death penalty could not be imposed or carried out against Bagaragaza if he is convicted.

Jurisdiction

Under Rule 11bis (A), ICTR indictees can only be transferred to States with territorial, personal or subject-matter jurisdiction for the crimes charged in the indictment. Indeed the Rules provide an exclusive list of jurisdictional categories, which implies that an ICTR Trial Chamber can only refer an indictee to a state in whose territory the crime was committed, or where the accused was arrested, or one which has jurisdiction and is willing and adequately prepared to accept the case for trial. Since Bagaragaza's alleged crimes were committed in Rwanda rather than in the Netherlands, and he was not arrested in that country, Trial Chamber III considered that his case could only be transferred to the Netherlands if the third ground of jurisdiction under Rule 11bis (A) is satisfied. The Chamber found that, based on official communications sent to the ICTR, the Netherlands had sufficiently demonstrated that it was willing and prepared to try Bagaragaza.[7]

In assessing whether the Netherlands had jurisdiction over the crimes charged in the indictment, the Chamber recalled the Appeals Chamber's reasoning that a proposed referral state must have "a legal framework which criminalizes the alleged conduct of the accused and provides an adequate penalty structure", and that transfer can only be ordered by the ICTR where the State "will charge and convict [or acquit] only for those international crimes listed in its Statute, not for ordinary crimes."[8] In order to determine whether Dutch law provided subject matter jurisdiction over the crimes alleged against Bagaragaza, the Chamber considered the Dutch War Crimes Act of 1952 and the Genocide Convention Implementation Act of 1964.[9] A threshold jurisdictional question for Trial Chamber III's determination was whether the courts of the Netherlands could try persons alleged to have committed such crimes outside Dutch territory.

As to the war crimes charge, the Netherlands argued in its submissions that it had "secondary universal jurisdiction" over war crimes committed outside its territory when the accused either is a Dutch national or is present on Dutch territory. At the time of the Chamber's decision, Bagaragaza was physically present in the Netherlands, but his presence was based on an agreement between the ICTR and the Netherlands under which that country waived its right to exercise criminal jurisdiction over the accused. The Chamber noted, however, that if the Referral Motion were granted, the waiver of jurisdiction would be voided with the consequence that the Netherlands could exercise jurisdiction over Bagaragaza for war crimes. Trial Chamber III further noted that the maximum penalty that could be imposed under Dutch law following a war crimes conviction is life imprisonment. On this analysis, the Chamber held that the Netherlands had an adequate legal framework criminalizing the alleged war crimes of Bagaragaza as well as an adequate penalty structure that could be imposed in the event of a conviction.

With respect to genocide, the Chamber was again faced with a preliminary jurisdiction question under Dutch criminal law. The 1964 Genocide Convention Implementation Act provides that persons accused of committing genocide outside the Netherlands, can only be tried in that country if the accused is a Dutch national or the case is transferred from another jurisdiction in conformity with Article 4a of the Dutch Criminal Code.[10] Under this law, a person accused of genocide committed outside the Netherlands (such as Bagaragaza) could only be tried in the Netherlands if (i) he is transferred by a "foreign state" and (ii) the transfer was based on a treaty which confers upon the Netherlands the power to prosecute the specific crime charged.

The Netherlands invited the Chamber to rule that the ICTR qualifies as "a foreign state" for the purposes of Article 4a of the Dutch Criminal Code. It noted that in view of their recent history, transfers from international tribunals are not specifically provided for under Dutch law but that such transfer could be based on the provisions for cooperation between the ICTR and the Netherlands contained in the ICTR Implementation Law. In particular, the Netherlands emphasized that the Implementation Law requires Dutch police and judicial authorities to comply with requests for assistance from the ICTR wherever possible.

The defence argued in response that an interpretation of Dutch Criminal Law that equates the ICTR to a foreign state for the purpose of transfer of a criminal case would go against the principle that criminal statutes must be strictly interpreted, and that such interpretation must not be prejudicial to the accused. Moreover, the defence argued that the accused could not reasonably foresee that the term "foreign state" under Dutch law could be interpreted to include the ICTR.

While noting that the meaning of "a foreign state" is "unsettled in Dutch law" and is ultimately a question for the determination of Dutch courts, Trial Chamber III noted its satisfaction that the ICTR will be considered a "foreign state" for the purposes of Article 4a of the Dutch Criminal Code. In addition, the Chamber noted the "established principle of international law" according to which both the United Nations and States are "subjects of international law and capable of possessing international rights and duties."[11]

With respect to the second aspect of the jurisdictional question (i.e., whether there was a treaty from which the power of the Netherlands to prosecute genocide flowed), the Chamber noted that Article 6 of the Genocide Convention clearly limits jurisdiction to the territorial state within which genocide was committed or an international tribunal specifically conferred with jurisdiction by its constitutive instrument. However, the Netherlands submitted that this aspect of the jurisdiction question should be considered in light of the interpretation of the International Court of Justice (ICJ) that the Genocide Convention createsrights and obligations owed to all people, and therefore, there is no territorial bar to the obligations of States to prevent and punish genocide.[12] In the alternative, the Netherlands submitted that its status as a party to the United Nations Charter, the establishment of the ICTR by the U.N. Security Council, several United Nations Security Council resolutions and the provisions for State cooperation under the Statute of the ICTR, together operate to confer on it a power to prosecute pursuant to Article 4a of the Dutch Criminal Code.

The Chamber held that it was satisfied that the Genocide Convention of 1948 as interpreted by the ICJ in 1996, and the United Nations Charter when read together with the ICTR Statute and relevant Security Council resolutions, are treaties from which the power to prosecute genocide flows for the purposes of Article 4a of the Dutch Criminal Code.

Death Penalty

After reviewing the provisions of the Constitution of the Netherlands and the European Convention on Human Rights ("ECHR"), to which the Netherlands is a party, the Chamber was satisfied that, in the event of a conviction, the death penalty will not be imposed or carried out if Bagaragaza's case is referred to the Netherlands.[13]

Fair Trial

Besides the ECHR, the Chamber observed that the Netherlands is a party to the International Covenant on Civil and Political Rights. It considered that the fair trial provisions of those treaties closely mirror the rights of the accused under Article 20 of the ICTR Statute. The defence raised concern that under Dutch criminal procedure, witness statements may be admitted as evidence without adequate opportunity for effective cross-examination by the accused. The Chamber noted that it was satisfied the Netherlands will respect the right of the accused to cross-examine witnesses and that he will receive a fair trial in that country.

Conclusion

Having noted that the requirements for transfer under Rule 11bis of the Rules were satisfied, the Chamber ordered that the indictment against Michel Bagaragaza be transferred to the Netherlands for trial by a competent national court. It appears that the Netherlands has incorporated the international war crimes law contained in Article 3 common to the Geneva Conventions and Additional Protocol II, as well as the genocide law articulated in the 1948 Genocide Convention. The Netherlands could therefore be said to have subject matter jurisdiction to try both of these international crimes.

However, the more difficult question in respect of both the war crimes and genocide charges is related to whether personal jurisdiction, as required by Dutch law, existed in the case of Bagaragaza. As far as personal jurisdiction for war crimes is concerned, the Chamber limited its consideration to the physical presence of the accused in the Netherlands. Nothing in the decision suggests that the Chamber viewed as problematic the fact that his physical presence (and therefore jurisdictional link) to the country was predicated upon an agreement which excluded the exercise of criminal jurisdiction.

Even more complex was the issue of personal jurisdiction over those non-Dutch nationals (such as Bagaragaza) alleged to have committed genocide outside of the Netherlands. Clearly, Dutch law requires that such suspects can only be tried in the Netherlands if they were transferred by a "foreign state" under a treaty that conferred on the Netherlands the power to prosecute. There could be little argument that the Genocide Convention as interpreted by the ICJ, when considered alongside the various resolutions of the Security Council authorising transfer of ICTR indictees to national jurisdiction, could be viewed as a treaty from which the Netherlands' power to prosecute derives. However, this power is anchored upon the procedural requirement that the indictee was transferred from a "foreign state." In this regard, the Chamber's interpretation of the foreign state requirement to include the ICTR appears to be generous. Many students and practitioners in this area of international law will be keenly observing how future trial chambers of the ICTR handle requests for transfer of ICTR indictees for trial by national courts - especially requests for transfer to and prosecution in the national courts of Rwanda.

About the Author
Alhagi Marong is a Legal Officer, Chambers Support Section, UN-ICTR. Ll. B (Honors), B.L. (Sierra-Leone); LL.M (Honors); D.C.L., (McGill). Email: alajimarong@yahoo.ca. The views expressed in this article are those of the author and should not directly or indirectly be attributed to the United Nations or the International Criminal Tribunal for Rwanda. I wish to thank David Kinnecome and Charles Jalloh for providing comments on an earlier draft of the paper.