The Prosecution had requested France to proceed pursuant to Rule 11bis of the ICTR Statute, which reads in operative part:
(A) After an indictment has been confirmed and prior to the commencement of trial, irrespective of whether or not the accused is in the custody of the Tribunal, the president may appoint a bench of three Permanent Judges selected from the Trial Chambers (hereinafter referred to as the “Referral Bench”), which solely and exclusively shall determine whether the case should be referred to the authorities of a State:
(i) in whose territory the crime was committed; or
(ii) in which the accused was arrested; or
(iii) having jurisdiction and being willing and adequately prepared to accept such a case,
so that those authorities should forthwith refer the case to the appropriate court for trial within that State.
Rule 11bis was passed by the Tribunals’ judges to help facilitate the two ad hoc Tribunals’ Security Council-mandated Completion Strategies. U.N. Security Council Resolution 1503 (2003) required the ICTR to formulate a strategy to transfer cases involving lower-level accused to competent national jurisdictions. Subsequently, U.N. Security Council Resolution 1534 (2004) called on the ICTY/R prosecutors to review their respective case loads
These are not the first such referral efforts from the ICTR. Indeed, the Rwandan Rule 11bis proceedings have been plagued by a series of legal snafus that reveal that the international community has not yet developed a seamless system of international justice. Last year, the ICTR denied a referral of Michel Bagaragaza (right) to a domestic forum whose operative penal code lacked the particulars of international crimes, even where the underlying conduct was considered criminal. See Prosecutor v. Bagaragaza, Case No. ICTR-05-86-AR11bis, Decision On The Prosecution Motion For Referral To The Kingdom Of Norway (May 19, 2006). Norway had enacted a general penal provision providing for the assertion of jurisdiction over some crimes (including murder) when committed by a foreigner, provided that the prosecution was authorized by the king. The maximum penalty available under Norwegian law was 21 years. In its submission to the ICTR in support of the proposed referral, Norway explained that in ratifying the Genocide Convention, its Parliament considered it unnecessary to enact implementing legislation as all of the conduct prohibited under the Convention was already criminal under existing provisions of its criminal law. Proof that the defendant was acting with genocidal intent would operate as an aggravating factor at sentencing.
with a view to determining which cases should be proceeded with and which should be transferred to competent national jurisdictions.
In denying the referral, the Trial Chamber acknowledged that although Norway could lawfully exercise extraterritorial jurisdiction over the defendant, it lacked full jurisdiction within the meaning of Rule 11bis, which requires a showing of jurisdiction ratione materiae (subject matter jurisdiction), ratione personae (jurisdiction over the person), ratione loci (territorial jurisdiction), & ratione temporis (temporal jurisdiction). The Trial Chamber found that without a penal provision on genocide, the requisite legal framework did not exist to properly prosecute the conduct of the accused and accord an appropriate punishment based upon the charges pending before the Tribunal. In this regard, the Trial Chamber considered the adjudication of the defendant’s specific intent to commit genocide to be crucial in any subsequent domestic prosecution. A prosecution for mere homicide would not, in the Trial Chamber’s estimation, give
Bagaragaza’s alleged criminal acts … their full legal qualification under Norwegian criminal law.Id. at para. 16.
On interlocutory appeal, the Prosecution argued that it was enough to show that the defendant would be prosecuted for the underlying conduct, even if the crime to be charged did not contain legal elements identical to the crimes within the ICTR Statute. For support, the Prosecution noted that Rule 11bis concerns the referral of a “case” and not a “crime.” The Appeals Chamber disagreed, noting that the prohibitions against homicide and genocide protect different values:
[t]he penalization of genocide protects specifically defined groups, whereas the penalization of homicide protects individual lives.Although the Appeals Chamber acknowledged that its ruling would impact the ability to make further referrals, it remained convinced that it could not
sanction the referral of a case to a jurisdiction for trial where the conduct cannot be charged as a serious violation of international humanitarian law.Id. at para. 18.
The Prosecution subsequently amended the Indictment to include charges of war crimes as alternative counts. Eventually, the ICTR referred Bagaragaza’s case to the Netherlands, which indicated that it could prosecute the defendant for the charged crimes under the War Crimes Act of 1952 and the Genocide Convention Implementation Act of 1964, although some open questions remained regarding jurisdiction rationae personae. See Prosecutor v. Bagaragaza, Case No. ICTR-05-86-11bis, Decision on Prosecutor’s Request for Referral of the Indictment to the Kingdom of the Netherlands, at para. 12 (April 13, 2007). A Dutch court subsequently ruled, however, that the Genocide Implementation Act was inapplicable, because it allowed for the exercise of universal jurisdiction only where a case was transferred to the Netherlands from another jurisdiction in conformity with the Dutch Criminal Code, which requires a treaty basis for transfer from a “foreign state.” Id. at para. 22. Accordingly, the Prosecution’s request for referral was withdrawn and Bagaragaza was returned to custody in Arusha, notwithstanding that his security was in jeopardy as a result of his cooperation with the Prosecution. He has languished in detention in Arusha ever since. Referral to Rwanda has been foreclosed out of concerns for due process and the possibility of the death penalty there.
Referrals to Bosnian domestic courts have been somewhat smoother. Also over the Thanksgiving holidays, the Appeals Chamber for the Bosnian War Crimes Chamber affirmed the 34-year sentence of Gojko Jankovic (left). The case came to the Bosnia special court via a prosecution request for referral from the International Criminal Tribunal for the Former Yugoslavia (ICTY). The ICTY had charged Jankovic with torture and rape as both crimes against humanity and war crimes. In considering the Prosecution’s referral motion, which the defendant opposed, an ICTY Referral Bench ruled that both the criminal code of the former Yugoslavia (which was in place when the defendant acted) and the new criminal code of Bosnia-Herzegovina (which was enacted after the defendant acted) contained provisions allowing for his prosecution for war crimes. See Prosecutor v. Jankovic, Case No. IT-96-23/2-PT, Decision on Referral of Case (July 22, 2005). The Bosnian code also codified crimes against humanity and the doctrine of superior responsibility. Id. at paras. 28-30. The Bench ruled that referral was appropriate and that it was for the domestic courts to decide which penal code was applicable. Id. at para. 41. The final sentence was the longest awarded by the special War Crimes Chamber to date.
These cases reveal that while many states are codifying international crimes in connection with their ratification of the ICC Statute and their Chapter VII obligations to cooperate with the two ad hoc Tribunals, there are still a number of bugs to be worked out before we have a seamless regime of jurisdictional competency.