Prosecutor v. Bagaragaza, Case No. ICTR-05-86-AR11bis, Decision on Rule 11bis Appeal (Aug. 30, 2006).
CASE NO: ICTR-05-86-AR11bis
IN THE APPEALS CHAMBER
Judge Fausto Pocar, Presiding
Judge Liu Daqun
Judge Andrésia Vaz
Judge Theodor Meron
Judge Wolfgang Schomburg
Registrar: Mr. Adama Dieng
Decision of: 30 August 2006
Case No. ICTR-05-86-AR11bis
DECISION ON RULE 11bis APPEAL
Office of the Prosecutor:
Mr. Hassan Bubacar Jallow
Counsel for the Defence:
Mr. Geert Jan Alexander Knoops
1. The Appeals Chamber of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Serious Violations Committed in the Territory of Neighbouring States, between 1 January and 31 December 1994 (“Appeals Chamber” and “Tribunal”, respectively) is seized of an interlocutory appeal filed by the Prosecution, (“Appeal”) pursuant to Rule 11bis(H) of the Tribunal’s Rules of Procedure and Evidence (“Rules”), against a decision of Trial Chamber III, denying its request to refer the case of Michel Bagaragaza to the Kingdom of Norway (“Norway”).
2. The indictment against Mr. Bagaragaza was confirmed on 28 July 2005 and charges three counts of genocide, conspiracy to commit genocide, and, in the alternative, complicity in genocide. In its Appeal, the Prosecution identifies the facts underlying the charges as alleging that Mr. Bagaragaza provided fuel, transport, and financial support for Interahamwe. The Prosecution further explains that it is not alleged that Mr. Bagaragaza directly participated in, or was present, during the killings.
his surrender, Mr. Bagaragaza had agreed to cooperate with the
Prosecution and knowingly and voluntarily provided it with a lengthy
statement incriminating himself and others.
The Prosecution explains that Mr. Bagaragaza has accepted
responsibility for his actions and has agreed to assist in the process
As part of the agreement between the Prosecution and Mr. Bagaragaza,
the Prosecution undertook not to prosecute Mr. Bagaragaza before the
Tribunal and to request his transfer to a national jurisdiction outside
the continent of
4. Mr. Bagaragaza voluntarily surrendered to the Tribunal’s authorities in
5. On 15 February 2006, the Prosecution requested the referral of Mr. Bagaragaza’s case to
6. In his response to the Appeal, Mr. Bagaragaza supports generally the Prosecution’s position. Mr. Bagaragaza also raises additional points, which the Appeals Chamber will not address given that he has not appealed the Trial Chamber’s decision.
7. In addition, in relation to this Appeal,
8. Rule 11bis allows a designated Trial Chamber to refer a case to a competent national jurisdiction for trial if it is satisfied that the accused will receive a fair trial and that the death penalty will not be imposed or carried out. Rule 11bis(A) contemplates possible referral to either the state where the crimes occurred, the state of the accused’s arrest, or any other state having jurisdiction and being willing and adequately prepared to accept such a case.
9. This case is the first involving a referral under Rule 11bis in this Tribunal. However, the ICTY Appeals Chamber has considered referrals to national jurisdictions in cases under a similar legal framework. Such case law is largely applicable in the context of this Tribunal as well. In assessing whether a state is competent within the meaning of Rule 11bis to accept one of the Tribunal’s cases, a designated Trial Chamber must consider whether it has a legal framework which criminalizes the alleged conduct of the accused and provides an adequate penalty structure. The Trial Chamber’s decision on whether to refer a case to a national jurisdiction is a discretionary one, and the Appeals Chamber will only intervene if the Trial Chamber’s decision was based on a discernible error. Accordingly, an appellant must show that the Trial Chamber misdirected itself either as to the principle to be applied or as to the law which is relevant to the exercise of its discretion, gave weight to irrelevant considerations, failed to give sufficient weight to relevant considerations, or made an error as to the facts upon which it has exercised its discretion; or that its decision was so unreasonable and plainly unjust that the Appeals Chamber is able to infer that the Trial Chamber must have failed to exercise its discretion properly.
10. The Appeals Chamber notes that, pursuant to Rule 11bis(B), it is the designated Trial Chamber that decides, proprio motu or at the request of the Prosecutor, whether a referral of a case to national authorities is appropriate in the circumstances of each particular case. In these circumstances and without prejudice to the independence of the Prosecutor as a separate body of the Tribunal, the Appeals Chamber emphasizes that the Prosecution can hardly anticipate on the certainty of such transfer prior to applying for it.
the concrete case before this Appeals Chamber, the Prosecution
principally argues that the Trial Chamber erred in focusing on whether
Norwegian criminal law had crimes with the same legal elements as
defined in the Tribunal’s Statute as opposed to considering whether it
adequately criminalized the underlying conduct. In support of this position, the Prosecution argues that a plain meaning of Rule 11bis indicates that what is being transferred is a “case”, not a crime.
The Prosecution notes that a “case” is a broad concept, referring to
the criminal conduct or behavior of the accused, as opposed to legal
qualification of the criminal conduct charged.
The Prosecution supports this reading by alluding to the plain language
of the Rule, the need for flexibility, the limited number of States
specifically criminalizing genocide and willing to exercise universal
jurisdiction, as well as the principle of double criminality generally
applicable in transnational criminal matters. The Prosecution argues that
12. In its Amicus Curiae
this respect, Norwegian law has a general provision providing
jurisdiction over certain crimes, including homicide and serious bodily
injury, when committed abroad by a foreigner provided that the
prosecution is authorized by the King.
15. The Trial Chamber acknowledged that
the submissions of the parties, the Appeals Chamber is not satisfied
that the Prosecution has demonstrated that the Trial Chamber erred in
denying its request to refer Mr. Bagaragaza’s case to
Appeals Chamber agrees with the Prosecution that the concept of a
“case” is broader than any given charge in an indictment and that the
authorities in the
18. The Appeals Chamber recognizes that this decision may have a practical impact on Mr. Bagaragaza’s situation who, according to the Prosecution’s submissions to the President of the Tribunal, faces security risks if detained in the UNDF in Arusha. It also notes that it may limit future referrals to similar jurisdictions which could assist the Tribunal in the completion of its mandate. However, the Appeals Chamber cannot 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. This is particularly so when the accused has been charged with genocide, an offense that -- unlike murder -- is designed to protect a “national, ethnical, racial or religious group, as such”.
19. For the foregoing reasons, the Appeals Chamber DISMISSES the Prosecution’s Appeal.
Done in English and French, the English version being authoritative.
Done this 30th day of August 2006,
At The Hague,
[Seal of the Tribunal]
 Prosecutor’s Notice of Appeal (Rule 11bis (H)),
 The Prosecutor v. Michel Bagaragaza, Case No. ICTR-2005-86-R11bis, Decision on the Prosecution Motion for Referral to the
 Impugned Decision, para. 1.
 Prosecution Appeal Brief, para. 46; Impugned Decision, para. 1.
 Prosecution Appeal Brief, para. 46.
 Impugned Decision, para. 2; Prosecution Appeal Brief, para. 2.
 Prosecution Appeal Brief, para. 65.
 Impugned Decision, para. 2. See The Prosecutor v. Michel Bagaragaza, Case No. ICTR-05-86-R11bis,
Prosecutor’s Request for Referral of the Indictment to Another Court,
15 February 2006 (Annex II: Agreement between the Prosecutor and Michel
Bagaragaza (confidential), p. 2). The Appeals Chamber also notes that
this agreement provides for a possibility of renegotiation, in
contemplation of prosecution before the Tribunal, in the event that a
transfer to a national jurisdiction outside
 Impugned Decision, para. 2.
 The Prosecutor v. Michel Bagaragaza, Case No. ICTR-05-86-I, Order for Special Detention Measures,
 See Order for Continued Detention, pp. 1-2. The Appeals Chamber notes that Mr. Bagaragaza chose to testify openly for the Prosecution on 13 June 2006 in The Prosecutor v. Protais Zigiranyirazo, Case No. ICTR-2001-73-T.
 Impugned Decision, para. 2.
 Prosecution Appeal Brief, paras 6, 67.
 Defence Response to Prosecutor’s Appeal (Rule 11bis (H)),
 Bagaragaza Response, paras 11, 14.
 See Submission for Leave to File Amicus Curiae Brief of the
 See Amicus Curiae Brief Filed by the
 Rule 11bis provides in pertinent part:
(A) 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:
(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.
(C) In determining whether to refer the case in accordance with paragraph (A), the Trial Chamber shall satisfy itself that the accused will receive a fair trial in the courts of the State concerned and that the death penalty will not be imposed or carried out.
 The Prosecutor v. Radovan Stankovi}, Case No. IT-96-23/2-AR11bis.1, Decision on Rule 11bis Referral,
 See Mejakić et al. Appeal Decision, para. 60.
 Ljubiči} Appeal Decision, para. 6.
 Prosecution Appeal Brief, paras 3-4, 9.
 Amicus Curiae Brief, paras 4, 11, 45.
 Prosecution Appeal Brief, paras 63-65; Amicus Curiae Brief, para. 28 (referring to maximum penalty).
 Impugned Decision, para. 13.
 Id. at paras 13, 15, 16 (“The submission that Norwegian criminal law does not provide for the crime of genocide directly affects the finding of jurisdiction ratione materiae, where the legal qualification of the facts alleged in the confirmed Indictment is made (…) The Chamber must determine whether the Referral State has jurisdiction within the definition provided by the Statute (…) In this case, it is apparent that the Kingdom of Norway does not have jurisdiction (ratione materiae) over the crimes charged in the confirmed Indictment (…) Therefore, in the Chamber’s view, the ratione materiae jurisdiction, or subject matter jurisdiction, for the acts alleged in the confirmed Indictment dos not exist under Norwegian law.”)
 The ICTY Appeals Chamber made this observation on the basis of the equivalent Article of the ICTY Statute (Article 9) in Stankovi} Appeal Decision, paras 14-17. See also Mejakić et al. Appeal Decision, para. 16. The Security Council has endorsed the referral of cases by this Tribunal in S/Res/1503 (2003) and S/Res/1534 (2004).
 See Mejakić et al. Appeal Decision, para. 60.
 Article 9(2) states in pertinent part: “A person who has been tried before a national court for acts constituting serious violations of international humanitarian law may be subsequently tried by the International Tribunal for Rwanda only if: (a) The act for which he or she was tried was characterized as an ordinary crime; or (b) The national court proceedings were not impartial or independent, were designed to shield the accused from international criminal responsibility, or the case was not diligently prosecuted.”