IN THE APPEALS CHAMBER

Before:                                  
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

THE PROSECUTOR
v.
Michel BAGARAGAZA

Case No. ICTR-05-86-AR11bis

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DECISION ON RULE 11bis APPEAL

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Office of the Prosecutor:
Mr. Hassan Bubacar Jallow Mr. Bongani Majola Mr. James Stewart Mr. Stephen Rapp Mr. George Mugwanaya Mr. Alex Obote-Odora Ms. Inneke Onsea

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,^[1] (“Appeal”) pursuant to Rule 11bis(H) of the Tribunal’s Rules of Procedure and Evidence (“Rules”), against a decision of Trial Chamber III,^[2] denying its request to refer the case of Michel Bagaragaza to the Kingdom of Norway (“Norway”).

BACKGROUND

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.[3] In its Appeal, the Prosecution identifies the facts underlying the charges as alleging that Mr. Bagaragaza provided fuel, transport, and financial support for Interahamwe.[4] The Prosecution further explains that it is not alleged that Mr. Bagaragaza directly participated in, or was present, during the killings.[5]

3.         Before 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.^[6] The Prosecution explains that Mr. Bagaragaza has accepted responsibility for his actions and has agreed to assist in the process of justice.^[7] 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 Africa. [8]

4.         Mr. Bagaragaza voluntarily surrendered to the Tribunal’s authorities in Arusha, Tanzania, on 16 August 2005, and pleaded not guilty to all of the charges.[9] He was then transferred immediately and extraordinarily to the Detention Unit of the International Tribunal for the Former Yugoslavia (“UNDU” and “ICTY”, respectively) in The Hague for a period of one year.[10] The Prosecution requested these special measures due to the security risks Mr. Bagaragaza faced at the United Nations Detention Facilities (“UNDF”) in Arusha as a result of his agreement to testify as a Prosecution witness and to assist in the investigations of other accused.[11]

5.         On 15 February 2006, the Prosecution requested the referral of Mr. Bagaragaza’s case to Norway for trial with the full support of the Accused.[12] The Tribunal’s President referred the matter to Trial Chamber III for consideration, which in turn invited Norway to make submissions on its jurisdiction over the crimes charged against Mr. Bagaragaza.[13] After considering the submissions of the parties and of Norway, the Trial Chamber denied the Prosecution’s request to refer Mr. Bagaragaza’s case to the Norwegian authorities.[14] On appeal, the Prosecution requests the Appeals Chamber to reverse the Trial Chamber’s decision and to refer Mr. Bagaragaza’s case directly to Norway.[15]

6.         In his response to the Appeal,[16] Mr. Bagaragaza supports generally the Prosecution’s position.[17] 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, Norway requests leave pursuant to Rule 74 to file an Amicus Curiae brief related to its ability to exercise of jurisdiction over Mr. Bagaragaza’s case.[18] The Appeals Chamber, therefore, finds it desirable for the proper determination of the appeal to grant leave to Norway to file its brief.[19]

DISCUSSION

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.[20] 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.[21] 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.[22] 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.[23] 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.[24]

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.

11.       In 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.[25] 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.[26] 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.[27] 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.[28] The Prosecution argues that Norway satisfies the conditions for transfer because it has jurisdiction over the criminal acts of the accused, provides for an adequate penalty structure in the context of this case, and is willing to cooperate.[29]

12.       In its Amicus Curiae Brief, Norway submits that it has subject matter jurisdiction over Mr. Bagaragaza’s alleged genocidal acts.[30] In this respect, it provides pertinent information on its legislative framework and the relationship between international law and Norwegian law.[31] Norway points to its consistent adherence to and support of international humanitarian law, in particular its early ratification of the 1948 Genocide Convention, its cooperation with the Tribunal and the ICTY, and its ratification of the Rome Statute on the International Criminal Court.[32]

13.       Norway acknowledges that Norwegian criminal law does not explicitly contain the crime of genocide.[33] However, it submits that on ratifying the 1948 Genocide Convention, its Parliament considered it unnecessary to enact implementing legislation as all conduct prohibited under the convention was already criminal under existing provisions of its criminal law.^[34] Norway explains that, according to its legal tradition, its laws are drafted in a general manner, but interpreted in light of both its international legal obligations as well as relevant legislative history.[35]

14.       In 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.[36] Norway submits that its provisions against homicide and bodily harm would cover the underlying acts alleged in the Indictment against Mr. Bagaragaza.[37] In addition, Norway submits that Mr. Bagaragaza’s alleged genocidal intent, as well as the number of its victims, could be taken into account under provisions allowing for the most severe penalties in aggravating circumstances, thus fully reflecting the gravity of the crimes charged.[38] Norway states that “if an indicted person accused of acts amounting to genocide is tried before Norwegian courts on the basis of an agreement between the requesting international court and the Norwegian government, the indictment in the case will fully reflect the aggravating circumstances under which the alleged offences have been carried out.”^[39] The Prosecution supports the position of Norway, and it further claims that the maximum possible penalty of 21 years’ imprisonment under Norwegian law would provide adequate punishment in light of the specific charges against Mr. Bagaragaza and his willingness to cooperate.[40]

15.       The Trial Chamber acknowledged that Norway could exercise jurisdiction over Mr. Bagaragaza’s alleged criminal conduct committed in Rwanda in 1994.[41] However, the Trial Chamber reasoned that Norway lacked jurisdiction within the meaning of Rule 11bis because it could not charge the crime of genocide as defined in the Statute, noting that the crime of homicide did not require proof of genocidal intent, an essential element of the crime of genocide.[42]

16.       Considering 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 Norway for trial. As the Amicus Curiae Brief makes clear, Norway’s jurisdiction over Mr. Bagaragaza’s crimes would be exercised pursuant to legislative provisions dealing with the prosecution of ordinary crimes. The Appeals Chamber recalls that the basis of the Tribunal’s authority to refer its cases to national jurisdictions flows from Article 8 of the Statute, as affirmed in Security Council resolutions.[43] Article 8 specifies that the Tribunal has concurrent jurisdiction with national authorities to prosecute “serious violations of international humanitarian law”. In other words, this provision delimits the Tribunal’s authority, allowing it only to refer cases where the state will charge and convict for those international crimes listed in its Statute.

17.       The 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 referral State need not necessarily proceed under their laws against each act or crime mentioned in the Indictment in the same manner that the Prosecution would before this Tribunal.[44] In addition, the Appeals Chamber appreciates fully that Norway’s proposed prosecution of Mr. Bagaragaza, even under the general provisions of its criminal code, intends to take due account of and treat with due gravity the alleged genocidal nature of the acts underlying his present indictment. However, in the end, any acquittal or conviction and sentence would still only reflect conduct legally characterized as the “ordinary crime” of homicide. That the legal qualification matters for referrals under the Tribunal’s Statute and Rules is reflected inter alia in Article 9 reflecting the Tribunal’s principle of non bis in idem.[45] According to this statutory provision, the Tribunal may still try a person who has been tried before a national court for “acts constituting serious violations of international humanitarian law” if the acts for which he or she was tried were “categorized as an ordinary crime”. Furthermore, the protected legal values are different. The penalization of genocide protects specifically defined groups, whereas the penalization of homicide protects individual lives.

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, 
The Netherlands.

 

[Seal of the Tribunal]