Towards the End and Beyond: The “Almost” Referral of Bagaragaza in Light of the Completion Strategy of the International Criminal Tribunal for Rwanda
Posted: 4 Jul 2008
Date Written: MARCH 2007
The Bagaragaza case was the first at the International Criminal Tribunal for Rwanda in which the referral of an accused to a national jurisdiction was discussed. Such a referral may be made at the discretion of a Trial Chamber designated by the President, if the Chamber satisfied itself that the Accused will have a fair trial and that the death penalty will not be imposed or carried out. The referral can be made to three different States: the one where the accused was arrested, the one were the crimes were committed and the one which has jurisdiction and is willing and adequately prepared to hear the case. In the Bagaragaza case, the request for referral was dismissed, because the Referral State in question, the Kingdom of Norway, has no provision for genocide in its penal law. This paper discusses the referral mechanism and the role it plays in the Tribunal's ambitious completion strategy. An analysis of the Bagaragaza case will show how this mechanism has actually been applied, concluding that the Tribunal rightly resisted the pressure to abide by the completion strategy and chose substance over form. After the Tribunal's closure, two important questions will face the international community: (a) Where will convicted and acquitted persons be relocated? (b) Has international criminal justice been promoted at the expense of long-term peace and stability?
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