A Quest for Jurisdiction and an Appropriate Definition of Crime: Mpambara Before the Dutch Courts
Posted: 22 Dec 2009
Date Written: November 2009
On 23 March 2009, Joseph Mpambara was convicted by the district court of The Hague for criminal acts committed in Rwanda in 1994. Interestingly, for lack of jurisdiction, Mpambara was not tried for genocide, which features as the central charge in most judgments of the Rwanda Tribunal. Moreover, Mpambara was acquitted of war crimes because of a lack of sufficient nexus between the crimes he had committed and the armed conflict. Eventually, Mpambara was convicted for a crime that does not figure as an independent crime in the Statute of the Rwanda Tribunal, namely torture. In this note, the interrelationship between this case and the unsuccessfully referred case of Bagaragaza is analysed against the backdrop of the Dutch legal quest for jurisdiction and an appropriate crime definition. On the basis of the expressive function of international criminal law, it is submitted that a contemporary interpretation of the protective principle could have resulted in a more appropriate qualification of the criminal acts for which Mpambara was convicted, namely as genocide. From the same perspective, it is argued that the interpretation of the nexus requirement in the specific case of Rwanda goes to the heart of the qualification of the 1994 events and, in particular, the interrelatedness of the armed conflict and the genocide. In addressing the question concerning the nexus requirement, the district court paid careful attention to relevant international case law and as such the judgment presents a positive example of transjudicial communication between international and national criminal courts.
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