A Quest for Jurisdiction and Appropriate Crime Definition: Mpambara Before Dutch Courts
Journal of International Criminal Justice, Vol. 7, pp. 1117-1132, 2009
15 Pages Posted: 24 Jan 2012
Date Written: December 22, 2009
On 23 March 2009, the Rwandese 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 count 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 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, as well as 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 pertinent question concerning the nexus requirement, the district court paid careful attention to relevant international case law and as such the judgement presents a positive example of transjudicial communication between international and national criminal courts.
Keywords: International Law, International Criminal Law, war crime, genocide, Armed conflict, protective principle, nexus requirement
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