Arrest and Transfer

Posted: 25 Feb 2016 Last revised: 15 Dec 2017

Date Written: February 1, 2016

Abstract

In this article, the topic of arrest and transfer in the context of the International Criminal Tribunal for Rwanda (ICTR) will be addressed. It goes without saying that this is a crucial subject; the ICTR Statute and Rules of Procedure and Evidence can have the most detailed provisions on, for example, the exact scope of a certain crime against humanity or the theory of individual criminal responsibility, but these provisions will only become truly relevant if a person is arrested and transferred to the Tribunal. This is because the ICTR, in contrast to the Special Tribunal for Lebanon, does not recognize trials in absentia (in the absence of the accused), meaning that unless a person is arrested and transferred to the Tribunal, a proper trial will not take place. And if such a trial does not take place, the above-mentioned provisions can never become truly relevant. In short, if one does not want this to happen, a person needs to be arrested and transferred first. This feature is complicated by the fact that the ICTR does not have its own police force. Using Cassese’s famous metaphor, it is “a giant without arms and legs” who “needs artificial limbs to walk and work”, and is thus dependent on others to effectuate the arrest and transfer of the suspect to the Tribunal. After discussing the ICTR’s cooperation regime and its specific arrest and transfer procedures, the article illustrates the complexities and challenges involved in the arrest and transfer proceedings, the consequences of when the arrest and transfer proceedings are not properly followed and finally, how politicized the arrest and transfer proceedings can be, by reference to the case of Barayagwiza. It concludes with a discussion of the topic of arrest in the current context of the ICTR branch of the UN Mechanism for International Criminal Tribunals, including the – shameful – fact that more than 20 years after the Rwandan genocide, eight fugitives are still on the run.

Keywords: International criminal law, international criminal procedure, arrest, transfer, international criminal tribunal for rwanda, barayagwiza, mechanism for international criminal tribunals

JEL Classification: K14, K4, K40, K42, K49, K33

Suggested Citation

Paulussen, Christophe, Arrest and Transfer (February 1, 2016). Anne-Marie de Brouwer and Alette Smeulers (eds.), The Elgar Companion to the International Criminal Tribunal for Rwanda, Edward Elgar: Cheltenham 2016, pp. 265-289, T.M.C. Asser Institute for International & European Law 2016-03, Available at SSRN: https://ssrn.com/abstract=2737815

Christophe Paulussen (Contact Author)

T.M.C. Asser Instituut ( email )

P.O. Box 30461
2500 GL The Hague, 2517JN
Netherlands

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