Public Prosecutor v. Michel Bagaragaza
| Court |
District Court of The Hague, The Netherlands |
| Case number |
UTL-I-2007.036.808 |
| Decision title |
Request for surrender |
| Decision date |
21 March 2008 |
| Parties |
- The Prosecutor
- Michel Bagaragaza
|
| Categories |
Genocide, War crimes |
| Links |
|
| Other countries involved |
|
back to topSummary
Until July 1994, Michel Bagaragaza was the managing director of OCIR-Tea, the controlling body for the tea industry in Rwanda. Bagaragaza is accused of conspiring with his employees in order to kill Tutsis in the Gisenyi Prefecture. In addition, he was a member of the local committee of the Republican Movement for Development and Democracy (MRND) for the Gisenyi Prefecture. Bagaragaza was indicted by the International Criminal Tribunal for Rwanda on charges of genocide, and in the alternative, war crimes. His case was referred to The Netherlands at the request of the Prosecutor of the ICTR.
However, a decision of the District Court of The Hague in a case against another Rwandan national, Joseph Mpambara, in which the Court held that the Dutch courts have no jurisdiction over genocide committed by non-Dutch nationals abroad prior to 2003, was released soon after Bagaragaza's surrender to The Netherlands. Fearing that the outcome would be the same and the case against him would not proceed in The Netherlands, the ICTR requested The Netherlands to surrender Bagaragaza back to the ICTR for prosecution. By a decision of 21 March 2008, the District Court of The Hague authorised the surrender.
back to topProcedural history
On 1 December 2006, the International Criminal Tribunal for Rwanda indicted the Accused, Michel Bagaragaza, for charges of genocide and, in the alternative, war crimes.
On 13 April 2007, Trial Chamber III of the ICTR referred the case to the authorities of The Netherlands pursuant to Rule 11bis of the Rules of Procedure and Evidence of the ICTR, which permits the transfer of a case to a State in whose territory the crime was committed, in whose territory the Accused was arrested or a State who has jurisdiction and is willing and adequately prepared to accept such a case.
On 24 July 2007, the District Court of The Hague in the case of the Public Prosecutor V. Joseph Mpambara, decided that the Dutch courts lacked jurisdiction over the crime of genocide committed by non-Dutch nationals on foreign territory prior to 2003. Consequently, on 8 August 2007, the Prosecutor for the ICTR filed a motion requesting the Trial Chamber to revoke its referral of the case against the Accused to The Netherlands.
On 17 August 2007, Trial Chamber III granted the Prosecution’s request. The same day, the Registrar of the ICTR requested the Minister of Justice of The Netherlands to surrender the Accused to the ICTR for the purpose of prosecution.
back to topRelated developments
On 17 September 2009, the Accused pleaded guilty to one count of complicity to genocide. By a decision of 17 November 2009, the Accused was sentenced to 8 years’ imprisonment.
By a decision of 24 October 2011, he was granted early release as he had served 2/3 of his sentence.
back to topLegally relevant facts
Between April and mid-July 1994, a genocide took place in Rwanda eliminating approximately 10% of the civilian population, most of whom were of the Tutsi ethnicity.
The surrender request to The Netherlands alleges that the Accused conspired, with at least 22 other individuals, to kill or cause serious bodily or mental harm to members of the Tutsi group. It is further alleged that the Accused, either personally or by the biais of persons under his command, proceeded to kill or cause such harm, and assisted the realisation of the genocide (Section 5).
back to topCore legal questions
- What are the requirements for assessing the admissibility of the surrender request?
back to topSpecific legal rules and provisions
- Article 2 of the ICTR Implementation Act.
- Rule 55(B) of the ICTR Rules of Procedure and Evidence.
back to topCourt's holding and analysis
A surrender request is admissible where the following requirements are satisfied:
- The documents submitted by the requesting party comply with the requirements of Rule 55(B) of the Rules of Procedure and Evidence of the ICTR.
- The offences to which the surrender request relates are serious criminal offences of which the ICTR is competent to take knowledge pursuant to its Statute.
No defence was put forward by or on behalf of the requested person on the basis of which the Court would have to assume that there was an impediment to the admissibility of the requested surrender (Section 7). Hence the surrender request is admissible.
back to topFurther analysis
- O. Bekon, 'Rule 11bis: An Examination of the Process of Referrals to National Courts in ICTY Jurisprudence', Fordham International Law Journal, 2009, Vol. 33, pp. 723-793;
- S. Hickey et al, 'ICTR – Jurisdiction, Completion Strategy and the Transfer of Cases to Domestic Courts', Australian Red Cross - Research Paper, 2011;
- A. Marong, 'The ICTR transfers Michel Bagaragaza to The Netherlands for Trial', American Society of International Law, 18 June 2007;
- C. Ryngaert, 'The Failed Referral of Michel Bagaragaza from the ICTR to The Netherlands', The Hague Justice Portal, 2009;
- W.A. Schabas, 'Anti-Complementarity: Referral to National Jurisdictions by the UN International Criminal Tribunal for Rwanda', Max Planck Yearbook of United Nations Law, 2009, Vol. 13, pp. 29-60;
- L. Yarwood, 'Towards the End and Beyond: The “Almost” Referral of Bagaragaza in Light of the Completion Strategy of the International Criminal Tribunal for Rwanda', Chinese Journal of International Law, 2007, Vol. 6, pp. 95-114.
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