Global Policy Forum

After the decision of a Dutch court that ruled that it did not have the jurisdiction to try suspects of the Rwandan genocide and the release in France of two accused, the International Criminal Tribunal for Rwanda (ICTR) is facing a true puzzle if it wants to finish its mandate by the end of 2008. The Security Council, which created it in 1994, has asked it to finish its first instance trials within 16 month as 12 trials are ongoing and nine accused await to be tried. For that purpose, the ICTR has already stated its intention to transfer its last defendants towards other courts, including in Rwanda. But after this resignation by the Netherlands, and the rupture of diplomatic relations between France and Kigali, the list of volunteers to replace of the ICTR is not so long.

First to be transferred on the basis of rule 11 bis of the rules of procedure and evidence, Michel Bagaragaza is once again in the custody of the ICTR which is awaiting his arrival at the detention center in Arusha. On 30 August 2006, he had already seen his transfer to Norway refused because the legislation of that country did not recognize the genocide as a crime. He was finally sent to The Hague, for his safety while awaiting his trial, because he had agreed to testify in other ICTR cases. Today, if the international tribunal does not assume his case or if it does not find other countries which will agree to try him, he should be transferred to the Rwandan authorities who have been requesting his extradition.

Generally, international law recognizes in countries a universal repressive jurisdiction. "Universal crime universal repression" explains Olivier Corten, head of the center of international law of the Université Libre de Bruxelles. This universal jurisdiction is sometimes allowed (for example, the convention on the prevention and the punishment of the crime of genocide of 1948), sometimes binding (in particular, the Geneva Conventions of 1949). However, it is unanimously allowed only when the suspect is found on the territory of the country which wants to prosecute.

As the world unceasingly relives these same horrors and massacres, certain countries like Belgium, Switzerland and Spain decided in the nineties to equipped themselves or to recognize themselves with absolute universal jurisdiction which enables them to try any person, whatever their nationality, that of the victim and the place of the crime. These countries had posed, at the same time, a legal and moral requirement to do whatever possible to prosecute the authors of these crimes which we had sworn, following the Nuremberg trials, would never happen again. A legal requirement due to the international commitments undertaken and a moral requirement like an ethical duty to fight against the impunity of the most serious crimes.

All have exercised it, but today, Spain is the only country that still posses this power. The other countries succumbed to the various political pressures (lack of means in the face of the number of complaints filed, interests of the countries on the international stage, commercial activities abroad, effects of appeals in regard to asylum requests, etc.) and exert nothing more than a delegated power. In the majority of other countries, such as Canada, Australia, the United States (which all the three have already exerted their delegated universal jurisdiction), the presence of accused on the territory is required to be able to try them, this leads to obvious problems within the framework of the transfer procedure of rule 11 bis of the rules of procedure and evidence of the ICTR because they were arrested elsewhere.

But finally, even when this condition was met, the prosecutions were suddenly no longer possible, for lack of internal legal grounds, as in the Bagaragaza case in the Netherlands. The only option remaining for these countries that refuse to try persons accused of genocide would be to extradite them to Rwanda, which is henceforth possible due to its new law that abolishes the death penalty.

The International Criminal Tribunal for the former Yugoslavia (ICTY) has already carried out several transfers on the basis of rule 11 bis (14 until now). But all were towards countries of the former Yugoslavia, while the ICTR authorizes the transfer to any country which would possess jurisdiction. The goal of the ICTY is, at the same time, to decentralize criminal justice in order to free the buildup of cases by only keeping high officials but also, and especially, to associate these countries, victims of their own war, with the judgment of their nationals.