The Prosecutor of the International Criminal Tribunal for Rwanda on 15 February 2006 filed his first motion under Rule 11 bis requesting the Trial Chamber to transfer the case of Michel Bagaragazato the Kingdom of Norway for trial.
Bagaragaza s urrendered to the Tribunal on 16 August 2005 and pled not guilty to charges of conspiracy to commit genocide, genocide, or in the alternative, complicity in genocide. On 18 August 2005, Bagaragaza was transferred to the United Nations Detention Unit (UNDU) of the International Criminal Tribunal for the former Yugoslavia (ICTY). The ICTR Prosecutor requested the Tribunal to grant the transfer which was a condition of Bagaragaza’s voluntary surrender.
During the 1994 genocide, Bagaragaza was director general of the office controlling the Rwandan tea industry. He was also a member of the Prefectoral committee of the MRND political party in Gisenyi Préfecture, Rwanda. This was the political party of former Rwandan President Juvenal Habyarimana, and the party that established a youth wing known as the Interahamwe.
An indictment confirmed on 28 July 2005, alleges that Bagaragaza participated in a plan to fund, arm and train the Interahamwe militia so that they could attack and kill the Tutsi civilian population of Rwanda. It also alleges that the tea production units under the control of Bagaragaza where used to store weapons and for the recruitment and training of persons deployed in the extermination campaign against Tutsi civilians. It specifically alleges that the Accused gave material support to those who attacked and killed Tutsi civilians in Gisenyi Préfecture in April 1994, including the Tutsis who sought refuge in Nyundo Cathedral.
Bagaragaza has entered into an agreement with the Prosecutor and has given an extensive signed statement that details his knowledge of relevant events in Rwanda and his own involvement in those events. He has accepted full responsibility for his actions as detailed in his statement. He has also agreed to assist the process of justice at the ICTR by giving testimony in trials by means of video-conference and to assist national investigations regarding the events in Rwanda.
Bagaragaza, who is represented by defence counsel Geert-Jan Alexander Knoops, supports the Prosecutor’s request to transfer his case to Norway. His support is conditioned on receiving counsel from a qualified member of the Norwegian bar at public expense and on his right to receive continued assistance from his designated counsel at the ICTR regarding the international criminal law aspects of his case.
Neither genocide nor complicity in genocide are categorized as specific crimes under Norwegian criminal law. If the Trial Chamber grants the transfer, Bagaragaza is likely to be prosecuted as an accessory to homicide under the Norwegian General Civil Penal Code. If convicted, he would face a maximum sentence of 21 years in prison.
Norway has not agreed to permit Bagaragaza to reside in Norway after the completion of a potential sentence in Norway. “The Prosecutor has pledged to Norwegian authorities and to the Accused to seek and to obtain the assistance of a third country for the safe and permanent relocation of the Accused outside of the African continent.”
The Prosecutor has entered into negotiations with the International Commission of Jurists to provide an independent means for him to fulfill his monitoring responsibilities as to transferred proceedings in Norway under Rule 11 bis (D)(iv). According to the motion requesting transfer of the case, “This organization has wide experience in the monitoring of court proceedings and in the protection of judicial independence and human rights.”
The Prosecutor argues that transfer of cases to national jurisdictions other than Rwanda will provide for wider understanding of how genocide can happen. It can also lead to the development of ideas for prevention, deterrence, or effective intervention. According to the motion for transfer, “At the very least, such prosecution can counter the voices that deny that there was a genocide in Rwanda in 1994 or dismiss it as a spontaneous eruption of inter-ethnic violence.”
The Prosecutor further noted that Bagaragaza has pledged to assist national authorities in their investigations. “It has been publicly reported that Rwandan authorities recently stated that several persons who were implicated in the Rwandan genocide had falsely claimed refugee status in Norway and asked for their return to Rwanda to stand trial. The Accused may be able to assist Norwegian authorities to achieve appropriate dispositions of some of these cases.”
The order for Bagaragaza’s detention at UNDU in The Hague, Netherlands expires on 18 February 2006. The Prosecutor will apply for an extension of up to six additional months to permit the consideration of his request for transfer under Rule 11 bis while the Accused remains at the UNDU.
The Prosecutor also requests that the Trial Chamber allow authorities from the Kingdom of Norway to provide it with supporting information about the conditions for transfer of the case.
The United Nations Security Council directed the Tribunal to establish a Completion Strategy to provide for the conclusion of trials by the end of 2008, and of appeals by the end 2010. The Completion Strategy authorizes the Prosecutor to refer appropriate cases for prosecution in national jurisdictions and urges Member States to consider accepting such cases.
The Prosecutor has made three other requests to Member States to accept ICTR indictees for trial in national courts under Rule 11 bis.