On 19 May 2006 the bench appointed by the President of the International Criminal Tribunal for Rwanda composed of judges Dennis C. M. Byron, Jai Ram Reddy and Joseph Asoka Nihal de Silva denied the Prosecutor’s motion for referral to the Kingdom of Norway of the case of Michel Bagaragaza. The motion was filed on 15 February 2006 under Rule 11bis of the Rules of Procedure and Evidence of the Tribunal.
In its ruling the Trial Chamber found that the Kingdom of Norway does not have jurisdiction over the alleged crimes in the indictment against Michel Bagaragaza and in that case there was no need for the Chamber to consider the other requirements for referral as provided in Rule 11bis or in the Parties’ submissions.
Pursuant to Rule 11bis, three requirements have to be considered in deciding a motion for referral: 1) the jurisdiction, willingness and preparedness of the Referral State; 2) the ability of the Referral State to conduct a fair trial and; 3) the non-imposition of the death penalty in the Referral State. In their submissions, the Parties raised other conditions for the referral. The Parties made additional requests in case the Referral would be granted.
Bagaragaza who was Director General of the office controlling the Rwandan Tea industry and also member of the Prefectoral committee of the MRND political party in Gisenyi Prefecture, surrendered to the Tribunal on 16 August 2005. He pleaded not guilty to the charges of conspiracy to commit genocide, genocide, or in alternative, complicity in genocide.
The ICTR Prosecutor requested the Tribunal to grant the transfer of the Accused to the United Nations Detention Unit (UNDU) of the International Criminal Tribunal for the former Yugoslavia (ICTY) as a special protective measure. On 13 August 2005, the motion was granted and Bagaragaza was consequently transferred to The Hague. On 17 February 2006, the President extended the transfer to The Hague for an additional period of 6 months.
Before his surrender on 16 August 2005, the accused entered into an agreement with the Prosecution and provided an extensive statement on the 1994 events in Rwanda which incriminated both himself and other Rwandans. He agreed with the Prosecution to be tried before a national court, which would be determined at a later stage.
The ruling is subject to appeal by both parties, the Prosecution and the Defence within 15 days upon notification of the decision. Bagaragaza is represented by Defence Counsel Geert-Jan Alexander Knoops from The Netherlands.