Towards the End and Beyond: The "Almost" Referral of Bagaragaza in Light of the Completion Strategy of the International Criminal Tribunal for Rwanda |
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| Authors: | Yarwood Lisa; Dold Beat |
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| Institution: | Correspondence: * Lisa Yarwood, LLB(Hons)/BA, Canterbury University, currently completing doctoral thesis in State criminal responsibility at Exeter University under the Clifford Parker Memorial Scholarship (email: lisakateyarwood{at}yahoo.co.nz). Beat Dold studied law at the University of Zurich and the University of East Anglia (email: Beat.Dold{at}gmx.net) and wrote a doctoral thesis about the responsibility of international organisations and their members and worked as an assistant in public international law at the University of Zurich. Both authors were legal interns at the International Criminal Tribunal for Rwanda in 2006. The authors would like to thank Roland Adjovi for his helpful support. |
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| Abstract: | The Bagaragaza case was the first at the International CriminalTribunal for Rwanda in which the referral of an accused to anational jurisdiction was discussed. Such a referral may bemade at the discretion of a Trial Chamber designated by thePresident, if the Chamber satisfied itself that the Accusedwill have a fair trial and that the death penalty will not beimposed or carried out. The referral can be made to three differentStates: the one where the accused was arrested, the one werethe crimes were committed and the one which has jurisdictionand is willing and adequately prepared to hear the case. Inthe Bagaragaza case, the request for referral was dismissed,because the Referral State in question, the Kingdom of Norway,has no provision for genocide in its penal law. This paper discussesthe referral mechanism and the role it plays in the Tribunal'sambitious completion strategy. An analysis of the Bagaragazacase will show how this mechanism has actually been applied,concluding that the Tribunal rightly resisted the pressure toabide by the completion strategy and chose substance over form.After the Tribunal's closure, two important questions will facethe international community: (a) Where will convicted and acquittedpersons be relocated? (b) Has international criminal justicebeen promoted at the expense of long-term peace and stability? |
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