Chinese Journal of International Law Advance Access published online on February 2, 2007
Chinese Journal of International Law, doi:10.1093/chinesejil/jml054
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© The Author 2007. Published by Oxford University Press. All rights reserved
Towards the End and Beyond: The "Almost" Referral of Bagaragaza in Light of the Completion Strategy of the International Criminal Tribunal for Rwanda
The Bagaragaza case was the first at the International Criminal Tribunal for Rwanda in which the referral of an accused to a national jurisdiction was discussed. Such a referral may be made at the discretion of a Trial Chamber designated by the President, if the Chamber satisfied itself that the Accused will have a fair trial and that the death penalty will not be imposed or carried out. The referral can be made to three different States: the one where the accused was arrested, the one were the crimes were committed and the one which has jurisdiction and is willing and adequately prepared to hear the case. In the 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 discusses the referral mechanism and the role it plays in the Tribunal's ambitious completion strategy. An analysis of the Bagaragaza case will show how this mechanism has actually been applied, concluding that the Tribunal rightly resisted the pressure to abide by the completion strategy and chose substance over form. After the Tribunal's closure, two important questions will face the international community: (a) Where will convicted and acquitted persons be relocated? (b) Has international criminal justice been promoted at the expense of long-term peace and stability?
* 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.