18.04.07 - ICTR/TRANSFER - THE NETHERLANDS TO BE THE FIRST STATE TO TRY AN ACCUSED FROM THE ICTR

Arusha, April 18, 2007 (FH) – The Netherlands, already involved in the history of international criminal justice as seat of the International Criminal Tribunal for the former Yugoslavia and the new International Criminal Court (ICC) will also be the first state to try a defendant from the International Criminal Tribunal for Rwanda (ICTR) sitting far from the spotlight, in the small Tanzanian town of Arusha.   Last Friday, the Chamber presided by the Pakistani Judge Khalida Rashid Khan authorised the transfer to the Dutch courts of a high-profile defendant, Michel Baragaragaza, a relative of former President Juvenal Habyarimana and powerful boss of the Rwandan tea company at the time of the genocide.   It is the first time that this Tribunal has given the green light to the removal of a defendant before national courts.  This type of transfer has been envisioned in the ICTR completion strategy which must finish all First Instance trials in Chamber by the end of 2008.   Nevertheless, in the case of Baragaragaza, the principal motivation of the prosecutor in demanding the transfer was not “judicial economy” but respect for an agreement made with the defendant.   Under the terms of the arrangement, the prosecutor agreed to try the former economic official in a European country while Baragaragaza promised to testify against other ICTR defendants, which he has already done in more than one trial.   Since his surrender in August 2005, the defendant, after claiming to fear for his safety, has been detained at The Hague.   A first prosecution request hoping to send the trial before Norwegian courts was rejected by judges on the theory that the Norwegian criminal code does not explicitly provide for genocide, one of the crimes Baragaragaza is accused of, specifically for having played a role in the formation and training of the Interahamwe militias, the spearhead of the genocide.   This rejection was criticized before the Security Council by the ICTR Chief Prosecutor, Hassan Bubacar Jallow, especially because it was the first request of this nature.   Less than 2 years before the proposed end of the Tribunal’s mandate, this green late was impatiently awaited by the Gambian judge who is also hearing other similar requests.   For Jallow, Rwanda, to which he seeks removal of 17 defendants, namely 5 detainees and 12 at-large indictees, should be the primary destination, especially because Western countries are not enthusiastic while other African countries argue that they do not have the means.   But the availability of Rwanda to accept the trials will not suffice:  the prosecutor must, in each case, convince the judges that the defendant will benefit from a fair trial and that he will not receive the death penalty.  The defense can also assert these arguments.   The Rwandan senate has already voted on a law for the transfer of genocide defendants from the ICTR or other states: and abolishing the death penalty for all crimes is currently under examination in a committee of the Chamber of Deputies.  ER/PB/KD © Hirondelle News Agency