On February 15, the prosecutor for the International Criminal Tribunal for Rwanda (ICTR) filed a motion to transfer Michel Bagaragaza's trial to Norway, which has agreed to try him. There are, however, ulterior motives behind this apparent successful attempt to lighten the Arusha tribunal's caseload.
As the prosecutor recalls in his motion to transfer, the UN Security Council asked the tribunals in Arusha and The Hague on August 28, 2003 to have all trials completed by 2008. One of the suggestions for accomplishing this goal was to refer some of the cases to national courts. However, although the tribunal for the former Yugoslavia (ICTY) is now planning to return 14 defendants to Bosnia and two to Croatia under acceptable conditions, the ICTR has not been so lucky. The only country eager to step in and help is Rwanda and it is not offering any of the required essential guarantees, such as the guarantee that the death penalty will not be applied and that the trial will be fair. Consequently, Norway's willingness to try Bagaragaza, officially confirmed on January 18, 2006, is being heralded as major news. No other country that does not have ties to ICTR defendants has stepped up to the plate and agreed to take on the trials.

The problem is that Bagaragaza is not just anyone. He is the last of the repentant suspects being courted by the office of the prosecutor (OTP) [IJT-36]. Even though for now he has pleaded not guilty, his long, detailed confession and the agreement he signed with the OTP point to a guilty plea, thereby sparing the ICTR a full trial. Thus in reality, by asking Oslo to try Bagaragaza, the ICTR is not saving any time, which is the fundamental reason for transferring cases to other countries. Rather, the prosecutor's motion suggests there are other advantages.

If he is tried in Norway, Bagaragaza will not be tried for genocide. In 1994, Norwegian penal law did not include the notion of genocide. The prosecutor notes, rightly so, that Rwandans tried in Belgium or Switzerland have not been tried for genocide. In this case, Norway would try Bagaragaza as an accessory to homicide, which carries a maximum sentence of 21 years in prison. At the ICTR, where judges have complete discretion in sentencing, Bagaragaza has no such guarantee, especially if he is convicted for genocide. Moreover, information given by the prosecutor indicates that in Norway, due consideration is given to defendants who decide to make a full confession. In Arusha, this is sometimes the case, but not always.

Early release

Another advantage not mentioned in the prosecutor's motion is that Norway has reliable guidelines for early release. In contrast, the ICTR has never done so, unlike the ICTY. Thus, at 60 years old, Bagaragaza stands a reasonable chance of not finishing his days in prison if he is tried in Oslo. This would not be certain if he were tried in Arusha. Given that he has agreed to testify against other defendants, the benefits of transferring him are readily apparent.

This is not actually the first time that the prosecutor has sought third-country assistance in trying one of its cooperating defendants. In June 2004, Belgium agreed to try Ephrem Nkezabera, former leader of the Interahamwe militia and one of the ICTR's longtime informants [IJT-25]. Since cooperation with the Belgians had already been negotiated in advance, the prosecutor was spared from having to file a motion for transfer.

Just as the ICTY appointed the Organization for Security and Cooperation in Europe (OSCE) to monitor the trials referred to Bosnia and Croatia, the ICTR prosecutor is contemplating asking the International Commission of Jurists to do the same if Bagaragaza is transferred to Norway. For procedural reasons, the prosecutor is hoping that the ICTR judges will rule on the motion before August 18.