On December 3, the district court of The Hague will hear, on appeal, the request of trial for genocide in the Netherlands of Rwandan Joseph Mpambara, which is supported by the International Criminal Tribunal for Rwanda (ICTR) but at the request of a Dutch prosecutor. In the first instance, the court at The Hague decided, on July 24, that was no basis in national law for a genocide prosecution. The case is a sensitive one for the ICTR, which is working to transfer its cases to national jurisdictions besides Rwanda as part of its completion strategy. Before his arrest in August 2006, Mpambara was living in the Netherlands as a refugee. Mpambara is the brother of Obed Ruzindana, an important merchant sentenced by the ICTR to 25 years in prison for genocide and crimes against humanity in 1999. Mpambara was on file with the justice department as a possible genocide suspect, but the ICTR never showed any interest in him. The initiative came from the Dutch general prosecutor, who went to Arusha to ask his ICTR counterpart to allow the Netherlands to prosecute Mpambara. The Dutch prosecutor stressed that the UN tribunal had primary jurisdiction and that he consequently could not prosecute Mpambara without its backing. Not having indicted Mpambara, the ICTR prosecutor accepted to pass this unusual request on to the Netherlands.

But the refusal of Dutch courts to try Mpambara for genocide had an impact on another, much more sensitive case for the ICTR: that of Michel Bagaragaza, a close aide to the former Rwandan president assassinated in April 1994, who is accused of genocide in Arusha. In 2005, Bagaragaza agreed to collaborate with the ICTR prosecution in exchange for his trial being transferred to a European country. Since this agreement, he has been held in the Netherlands for security reasons. An initial attempt to try Bagaragaza in Norway failed because the crime of genocide did not exist in Norwegian law in 1994 [IJT-41-73]. His case was then referred to the Dutch courts. For the ICTR, the Dutch court's rejection of genocide cases is even more damaging since it is trying to transfer other cases to other countries—including France—in the context of its completion strategy [IJT-12-74].

Two central aspects were discussed at The Hague. Firstly, trying an act of genocide committed outside the Netherlands by a non-national against non-national victims only became possible with the passing of the International Crimes Act in 2003. This law does not apply retroactively to genocide. Secondly, the Dutch criminal code only accepts the transfer of jurisdiction to another state on the basis of a treaty. The government indicated that, in the case of Bagaragaza's transfer, the ICTR could be considered a state. It remains to be seen if, in this case, Chapter VII of the United Nations' Charter, by which member states commit to make available to the Security Council "the assistance and facilities" necessary to maintaining peace and international security, in combination with the ICTR Statute, could be considered a treaty.

In the first instance, the court at The Hague agreed that the intention to cooperate with the international tribunals is implicit in the legislative texts, but the Dutch judges felt it was impossible to prosecute Mpambara for genocide. Three weeks after this decision, on August 17, the ICTR cancelled the authorization for Bagaragaza's transfer [IJT-73]. He remains imprisoned in the Netherlands, but under the jurisdiction of the ICTR. According to the Hirondelle agency, the prosecutor in Arusha said "that he would ask for the Bagaragaza case to be tried by a local Rwandan court in Kigali [...], unless he signs an agreement to plead guilty." A reliable source says that such an agreement is imminent, and since the procedure would thus be simplified, Bagaragaza would then be judged by the ICTR. But if the appeals court at The Hague overthrew the trial court's decision, the Dutch option would still be available.