John McKay: I’m John McKay. I’m a professor at Seattle University Law School. Thank you very much for allowing me to engage in this conversation with you also. I’ve been listening to, to Batya’s questions and your answers and I’d like to follow up on, on some of them and then perhaps my colleague and friend, Bob Utter, will have a few questions for you as well.
JM: And again, thank you very much. I want to go to the question of the eventual wind down of business here at ICTR, and, and get there by asking you the, the question of unfinished business.
JM: Of course, there will be unfinished business here because we’re talking about genocide where hundreds of thousands were killed perhaps by hundreds of thousands of people. And who was selected for prosecution at, at the ICTR and who is left to Rwandan and other authorities around the world comes full circle as you wind down because the tribunal will transfer certain cases away. Can you tell us about that process and how you think that will work?
In 2003 we were asked by the Security Council to plan the closure of the tribunal and there were few measures to be taken to facilitate that process so the Security Council asked the Prosecutor to focus on medium and high level criminals. That’s one.
Two, he was asked to ensure that lower level accused persons are transferred to national jurisdictions. He was also asked to close his investigations by the end of 2004. So come 2004, the Prosecutor had closed his investigations with regard to genocide.
But regard to, with regard to war crimes, his investigations are still going on and they relate to the alleged crimes committed by the RPF.
So with regard to the transfer of cases to national jurisdictions, the Prosecutor has been actively engaged in discussions with the entire UN membership to have countries accept to try cases transferred to their jurisdiction. But to date, the outcome was not, has not been quite successful.
So we had an initial acceptance from Norway but for some substantive reasons no case was handed over to Norway. You want me to go into the details of those ones or, yeah?
JM: Please do. Yeah. I think this is important to understand . . .
JM: . . . what the future of the, the prosecutions and accountability process will be for Rwanda.
Okay, yeah. So, so the Prosecutor was, has not been successful as he had hoped. The only country willing to receive cases from the ICTR is Rwanda. So about European countries first, so Norway was the first country to, to express its willingness to accept accused persons from the ICTR, so there was an application from the Prosecutor for Mr. Bagaragaza to be transferred to Norway.
That application was rejected by the ICTR trial chamber because as per our rule, a trial chamber should decide on the application from the OTP and in deciding so, the applicati-, the trial chamber came to the conclusion that Norway had no jurisdiction, because they had nothing about genocide in, in their, in their, in their law, so it was denied.
Then the next step is an application was filed with the Netherlands. The Netherlands accepted also but its own courts later on came out and say, “We have no jurisdiction either to deal with the, the, the crimes leveled against Mr. Bagaragaza.” So the guy is back to Arusha.
But France also accepted to try few, to, to try few of the accused person here and – but they were not transferred from Arusha. Those are people who were residing in, in France and against whom indictments were issued by the tribunal, and an application was made to France.
So France accepted and the trial chambers in Arusha also granted the application from the OTP. So there are two persons that will be tried in France you know, for crimes committed in, in Rwanda.