1 This description of Bagambiki, of course, is contestable. As a matter of law, an acquittal means that the prosecution failed to prove the defendant's guilt beyond a reasonable doubt, not that the defendant could not have committed the crime. Nevertheless, given that all defendants are presumed innocent until proven guilty, I think it is fair to describe a defendant who has been unanimously acquitted of serious international crimes by an appellate chamber as ‘innocent’. Otherwise, the presumption of innocence means very little.

2 It is not the only problem. The ICTR Appeals Chamber has specifically held that acquittees have no right to compensation for being prosecuted and acquitted. See Rwamakuba v. Prosecutor, Decision on Appeal against Decision on Appropriate Remedy, Case No. ICTR-98-44C-A, A. Ch., 13 September 2007, para. 10. Moreover, although the Appeals Chamber recently upheld a trial chamber judgment ordering the Registrar to pay Rwamakuba US$2,000 in damages for denying him counsel in the early months of his detention, ibid., at para. 28, the Registrar has nevertheless refused to pay the award, choosing instead simply to refer the trial chamber's order to the Security Council. See ‘The ICTR Registrar Is Unable to Enforce a Judgment of the ICTR’, Hirondelle News Agency, 18 September 2007. Rwamakuba will thus have to return to court to enforce the order.

3 In principle, the discussion applies equally to defendants acquitted by the ICTY. As discussed below, however, ICTY acquittees have been able to return to their countries of origin, mooting the ne bis in idem and asylum issues.

4 Wald, P. M., ‘The International Criminal Tribunal for the Former Yugoslavia Comes of Age’, (2001) 5 Washington University Journal of Law and Policy 87, at 106Google Scholar.

5 D. Sito, ‘Pray for Them, Too!’, Transitions Online, 31 October 2001.

6 ‘ICTY Indictee Dragan Papic Who Has Been Cleared of All Charges Has Arrived in His Native Vitez’, HRT Web, 17 January 2000.

7 ‘Rwandan Compensation Award Sets Precedent’, Institute for War & Peace Reporting, 2 April 2007.

8 ‘Rwanda Furious over Acquittal of Two Suspects’, East African, 1 March 2004.

9 See, e.g., Human Rights Watch, There Will Be No Trial: Police Killings of Detainees and the Imposition of Collective Punishments (2007), at 1.

10 See, e.g., Amnesty International Report 2007, Rwanda (‘Update: Enforced Disappearances’).

11 See, e.g., Amnesty International Action Report, ‘Rwanda/Uganda: Forcible Return/Fear of Torture or Ill-Treatment’, AI Index AFR 47/004/2007, 16 March 2007.

12 See Human Rights Watch, supra note 9, at 2.

13 See ‘Rwandan Compensation Award’, supra note 7.

14 See, e.g., Human Rights Watch, Killings in Eastern Rwanda (2007), at 1.

15 1966 International Covenant for Civil and Political Rights, 999 UNTS 171 (1966). Rwanda acceded to the ICCPR on 16 April 1975.

16 Le Mon, C. J., ‘Rwanda's Troubled Gacaca Courts’, (2007) 14 Human Rights Brief 16, at 17Google Scholar.

17 US Department of State, 2006 Country Reports on Human Rights Practices, Rwanda, section 1.d (Prison and Detention Center Conditions).

18 See Amnesty International Report, supra note 10.

19 See US Department of State, supra note 17, section 1.e (Trial Procedures).

20 Ibid.

21 Ibid.

22 See Human Rights Watch, ‘Rwanda: Historic Ruling Expected for Former President and Seven Others’, backgrounder, 16 January 2006.

23 See US Department of State, supra note 19.

24 See Le Mon, supra note 16, at 16.

25 Ibid.

26 See US Department of State, supra note 19.

27 Fierens, J., ‘Gacaca Courts: Between Fantasy and Reality’, (2005) 3 Journal of International Criminal Justice 896, at 912CrossRefGoogle Scholar.

28 See US Department of State, supra note 19.

29 Amnesty International, ‘Gacaca: A Question of Justice’, AI Index AFR 47/007/2002, 17 December 2002, at 36.

30 Statute of the International Criminal Tribunal for Rwanda, UN Doc. S/RES/955 (1994) (hereinafter ICTR Statute), Art. 9.

31 Statute of the International Criminal Tribunal for the Former Yugoslavia, UN Doc. S/RES/827 (1993), Art. 10.

32 ICTY Rules of Procedure and Evidence, as amended 13 September 2006, UN Doc. IT/32/Rev.39 (2006), Rule 13 (emphasis added).

33 Rome Statute of the International Criminal Court, UN Doc. A/CONF. 183/9 (1998), Art. 20(1) (hereinafter Rome Statute) (emphasis added).

34 Art. 20(2), by contrast, parallels the more restrictive formulation of Article 10 of the ICTY Statute, providing that ‘[n]o person shall be tried by another court for a crime referred to in article 5 for which that person has already been convicted or acquitted by the Court’. Ibid., Art. 20(2).

35 It is not clear whether he was convicted of rape as a domestic crime or as a form of genocide. Human Rights Watch indicates that it is the latter. See Human Rights Watch, ‘UK: Put Genocide Suspects on Trial in Britain’, 1 November 2007.

36 ‘Rwanda Intends to Prosecute Ex-governor Emmanuel Bagambiki for Rape’, Hirondelle News Agency, 8 March 2006.

37 Prosecutor v. Ntagerura, Bagambiki & Imanishimwe, Judgement and Sentence, Case No. ICTR-99-46-A, 7 July 2006, paras. 307, 319.

38 Ibid., paras. 339–347. The Appeals Chamber also agreed with the trial chamber that although Bagambiki had effective control over the Kagano communal police, he did not know that they were involved in the attacks against Nyamasheke parish. Ibid., para. 351.

39 Coalition for Women's Human Rights in Conflict Situations, ‘Amicus Curiae Brief Respecting the Need to Include Sexual Violence Charges in the Indictment’, 1 March 2001, paras. 14, 15 (emphasis added).

40 ‘ICTR Struggles to Make Its Acquittals Recognized’, Hirondelle News Agency, 17 October 2006.

41 T. Goldenberg, ‘Innocent Rwandan Afraid to Go Home’, Toronto Star, 13 May 2007, A11.

42 ‘Acquitted Ex-minister Obtains Compensation’, Hirondelle News Agency, 4 February 2007.

43 ‘Acquitted by the ICTR but Unwelcome in Belgium’, Hirondelle News Agency, 30 April 2007.

44 See ‘ICTR Struggles’, supra note 40.

45 ‘Acquitted Rwandan Genocide Suspect Has No Place To Go’, Middle East News Online, 16 July 2001.

46 ‘Jean Mpambara, Acquitted by the ICTR, Has Found Refuge in Mayotte’, Hirondelle News Agency, 3 January 2007.

47 EU Council Regulation No. 343/2003, 18 February 2003.

48 1951 United Nations Convention Relating to the Status of Refugees, 189 UNTS 137, entered into force 22 April 1954 (hereinafter Refugee Convention).

49 See, e.g., J. C. Hathaway, The Law of Refugee Status (1991), 149 (noting that ‘persecution on account of political opinion was conceived in liberal terms’, including ‘diplomats thrown out of office’, persons ‘whose political party has been outlawed’, and ‘individuals who fled from revolutions’).

50 See, e.g., ibid. (‘An alternative to grounding a claim on adherence to political opinion per se is to rely on evidence of engagement in activities which imply an adverse political opinion, and which would elicit a negative governmental response tantamount to persecution’).

51 Noll, G., ‘Seeking Asylum at Embassies: A Right to Entry Under International Law?’, (2005) 17 International Journal of Refugee Law 542, at 542 n. 1CrossRefGoogle Scholar.

52 Ibid., at 543.

53 Ibid., at 542 n. 2.

54 See J. C. Hathaway, Rights of Refugees (2005), 163.

55 Ibid., at 160.

56 Banković v. Belgium, 11 BHRC 435, ECHR 12 December 2001, at para. 73.

57 See, e.g., G. S. Goodwin-Gill and J. McAdam, The Refugee in International Law (2007), 252 (noting that when an individual ‘seeks asylum in a diplomatic mission in a third state . . . the principle of non-refoulement applies, since the asylum seeker is outside the country of origin’); Hathaway, supra note 54, at 169–70 (noting that, ‘at a minimum’, such territory within a state's jurisdiction ‘includes both situations in which a state's consular or other agents take control of persons abroad, and where the state exercises some significant public power in territory . . . in which it is present by consent, invitation, or acquiescence’).

58 Hathaway, supra note 54, at 295.

59 See, e.g., Goodwin-Gill and McAdam, supra note 57, at 392.

60 See, e.g., Hathaway, supra note 54, at 399–407.

61 UNHCR, State of the World's Refugees (2006), Box 4.3.

62 Ibid. In particular, the framework provides only for temporary asylum, restricts refugee movement, and does not allow for judicial review when asylum applications are rejected.

63 US Department of State, 2006 Country Reports on Human Rights Practices, Tanzania, section 2(d) (Protection of Refugees) (noting that in 2006 Tanzania deported more than 1,700 Burundians and 15,000 Rwandans after refusing to ‘co-operate with the UNHCR to ensure that none held valid refugee status’).

64 See Goodwin-Gill and McAdam, supra note 57, at 394.

65 See Hathaway, supra note 54, at 301 (noting that when indirect refoulement is possible, ‘Art. 33 amounts to a de facto duty to admit the refugee, since admission is normally the only means of avoiding the alternative, impermissible consequence of exposure to risk’).

66 Ibid., at 325.

67 See, e.g., Legomsky, S. H., ‘Secondary Refugee Movements and the Return of Asylum Seekers to Third Countries: The Meaning of Effective Protection’, (2003) 15 International Journal of Refugee Law 567, at 575CrossRefGoogle Scholar.

68 See ibid., at 585 (‘[C]hain refoulement can result when a person is returned to a country that does not consciously practice refoulement but which lacks a fair refugee determination system. In such a case, an inaccurate determination can result in refoulement . . . This has been a major problem’). Fortunately such indirect refoulement would be unlikely in Bagambiki's case, because the Tanzanian government promised the ICTR not to arrest him and extradite him back to Rwanda. See ‘Acquitted by the ICTR’, supra note 43. Tanzania should be encouraged to make such promises for all ICTR acquittees.

69 See US Department of State, supra note 63, section 2.d; UNHCR, supra note 61, Box 4.3.

70 See US Department of State, supra note 63, section 2.d (noting that, in 2006, ‘[i]t remained illegal for refugees to live outside their camps or settlements, or to travel outside of their camps without permits’).

71 Refugee Convention, supra note 48, Art. 1F(a).

72 See Bliss, M., ‘“Serious Reasons for Considering”: Minimum Standards of Procedural Fairness in the Application of Article 1F Exclusion Clauses’, (2000) 12 International Journal of Refugee Law (Special Supplementary Issue) 92, at 115–16CrossRefGoogle Scholar.

73 See Cardenas v. Canada, (1994) 23 Immigration Law Review 92d, 244, 252.

74 See Ofosu v. McElroy, 933 F. Supp. 237, 239 (SDNY 1995); see also McMullen v. INS, 788 F.2d 591, 599 (9th Cir. 1996) (holding that, to exclude an asylum-seeker under Article 1F, the INS ‘need not find as a matter of fact that [the applicant] was directly involved . . . either beyond a reasonable doubt or by a preponderance of the evidence’).

75 See UNHCR Lisbon Expert Roundtable, ‘Summary Conclusions: Exclusion from Refugee Status’ (2001), para. 17.

76 See Kapferer, S., ‘Exclusion Clauses in Europe – A Comparative Overview of State Practice in France, Belgium, and the United Kingdom’, (2000, Special Supplementary Issue) 12 International Journal of Refugee Law 195, at 209CrossRefGoogle Scholar.

77 European Council on Refugees and Exile, Position on Exclusion from Refugee Status (2004), 17 (‘In terms of the ICC Statute, this corresponds with what is required by the Prosecutor of the ICC to convince the Pre-Trial Chamber to open a trial against a person on charges within the jurisdiction of the Court, i.e. substantial grounds to believe that the person has committed the crime charged’).

78 See Hathaway, supra note 54, at 215.

79 See Bliss, supra note 72, at 92.

80 Switzerland and Belgium, for example, have both prosecuted officials in Rwanda's Interim Government for their involvement in the genocide. See M. A. Drumbl, Atrocity, Punishment, and International Law (2007), 83–4.

81 See, e.g., J. Dugard and C. Van den Wyngaert, ‘Reconciling Extradition with Human Rights’, (1998) 92 AJIL 187, at 187 (noting that ‘[t]he incremental and casuistic response of extradition law’ to human rights law ‘fails to provide a proper legal framework for the balancing of the human rights of the fugitive and the interest of states in the suppression of transnational crime’).

82 Ibid., at 198.

83 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 UNTS 85 (1984).

84 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 221 (1950).

85 See, e.g., Cruz Varas et al. v. Sweden, Judgment of 20 March 1991, [1991] ECHR (Ser. A), at para. 70; Vilvarajah et al. v. United Kingdom, Judgment of 30 October 1991, [1991] ECHR (Ser. A), at para. 103.

86 See Soering v. United Kingdom, Judgment of 7 July 1989, [1989] ECHR (Ser. A), at paras. 88, 91.

87 See, e.g., Amnesty International, ‘Suspects Must Not Be Transferred to Rwandan Courts for Trial Until It Is Demonstrated that Trials Will Comply with International Standards of Justice’, AI Index AFR 47/013/2007, 2 November 2007, at 7–8 (summarizing evidence).

88 Dugard and Van den Wyngaert, supra note 81, at 198.

89 1957 European Convention on Extradition, 359 UNTS 273 (1957), Art. 3(2); see also 1981 Inter-American Convention on Extradition, 20 ILM 733 (1981), Art. 4(5) (same).

90 See S. Kapferer, The Interface between Extradition and Asylum (2003), 34; Dugard and Van den Wyngaert, supra note 81, at 202.

91 See Soering case, supra note 86, at para. 113; see also Drozd and Janousek v. France and Spain, Judgment of 26 June 1992, [1992] ECHR (Ser. A), at para. 110.

92 See, e.g., UK Extradition Act 1989, section 12(2)(a); Canadian Extradition Act 1999, section 44(1)(a).

93 See, e.g., Cox v. Canada, 31 October 1994, UN Doc. CCPR/C/52/D/53/1993, para. 10.3.

94 Dugard and Van den Wyngaert, supra note 81, at 204.

95 Presumably all states are obligated to comply with Article 9's ne bis in idem provision. See, e.g., ICTR Statute, supra note 30, Introduction, para. 2 (providing that ‘all States shall cooperate fully with the International Tribunal . . . and shall take any measures necessary under their domestic law to implement the provisions of the present resolution and the Statute’); ibid., Art. 28(1) (‘States shall cooperate with the International Tribunal for Rwanda in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law.’). It is important to note that although bilateral and multilateral extradition treaties often contain their own ne bis in idem provisions – provisions that in some cases are broader than Article 9 – those provisions apply to judgments by states parties, not to judgments by international tribunals. The Schengen Convention, for example, provides that ‘[a] person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts’. 1985 Schengen Agreement on the Gradual Abolition of Checks at Their Common Borders, and the 1990 Convention Applying the Agreement, 30 ILM 68, Art. 54 (emphasis added). Outside the extradition context, moreover, there is no international principle of ne bis in idem. See Fletcher, G. P., ‘Against Universal Jurisdiction’, (2003) 1 Journal of International Criminal Justice 580, at 582CrossRefGoogle Scholar.

96 See Kapferer, supra note 76, at 219.

97 Ibid.

98 See Goodwin-Gill and McAdam, supra note 57, at 262.

99 See Hathaway, supra note 49, at 214.

100 Ill-advised because the European Convention on Extradition, like most extradition conventions (see Kapferer, supra note 90, at 40), prohibits extradition when the request is based on convictions obtained in absentia unless the requested person will be given a new trial. See 1978 Second Additional Protocol to the European Convention on Extradition, ETS No. 98 (1978), Art. 3. Bagambiki is very unlikely to receive a new trial, effectively ending Rwanda's ability to extradite him from Belgium. The Rwandan government would have been better off trying to extradite him prior to trial.

101 See ‘Country Angry with Belgium over Genocide Suspect’, The Monitor, 23 July 2007. The availability of the death penalty would previously have barred Belgium – or any other EU country – from extraditing anyone to Rwanda, but Rwanda recently eliminated the death penalty. See ‘Rwanda: Country Abolishes Death Penalty’, Bua News, 2 August 2007.

102 See UN Doc. S/RES/1503 (2003).

103 Cassese, A., ‘Is the ICC Still Having Teething Problems?’, (2006) 4 Journal of International Criminal Justice 434, at 436 (emphasis in original)CrossRefGoogle Scholar.

104 See UN Doc. S/RES/1593 (2005).

105 See Cassese, supra note 103, at 436.

106 See, e.g., Prosecutor v. Harun and Abd-Al-Rahman, Warrant of Arrest for Ali Kushayb, Case No. ICC-02/05–01/07, 27 April 2007.

107 See ‘Sudan Rejects ICC Arrest Warrants’, Sudan Tribune, 2 May 2007.

108 Rome Statute, supra note 33, Art. 20(2) (emphasis added).

109 See Heller, K. J., ‘The Shadow Side of Complementarity: The Effect of Article 17 of the Rome Statute on National Due Process’, (2007) 17 Criminal Law Forum 255, at 258CrossRefGoogle Scholar.

110 See, e.g., Amnesty International, ‘Rwanda: Unfair Trials: Justice Denied’, AI Index AFR 47/08/97, 8 April 1997.

111 Council Regulation No. 343/2003, 18 February 2003, Preamble, para. 4.

112 Ibid., Art. 3(1).

113 Ibid., Art. 2(c).

114 All EU member states are considered safe. See ibid., Preamble, para. 2.

115 See Goodwin-Gill and McAdam, supra note 57, at 401.

116 Human Rights Watch, ‘Fleeting Refuge: The Triumph of Efficiency over Protection in Dutch Asylum Policy’ (2003), at 7.

117 See Hathaway, supra note 49, at 214.

118 See Fletcher, supra note 95, at 582.

119 See, e.g., ‘U.N. Genocide Court Requests Case Transfer to Rwanda’, Reuters, 13 June 2007.

120 Art. 28(2) provides that ‘[s]tates shall comply without undue delay with any request for assistance or an order issued by a Trial Chamber’. See ICTR Statute, supra note 30, Art. 28(2).

121 Article 86 provides that ‘States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court’. See Rome Statute, supra note 33, Art. 86.

122 My thanks to Mark Drumbl for suggesting this possibility.

123 Rome Statute, supra note 33, Art. 20(1) (‘Except as provided in this Statute, no person shall be tried before the Court with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the Court’).

124 See ICTR Statute, supra note 30, Art. 26; Rome Statute, supra note 33, Art. 103. A number of ICTR convicts are currently imprisoned in Mali, while Benin, Swaziland, France, Italy, and Sweden have all signed agreements with the ICTR indicating their willingness to enforce sentences. See Drumbl, supra note 80, at 53. Similarly, ICTY convicts are currently imprisoned in Austria, Denmark, Finland, France, Germany, Italy, Norway, Spain, Sweden, and the United Kingdom.

125 See ‘Ntagerura Asks the ICTR to Order Canada to Grant Him Asylum’, Hirondelle News Agency, 9 November 2007.

126 Because the ICC was created by treaty, not by the Security Council, Art. 86's obligation to cooperate is binding only on parties to the Rome Statute. See Rome Statute, supra note 33, Art. 86 (referring to ‘States Parties’). The ICTR's obligation to co-operate, by contrast, applies to all states. See ICTR Statute, supra note 30, Art. 28(1) (referring to ‘States’).

127 See Dugard and Van den Wyngaert, supra note 81, at 206.

128 Ibid., at 208.

129 See Amnesty International Report 2007, supra note 10, at 6.

130 G. Obulutsa, ‘UN Genocide Court Finds No Home for Acquitted’, Reuters, 27 October 2006.