At paras 16-18, the ICTR Appeals Chamber recalled the ICTY Appeals Chamber case-law that a case can only be referred to another jurisdiction under Rule 11bis when the crimes charged can be prosecuted in those jurisdiction as a “serious violation of international humanitarian law” as the ICTY and ICTR Statutes envisage:

16. […] The Appeals Chamber recalls that the basis of the Tribunal’s authority to refer its cases to national jurisdictions flows from Article 8 of the Statute, as affirmed in Security Council resolutions.[1] Article 8 specifies that the Tribunal has concurrent jurisdiction with national authorities to prosecute “serious violations of international humanitarian law”. In other words, this provision delimits the Tribunal’s authority, allowing it only to refer cases where the state will charge and convict for those international crimes listed in its Statute.

17. The Appeals Chamber agrees with the Prosecution that the concept of a “case” is broader than any given charge in an indictment and that the authorities in the referralState need not necessarily proceed under their laws against each act or crime mentioned in the Indictment in the same manner that the Prosecution would before this Tribunal.[2] In addition, the Appeals Chamber appreciates fully that Norway’s proposed prosecution of Mr. Bagaragaza, even under the general provisions of its criminal code, intends to take due account of and treat with due gravity the alleged genocidal nature of the acts underlying his present indictment. However, in the end, any acquittal or conviction and sentence would still only reflect conduct legally characterized as the “ordinary crime” of homicide. That the legal qualification matters for referrals under the Tribunal’s Statute and Rules is reflected inter alia in Article 9 reflecting the Tribunal’s principle of non bis in idem.[3] According to this statutory provision, the Tribunal may still try a person who has been tried before a national court for “acts constituting serious violations of international humanitarian law” if the acts for which he or she was tried were “categorized as an ordinary crime”. Furthermore, the protected legal values are different. The penalization of genocide protects specifically defined groups, whereas the penalization of homicide protects individual lives.

18. The Appeals Chamber recognizes that this decision may have a practical impact on Mr. Bagaragaza’s situation who, according to the Prosecution’s submissions to the President of the Tribunal, faces security risks if detained in the UNDF in Arusha. It also notes that it may limit future referrals to similar jurisdictions which could assist the Tribunal in the completion of its mandate. However, the Appeals Chamber cannot sanction the referral of a case to a jurisdiction for trial where the conduct cannot be charged as a serious violation of international humanitarian law. This is particularly so when the accused has been charged with genocide, an offence that -- unlike murder -- is designed to protect a “national, ethnical, racial or religious group, as such”.