The extradition of four men wanted by the Rwandan High Court was blocked today by two British judges on the grounds there is a “real risk” they will suffer a “flagrant denial of justice”.
The men, Dr Vincent Bajinya, Emmanuel Nteziryayo, Charles Munyaneza and Celestin Ugirashebuj are wanted on charges of Mass Murder committed during the 1994 Rwandan Genocide, in which an estimated 800,000 Tutsis and Hutu “sympathisers” were massacred in 100 days.
The concerns aired by the judges are not unreasonable, particularly since Rwanda is currently ruled by Paul Kagame, the Tutsi leader of the Rwandan Patriotic Front that eventually overthrew the genocidal Hutu regime. The right of every human being to a fair trial, as proclaimed by Article 10 of the Universal Declaration of Human Rights means they should not go.
However, it is a shocking indictment of the international criminal justice system that no other court exists in which they can be tried, meaning that these men have effectively been granted impunity for the forseable future. As things stand at present, only if the Rwandan government seeks, and obtains, an order from the International Court of Justice (ICJ) that the United Kingdom hand over the men will they stand trial in Rwanda. This does not, however, solve the problem that that trial probably would not be fair.
There has also been mention of an Early Day Motion being submitted to the British Parliament calling for a change in legislation that would allow for the men to be tried in the UK. This idea has actually been put forward by one of the four, Vincent Bajinya. However, the chances of this succeeding are slim and the suitability of such a course of action is anyway highly questionable.
The obvious alternative court in which to try the men would seem to be the UN mandated International Criminal Tribunal for Rwanda (ICTR), but the ICTR’s jurisdiction only extends to high level figures in the genocide. Lower level figures such as the four men in question are tried by the national courts. Besides which, the ICTR has only managed to sentence 39 individuals to date, and it is due to wind up its work in 2010, though this date may be extended. It could reasonably be argued that perhaps the authority of the ICTR should be extended to cover lower level criminals, but that is not the case at present. Besides which, the ICTR is a very specific body with a very specific geographical and temporal mandate. There needs to be a permanent body with a mandate to try the most serious crimes no matter where and when they were committed. That body is, or rather should be, the International Criminal Court (ICC) at the Hague.
Unfortunately the ICC is hamstringed in a number of different ways. The first problem is the so-called rule of complimentarity, which stipulates that the ICC can exercise jurisdiction over a serious international crime only if no state is willing and able to prosecute the crime itself. The second problem for the ICC is that its jurisdiction only extends to those citizens of the 108 countries that have signed up to the court or to individuals whose crimes were committed on the territory of a member state. The only other ways by which the ICC can derive the jurisdiction to prosecute a crime is through the express request of the United Nations Security Council or if a non-member state permits the ICC to exercise its jurisdiction in the case of a particular crime. None of these conditions are met in the case of the four men in question. Not only that, but at present the ICC is only mandated to prosecute crimes committed after it came into existance on 1 July 2002 or in the case of a new member, after it has ratified the Rome Statute.
As it stands at present, the international justice system is wholly inadequate for the task it is supposed to fulfil because the most inviolate principle of post-1945 geopolitics - the absolute sovereignty of the nation state - still trumps what is supposed to be the second great pillar of the post-war international consensus: the universality of human rights.
Those who argue that, for practical reasons as much as anything else, the ICC cannot become the first court of redress for all the world’s ills are of course correct. The ICC must remain a place at which only those charged wirh the most serious crimes can be tried. However, the court’s raison d’être, namely bringing individuals to justice from states that are either unable or unwilling to prosecute, needs to be extended to the point that the court’s jurisdiction is truly universal. Furthermore, it needs to be given the authority to try crimes committed before 1 July 2002.
Doubtless many international lawyers would object to these suggestions. International law has been founded upon consensus. At present, no state on earth is party to any international convention or organisation that it has not chosen to sign up to. There are many good reasons for this modus operandi, not least of which is that social, religious and cultural differences mean that internationally, laws vary. Yet the ICC does not deal with such laws, its jurisdiction covers only the most serious crimes, namely the crime of genocide; crimes against humanity; war crimes and the crime of aggression. Surely it is not beyond the realms of possibility to achieve consensus on the point that those accused of such crimes must stand trial, no matter who they may be and where on earth they may happen to live. Ideally, the prosecution of such crimes will be the responsibility of the individual state, but where a state proves unable or unwilling to prosecute, there must be an effective court of last resort. The International Criminal Court will continue to be a misnomer so long as as its jurisdiction stops at the borders of states that don’t want to play ball.
The issue of retroactive legislation is, if anything trickier still. One of the basic principles of law is that it must be certain. An action cannot be legal one day and then prosecutable the next. Legislation can be passed that makes an action that was once legal now illegal, but prosecutions of that action can and should only take place after the new law has come into effect. It would not be right for an individual to be hauled up on charges of filing his tax return incorrectly a year ago because the law on how to correctly file tax returns has changed since that point. Only if the tax return wrongly filed after the new law came into effect could that individual be prosecuted.
Yet this is not the case with the ICC. The crimes it was set up to try were crimes in 1994, they were crimes at the time of the inception of the ICC and they are crimes now. Some will point out that what constitutes the crime of genocide and what constitutes the crime of aggression is still not fully agreed upon, yet that is just as much the case now, after the establishment of the ICC with its authority to try such crimes, as it was in 1994.
It has been pointed out on more than one occassion that international institutions such as the ICC (or the UN for that matter) are only as effective as the most powerful states wish them to be. The biggest stumbling block for the ICC has so far been that for almost the entirety of its short existence it has been confronted by an American administration singularly opposed to the idea that any international institution should be able to exercise jurisdiction over American citizens without the express permission of the United States.
Such was the opposition of America to the notion of an ICC with universal jurisdiction under the Bush administration that on 30 June 2002, the day before the Rome Statute was to come into force, the US declared that it would vote against a resolution renewing for 6 months the mandate of the UN Mission in Bosnia and Herzegovina (UNMIBH) and threatened to do the same with respect to all other UN peacekeeping operations if US military personnel participating in such operations were not granted an exemption from the ICC’s jurisdiction.
The upshot of this was United Nations Security Council (UNSC) Resolution 1422, which stipulated that in the case of UNSC mandated operations, any incidents involving personnel of contributing states not party to the Rome Statute would not fall under the jurisdiction of the ICC for a period of twelve months unless the UNSC (on which the US has a veto) expressly stated otherwise. Subsequent UNSC resolutions to the same effect have if anything weakened the authority of the ICC still further.
The announcement by President Obama on 31 March that America would seek a seat on the UN’s Human Rights Council has been hailed by UN Secretary General Ban Ki-Moon as indicative of “a new era of engagement” on the part of the United States. The fact that it would be a struggle to be less engaged than the former Bush administration should not detract from this.
However, if the United States is really serious about engaging with the international community, then it also needs to ratify the Rome Statute as a matter of urgency. That being done, the US needs to use its considerable global influence - and President Obama his considerable global credibility - to push for a renegotiation of the Rome Statute to make the jurisdiction of the ICC truly universal and applicable to crimes committed no matter what their date.
Not only that, but the hitherto mentioned rule of conditionality also needs to be modified. International lawyers such as Kevin Heller have argued persuasively that the “unable or unwilling” clause of the Rome Statute that allows the ICC to step in if a state proves itself unable or unwilling to prosecute only applies if a state is making it more difficult to prosecute an individual. The statute does not permit the ICC to step in if a state’s inequitable legal process makes a conviction less difficult, as would be the case in Rwanda at present. Though there is disagreement amongst international lawyers on this issue, the very fact of such disagreement is argument enough to modify the statute so as to extend beyond question the ICC’s authority to cases where an inadequate respect for due process on the part of a nation state would make a conviction easier to obtain in addition to a conviction being made too difficult.
There is an unpleasant imbalance in the international justice system at present. The issue of the four Rwandans whose extradition has been denied by the British courts is paradigmatic of the problem. Had the extradition been granted, the system at present stipulates that they must stand trial in Rwanda, though they would certainly not receive a fair trial. With the extradition request refused, it now appears that these men may not face a court at all. This is what is known as international injustice. What is worse is that it is unnecessary international injustice, and it needs to change.
July 7th, 2009 at 12:26 am
“Yet this is not the case with the ICC. The crimes it was set up to try were crimes in 1994, they were crimes at the time of the inception of the ICC and they are crimes now.”
I don’t understand how this can be the case. The problem with the ICC on this issue is that, leaving aside the number of laws it can rule upon, the entire jurisdiction was only created in 2002. Now, it’s one thing to argue that a single law should be applied retrospectively; however, surely it’s a significantly different and more monumental thing to argue that an entire jurisdiction should be created and that it should then apply all of the laws upon which it can rule retrospectively.
The only way in which this might be possible is if the ICC were applying, and incorporating, laws from another jurisdiction, such as international laws. Even then it would be unlikely, I would have thought, that the ICC would be able to apply these laws retrospectively as they would most probably require some kind of incorporating legislation.
Whatever the matter, to simply say that the ICC should be able to try matters because the actions were illegal in some respect in 1994 under Rwandan law is insufficient to give the ICC jurisdiction.
July 7th, 2009 at 12:40 am
“Yet this is not the case with the ICC. The crimes it was set up to try were crimes in 1994, they were crimes at the time of the inception of the ICC and they are crimes now.”
I don’t understand how this can be the case. The problem with the ICC on this issue is that, leaving aside the number of laws it can rule upon, the entire jurisdiction was only created in 2002. Now, it’s one thing to argue that a single law should be applied retrospectively; however, surely it’s a significantly different and more monumental thing to argue that an entire jurisdiction should be created and that it should then apply all of the laws upon which it can rule retrospectively.
The only way in which this might be possible is if the ICC were applying, and incorporating, laws from another jurisdiction, such as international laws. Even then it would be unlikely, I would have thought, that the ICC would be able to apply these laws retrospectively as they would most probably require some kind of incorporating legislation after which they would be applicable by the ICC.
Whatever the matter, to simply say that the ICC should be able to try matters because the actions were illegal in some respect in 1994 under Rwandan law is insufficient to give the ICC jurisdiction.