1. Introduction
In earlier writings I have addressed the fascinating interplay between international and national jurisdictions, particularly as regards the question of amnesty for jus cogens crimes.Footnote 1 Examining cases from several jurisdictions, I have shown that international criminal law has become an important arena in which boundaries between national legal systems and the international legal order are being continuously negotiated and tested, as a rudimentary constitution for the international community emerges. Much of the ‘testing’ is going on in national judicial systems and international courts, which are interacting in a fascinating example of transnational judicial dialogue wherein courts in different legal orders are examining similar problems.Footnote 2
One issue not addressed by my earlier work is the appropriate balance between exercises of jurisdiction by the territorial state in which the crimes in question were committed, third-party states (generally using universal jurisdiction), and international courts. That is, to the extent that several jurisdictions may exercise their authority in a manner generally deemed acceptable under international law, what outcomes are preferable, and what factors should influence the outcome in particular cases? There is now an extensive literature, of course, on universal jurisdiction and its application, but much of that work is highly abstract or addresses civil litigation.
The question whether a particular state or international criminal tribunal has the authority in a particular case to exercise jurisdiction over the accused presents itself largely as what Yuval Shany calls ‘unregulated interactions’Footnote 3 between national courts and international courts, where no international treaty or rule of customary international law provides clear guidance as to the proper outcome. Certainly, as to national courts, it would be difficult to argue that any international rule governs the proper application (or not) of a particular exercise of universal jurisdiction. The horizontal application of international criminal law is still a relatively contested arena by courts, academics, and political elites, although I have argued that at least with respect to jus cogens crimes such as genocide, universal jurisdiction does and should apply.Footnote 4 International courts are bound by their statutes, of course, and their jurisdiction constrained thereby. Their relationship to national courts may be one of ‘complementarity’, as in the case of the International Criminal Court (ICC),Footnote 5 or ‘primacy’, as with the International Criminal Tribunal for Rwanda (ICTR),Footnote 6 meaning that the international legal order has essentially established a vertical hierarchy of adjudicative mechanisms, as well as postulated the supremacy of international law. Yet tribunals endowed with primacy are the exception, not the rule, and their use of their primacy jurisdiction is rarer still. Thus in considering the exercise of universal jurisdiction in an essentially unregulated world, there is still much work to be done. The Princeton Principles on Universal Jurisdiction endeavoured to address this issue indirectly, and Principle 8 usefully suggests various factors to be balanced in ascertaining the appropriateness of a particular exercise of universal jurisdiction in a potentially antagonistic situation including (without ranking) the place of commission of the crime; the nationality of the perpetrator; the nationality of the victim; any other connection between the requesting state and the alleged perpetrator, the crime, or the victim; the likelihood, good faith, and effectiveness of a prosecution in the requesting state; the fairness and impartiality of the proceedings in the requesting state; convenience to the parties and witnesses, as well as the availability of evidence in the requesting state; and the interests of justice.
The commentary to Principle 8 is brief, noting only that a decision was made not to rank the principles in order of precedence, while at the same time acknowledging that ‘traditional jurisdictional claims’ such as the territorial principle will often take precedence, given that they will generally satisfy other criteria as well.Footnote 7 Abstract principles, however, tell us little about how universal jurisdiction should work in practice. When is it legitimate for a state to adjudicate the guilt or innocence of an individual only tangentially connected to it? Does that legitimacy rest upon the gravity of the person's alleged crimes? Is it a result of no other forum being available? Are there countervailing political considerations that might de-legitimize an otherwise appropriate exercise of universal jurisdiction, including the fact that the state seeking to exercise that jurisdiction may have ‘unclean hands’? What does ‘the interests of justice’ mean? Should national judges take account of political factors in their consideration of whether or not a particular exercise of jurisdiction is appropriate? These difficulties continue to plague discussions of universal jurisdiction, and in the absence of any centralized authority in the international legal order, will certainly continue to do so for some time.
As a vehicle to explore these questions, this paper examines the interplay between the Rwandan courts (and Gacaca system), the French courts, and the ICTR as an example of a situation in which multiple jurisdictions have asserted a right to exercise criminal jurisdiction over the perpetrators of serious atrocity crimes. This scenario largely fits Shany's categorization of ‘unregulated interactions’, for, other than the primacy provisions in the ICTR Statute and the jurisprudence regarding immunities emanating from the International Court of Justice (along with interesting dicta regarding the exercise of universal jurisdiction), the Rwandan genocide has spawned prosecutions in multiple fora with few mandatory rules operating to apportion jurisdiction between them. Cases have been brought in Belgium,Footnote 8 Canada,Footnote 9 France,Footnote 10 and Switzerland,Footnote 11 and one expert writes of ‘rumors of an impending case in Finland’.Footnote 12 I tentatively conclude that although the territorial state (Rwanda) would in principle be the most satisfactory forum, the difficulties Rwanda has experienced surpass its capacity either to provide effective justice for victims or to face some of the unpalatable truths about the conduct of all parties in the 1994 genocide, specifically the allegations of war crimes against the Rwandan Patriotic Front (RPF), at least at the present moment. Although the ICTR has had many successes, overcoming many early difficulties and making important contributions to international criminal jurisprudence and to historical narrative, it has not brought indictments against the members of the RPF or proceeded with investigations of the plane crash that sparked the genocide. There may well be good reasons for this (including political necessity); however, these omissions may render the ICTR's intervention incomplete, particularly given the pressure it is under to terminate its work. If so, in spite of the political friction they may engender, investigations in third-party states using either universal jurisdiction or other bases of jurisdiction accepted under international law may remain necessary vehicles for addressing justice and reconciliation for the people of Rwanda. At the very least, like other experiments with universal jurisdiction, they may serve as a catalyst for change in Rwanda itself.Footnote 13
The Rwandan genocide remains one of the most horrific atrocities of the twentieth century, resulting in the death of an estimated 500,000–800,000 human beings, massacred over a 100-day period.Footnote 14 In a ghastly narrative that has become all too familiar, a tale of planned, systematic extermination of an ethnic group, the Tutsi of Rwanda, has emerged to shock the world by its barbarism and senselessness. After years of fighting and tension between the Tutsi-dominated RPF and the Hutu-led government of Juvenal Habyarimana, it is commonly accepted that what sparked the genocide was an attack on Habyarimana's aircraft which took place on 6 April 1994, an attack that killed Habyarimana and the Burundian president, Cyprien Nyaryamira. Immediately following the attack, on 7 April 1994, the Rwandan military and two militia groups appertaining to extremist Hutus – the Interahamwe (‘Those who attack together’) and the Impuzamugambi (‘Those with a single purpose’) – began killing moderate Hutus as well as Tutsis.Footnote 15 The attacks were well co-ordinated and fuelled by radio propaganda referring to the Tutsis as iyenzi (cockroaches) and calling for their total elimination.Footnote 16 Among those killed were Rwanda's prime minister, Agathe Uwilingiyimana, and the ten Belgian soldiers of the UN Assistance Mission for Rwanda (UNAMIR) who tried to protect her.Footnote 17 The killing ended only when the RPF, led by General Paul Kagame (now Rwanda's president), mounted a successful military campaign to establish control of the country and topple the government of the interim prime minister, Jean Kambanda, a Hutu extremist who had seized control of the country after President Habyarimana's death. (Kambanda subsequently pleaded guilty to genocide before the ICTR and was sentenced to life imprisonment.Footnote 18) The Hutu-dominated government fled the country and the RPF established a national unity government composed of a moderate Hutu president (Pasteur Bizimungu), a Hutu prime minister (Faustin Twagiramungu), and a Tutsi vice-president and minister of defence (Kagame, now Rwanda's president).Footnote 19
The political climate following the genocide was highly charged as the Unity Government re-established control, and it became apparent that the international community had completely failed Rwanda, regarding both preventing and stopping the genocide. Because the politics of the Rwandan genocide continues to weigh heavily upon efforts to bring perpetrators to justice, it is necessary to consider briefly the political context before taking up jurisdictional issues. The United Nations missed the opportunity to stop the genocide before it had even started, and arguably made matters worse once the killing began. Even though the head of UN forces in Rwanda, General Roméo Dallaire, knew of the Hutu plans in advance and requested permission to raid arms caches about which he had been informed, UN headquarters denied him permission to intervene.Footnote 20 As the genocide unfolded, Rwanda not only remained a UN member state but even retained its seat on the Security Council, its ambassador privy to every discussion about how to stop the killings his government was carrying out. Indeed, as news of the slaughter emerged, the Security Council not only refused to reinforce UNAMIR, but actually reduced its size.Footnote 21
The United States bore its own share of the blame, passing up ‘countless opportunities to intervene’ and stop the killing,Footnote 22 refusing to act itself, and crippling UN efforts.Footnote 23 Indeed, the United States, like France, Belgium, and Italy, focused on evacuating its own personnel as the killing began, giving little thought (and virtually no assistance) to the Rwandans, many of whom had worked with and for them, and who were about to be slaughtered.Footnote 24 Belgium, too, shared some role in creating the ethnic tensions festering in Rwanda, having issued the identity cards ultimately used to identify Rwanda's Tutsis during the genocide; however, following the murder of the ten Belgian UNAMIR members, Belgium completely withdrew its forces, leaving the Tutsis (and moderate Hutus) to fend for themselves.Footnote 25
France was perhaps most closely involved in Rwandan politics and, therefore, the Rwandan genocide. Journalists such as Philippe Gourevitch have argued that France arguably facilitated the genocide, by
[A]dopting the official position of Rwanda's genocidal government: that far from being a matter of policy the massacres of Tutsis were the result of mass popular outrage following Habyarimana's assassination . . . that the killing was an extension of the war with the RPF; [and] that the RPF started it and was the greater offender.Footnote 26
He also points to France's military intervention that took place after the killing was virtually complete (Opération Turquoise), which was ostensibly to protect Tutsis as well as Hutus, but created more problems than it solved. Like the Hutus, who had, in the words of human rights activist Alison Desforges, been playing ‘mirror politics’ in order to justify their attacks on the Tutsis,Footnote 27 committing atrocities, then blaming the Tutsis for them in order to justify a campaign (and later a genocide) against the Tutsis, France argued that military intervention on behalf of ‘Hutu Power’ was required to protect the Hutus from the RPF's onslaught. Gourevitch explains:
From the start of the war with the RPF in 1990, Hutu extremists had promoted their genocidal aspirations with the world-upside-down rhetoric of Hutu victimization. Now Hutu Power had presided over one of the most outrageous crimes in a century of seemingly relentless mass political murder, and the only way to get away with it was to continue to play the victim.Footnote 28
Although it is admitted that the French intervention may have saved many thousands of lives, overall France's role in the genocide has been seen by many observers as deeply problematic.Footnote 29 A 1998 French parliamentary commission of inquiry concluded that France was not implicated in the genocide,Footnote 30 but many experts continue to maintain that France bore ‘some responsibility, however indirect, for the genocide’,Footnote 31 either by arming Hutu extremists or through its own military interventions.Footnote 32 In August 2008, a Rwandan commission of inquiry issued a report stating that ‘French forces directly assassinated Tutsis, Hutus accused of hiding Tutsis [and] . . . French forces committed several rapes on Tutsi survivors’. The French government denounced the report as ‘unacceptable’, and the accusations as untrue.Footnote 33
In the dominant narrative recited above, the Kagame government and the RPF emerge as heroes in an epic struggle to save Rwanda's Tutsi minority. Yet there is a counter-narrative as well. The RPF was found to have committed both war crimes and crimes against humanity by the UN Commission of Experts investigating the atrocities, accusations that were corroborated by human rights organizations and others since the genocide ended. (A Spanish indictment recently accused forty RPF officers of involvement in mass killings immediately following the genocide.Footnote 34) More controversially, Kagame and members of his government are accused of shooting down Habyarimana's plane, bringing about (either recklessly or intentionally, depending upon the interpretation one gives to the facts) the genocide that they then battled fiercely to contain. These allegations surfaced in a recent French indictment issued by a French judge, Jean-Louis Bruguière.Footnote 35 Bruguière's indictment presents the findings and conclusions of an eight-year investigation.Footnote 36 It alleges that the current president of Rwanda and leader of the RPF, Paul Kagame, gave the final order for the president's aircraft to be shot down.Footnote 37 According to Bruguière, Kagame orchestrated the assassination of Habyarimana in order to provoke reprisals against his own ethnic group, the Tutsi, and thus furnish legitimacy for the RPF to renew hostilities and provide him with an opportunity to seize power from the Hutu-dominated government.Footnote 38 The allegations in Bruguière's indictment have been disputed by the Rwandan government, leading to a rupture in Franco-Rwandan relations, and his indictment was met with criticism, particularly as he conducted no investigations in Rwanda and most observers at the time felt that it was the RPF, not extremist Hutus, that was caught off guard by the plane crash.Footnote 39 Indeed, many experts have argued that given the improbability of Bruguière's thesis, the allegations are, again, a sort of mirror politics, in which France is attempting to assert the culpability of the RPF in order to divert attention from its own actions as regards the genocide. At the same time, the question of who shot down the aircraft has remained a mystery, and the ICTR never conducted an investigation itself, leading to continued speculation.Footnote 40
This brief essay does not attempt to unpack the historical truth about what happened in Rwanda and who, or which government, bears the greatest responsibility for the cataclysm of 1994. Instead, it has a much narrower objective: to consider what the competing narratives and the litigation spawned in various fora mean for the project of international and transnational criminal justice. The Rwandan genocide has sparked litigation around the globe, in an effort to identify and prosecute the perpetrators. Cases have been filed in Belgium, defendants have been pursued in the United States, and the Rwandan government has attempted to bring prosecutions itself for more than 100,000 suspected perpetrators still in Rwanda (many perpetrators are to be found outside the reach of most efforts, located in refugee camps in the Kivu region of the Democratic Republic of the Congo, in Zaire and other African states, and even in Europe). France has served as a forum for universal-jurisdiction cases brought against Hutu génocidaires, as well as the most recent, sensational case brought by Investigating Judge Bruguière. All the cases have been brought in a tense political atmosphere involving accusations and counter-accusations between governments and factions within governments, and in the midst of this political maelstrom international justice has attempted to function as the International Criminal Tribunal for Rwanda has endeavoured to fulfil its mandate.
This essay examines, in order to explore the complementary and antagonistic aspects of each, three fora in which Rwandans have been (or will be) tried: the ICTR, the Rwandan Gacaca, and the French courts, and offers a tentative conclusion about the utility of international criminal justice in the midst of crisis. The clash between France and Rwanda over the legitimacy of French judicial action suggests an enduring and important role for international justice mechanisms: not just as mediators between competing narratives extant within a single nation that has been torn apart by the commission of atrocities, but, potentially, as a vehicle for the filtration of international politics. At the same time, the ICTR has not been insulated from the narratives and counter-narratives that have swirled around the Rwandan genocide, and has had persistent difficulties with the Rwandan government concerning its effort to investigate allegations against the RPF.
With respect to the issue of who was responsible for the downing of Habyarimana's aircraft, the ICTR never took up the challenge of pursuing that case, and the competing narratives of Judge Bruguière and the Kagame government remain. This is unfortunate, for given the conflict between the French and Rwandan narratives of the 1994 genocide, and the highly charged political atmosphere surrounding the allegations, the ICTR could have served as a more neutral forum to mediate the dispute, using the crucible of the criminal justice process and the constraints of the rules of evidence as techniques to build an authoritative and impartial record. Even if such an investigation is needed, having French judges conduct it is deeply problematic from both a practical and a juridical perspective, not to mention the allegations of ‘unclean hands’ that could surface. Indeed, it is curious that France has refused to hear in absentia cases against Hutu génocidaires, requiring the presence of the accused upon French territory to proceed, but has not required presence to bring a terrorism case based largely upon passive-personality jurisdiction (intertwined with the universality principle).
Rwanda continues to remain a forum for the prosecution of génocidaires, and the ICTR prosecutor has been transferring files of unindicted suspects to the Rwandan government,Footnote 41 although three recent requests by the Prosecutor to transfer cases to Rwanda were denied by trial chambers, due largely to concerns that the accused would not receive a fair trial.Footnote 42 That decision was upheld on appeal, making it difficult to envisage the successful completion of the ICTR's work on time. Some human rights experts have sharply criticized the tribunal's reasoning. Certainly, Rwanda's construction of a new detention facility that meets international standards, the adoption of legislation in March 2007 to govern the transfer of cases from the tribunal,Footnote 43 the abolition of the death penalty,Footnote 44 the appointment of qualified judges, and permitting monitoring of proceedings by the ICTR suggest that the Rwanda judicial system has matured considerably since the genocide of 1994.Footnote 45
At the same time, it has clearly taken a decade for Rwanda's legal infrastructure to be rebuilt. The Rwandan courts and Gacaca tribunals have been overwhelmed with large numbers of perpetrators, eviscerated institutions, poverty, and weak social cohesion, making the process of investigation and prosecution extraordinarily difficult. At least at the outset, international assistance, and international prosecutions, appear to have been vital to the restoration of peace and to combating impunity. Indeed, international law may have assumed a pivotal role, offering an ‘alternate construction of law that, despite substantial political change, is continuous and enduring’.Footnote 46 It is not clear that the ICTR will be given sufficient time and resources fully to complete its mandate. Indeed, the question remains whether the international community will support international justice, particularly for forgotten African countries, any better than it supported efforts to stem the conflict in the first place. The answer, at least for Rwanda, may be ‘no’, although several other African states may fare better with the ICC, given its status as a permanent institution.
If, as hypothesized, it is possible that neither the ICTR nor Rwandan jurisdictions can completely fulfil the need to pursue perpetrators, the efforts of third-party states may remain important, although the legitimacy of their actions remains controversial and a subject of international concern. Indeed, while many national courts have tempered their own extensions of universal jurisdiction through the development and application of doctrines of comity, subsidiarity, and complementarity, the Bruguière indictment (based not upon universal jurisdiction, but on the nationality of the victims) presents a potent counter-example.
2. The International Criminal Tribunal for Rwanda
As it did with the conflict in the former Yugoslavia and more recently in Darfur, Sudan, the UN Security Council voted on 1 July 1994 to establish a Commission of Experts for Rwanda to investigate what had taken place during the genocide, and determine whether, and by whom, serious violations of international humanitarian law had taken place.Footnote 47 On 2 October 1994 the Commission submitted an interim report to the Security Council, concluding that both sides to the armed conflict had perpetrated war crimes and crimes against humanity in Rwanda, and that ‘acts of genocide were perpetrated by Hutu elements in a concerted, planned, systematic and methodical way’.Footnote 48
As the Commission conducted its investigations, the international community debated whether to establish an international tribunal for Rwanda. The Tutsi-dominated Rwandan Unity government pressed for domestic trials, but was ultimately persuaded that international trials would be necessary as well. The Rwandan judicial system had been eviscerated by the genocide, and many leaders of the genocide had fled either to neighbouring countries or abroad, rendering international efforts at prosecution imperative.Footnote 49 Yet the Rwandan government had a difficult relationship with the ICTR right from its creation. It had formally requested the establishment of an international tribunal, but, as the contours of the institution began taking shape, raised several objections to the proposed Statute, one of which included an insistence that the tribunal be authorized to impose the death penalty.Footnote 50 The members of the Security Council refused to compromise on the death penalty question, and Rwanda ultimately voted against the resolution establishing the tribunal,Footnote 51 although Kagame, then vice-president and defence minister, stated at the time that Rwanda would co-operate with the tribunal.Footnote 52
The structure adopted for the Rwanda tribunal also engendered difficulties, and the ICTR suffered, particularly at the outset, from the same international neglect that Rwanda had endured during the conflict. The initial question was whether the ICTR would be an ‘add-on’ to the International Criminal Tribunal for the former Yugoslavia (ICTY), or be established specific to the situation in Rwanda. Although the Security Council adopted a Statute tailored to the Rwandan crisis in terms of jurisdiction and substantive law, the organizational structure of the ICTR was problematic. Although it now has 16 judges (seven of whom sit on the Appeals Chamber, which is common to the ICTR and the ICTY) and up to nine ad litem judges, it was initially accorded only two trial chambers of its own, a very small organization indeed to preside over trials involving the murder of nearly 1 million souls. It was also contemplated that it would share a common prosecutor with the ICTY, but would have an investigative office in Kigali, manned by a deputy prosecutor. The seat of the tribunal, however, was not situated in Rwanda, but in neighbouring Arusha, Tanzania, 17 hours away from Kigali by car.Footnote 53 The tribunal had initial difficulties attracting qualified personnel;Footnote 54 had only one courtroom for its work, and was plagued with security problems, difficulties with the Rwandan government, and financial mismanagement.Footnote 55
These difficulties notwithstanding, the ICTR acquired custody of key defendants more easily than did the ICTY, and appointing a common prosecutor gave the Yugoslavia and Rwanda tribunals equal weight.Footnote 56 First Richard Goldstone and then Louise Arbour took on the challenge of Rwanda: the challenge of prosecuting a genocide with few resources, little international support, and not a great deal of international interest. On the specific question of who bore responsibility for the attack on President Habyarimana's aircraft, no indictment was ever brought and, in spite of rumours that have surfaced to the contrary, no investigation conducted. The Office of the Prosecutor has consistently taken the position that the plane crash was not within the ICTR's jurisdiction, a proposition that one might debate. Certainly it is within the temporal jurisdiction of the tribunal, which extends from 1 January 1994 until 31 December 1994. The thornier issue is whether it falls within the tribunal's subject-matter jurisdiction, either as an act complicit in the ensuing genocide, as part of a campaign to commit crimes against humanity, or as a violation of Article 4 of the Statute, which includes acts of terrorism and murder as war crimes within the ICTR's jurisdiction. A brief analysis by two defence lawyers suggesting that subject-matter jurisdiction was tenuous, at best, was recently published in the Journal of International Criminal Justice.Footnote 57 Yet their analysis does not consider the possibility of the attack as a crime against humanity or the possibility of complicity in the ensuing genocide, and only briefly surveys the possibility of responsibility under Article 4 of the Statute as a war crime or an act of terrorism.
A constant challenge for the ICTR has been its relationship with the Rwandan government. Carla Del Ponte was denied a visa to travel to Rwanda when she first arrived, and acquired it only with difficulty. She has written in her memoirs that the Rwandan government had security escorts trailing her wherever she went, to provide security, but also to ‘make sure we were investigating Hutu attacks upon Tutsis instead of Tutsi attacks upon Hutus’.Footnote 58 In her report to the Security Council in 2001, she noted her intention to address allegations of crimes committed during 1994 by members of the RPF forces.Footnote 59 Del Ponte continued to pursue these investigations, meeting resistance from the Rwandan government which made it difficult for witnesses to travel from Kigali to Arusha to testify,Footnote 60 and probably costing her her position when ultimately, on 28 August 2003, the Security Council voted to split the job of the chief war crimes prosecutor between the ICTY, where Carla Del Ponte remained, and a new chief prosecutor for Rwanda.Footnote 61 The resolution also set out a timetable for completing the work of the two ad hoc tribunals by 2010.
Many had previously urged a separate prosecutor for the Rwanda tribunal, on the grounds that one prosecutor simply could not do the job of taking on the cases for both courts. According to The Economist, Del Ponte spent an average of only 35 days a year in Africa and left the two most important posts in her office vacant for a considerable time, drawing the ire not only of human rights groups, but of the United Nations.Footnote 62 (Del Ponte adds some interesting nuances to these critiques in her memoirs, suggesting many reasons for both the delays and the difficulties experienced with the ICTR). Yet although Del Ponte and her predecessors may have been stretched very thin, the Security Council's decision seems undoubtedly to have been influenced by Rwandan complaints about Del Ponte's activities, specifically her attempt to indict Tutsis for the crimes committed against Hutus by RPF forces during and immediately after the genocide.Footnote 63 Kagame had obstructed the ICTR's investigations into RPF activities, and consistently complained to the Security Council and UN Secretary-General Kofi Annan about Del Ponte's performance.
Following Del Ponte's removal, the Security Council appointed a Gambian judge, Hassan Bubacar Jallow, as the new Chief Prosecutor for the ICTR. Jallow, a well-respected African lawyer and jurist, headed a UN commission charged with preparing a report on the functioning of the tribunals, and how they could be improved. Although Jallow has repeatedly stated that he has been ‘making progress’ in the investigation of allegations against members of the RPF,Footnote 64 no indictments were ever issued, and the Office of the Prosecutor's strategy now seems to be to leave this issue to the Rwandan government. While this may be understandable, given that the Security Council has pressured the ICTR to complete its work by 2010, this may lead to a gap in the ICTR's ultimate legacy, as discussed below.
3. Domestic prosecutions in Rwanda
During the Rwandan genocide of 1994, Rwanda's justice system was completely eviscerated.Footnote 65 Rwanda endeavoured to address the problem by adopting a law (under which the offenders would be punished) that effectuated a four-part triage of offences, ranging from the most seriousFootnote 66 to the least egregious (defendants who had committed crimes against property).Footnote 67 The law also provided for a ‘confession and guilty plea procedure’ to permit offenders in the second, third, and fourth categories to obtain significant reductions in penalties in exchange for a full confession.Footnote 68 Unfortunately, the sheer numbers of prisoners involved (more than 100,000 at times), and the influence that the génocidaires continue to exert over the prison population,Footnote 69 rendered the confession and guilt procedures ineffective, and the trials that were held under the new law were often criticized as unfair.Footnote 70 Thus, as a practical matter, imposing individual criminal responsibility was a difficult strategy.Footnote 71 At the same time, releasing the detainees and admitting the impossibility of the task could have led to further outbreaks of violence and the degradation of the rule of law.Footnote 72
In July 1999 Rwanda responded by creating ‘Gacaca tribunals’, comprising ordinary citizens who will hear cases involving Category 2, 3, and 4 offences under the Genocide law. Under Gacaca, suspects are brought before 19-member lay tribunals sitting in the village where the crimes occurred. Anyone can speak for or against those charged, and the accused may confess and seek forgiveness or deny the charges and defend themselves. The accused is not protected by many of the rights normally available to criminal defendants, however, leading some international observers to express concern about the ultimate fairness of the result.Footnote 73 Moreover, according to at least one report, discussion is forbidden about whether RPF members committed atrocities during and after the genocide,Footnote 74 suggesting a lack of impartiality.Footnote 75
Although Rwanda's pursuit of the Gacaca process suggests the continued importance to Rwandan society of accountability and justice,Footnote 76 some Rwandan observers have expressed concern that perpetrators coming forward to confess may in fact not feel that what they did was wrong: in the chilling assessment of one Rwandan, ‘they believe that the real crime is not what they did, but is not to confess what they did’.Footnote 77 If so, there is probably little doubt that maintaining pressure on the Rwandan government and the now out-of-power Hutu majority is still an important component of maintaining a stable peace in Rwanda. This may be particularly true given that the Rwandan government has been releasing thousands of prisoners as a means of addressing prison overcrowding,Footnote 78 and still has not pursued allegations of RPF crimes.
4. France's attempts to exercise universal jurisdiction over alleged participants in the Rwandan genocide and the Bruguière indictment
4.1. Universal jurisdiction cases
France has had an interesting history of bringing cases based on the Charter of the Nuremberg Tribunal, both as regards cases of crimes against humanity arising out of the Second World War,Footnote 79 and, more recently, in bringing actions based upon universal jurisdiction laws available to bring cases involving the Bosnian war and the Rwandan genocide.Footnote 80 The early cases were brought under a 1964 law that incorporated by reference Article 6(c) of the Nuremberg Charter on crimes against humanity, and allowed the French courts to try, and ultimately convict, both German perpetrators and French collaborators, most famously Klaus Barbie and Maurice Papon, the latter of whom was convicted of authorizing the deportation of more than 1,600 Jews from Bordeaux to the east.Footnote 81 Subsequently, France adopted laws to permit the exercise of universal jurisdiction over perpetrators of atrocities outside France, based either on universal or passive personality jurisdiction, although the French courts have placed various limitations on the exercise of universal jurisdiction, generally requiring the presence of the accused on French territory (at least at the outset of a case) before a case of crimes against humanity, war crimes, or genocide can proceed.Footnote 82 Particularly as regards the Rwandan conflict, France was the site of several efforts to bring Hutu perpetrators to justice, efforts that were largely unsuccessful until the Munyeshyaka case was filed. Munyeshyaka was a priest implicated in the commission of atrocities during the Rwandan genocide, who had fled to France and taken up a position as a priest in a small village in the south.Footnote 83 On 25 July 1995 an official investigation was opened against Munyeshyaka by the juge d'instruction of Privas for genocide, crimes against humanity, and participation in a group already created for, or having as intent the planning of, these crimes.Footnote 84 Looking at the Pinochet and other precedents, the lower court held that it had universal jurisdiction to institute proceedings under the Torture Convention.Footnote 85 The Court of Appeals of Nîmes reversed,Footnote 86 holding that the French courts had no basis to exercise universal jurisdiction over the Rwandan genocide. This result was ultimately reversed by a new lawFootnote 87 providing for universal jurisdiction over genocide, and jurisdiction over the Munyeshyaka case was affirmed by the Court of Cassation in 1998.Footnote 88 On 21 June 2007 the ICTR published an arrest warrant for Munyeshyaka as well as for Laurent Bucyibaruta,Footnote 89 who was also residing in France and already under formal investigation by French authorities for alleged crimes committed during the Rwandan genocide.Footnote 90 The ICTR ultimately referred the two cases to French judicial authorities,Footnote 91 and on 20 February 2008 the French judiciary accepted the referrals. Although progress in the Munyeshyaka case has been slow,Footnote 92 it represents a relative success.Footnote 93
Because France requires the presence of the accused on French territory, at least at the outset of the case, the French universal jurisdiction cases involving the Rwandan genocide do not appear ‘exorbitant’ in perspective, but seem to fulfil the criteria requirements of Principle 8. In Munyeshyaka, for example, the accused had sought refuge in France following the genocide, and had established a new life for himself there. Many of his victims were also found in France, and France thus had links of residency, at least, with both perpetrator and victims. Moreover, the ICTR specifically noted, in its approval of Munyeshyaka's transfer, that France could provide him with a fair trial, did not apply the death penalty, and had jurisdiction to proceed.Footnote 94 While France's ‘presence’ requirement for the exercise of universal jurisdiction has been criticized as neither required by customary international law nor practically useful, since it impedes even an investigation proceeding without the suspect's presence,Footnote 95 it has also served to insulate France from some of the political controversies surrounding the use of universal jurisdiction in cases with fewer connections to the forum, such as the criticisms Belgium faced prior to amending its laws a few years ago.Footnote 96
4.2. The Bruguière indictment: terrorism allegations
In some ways the Munyeshaka indictment represents complementary jurisdiction: a situation in which an international and national jurisdiction (and presumably the territorial state as well) are in agreement as to the most efficient use of judicial resources and prosecutorial initiative. The situation with the Bruguière indictment, of course, could not be more different,Footnote 97 representing antagonism between the Rwandan and French governments, and possibly international jurisdictions as well. As noted earlier, this indictment not only covers matters not investigated by the ICTR, but has led to a rupture of diplomatic relations between France and Rwanda.Footnote 98 The investigation was originally opened in response to a complaint filed in France in 1998 by the family members of the French flight crew,Footnote 99 all of whom died in the crash.Footnote 100
On 22 November 2006, based on findings made in his indictment, Bruguière issued international arrest warrants for nine ranking Rwandans accused of involvement in shooting down the aircraft carrying Rwanda's then president Juvenal Habyarimana on 6 April 1994.Footnote 101 The arrest warrants target several current senior Rwandan government and military officials with close ties to Kagame, including James Kabarebe, a major-general in the Rwanda Defence Force; Charles Kayonga, the current chief of staff of the Rwandan army; and Faustin Nyamwasa-Kayumba, the Rwandan ambassador to India.Footnote 102 Warrants were also issued for individuals suspected of firing the missiles which destroyed the aircraft, including Franck Nziza, believed to be a captain in the presidential guard, and Eric Hakizimana of the secret service.Footnote 103 Overall, Bruguière alleges that these nine Rwandans were responsible for plotting the assassination or actually shooting down Habyarimana's aircraft.Footnote 104 Not based upon universal jurisdiction, the crime alleged is terrorism and the action was brought by the survivors of the victims: their French family members as well as members of Habyarimana's family. Thus, unlike the genocide cases, this case involves the exercise of jurisdiction ‘in absentia’, linked juridically to the passive personality principle, but arguably ‘exorbitant’ nonetheless, if that is its only basis for proceeding.Footnote 105 Additionally, French authorities sent the indictment to the UN Secretary-General along with a request that Kagame, who is immune from French prosecution as a head of state,Footnote 106 should stand trial at the ICTR for his alleged involvement in shooting down the aircraft.Footnote 107
4.3. Rwanda's response to the French allegations
The Rwandan government was outraged by the allegations in the Bruguière indictment.Footnote 108 Following the issuance of the arrest warrants, some 25,000 Rwandans reportedly took part in a government-organized demonstration against France.Footnote 109 President Kagame also publicly responded, denying any involvement in shooting down the aircraft that carried Habyarimana and stating that the allegations were politically motivated.Footnote 110 In an interview with France-Culture radio, Kagame denounced Bruguière as ‘an impostor, a politician’,Footnote 111 stating that ‘[i]f he [Kagame] were a judge, he would raise the question of the implication of France in the genocide of the Tutsis in Rwanda.’Footnote 112 (In meetings with Del Ponte, Kagame allegedly raised the issue with her, as well.Footnote 113) Kagame also promised that ties between both countries would suffer.Footnote 114 Shortly thereafter Rwanda severed diplomatic ties with France,Footnote 115 a move described by Rwandan justice minister Tharcisse Karugarama as a response to French ‘bullying’, expressing the opinion that there was ‘no reason why there should be diplomatic relations with a country that is actually attempting to destabilize the institutions of Rwanda's government’.Footnote 116
The Bruguière indictment has also raised questions of international law presented to the International Court of Justice (ICJ), although France has not agreed to jurisdiction in the case. On 18 April 2007, Rwanda applied to the ICJ in the dispute,Footnote 117 asking it to declare that, by issuing the arrest warrants in the case, France ‘has violated, and is continuing to violate, international law with regard to international immunities generally and with regard to diplomatic immunities particularly’, as well as ‘the sovereignty’ of Rwanda, and thus that France is ‘under an obligation to annul such international arrest warrants forthwith’.Footnote 118 With respect to France's request that Kagame should stand trial at the ICTR, Rwanda argued that France ‘has acted in breach of the obligation of each and every State to refrain from intervention in the affairs of other States’ and ‘is under a duty to respect the sovereignty’ of Rwanda.Footnote 119 France has not accepted the ICJ's jurisdiction in the case, which is, of course, reminiscent of the disputes in other cases brought to the ICJ, including the Yerodia case and Congo v. France.
5. Antagonism and complementarity: a vital role for the ICTR
Cases involving the commission of atrocities pose unique challenges for the inter-national legal order. For although states increasingly take the position that impunity for the commission of jus cogens crimes is legally, socially, and politically unacceptable, they have also generally been reluctant to adjudicate cases involving crimes committed by individuals with little connection to the forum. That is, as the normative structure of international criminal law has arguably been strengthened, political constraints are increasingly coming to the fore in other ways. Indeed, just as the ICC employs the notion of ‘complementarity’ to apportion cases between the ICC and national courts, national courts are employing filtering mechanisms, such as the subsidiarity doctrine employed by Spain, to distinguish appropriate from problematic exercises of universal jurisdiction. The French/Rwandan example confirms this hypothesis as regards the cases against Hutu génocidaires, given that the French courts will only exercise jurisdiction if the accused is present on French territory at the outset. Moreover, the Munyeshyaka and Bucyibaruta cases demonstrate international and national jurisdictions working in complementary fashion to the same end. The Bruguière terrorism case, however, is more problematic. It suggests that states may invoke jurisdiction without the link of the accused on their territory and, arguably exorbitantly, if there is a sense that an important national interest is threatened or that their nationals have been victimized. It is correct that some international terrorism treaties, such as the International Convention against the Taking of Hostages, provide that states may exercise criminal jurisdiction based on the nationality of the victim,Footnote 120 and other countries (such as the United States)Footnote 121 have done so. Yet passive personality as a sole basis for jurisdiction in such cases would appear to many as exorbitant, and has been vociferously criticized in the literature. One option, of course, is to consider terrorism a universal jurisdiction crime, which Security Council Resolution 1373 certainly suggested.Footnote 122 But even if this were true, it seems odd that French courts would exercise jurisdiction over the plane crash, but not the resulting genocide. Although the Princeton Principles suggest that several links exist that may render jurisdiction proper in that case, several victims were French, and no other jurisdiction appeared willing to conduct a criminal investigation into the crime; however, the politics surrounding the case and particularly France's arguable complicity in the 1994 genocide render France a forum that may appear antagonistic to the interests of international and Rwandan justice. After all, if the French government was either directly or indirectly involved in the Rwandan genocide, the uproar over the Bruguière indictment is understandable. Indeed, one might argue that if a state arguably has ‘unclean hands’ it should not be the site of universal jurisdiction cases that may touch on its own complicity. One can also make a strong counter-argument to the effect that if one disaggregates the notion of the ‘state’, and a state has an independent judiciary, the unclean-hands doctrine should have no application. In any event, given the weaknesses of the Bruguière indictment, it is not clear that a French trial will ever be held or will be successful if it is held.
At the same time the most apparently capable and appropriate forum, the ICTR, appears to have been hamstrung by political considerations that prevented it from proceeding, given the realities of realpolitik. Indeed, in discussing Bruguière and his case, Del Ponte notes that the ICTR would have been ‘shut down’ if it had commenced an investigation of Kagame, and that the important genocide trials would never have been brought.Footnote 123 Given the conflict between the French and Rwandan narratives of the 1994 genocide, it would seem important for the ICTR to mediate the dispute, using the crucible of the criminal justice process and the constraints of the rules of evidence as techniques to build an authoritative and impartial record. It is true that the Rwandan government has now been charged with that task, under the watchful supervision of the ICTR. But the pressure on the ICTR to complete its work early probably means that it may not be able to undertake this task, suggesting that it may still be important for third-party states such as France to be able to proceed. It would seem more useful to permit the ICTR to continue for some time so as to permit the proper closure of ongoing work, and allow a smooth transfer of jurisdiction to the Rwandan legal system. Otherwise, the international community may fail the project of Rwandan justice, just as it failed the Rwandan people when the genocide was unfolding.
