Thursday, February 14, 2008

The Perils of Universal Jurisdiction

While generally a supporter of the concept of universal jurisdiction for trying grave international crimes, Spain's recent indictment of 40 Rwandan army officers on international criminal charges raises interesting questions about the appropriateness of trying such cases in the domestic courts of nations with little connection to the crimes charged. As an internationalist, it's hard for me to argue with the idea that the crime of genocide, war crimes, and crimes against humanity are so serious that its perpetrators are hostii humani generis -- enemies of all humankind -- and have thereby opened themselves up to prosecution wherever they may be found. But the practical implications of this Spanish case test the boundaries of this principle in ways that should be of concern to even the most die-hard advocate of universal jurisdiction.
First, the moral authority question. The charged Rwandans were not responsible for the 1994 Rwandan genocide (Hutus killing Tutsis), but for acts by Tutsi-led rebels who defeated the Hutu extremists responsible for the genocide. Certainly, these soldiers should be responsible for violations of international criminal law in their efforts to end the overwhelming violence perpetrated in Rwanda -- but where was the Spanish army when the Hutus were slaughtering hundreds of thousands of Tutsis? Given the woeful failure of the international community to step in, it seems a bit rich for a Spanish court to now be indicting the Tutsis who were left to their own defenses.
Second, the justice v. peace balance. While this may not be a zero-sum game (and indeed, justice may well increase long-term prospects for peace), these charges indirectly implicate President Paul Kagame, the sitting head of state in Rwanda, who led the Tutsi rebels charged by the Spanish court. Moreover, Judge Andreu, who issued the indictments, said that he had evidence implicating Kagame, but of course cannot use it because of Kagame's current immunity from prosecution. While I am no advocate of allowing war criminals to live in impunity because of their political positions, in a fragile democracy such as Rwanda, this cage-rattling could have serious implications for political stability -- especially given the ongoing conflict just across the border in the Democratic Republic of Congo. Given the severe costs of such instability -- in 1994, 800,000 dead in 100 days -- it's worth questioning the value of immediate justice, or at least trying to think about what the population of Rwanda might prefer.
Third, respect for domestic law enforcement processes. The Rwandan Foreign Minister, unsurprisingly, has slammed the indictments (which target the current head of the Rwandan Armed Forces and the Rwandan ambassador to India, among others), which may be no more than an effort to ensure impunity for his political allies. But the Spanish judge gives Rwanda's complaints some credence by failing to liaise with Rwandan judicial authorities to seek the officers' arrest but instead going straight to Interpol with international arrest warrants. If Judge Andreu had at least attempted to work with Rwandan authorities and been rebuffed, he would be able to defuse such arguments.
Finally, proportionality of connection to the crimes charged. While the murders of nine Spaniards are part of the charges, and with the disclaimer that I haven't seen the indictments, this seems a weak link on which to indict 40 soldiers. If these Rwandans are indeed responsible for war crimes, crimes against humanity, genocide, and terrorism, given that the victims of these mass crimes were also primarily Rwandan, it seems that there may be fora better suited to try them. Perhaps international and even regional accountability mechanisms move too slowly, but in order to ensure the legitimacy of efforts to bring to justice all those who have perpetrated grave international crimes, it may be better to proceed cautiously than to extend the doctrine of universal jurisdiction in tenuous cases. (cross-posted on Concurring Opinions)

9 comments:

Claude Adams said...

" . . . this cage-rattling could have serious implications for political stability . . .

Strange exercise in moral relativism. Prosecutions against the perpetrators of the genocide have been proceeding apace for 14 years, inside Rwanda, in Arusha, and even in North America. Why then is it "cage rattling" to insist that ALL crimes against humanity in Rwanda, including those of Tutsi officers, be investigated? Surely you are not arguing than an atrocity like 1994 should excuse reprisal atrocities of innocent men, women and children!

As for political stability, it's Kagame's adamant refusal to prosecute war criminals among his own followers that stands in the way of stability, as far as many (innocent) Hutus are concerned.

Jaya Ramji-Nogales said...

If you bother to look to the beginning of that sentence rather than citing one clause out of context, you'll see that I start the sentence by noting that "I am no advocate of allowing war criminals to live in impunity because of their political positions." I'm certainly not saying that these crimes shouldn't be investigated, but I think my post makes abundantly clear that my concern is with the forum. As my post states in no uncertain terms ("Certainly, these soldiers should be held responsible for violations of international criminal law") I am in favor of accountability for all those who perpetrate such serious crimes, but I do think these prosecutions should proceed thoughtfully, with concern about implications for the country in question -- otherwise, they risk becoming an exercise in neocolonialism.

Claude Adams said...

And what exactly does "thoughtfully" mean in this instance, as if accusations made 14 years after the fact would be anything less than "thoughtful" or driven by motives of anything other than a desire for justice long delayed. And please don't wave the red flag of "neocolonialism" unless you have clear evidence of such. The position you take reeks of exceptionalism--that some crimes against humanity are more reprehensible than others. And I find that implication abhorrent.

Jaya Ramji-Nogales said...

Thoughtfully, as I make clear, means thinking about the forum in which the crimes are charged. I'm not doubting the motives of the Spanish judge or the importance of accountability for these crimes, but asking crucial questions about how and where we should seek this accountability. You seriously misconstrue my position if you read it to claim that some crimes against humanity are more reprehensible than others, and I don't think your interpretation has any basis in my post.

Claude Adams said...

Okay, then please be specific. "How and where" should this accountability be sought? You will of course know that anyone bringing these charges forward INSIDE Rwanda would be immediately arrested and charged with "negationism" and "genocidal ideology." If you like I can quote you specific cases, such as the woman publisher who was just ended a year's prison sentence for publishing an article claiming that Hutus and Tutsis are not equal before the law.

Then, please read this http://allafrica.com/stories/printable/200802140991.html
(add .html after number)

The Kagame regime does not need special pleading from experts outside Rwanda. It needs merely to acknowledge that terrible crimes were committed AFTER the genocide, and that these crimes need to be investigated as soon as possible, and not continue to be brushed aside under the cover of reconciliation and the "need for political stability." And that is precisely what the Spanish group is asking.

Jaya Ramji-Nogales said...

I don't think that I'm in a position to answer the precise question of "where and how" as I'm not Rwandan and I didn't live through the genocide. I think that question, first and foremost, has to be asked of the affected population. Once their preferences are determined, there are many different options, from the ICTR, whose temporal jurisdiction appears to include these crimes, to a hybrid tribunal, to a truth commission-style proceeding -- some of which will likely be more appropriate to the Rwandan cultural context and serve the needs of the Rwandan people far better than a trial in Spain. Certainly, ensuring that such accountability mechanisms go forward will take no small amount of effort from the international community, but I think they should take place on terms laid out by Rwandans, not by a Spanish NGO and court, no matter how good their intentions. Having recently represented an asylum seeker from Rwanda, I am fairly well informed about the oppressive nature of the Kagame regime. Questioning the form that accountability should take for these crimes does not make me an apologist for that government, and while I understand your hostility to the regime, I'm afraid you're shooting at the wrong target.

Claude Adams said...

I can appreciate the need to move carefully here, but when you say that any proceedings should be "on terms laid out by Rwandans," it really begs the question: Which Rwandans? Kagame and the RPA (who would be prosecuting themselves)? Or on terms laid out by the 85% majority Hutus (who are poorly represented in Rwanda's important institutions)? Or by the Rwandan Diaspora? And in what fora? The gacacas with their "popular justice" of hearsay and finger-pointing, the state courts (which are hopelessly undermanned), or the ICTR (which is closing up shop soon after having prosecuted only two dozen genocidaires in more than a decade)?

You see, these are all real hardcore questions that need to be answered. And then, consider the cultural context. You acknowledge the oppressive nature of the Kagame regime, but then you say we should be soliciting the views of the "affected population." I have worked in Rwanda. I have asked people their views. They are afraid even to say the words "Hutu" and "Tutsi" for fear they are overheard and charged with divisionism. What answers do you think you will get when you ask people if senior officials of the Rwandan army should be held to account for crimes against humanity?

Jaya Ramji-Nogales said...

Of course there are hard questions to be asked, and of course there are no easy answers. I don't think that should stop us from working as hard as possible to ensure that international criminal justice efforts are as representative of local populations as they can be. And your points still don't refute my claim that we also need to ask hard questions about Spain's exercise of universal juridiction in this case.

Claude Adams said...

What does the application of international law, as regards to crimes against humanity, have to do with the views of "local populations" or the impact on "local populations?" We can spin our rhetorical wheels all we want, but we always seem to come back to "relativism." What's right elsewhere may not be "right" for Rwanda, or the timing may not be right, or the fora . . . etc. Follow this path, and we can eaasily rationalize ourselves into moral inertia . . . another reason why lawyers scare me . .