Monday, October 31, 2011

A fair trial in Rwanda?

Does a formerly-high ranking Hutu official charged with genocide and crimes against humanity face a fair trial in Rwanda? Last Thursday, in the case of Ahurogeze v. Sweden, the European Court of Human Rights decided that Ahurogeze's extradition to Rwanda would not violate Articles 3 or 6 of the European Convention on Human Rights, which prohibit inhuman or degrading punishment and protect the right to a fair trial, respectively. The decision offers a glimpse of the dialogic power of international human rights law, as successive refusals to extradite by the International Criminal Tribunal for Rwanda and other countries pushed the Rwandan government to reform its trial standards for genocide suspects.
Ahurogeze is the former head of the Rwandan Civil Aviation Authority, and is accused of being an Interhamwe leader involved in a massacre of Tutsis in April 1994. In 2001, Denmark granted him refugee status, in large part due to his Hutu ethnicity. In July 2008, the Swedish police arrested Ahurogeze in Stockholm under an international arrest warrant. Rwanda issued a formal extradition request the following month.
At the time, neither the ICTR nor any country had agreed to transfer a genocide suspect to Rwanda. In 2008, the ICTR refused to transfer 5 genocide suspects to Rwanda for two central reasons. First, the available punishment was life imprisonment in isolation without appropriate safeguards. Second, there was no equality of arms in ensuring the presence and examination of witnesses, largely because defense witnesses scared to testify.
Based largely on these decisions, France has refused to extradite genocide suspects to Rwanda as recently as October 2010. Similarly, Germany refused to extradite a Rwandan genocide suspect in November 2008 based on the ICTR decisions. Finland did the same in February 2009 as did Switzerland in July 2009. In April 2009, the UK refused to extradite a Rwandan genocide suspect due to the lack of impartiality and independence of judiciary and the absence of guarantees of the availability of video technology to call witnesses who were scared to appear in person.
In May 2009, however, Rwanda amended its law on transferring cases from the ICTR and other countries to limit the maximum penalty to life imprisonment and to authorize video testimony. In response to this and other efforts to bring Rwanda's judiciary into line with international standards, the ICTR transferred its first genocide suspect to Rwanda on June 28, 2011.
The Uwinkindi case was subject to transfer for three reasons: (1) the change in permitted penalties described above (2) improved detention conditions, including monitoring by the African Commission on Human and People's Rights, and (3) improvements in laws regarding witness immunity as well as the creation of a new witness protection program. Though the Uwinkindi case is on appeal, it laid the framework for the ECHR's decision to allow the extradition of Mr. Ahurogeze, as well as Norway's decision to extradite a Rwandan genocide suspect in July of this year.
In Ahurogeze, the ECHR sets a high standard for finding that an extradition violates Article 6. The court notes that it has prevented only one extradition, in the 1989 Soering v. United Kingdom decision -- where the claimant faced the death penalty in the United States. It lays out the "flagrant denial of justice standard" for prohibiting extradition under Article 6, and determines that given Rwanda's recent legislative fixes, Mr. Ahurogeze would not face such a risk. Let's hope for his sake that international human rights law's conversation with the Rwandan government has led to real rather than superficial reform of its justice system.


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