The Perils of Universal Jurisdiction
posted by Jaya Ramji-Nogales
While generally a supporter of the concept of universal jurisdiction for trying grave international crimes (i.e. war crimes, crimes against humanity, and genocide), 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 conflict from which these crimes arose. 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 held 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 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 IntLawGrrls)