You can run but you can’t hide? Rwabukombe and universal jurisdiction

As the International Criminal Tribunal for Rwanda (ICTR) officially closed its doors on the 31st of December 2015, one thing still remained certain, the lives of the victims and affected communities of the Rwandan genocide will never be the same. The ICTR may have delivered justice to the best of its abilities but understandably could not prosecute each and every perpetrator, especially those that fled and sought refuge in other countries. However, due to the fact that international crimes like genocide, affect the entire international community, international law obliges states to prosecute perpetrators of international crimes no matter where those crimes were committed through the application of universal jurisdiction. A German court in Frankfurt recently did a service to international criminal justice by prosecuting and sentencing Onesphore Rwabukombe, a former Rwandan mayor for his participation in the Rwandan genocide. Mr Rwabukombe, a Hutu, was sentenced to life in prison for his participation in an attack on a church which had been housing Tutsi refugees during the 1994 genocide. Rwabukombe had relocated to Germany where he had been living under asylum since 2002.

The limelight in terms of international criminal law cases is usually stolen by more newsworthy cases before the International Criminal Court or the respective tribunals and often times, not enough credit is given to domestic courts for their contribution towards fighting impunity. Rwabukombe’s case is significant, not only as an addition to yet another victory for international criminal justice but also as an example of the complementary role that domestic courts play in the fight against impunity. Additionally, the case illustrates the importance of universal jurisdiction towards the enforcement of international criminal law in situations where the perpetrator tries to avoid accountability. The case reiterates that the ends of international criminal justice can be met if more states lived up to their international legal obligations by prosecuting perpetrators of international crimes instead of placing high expectations on international courts and then complaining when they deem the said courts inefficient.

Furthermore, the case brings to mind a number of pertinent questions regarding the accountability of crimes committed on the African continent. Given Germany´s colonial history in some African countries and particularly in Rwanda between the 19th and 20th century, one might be left wondering, who should have been at the forefront of prosecuting Rwabukombe? More generally, who should be at the forefront of prosecutions for crimes committed in Africa? It should be noted that Rwandan officials were the ones that initially transmitted the international arrest warrant to German officials but after his arrest, Germany declined to extradite Rwabukombe on the basis that he would not be afforded a fair trial in Rwanda. This was actually not the first time German courts have tried and sentenced individuals for crimes committed in Africa. In fact, other European based courts have also prosecuted numerous high ranking officials of African origin for the commission of international crimes in Africa.

Consequently, African leaders complained and labelled the use of universal jurisdiction by European courts to target African leaders as a violation of the sovereign equality of states. Additionally, when one considers the history of subjugation, colonization and especially that no Europeans were ever prosecuted for past crimes perpetrated against the continent and its people, is it then morally appropriate for European countries to preside over crimes committed in African countries? As we toast to yet another victory for international justice with regard to Onesphore Rwabukombe, perhaps we should also cautiously ponder over the extent of such celebrations.

On the other hand, one could deliberate that instead of African leaders being up in arms about the so called abuse of universal jurisdiction to target African nationals, African domestic jurisdictions should also gear up and prosecute both African non-African international criminals who travel or relocate to African countries. Realistically, most African countries do not even possess the necessary capacity to prosecute crimes of such high calibre. In order to do so, those states that haven´t already, would need to not only ratify the Rome Statute but also put in place the requisite domestic legislative and other mechanisms for prosecuting international crimes. The South African Constitutional Court already led by example within the continent when it confirmed that the country is obliged to honour its international obligations and therefore ordered the National Prosecuting Authority and the South African Police services to initiate investigations into the crimes allegedly committed in Zimbabwe. Although the reality is that the negative political implications that might ensue are more likely to hinder the implementation of the judgement; the zero tolerance stance against impunity by the South African courts and civil society is of significant importance. In fact, through the use of universal jurisdiction, SA also instituted investigations into crimes against humanity committed in Madagascar in 2009 with respect to the former president Marc Ravalomanana who now resides in SA. However, it should not be forgotten that SA recently joined the group of African states that failed to honour the ICC warrant for the arrest of Sudanese president Al Bashir upon his visit to that country. So it appears, SA like many other African states, might be dedicated to the enforcement of international criminal law but not when it comes to siting heads of state. Most AU state parties strongly believe in the immunity of state officials, a subject of much controversy given the varying interpretations of the customary international law norm and its (non)application in international criminal law.

Back to the Rwabukombe case: Germany has sent a strong message that it will not tolerate impunity regardless of where it was committed and that the perpetrators will not find refuge within the German borders. The intentions of the German court should not be viewed suspiciously because the perpetrator is African, instead the court must be applauded for delivering justice to a genocidaire who thought he could avoid accountability for his crimes.

Such a signal will deter international criminals from using the country as a refuge and at the very least, could deter the commission of future atrocities. It can only be hoped that more states will follow suit in adopting a zero tolerance towards impunity. At the same time, let us not turn a blind eye to the relevance of historical injustices committed on the African continent and the existing nexus to contemporary trials, be they domestic or international. It is not only high time Africans were accorded the opportunity to be in charge of prosecuting crimes committed within our own continent; it is also about time we took up the responsibility of prosecuting crimes that take place elsewhere. This is not to discourage foreign courts from using universal jurisdiction to prosecute African nationals, instead the German courts and other national jurisdictions should proceed to exercise universal jurisdiction regardless of the continental origins of perpetrators that seek refuge in or visit their countries without being hindered or swayed by any factors. Sadly, in reality, political and other considerations seem to outweigh the interests for prosecuting crimes from certain continents and states. Only when all states impartially and universally seek accountability for international crimes will impunity be effectively eradicated.

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