A law professor at Middlesex University in the UK has criticised a ruling by a French court that three Rwandans, suspected of involvement in the 1994 Genocide against the Tutsi, cannot be extradited for trial.

Prof William A. Schabas, said that the Wednesday ruling will only confirm suspicions that the French legal system lacks the will to bring to justice perpetrators of the Genocide.

Schabas’ analysis was published on a weblog for doctorate students in human rights.

A top French court, the Cour de Cassation, on Wednesday ruled that Claude Muhayimana, Innocent Musabyimana, and Laurent Serubuga cannot be extradited to Kigali because genocide was not legally defined as a crime in 1994.

But Schabas dismisses this argument, saying the Universal Declaration of Human Rights that Rwanda signed prior to the Genocide is enough to qualify the 1994 atrocities as punishable crimes.

The court overturned a November appeals court ruling approving the extradition of Muhayimana and Musabyimana. The same court also upheld a September decision by another court rejecting the extradition of Serubuga, a former colonel.

"At the time of 1994 genocide, Rwanda had ratified the Convention. Because of its constitutional framework, an international treaty was directly applicable before the national courts. Thus, the crime of genocide most certainly existed under Rwandan law in 1994,” Schabas wrote.

"However, legislation setting out the penalty for the crime was not adopted until 1996. The legislation was deemed to be retroactive in effect. In Rwanda, many thousands have been prosecuted on this basis for genocide committed in 1994. The world has praised Rwanda for its efforts to bring perpetrators to justice on this basis,” he added.

He said that the issue of retroactivity of the Rwandan legislation is adequately addressed by article 11(2) of the Universal Declaration of Human Rights that states that: "No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed.’

The problem of the lack of a penalty in force in 1994, he says, is adequately addressed by the fact that penalties were provided under Rwandan law at the time for the underlying crimes of killing and causing serious bodily harm. How can France’s position be squared with its own support for the International Criminal Tribunal for Rwanda, where suspected génocidaires have been prosecuted on the basis of legislation adopted after the crimes were committed?” he poses.

France is one of the four states that created the International Military Tribunal in 1945, an institution that prosecuted Nazi offenders on the basis of legislation adopted after the crimes were committed.

"The International Criminal Tribunal for Rwanda has transferred offenders to stand trial before Rwandan courts without being troubled by this retroactivity issue. The courts of other countries – Canada and Sweden for example – have agreed to extradite suspects to Rwanda without this difficulty arising,” Schabas added. At the time of the 1994 genocide, France supported the Rwandan regime. I vividly recall encountering French forces in the country when I visited Rwanda in early 1993 as part of a fact-finding mission. Apart from the intriguing issue as to whether any French complicity in the genocide of 1994 can ever be established, one thing seems quite clear: France had extraordinary influence over the regime.”

Alain Gauthier, President of France-based rights group, Collectif des Parties Civiles pour le Rwanda (CPCR), an association that pursues Genocide suspects living in France, is even baffled by Paris’ stand on Genocide fugitives in France. 

"The Cour de Cassation has remained faithful to its policy. So there is nothing to expect in the future. It will now be the French justice to try all genocide suspects. This argument, repeatedly advanced by judges of the court by totally ignoring the ICTR jurisprudence in this area, is particularly offensive to the families of victims,” Gauthier said.

France early this month however opened the first genocide trial of a former army captain Pascal Simbikangwa, an intelligence chief during the Genocide. Simbikangwa, 54, was arrested in 2008 while living under an alias, "Safari”  on France’s Indian Ocean island of Mayotte. He is accused of supplying arms to Interahamwe militia and ordering the massacre of the Tutsi in the former Gisenyi prefecture, currently Rubavu District.

He has since admitted financing Radio Télévision Libre des Mille Collines, an extremist radio that called on the public to kill the Tutsi.