When, on 9 November 2008, German Police arrested and took into custody Rose Kabuye, as she entered German territory through Frankfurt International Airport, the Government denounced her arrest and expelled the German ambassador until the matter is resolved. Our ambassador in Germany was recalled for consultations.

In the following days, tens of thousands took to the streets in Kigali, protesting against the machinations behind her arrest and the illegality of it all.

Ten days later, Rose Kabuye was transferred to France where the order for her arrest had been issued, back in November 2006. Rose Kabuye has since been granted bail which, a French reporter said, goes to show the ‘leniency’ of the French judiciary in her case.

This case presents several legal issues both from the perspective of criminal law and international law. The only issue that I propose to address here is that of jurisdiction.

Did French courts have jurisdiction to commence criminal proceedings, as they did, against Rose Kabuye for the facts alleged by the Juge d’Instruction (in charge of the investigation) Jean-Louis Bruguière?

The allegations made by the French judge are well known and need not be repeated. However, two facts contained in the ‘Ordonnance de Soit-Communiqué’ issued in support of the arrest warrants, and which are not contentious, are relevant to this inquiry: (1) the allegations are about an incident (‘the attack on the plane’) committed on the territory of the Republic of Rwanda, and (2) the victims were Rwandans and other nationals, namely nationals of Burundi and France.

On these undisputed premises alone, it is clear that Rwanda – not France - has primary jurisdiction over the subject of the allegations. The principle of territoriality, as it is known, is derived from the sovereign powers of any country within its own territory.

Indeed, jurisdiction to enforce is the supreme expression of a country’s sovereignty. In order for the French judge to assert jurisdiction over the case, therefore, he needed to resort to a legal fiction.

French criminal code empowers courts in France to prosecute an offence committed outside French territory whenever the victim is a French national.

Hence, because the crew on board was French (some say ‘on loan from French military’), the French judge could, according to French law, assert jurisdiction over the incident.

Also known as the ‘passive personality principle’ or the ‘principle of the nationality of the victim’, it purports to give extra-territorial jurisdiction to a state whenever one of its nationals, outside the territory of that state, is the victim of the offence.

From this author’s reading, this principle appears to be the sole ground relied upon by the French judge to assert criminal jurisdiction in this case.

To this extent, the case against Rose Kabuye is similar to the recent Senegalese Ferry case (see, ‘Revisiting Universal Jurisdiction’, The New Times, Kigali, 26 September 2008) and is not a case involving the application of the principle of universal jurisdiction.

Found mostly in western, civil law, countries, the passive personality principle obviously stands to interfere with the sovereign status of the state where the offence occurred.

Underlying this principle of jurisdiction (also involved, to some extent, in the Spanish indictment) is an outspoken distrust, indeed contempt, for the law and criminal justice of other countries. Indeed, one could ask: are some victims better, or deserving more protection, than others?

Following developments in this case on a daily basis, I often wonder whether my legalistic perspective is preventing me from capturing the bigger picture.

Mainstream international media has framed the issues as being a ‘genocide fight’ between Rwanda and France, about the two countries ‘trading accusations’ and ‘mutual recriminations’ over ‘who bears moral responsibility’ for the genocide against the Tutsi in 1994; the attack being the incident that ‘helped spark’ or ‘triggered’ the genocide.

Perhaps these are the issues that were intended to be given some profile, the case against Rose Kabuye being just the pretext, it is not for me to tell.

From my standpoint, however, there is a fundamental discrepancy between the ground on which jurisdiction has been asserted in this case, the overall context in which the attack on the plane occurred, and the debate since the arrest of Rose Kabuye, labelled by a major newspaper as the ‘judicial politics of a genocide’ (The Economist, 13 November 2008).

I look at it this way: here is a judge, sitting a world away from the people whose fundamental interests he is affecting, holding at ransom the senior leadership of a nation on the basis that, out of all the casualties of the four years of civil war in Rwanda between 1990 and 1994 (quite aside and separate from the victims of the genocide against the Tutsi), three French nationals perished on that fateful day of April 6, 1994.

With all due respect to the French judge and the families of the French pilots and mechanic on board the plane at the time of the attack, their nationals are no better than ours who also lost their lives in the course of the war, nor do they deserve any kind of privileged consideration on the basis of their origin, nationality or, for that matter, the colour of their skin.

That Rwanda did not consider the incident to be a priority on its ‘peace and justice’ agenda in the aftermath of the genocide against the Tutsi and other crimes against humanity committed in 1994, cannot be said to have amounted to ‘unreasonable delay’ in the administration of justice or, worse still, ‘obstruction of justice’, with respect to the incident that caused the death of three French nationals.

To act otherwise would have led to unjustifiable discrimination against our own nationals.

Some countries advocate for the application of passive personality only in those cases where the offence was intended to victimise a national of the state claiming to assert criminal jurisdiction.

It has never been suggested that the attack on the plane was specifically directed at the French crew or at France itself. It is, in my view, an abuse of criminal process for the French judge to have branded the attack on the plane, having taken place, as it did, in the course of protracted internal armed conflict, an act of ‘terrorism’.

This attempt to rally European support for the arrest warrants, and probably prevent a ‘political offence exception’ to extradition, did work as evidenced by the attitude of Germany which felt compelled to execute the warrants without flinching.

Common law countries have little care for the passive personality principle. As eloquently put by United States (US) Judge Moore in the Lotus case (PCIJ, France v. Turkey, 1927):
‘It is evident that this claim [passive personality] is at variance with the principle of exclusive jurisdiction of a state over its own territory, but also with the equally well-settled principle that a person visiting a foreign country … falls under the dominion of the local law and … must look to that law for his protection.’

More recently, in 2007, a Spanish judge indicted and issued international arrest warrants for three American soldiers for the death of a Spanish journalist who was killed when their tank fired at the Hotel Palestine, in Baghdad, on 8 April 2003.

Following its own investigation, the US government dismissed the accusations and refused to cooperate with Spain. In the words of a US State Department spokesman, it will be a ‘very cold day in hell’ before American soldiers have to answer to foreign judges sitting atop an ivory tower indulging in anti-American biases.

In short, the passive personality principle, along with other jurisdictional fictions (active personality, protection, representation and universality), are not equally accepted or practiced by states.

Needless to say, the difficulty with individual states designing schemes in national criminal legislations to protect their own interests is that there is no evidence of a generally accepted opinion on the admissibility of such jurisdictional claims when they affect other states.

Therefore, save in the case of a few ‘international crimes’, in the absence of specific, usually regional, treaties to this effect, principles of extraterritorial jurisdiction found in one state, however powerful, are not, under customary international law, binding on other states.

It follows from the above that French courts did not have jurisdiction to commence investigation over the incident. By acting over and beyond what is currently considered accepted ground for jurisdiction under customary international law, France violated Rwanda sovereignty.

In April 2007, Rwanda explicitly rejected the claim to jurisdiction over the incident by France and called for a judicial settlement before the International Court of Justice. France failed to consent to the jurisdiction of the Court.

By declining to have the matter adjudicated by the world Court, as Belgium did in the Arrest Warrant case (DRC v Belgium), France can no longer hide behind the ‘acts of an independent judge’ excuse. This was, ultimately, a political decision that engages France responsibility.

If France does not have jurisdiction in this case, what are the options open to French courts? Short of an immediate withdrawal and dismissal of all cases against the senior leadership of Rwanda, including the immediate and unconditional release of Rose Kabuye, whatever criminal process that would henceforth follow is bound to be tainted by the initial failing to observe customary international law and, as the Americans put it (in relation to evidence wrongly obtained in criminal proceedings), will be nothing more than the ‘fruit of the poisonous tree’.

Finally, if this was just a case of competing claims of jurisdiction over the incident, one cannot help to think that Burundi – not France - would come second in so far as legitimacy and proximity to the location of the alleged crime are concerned.

There is, it seems, more to the story than can be captured in a discourse over international conflicts of criminal jurisdiction.

Idi Gaparayi is a lawyer based in Kigali