During the trial of Paul Rusesabagina, defence lawyers pointed at the fact that he holds a Belgian passport as enough reason for judges to order that his case be transferred to Belgium.

Rusesabagina is the founding president of the MRCD-FLN coalition that launched fatal attacks on Rwanda in 2018 and 2019, in which at least nine people lost their lives.

He’s one of the 21 defendants who await verdicts by the High Court Chamber for International and Cross-border Crimes next week.

Rusesabagina is charged with nine counts, including forming an illegal armed group, financing terror activities, murder as an act of terror, kidnap as an act of terror, arson as an act of terror, among others.

Rusesabagina himself claimed he’s no longer a Rwandan citizen during trial, saying that he denounced it when he arrived in Belgium in 1996.

"Upon reaching Belgium, I literally became an orphan. I denounced the Rwandan nationality, my ID documents were confiscated and I was transferred to a facility until Belgium granted me its citizenship,” he said during his trial.

As a key suspect in a high-profile terrorism case, this drew interest from legal experts and observers alike, sparking prolonged debate.

According to international law, there are four main grounds upon which a court can try a terror suspect. They are as follows;

Territorial principle – it sets ground for a country to try any suspect on a crime that was committed within their frontiers.

Nationality principle – this stipulates that a country can try a suspect who is its national or who committed a crime against its national.

Universal jurisdiction – depending on the gravity of the crime, some crimes are liable to be punished by any nation. These include genocide and crimes against humanity.

Personality principle – this is a controversial provision which states that countries can try some criminals regardless of their nationalities but whose crimes have affected its citizens.

Commenting on the matter, Alphonse Muleefu, an international law expert and lecturer at University of Rwanda, said that in most cases the country that gets the suspect first is the one that tries them.

"When a country arrests such a suspect, it cannot be stopped from trying them,” he said.

A problem may only arise when a suspect is tried more than once, he added.

"A problem may come up when there is double jeopardy, which is a principle of law that says that a person cannot be tried twice for the same crime. But when they are tried using one of the four jurisdiction principles, that is legal,” he told The New Times on Tuesday, September 14.

He added that territorial jurisdiction is the mostly used form of criminal jurisdiction because it is based on state sovereignty.

"States have powers to regulate whatever happens on their territory, and in the case of crimes, it is the country on whose territory the alleged offence was committed that feels more responsible because it is that country that has suffered the consequences”, he added.

A former judge who spoke on condition of anonymity said the Rwandan law is clear on offences committed on the country’s territory.

"The law is very clear on this; your nationality does not matter, as long as you committed a crime on Rwandan territory, you are prosecuted here,” said the former East African Court of Justice judge, citing article ten and eleven of the penal code.

On his part, Innocent Muramira, a Ugandan legal expert, highlighted that nationality is not among the issues considered before a terror suspect is tried.

"For terrorism, as long as principles of natural justice and fair hearing are upheld by the court, your background does not matter whatsoever,” Muramira said.

Why not other jurisdictions?

Asked why Belgium did not use the nationality principle jurisdiction to try Rusesabagina, Muleefu said such a move would also be dependent on national interests.

"Conducting an international judicial process is complex and requires investment of national resources, it takes some significant budget, and a country can only do that if it sees national interest in that,” he noted. 

However, regarding Rusesabagina, he recalled that, at Rwanda’s request, Belgium had started conducting investigations, which might have been hampered by the relocation of the suspect from Brussels to Texas in the United States, which he interprets as a way of evading justice.

"It was going to be a rigorous process for the prosecution to gather evidence in Belgium and try someone who lives in the US,” he added.

It happens now and then

Lawyers and legal specialists who talked to The New Times stated that those forms of jurisdictions take place everywhere.

They include Joaquín ‘El Chapo’ Guzmán, a renowned Mexican drug dealer who ran the world’s biggest criminal gang. In 2019, he was tried by a US court and eventually sentenced to 30 years in prison after he was extradited from his native country Mexico.

The US also convicted three Sri-Lankan citizens with terrorism offences that killed 268 people in 2019.

In October 2020, the Kenyan court convicted two Somali militants for a 2013 terror attack in which 67 people were killed.

Another example is a Chinese businesswoman who was sentenced to 15 years in jail by the Tanzanian court over illegal poaching of elephants.