Spanish top court quashed arrest warrants against 40 Rwandans: What can we say?

On October 6, the Spanish Supreme Court ultimately quashed arrest warrants against 40 Rwandan officials. The ruling had long been awaited. To Rwandans, obviously, it is a breath of fresh air. Indeed, I have no hint of doubt that the court ruling captivated a smiling welcome. But, what interpretation can be given to the ruling? After reading what floated around the media in this particular case, two ideas sprung to my mind. First, the dismissal of 40 arrest warrants vindicates the defectiveness or baselessness of the case. Clearly, the Spain Supreme Court was satisfied that arrest warrants were issued out of bias or prejudice. In truth, no investigations were ever carried out at the scene of crimes said in the indictment. As a matter of principle, and practice, if you like, prior to issuing arrest warrants, fair and thorough investigations must have been conducted at the very place, where alleged crime was committed. And this practice applies no matter the gravity of an offence in question, whether at national or international level. Like the Spanish High Court, which had earlier quashed the warrants, the Supreme Court equally did not find credible evidence to decide contrary to the earlier decision. Both rulings imply that Judge Fernando Andreu issued the indictments based on testimonies of persons who are in opposition, and most of whom fled the country after the Genocide; and that crystallises partiality, bias, and lack of independence in methodology used in searching evidence. The dismissal of the case proves the whole subjectivity that surrounded the issuance of the so-called arrest warrants, as the saying goes that “the end justifies the means”. Second, but most importantly, the Spanish Supreme Court hinged its decision on recent Spanish Organic Law 1/2014, reforming universal jurisdiction which was passed by the Congress and the Senate. That law virtually discards pursuing universal jurisdiction from the Spanish legal system. In particular, it delimits Spanish criminal courts from pursuing cases that have no links to Spanish interests. However, Spanish can have jurisdiction in these circumstances: “when the alleged perpetrator was in Spain, there were Spanish victims, or any other relevant link connecting the offence with Spain could be confirmed.” More interestingly, that law intended not only for the future but also retrospectively concerning past claims currently being under examination. According to the Preamble of that law, Spain wanted to adapt the jurisdiction of Spanish criminal courts to international treaty provisions binding Spain. As is well known, the principle of universal jurisdiction was developed by some countries but it has no legal basis in any international treaty. Arguably, the collapse of these arrest warrants shows that the Spanish Supreme Court acknowledges the possible abuse of universal jurisdiction. It is worth noting that Spain has been the most assertive country to pursue the principle of universal jurisdiction. Examples, Spain once sought international arrest orders for the former Chilean dictator Augusto Pinochet over torture in his home country, the former Chinese President Jiang Zemin and ex-Prime Minister Li Peng over crimes in Tibet, and the former Israel Prime Minister Ariel Sharon over Israel’s bombardments in Gaza. Under universality principle, every state has jurisdiction to try particular offences. In other words, states claim criminal jurisdiction over persons whose alleged crimes were committed outside boundaries of prosecuting state, regardless of nationality, country of residence, or any other relation with the prosecuting country. The basis for this is that the crimes involved are regarded as particularly offensive to the international community as a whole. Universal jurisdiction remains, however, one of the most controversial principles of international law. In fact, the debates in the United Nations General Assembly since 2009 on universal jurisdiction reveal great confusion on its concept, scope and application. True or pure universal jurisdiction is jurisdiction solely based on the universal concern character of the crime in issue. But the principle has surprisingly been used as a powerful instrument for some countries to show their political patronage or hegemony in the guise of protecting human rights and fighting against impunity. More often than not the exercise of universal jurisdiction by one State may infringe the sovereignty and sovereign equality of another State and can be abused, thus destabilizing international relations. The evidence of State practice on “universal concern plus presence” jurisdiction is not yet substantial so as to afford the finding of a customary international law rule in its favor. At least now, arrest warrants issued against 40 Rwandans and the famous arrest warrant against Yerodia Ndombasi, the former minister for Foreign affairs of Congo, by Belgium, which was subsequently quashed by International Court of Justice (ICJ), are among the relevant examples of the abuse of universal jurisdiction. It is against this background that one can ask a question: how to remedy the abuse of universal jurisdiction? Some countries have, however, voluntarily limited the scope of their universal jurisdiction in several ways and have thereby helped to prevent the abuse of the lofty principles of universal justice and human rights. The writer is a lecturer and international law expert frednkusi88@gmail.com

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Spanish top court quashed arrest warrants against 40 Rwandans: What can we say?