Universal Jurisdiction and its discontents

KIGALI- Earlier this month, the African Union (AU) Assembly of Heads of States and Governments, meeting in Sirte, Libya, adopted a resolution in which it called for “an immediate termination of all pending indictments” issued in some European countries against African leaders and personalities on the basis of universal jurisdiction. In recent years, Europe has seen a rising trend of judges taking on the mandate to pursue justice all over. This should come as no surprise. More than half of the European Union (EU) twenty-seven Member States have legislation that specifically allows their courts to exercise universal jurisdiction. Proceedings on this basis have been instituted in eight EU States, namely Austria, Belgium, Denmark, France, Germany, the Netherlands, Spain and the UK against nationals of - yes - twenty-seven, non-EU, countries. If these figures are anything to go by, they suggest that international crimes, from the perspective of European judges, are committed by everyone else but their own. And because countries on whose territories the alleged crimes were committed are either bankrupt, too corrupt, or complicit in the crimes, EU judges will at once investigate, charge, and prosecute offenders worldwide, even in the absence of consent from, and over the objections of, other sovereign states. Distrusting national governments in the South, many of the advocates of universal jurisdiction seek to place these politicians under the supervision of independent magistrates and the judicial system in the North. The irony is not lost on countries targeted by European appetite for justice in the last decade. Spain, for example, has instituted proceedings against nationals of Mexico, Argentina, Guatemala, Chile, El Salvador and Peru; while France is adjudicating crimes committed in Tunisia and the Republic of Congo, either former colonies or with related historical links. Others include the Netherlands (Suriname) and Belgium (Rwanda and DRC). That all instances of actual prosecutions involve judges sitting in the Global North over criminals in the Global South speaks for itself. In this vein, President Kagame has suggested that the people of the continent must ask the question: “Is it only the African involved in criminal activity?” To him, this issue is also about historical hegemonies. Taken to its logical conclusion, he urges all Africans to “fight this tendency for Europeans to always cast themselves in the role of judge and the African always as the guilty party.” Besides, Europe’s altruistic concern about the need for justice overseas suffers from a credibility deficit that runs deep. Courts and judges in Europe have allowed government officials in the North to abuse the law with impunity using the war on terror as an excuse. That the wheels of justice are forever locked in a one-way “weak nations” direction does not help their case either. As Belgium and Spain would attest, efforts to prosecute nationals from powerful nations – such as the U.S., China or Israel - can quickly backfire, prompting adjustments to universality laws to restrain otherwise enthusiastic or “crusading” judges, and preserve economic interests. Hence, when Belgium’s courts contemplated issuing an indictment against Secretary Donald H. Rumsfeld and Israeli Prime Minister Ariel Sharon, the U.S. reportedly threatened to move NATO headquarters from Brussels to another state; the indictments were dropped and Belgian law changed. Ironically, all this took place even as European courts, especially in France, Belgium and Spain, were flexing legally questionable muscle over high ranking officials in Rwanda and elsewhere based on expansive theories of universal jurisdiction. This double standards, whereby EU Member States seek to shield themselves from the negative consequences of extraterritorial jurisdiction to their national interests, undermines Europe’s pretensions to become the moral centre of the international system, caring for the well being of people living across borders and working to export the international rule of law. To be sure, not all cases of prosecutions on the basis of universal jurisdiction are controversial. For example, many high-profile Rwandan genocide suspects have found refuge in countless countries in Europe, North America and a large number of African countries. In recent years, proceedings against these fugitives have taken place in Belgium, Switzerland, and the Netherlands (though for charges of war crimes and torture rather than genocide); a trial for genocide has recently been completed in Canada, and new trials are set to begin in Belgium and Finland. Nor is it not necessarily inconsistent for Rwanda, on the one hand, to call for the exercise of universal jurisdiction against genocide suspects on the run in Europe and elsewhere (in the absence of extradition) and, on the other, to deny France and Spain an impermissible claim to jurisdiction over its leaders. Why, indeed, should Rwandans accept or submit to such an exorbitant claim? To say that the French and Spanish indictments against Rwandan officials violate Rwanda’s sovereignty often fails to capture the seriousness of the affront. What the European judges have done in the Rwandan Arrest Warrants cases is to make a political judgment about the integrity of the Rwandan officials targeted, question the legitimacy of the Government of Rwanda, and endanger the very viability of Rwanda as a nation. Clearly, these actions affect Rwanda’s national security, public order and the operations of governmental functions. A sovereign state, it is said, must be able to protect itself from those who attack its sovereignty. Senegalese officials, too, have seen arrest warrants issued against them. In 2008, a French judge issued arrest warrants for nine Senegalese officials over the sinking of a government-owned ferry, the Joola, in the high seas on 26 September 2002. One thousand eight hundred and sixty-three people died in the disaster, including twenty-two French nationals. A former Prime Minister, two ministers, three senior army officers and three senior civil servants are the object of the arrest warrants including, incongruously, the Force Commander of the United Nations peacekeeping mission in the Democratic Republic of Congo, Senegalese General Bubacar Gaye. That the French warrants against Senegalese and Rwandan officials are based on the fact that some of the victims were French (also known as the principle of the nationality of the victim – or passive personality) which, it is advanced, is distinguishable from universality, is all but a battle of semantics. Both universality and passive personality are exceptions to the principle of territoriality – the most substantial ground for jurisdiction - which is derived from the sovereign powers of any country over acts that take place in its own territory. In legal discourse, passive personality is considered, at best, the most controversial of all existing principles of criminal jurisdiction. Its open-ended nature makes it difficult to accept as it stands to interfere with the sovereign status of the state where the offence occurred. For this reason, the principle of the nationality of the victim has received little support in international law, and is certainly not binding on other states. hat international law requires, in this context, is that powerful countries do not impose contested views of international law on those outside their jurisdictions. Simply put, EU Member States expansive claims of extraterritorial jurisdiction over African officials constitute an unacceptable extension of jurisdiction in a manner which is repugnant in international law. The approach of pretending that universal jurisdiction, as practiced by European judges, is free from power politics is unconvincing. The power to issue indictments against officials of a foreign country lends itself to political manipulations and affects some very fundamental interests of the targeted nation, the protection of which cannot be left to some foreign judge assuming the role of a world prosecutor. Left unchecked, the principle is open to arbitrariness and misuse, eventually serving political expediency as opposed to justice. The challenge of “universal jurisdiction” as a principle of international law is that it must strike the right balance between the need to end the culture of impunity while establishing safeguards against the potential for abuse and political harassment of foreign officials. It is commendable that the AU has reached a consensus on this matter and decided to put an end to the legal circus of EU arrest warrants against African officials. LL.B.(Rwanda), LL.M.(Pretoria),LL.M. (Harvard); Legal Analyst & Consultant, Kigali, Rwanda; formerly Legal Officer, International Criminal Tribunal for the former Yugoslavia.