This month saw the opening at the Paris Cour d’assises, accompanied by a certain amount of media attention, of the trial of two elderly Rwandan gentlemen, Tito Barahira and Octavian Ngenzi.
The events that led up to the trial of Barahira and Ngenzi, which started on May 12, took place more than 20 years ago, several thousands of miles away on Rwandan soil. The perpetrators and victims of the crimes committed were Rwandans, and the conflict in which they were carried out was a purely Rwandan affair. The only connection with France was the fact that both men were arrested on French territory.
So why all the interest? And why the Paris Cour d’assises?
The two defendants were on trial for their alleged role in the Rwandan genocide, in which approximately 800,000 people, mainly members of the Tutsi ethnic minority, lost their lives. Following the genocide, because of the ravages caused to the Rwandan justice system, Rwanda called upon the United Nations to assist in bringing the perpetrators of the genocide to justice, and the International Criminal Tribunal for Rwanda (ICTR) was established. However, the ICTR was only ever intended as a temporary court, and its remit was only ever to try the main orchestrators of the genocide, leaving a gap which needed filling by other fora. Where were those with a lesser involvement to be heard? Or the fugitives who were only identified after the closing of the ICTR? The Rwandan courts have of course played their part, and the local gacaca or community courts were resurrected, for community ‘judges’ to mete out judgment on their townsfolk, but what of those who fled further afield and hid?
Many European states have found themselves called upon to deal with genocide suspects located on their territory. In these cases, transfer of suspects to face justice in Rwanda has more often than not been precluded: signatories to the European Convention of Human Rights could not extradite to a country where the death penalty was in force (abolished in 2007 in a bid to encourage extraditions), and where human rights organisations had serious concerns that defendants would receive a fair trial: legislation which criminalises the denial of the genocide has been held to hinder free speech and hamper defence lawyers. Prisons are seriously overcrowded – an inevitable result of the genocide trials –with prisoners detained in conditions which do not accord with Western standards.
Called upon to respect the legal obligation under public international law of ‘aut dedere aut judicare’ (either extradite or prosecute), what alternative is there for third party states?
And this is where the current French trial has its part to play.
Faced with these issues, a number of states have chosen to try the genocide suspects in their own domestic courts, under the doctrine of universal jurisdiction: a state may exercise jurisdiction over the most serious violations of international law regardless of where they were committed or by whom, or against whom, because certain crimes are seen to be so outrageous as to call for action by the international community as a whole. A barrage of provisions in French law has enabled this trial to take place – some of which were implemented in the early 1990s, coincidentally at the time of the Rwandan genocide, when France was facing a number of other genocide trials: those of former Nazi war criminals. Others simply incorporate the provisions of the ICTR statute into French law.
So why has it taken so long?
In all fairness, this is the second such trial before the Cour d’assises, the first, that of Pascal Simbikangwa, took place in 2014, and will be heard on appeal this autumn. The long delay is due to a number of issues, but not least the very strained relations between Rwanda and France between 2006 and 2009, while legal representatives of each state accused the other’s leader of stoking the genocide. France and Rwanda are now speaking again, but transfer of suspects to Rwanda is still problematic. Since then, a specialist unit has been created in Paris dedicated to the investigation of genocide and crimes against humanity, and this is helping the French courts prepare the cases against the suspects. But, we should perhaps not be surprised that it is taking so long. After all, right now Germany is hearing the case of former Auschwitz concentration camp guard Reinhold Hanning, for events that took place in the second world war, over 70 years ago. Sometimes these things just take time.
In the meantime, we are left to ask ourselves whether it is reasonable to expect a French court and its popular jury consisting of six ‘good (wo)men and true’ to reach a verdict regarding the participation of defendants in events happening 22 years ago, on another continent. Should they be put through the trauma of listening to details of such repeated and extreme violence? And how many such cases can French courts really afford to run? The current case alone will see 50 witnesses called from Rwanda over 38 days, and the Simbikangwa hearing necessitated numerous trips to Rwanda to literally check out the lie of the land mentioned in certain witness statements.
Whatever happens in the Barahira and Ngenzi case and the Simbikangwa appeal, France – and a number of other European states – have to make the decision: is it now safe, as the ICTR seems to have suggested by its transfer of Uwinkindi to Rwandan courts in 2011, to transfer suspects to Rwanda for trial, or would a suspect’s rights to a fair trial be so compromised by such a decision that trials before national courts are the order of the day? With one eye on the Paris Cour d’assises, we also wait to see what the UK will decide in the long-running extradition spat concerning Vincent Brown et al: The UK may also be about to host its own first Rwandan genocide trial.
A more detailed discussion of these matters can be found in: H Trouille, ‘France, Universal Jurisdiction and Rwandan génocidaires: The Simbikangwa Trial,’ Journal of International Criminal Justice (vol 14, issue 1, 2016, pp195-217), first published on line 8 February 2016, doi: 10.1093/jicj/mqv085