Earlier this year, a Trial Chamber of the International Criminal Tribunal for Rwanda ruled that the transfer of a case to Rwanda could proceed. That decision is now on appeal.
Several European states have considered extradition. In the UK, four cases proceeded through the courts but extradition was ultimately denied and the suspects were set free. They continue to live in the UK and have not been brought to justice. Finland chose to proceed domestically by way of universal jurisdiction. Sweden rather boldly decided to go ahead with an extradition, despite the British ruling as well as those of the International Criminal Tribunal for Rwanda denying transfer. The case has been pending before the European Court for more than two years.
From the standpoint of the European Convention on Human Rights, there have been two issues, based upon articles 3 and 6. The article 3 issue concerns inhuman or degrading treatment, and it has not proven to be very difficult in any of the proceedings. The article 6 issue, about the risk of a flagrant denial of the right to a fair trial, has been more difficult, largely because the parameters of the European Court’s caselaw remain uncertain here. It all goes back to a reference in the famous Soering decision of 1989. Soering denied extradition based upon a possible violation of article 3, but said, in passing, that issues might also arise under article 6.
Here is what the Chamber had to say in yesterday’s decision:
115. It should be noted that, in the twenty-two years since the Soering judgment, the Court has never found that an extradition or expulsion would be in violation of Article 6. This indicates that the “flagrant denial of justice” test is a stringent one. A flagrant denial of justice goes beyond mere irregularities or lack of safeguards in the trial procedures such as might result in a breach of Article 6 if occurring within the Contracting State itself. What is required is a breach of the principles of fair trial guaranteed by Article 6 which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that Article.
In my view, the earlier decisions of the International Criminal Tribunal for Rwanda were overly harsh and, ultimately, wrongly decided. They had a terrible influence on justice officials and courts in Europe, and ultimately contributed to impunity for genocide (even if this was not their intent).
One of the challenges to international justice is its ability to make fair assessments of domestic legal systems. At the International Criminal Court, a case may be admissible if the national justice system is ‘unable’ to proceed. Setting standards that are too high will mean that the international system will always prevail, at least when poor and developing countries are concerned.
We are constantly improving our expectations of fair trial standards. Even in rich countries, the expectations are much higher than they were decades ago. But does that mean that all trials in the past were unfair? There is something wrong with such assessments.
Thanks to Christopher Ryan.