The French Cour de cassation ruled yesterday that three Rwandans suspected of genocide could not be extradited to Rwanda to stand trial. The reason given for the Court was that the crime of genocide did not exist in Rwandan law at the time of the offence, in 1994. This is a highly technical objection, vulnerable to attack as a question of law, and a ruling that will only confirm suspicions that the French legal system lacks any determination to bring perpetrators of genocide to justice.
At the time of 1994 genocide, Rwanda had ratified the Convention. Because of its constitutional framework, an international treaty was directly applicable before the national courts. Thus, the crime of genocide most certainly existed under Rwandan law in 1994. However, legislation setting out the penalty for the crime was not adopted until 1996. The legislation was deemed to be retroactive in effect. In Rwanda, many thousands have been prosecuted on this basis for genocide committed in 1994. The world has praised Rwanda for its efforts to bring perpetrators to justice on this basis.
The problem of retroactivity of the Rwandan legislation is adequately addressed by article 11(2) of the Universal Declaration of Human Rights: ‘No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed.’ The problem of the lack of a penalty in force in 1994 is adequately addressed by the fact that penalties were provided under Rwandan law at the time for the underlying crimes of killing and causing serious bodily harm.
How can France’s position be squared with its own support for the International Criminal Tribunal for Rwanda, where suspected génocidaires have been prosecuted on the basis of legislation adopted after the crimes were committed? France was one of the four States to create the International Military Tribunal in 1945, an institution that prosecuted Nazi offenders on the basis of legislation adopted after the crimes were committed. France was a party to the Treaty of Versailles where the German Emperor was arraigned to stand trial for ‘a supreme offence against international morality and the sanctity of treaties’, a crime that had not previously been codified. Double standards?
The International Criminal Tribunal for Rwanda has transferred offenders to stand trial before Rwandan courts without being troubled by this retroactivity issue. The courts of other countries – Canada and Sweden for example – have agreed to extradite suspects to Rwanda without this difficulty arising.
At the time of the 1994 genocide, France supported the Rwandan regime. I vividly recall encountering French forces in the country when I visited Rwanda in early 1993 as part of a fact-finding mission. Apart from the intriguing issue as to whether any French complicity in the genocide of 1994 can ever be established, one thing seems quite clear: France had extraordinary influence over the regime. It certainly could have done much more than it did to pressure those in power in Kigali in April and May 1994 to stop the massacres.
In 2007, the International Court of Justice held that Serbia had a duty under the Genocide Convention to use its influence on the Bosnian Serbs in order to prevent genocide. Surely the same principle applies to France in its relationship with Rwanda.
When universal jurisdiction proceedings are held in France, Spain, Belgium and other European states, Rwanda and other African countries have complained that double standards are at work. They argue that such trials are tinged with hypocrisy because of the reluctance of such States to apply international justice in a principled manner. Who can blame them, when there are judgments like the one issued yesterday?
Thanks to Richard Johnson.