Monday, October 31, 2005

Canada Charges Rwandan of Genocide

This is an interesting story. Under Canada's Crimes Against Humanity and War Crimes Act, Canada has charged a Rwandan living in Canada of genocide, war crimes, and crimes against humanity. Under Article 8 of the Act, Canada can charge anyone for genocide if the crime or the criminal has a Canadian nexus. This is very broadly defined to include (1) citizens or employees of Canada who committed crimes; (2) citizens or employees of a state engaged in armed conflict against Canada; (3) persons who committed crimes against Canadian victims; (4) persons who committed crimes against a Canadian ally in armed conflict; and (5) persons present in Canada after the crime was committed.
This statute thus embraces an expansive approach to prescriptive jurisdiction that includes the nationality principle, passive personality, and universal jurisdiction. In this case, Desire Munyaneza was a refugee in Canada who allegedly led attacks on Tutsis at the National University of Rwanda. Canada therefore must prosecute based on universal jurisdiction.
The Rwandan Justice Minister welcomed Canada's move, stating that "Canada has demonstrated that it won't sit and watch genocide perpetrators roam about its territory," Mukabagwiza said. "Our only surprise is that other countries are still sheltering genocide suspects. They should learn from this example."
What is unusual about Canada's act is the notion of domestic criminal prosecution of war crimes and genocide at a time when we have international criminal tribunals that also are entrusted with this responsibility. It appears to overlap with the authority of the ICTR to investigate and prosecute war crimes in Rwanda.
Which raises the larger question if countries such as Canada exercise jurisdiction to prosecute alleged war crimes, we will have the very real possibility of concurrent jurisdiction in multiple fora--the national court where the offense took place, the national court of the victims, the national court where the alleged criminal is present, and the relevant international criminal tribunal (in this case the ICTR). We have long had the theoretical possibility of concurrent jurisdiction under notions of universal jurisdiction, but it now appears to be becoming a reality.
How these competing jurisdictions will coordinate their prosecutions remains to be seen. Whether the international criminal tribunals will take cognizance of third country prosecutions as part of their determination of whether to prosecute is uncertain.
And whether these third country national courts will adopt the ICC's approach of complementarity and deference to the primary national court prosecution is even more uncertain. Certainly the Spanish judge that issued an arrest warrant against three American soldiers exonerated by the United States military justice system suggests that in at least some circumstances they will not.

3 Comments:

Blogger RW said...

I'm not sure there's a problem of "competing jurisdictions" here at all. If the ICTR really wanted to take this guy then they could ask Canada to extradite him. The reason they haven't done is probably because they're already completely overloaded with cases. There's no shortage of Rwandan war criminals to prosecute. No-one's getting greedy. Canada might, I suppose, refuse to let him go to the Rwandan courts for fear of his being given the death penalty - (some countries have that rule), and there might be an issue there - but it sounds like the Rwandans too are pretty happy to see him taken down in Canada. Again it's probably a resource issue. In an ideal world, national courts would prosecute everyone who ever did bad things, but we don't live in an ideal world. We live in a world where the vast majority of war crimes in Africa (and many other parts of the world) go unpunished. Stuff like Burundi's Gatumba massacre, and the Lord's Resistance Army's little terror campaign in Uganda. Even in the relatively rare cases where national courts (like Rwanda's) are willing to prosecute these guys, they often don't have the financial resources. So universal jurisdiction is an attempt to pick off the very worst of the criminals who are stupid enough to show up in a relatively pro-human rights country and who would otherwise be getting away scot free... When you've got a guy who's overseen systematic massacres of Tutsi civilians and personally raped and incited rape against dozens of women and under-age girls, theoretical jurisprudence issues about competing jurisdictions seem a little, erm, theoretical. (more on the guy's biog here: http://www.trial-ch.org/trialwatch/profiles/en/facts/p423.html)

Zones of jurisdiction do not, in reality, tend to compete with each other for the privelege of prosecuting war criminals - they tend, by and large, to avoid such troublesome cases at all costs. If the Canadians are willing to take this guy down, give him a fair trial and then, if he's convicted, put him in jail for the rest of his natural life, good luck to them. Makes the world a little less comfortable for war criminals. I know of a few Rwandans who'll be pretty happy with the news.

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