The arm of international criminal law is, by definition, very long. But its grip is not always very firm.
The mixed fortunes of global justice are currently being illustrated by a confluence of events that also underscore South Africa’s weak commitment to the principle.
Last week, of course, Pretoria refused to fulfil its obligation as a member of the International Criminal Court (ICC) to arrest Sudanese President Omar al-Bashir – who is a fugitive from the ICC – while he was in South Africa to attend the African Union (AU) summit.
And then on Saturday, as if to show South Africa how, British police arrested Rwanda’s spy boss Emmanuel Karenzi Karake on a Spanish indictment for alleged war crimes in Rwanda and the Democratic Republic of Congo (DRC) dating back to 1990.
To further underline the contrast, the same Spanish indictment also names Rwanda’s former chief of military intelligence, Faustin Kayumba Nyamwasa, who has been living in South Africa for the past five years. In 2010 the Spanish government asked South Africa to extradite him to stand trial in Spain. But the South African government has ignored the request and instead granted him asylum.
South Africa ignored the request and instead granted him asylum
The arrest by British police of Karake was surprising, not least because of the United Kingdom’s (UK) very solid relations with Rwanda. But it seems the police were simply carrying out the law – as their South African counterparts were clearly ordered not to do. British foreign office officials insist that the government had nothing to do with Karake’s arrest.
‘General Emmanuel Karenzi Karake was arrested on a European arrest warrant issued by the authorities in Spain. This is an operational matter for the police,’ an anonymous foreign office official said. He added that the government would also have no influence in the court’s decision whether or not to extradite Karake to Spain, which it would neither support nor oppose.
This, despite the fact that ‘the UK and Rwanda have a deep, long-standing relationship with a wide range of shared interests.’ But why did they arrest him now, when he had evidently visited Britain several times recently? A Rwanda expert based in Britain said he believed it was because Spain had just reactivated the European warrant under which he had been arrested.
Spain is one of a handful of mostly European countries that claim ‘universal jurisdiction’ – the right to try the worst crimes, no matter where in the world they occur and even if they don’t involve their own nationals in any way. In this case, though, several of Karake and Nyamwasa’s alleged victims were Spanish, though many more were Rwandans or Congolese. In 2008, Spanish High Court Judge Fernando Andreu indicted Karenzi, Nyamwasa and 37 other senior Rwandan officials on charges including genocide, crimes against humanity and terrorism committed in Rwanda and the DRC between 1990 and 2002.
If Karake ever stands trial, it could be deeply embarrassing to Paul Kagame’s government
That included the murder of three Spanish medical aid workers, Flors Sirera Fortuny, Manuel Madrazo Osuna and Luis Valtueña Gallego. They were allegedly gunned down by soldiers of the ruling Rwandan Patriotic Front (RPF) army in Ruhengeri, northern Rwanda, on 18 January 1997 after they had discovered the mass grave of about 50 Hutus who had been killed by the predominantly Tutsi RPF.
Judge Andreu’s indictment also alleges the murder by the RPF of many Rwandans, mostly Hutu, both before the genocide by the Hutu against the Tutsi in 1994, and after – in revenge – in Rwanda and the DRC where thousands of Hutu fled. Karake is the first of the 39 indicted suspects to be arrested. If he ever stands trial, that could be deeply embarrassing to President Paul Kagame’s government. But it would fill a glaring gap in the delivery of international justice to many Rwandans.
As families of the Spanish victims suggest in an affidavit that is to be submitted to the British magistrate today, urging him to extradite Karake to Spain to stand trial, the International Criminal Tribunal for Rwanda has almost exclusively tried Hutus as perpetrators of the genocide. And so the many revenge killings by Tutsi against Hutu remain largely unadjudicated, and therefore hardly known to the general public.
The Spanish families also refer to the Nyamwasa case, urging the South African government to comply with the Spanish government’s request to extradite him to stand trial alongside Karake.
This seems unlikely to happen. Last year a High Court judge dismissed an application by the Southern Africa Litigation Centre (SALC) – the same rule-of-law NGO that attempted to have Bashir arrested last week – demanding that the government revoke the asylum it had granted Nyamwasa, on the grounds of the crimes by him alleged in the Spanish indictment, and another similar one by France.
International criminal justice may be flying on autopilot. Where will it land?
The contrast between South Africa and the UK may be a bit unfair as Karake is not a head of state, and arresting Bashir would have had far graver consequences than arresting a spy boss.
Khartoum would probably have seen it as an act of war and South African peacekeepers in Darfur could have been endangered – even if they were not already held hostage while Bashir was in South Africa, as has been widely reported.
But then there is the matter of Nyamwasa, whose presence in South Africa has become a major nuisance to Pretoria. There have been at least three attempts on his life and after the last one last year, the government pointed a clear finger at Kigali and expelled all diplomats but the ambassador from the Rwandan embassy in Pretoria. Pretoria will not extradite him to Rwanda, which wants him, as that might well be signing his death warrant. But extraditing him to Spain would, in some ways, be a perfect solution to the problem.
However that would be to submit to European justice, which is never going to fly – especially after the ever more strident criticism by the AU, and now the ANC, of the ICC as a ‘European court bringing Africans to justice.’ That’s probably going to be the way many Africans also see Karake’s arrest.
One of the other surprises about it, though, is that it came at a time when the current Spanish government of Prime Minister Mariano Rajoy itself is also retracting the long arm of universal jurisdiction. This follows pressure from China after another High Court judge issued arrest warrants for former president Jiang Zemin, 88, former prime minister Li Peng, 86, and other Chinese Communist Party members on genocide charges related to government crackdowns that took place in Tibet.
The revised doctrine of universal jurisdiction restricts judges to open investigations only against a human rights offender who ‘is Spanish or a foreigner who frequently resides in Spain,’ or who is currently in the country, and Spanish authorities have refused to allow their extradition.
So it’s not even very clear if the Spanish government really wants Karake on Spanish soil. International criminal justice may be flying on autopilot here. It should be fascinating to see where it lands.
Peter Fabricius, ISS Consultant