Traversing and Reinforcing Borders in the Pursuit of Justice in Rwanda

Guest post by Nicola Palmer. Nicola is a senior lecturer in criminal law at King’s College London and the author of Courts in Conflict: Interpreting the Layers of Justice in Post-Genocide Rwanda (OUP, 2015). She has written on questions of the relationship between international criminal law and border control, resistance to mass violence, methodological approaches to transitional justice and legal pluralism in Rwanda with support from the British Academy, the Economic and Social Research Council (ESRC) and the Rhodes Trust.

On 31 August 2020, Paul Rusesabagina bordered a plane in Dubai and was flown to Kigali to face charges including terrorism, arson, kidnapping and murder. The announcement of his arrest by the Rwanda Investigative Bureau (RIB) follows two other high-profile arrests of Rwandans in the last few months. In May this year, former businessman and genocide suspect Félicien Kabuga was arrested in a flat on the outskirts of Paris and is currently in the custody of the Mechanism for International Criminal Tribunals (MICT) in The Hague. Two months later, the French opened preliminary investigations into Aloys Ntiwiragabo, similarly based on allegations of his involvement in the 1994 Genocide against the Tutsi, prompting the Rwandan government to issue an arrest warrant and to request his extradition.

The international media coverage of these three events has been starkly different. While the arrests of Kabuga and Ntiwiragabo were met with widespread support, informed by a continued dedication to the prosecution of the international crime of genocide, Rusesabagina’s case saw immediate expressions of concern. This centred on both the nature of his arrest and his high-profile criticism of Rwandan President Paul Kagame, heightened by his international reputation for his role in protecting the Tutsi civilians sheltering in the Hôtel des Mille Collines in Kigali, where he was the manager in 1994.

The arrest of Rusesabagina, however, cannot so easily be separated from those of Kabuga and Ntiwiragabo. They all fit into a much broader set of arrests, extraditions and deportations of Rwandans living in the diaspora. According to my research, prior to these most recent arrests, there have been 122 cases concerning individuals alleged to have participated in international crimes in Rwanda occuring in twenty countries around the world. Some of these individuals have, like Rusesabagina, held prominent positions in the Rwandan political opposition with alleged connections to armed opposition groups in Burundi and the Democratic Republic of Congo (DRC), such as Kayumba Nyamwasa in South Africa and Ignace Murwanashyaka in Germany.

Contrary to much of the current commentary around these cases, they are neither simply examples of the effective domestic reach of international criminal law obligations nor of an all-powerful Rwandan government suppressing political dissent through legal means. These efforts to extend the transnational penal reach of the Rwandan state have also tapped into the border control impulses of Western states. This has been reinforced by the moral weight of international criminal law and the institutional arrangements of transnational policing. As a result, these arrests and the legal processes that will follow express very different things to different communities. It is important that we start to disaggregate these meanings as they help to explain how, why and in what legal form these cases will proceed.

Since 2004, the Rwandan National Public Prosecution Authority (NPPA) has worked closely with Interpol and the Prosecutor’s office of the then-United National International Criminal Tribunal for Rwanda (ICTR), which now operates as the MICT. This collaboration led initially to the issuing of 300 Interpol Red Notices against Rwandan nationals, including the then nine remaining ICTR fugitives, of which Kabuga was the most high-profile. Building on this initial partnership, since 2007, the Rwandan Genocide Fugitives Tracking Unit (GFTU), a specialist unit of the NPPA, has issued 911 indictments for individuals suspected of involvement in international crimes. When the media reports that Rwanda has issued an international arrest warrant, what has generally been issued is a Rwandan arrest warrant requesting cooperation from another state to arrest and extradite the suspect to stand trial in Rwanda. Based on the now long-standing working relationship with Interpol, these warrants are sometimes supported by Interpol Red Notices.

The effectiveness of this transnational approach is evident in the extent of the legal proceedings around the world. Based on my dataset tracking these cases, in addition to the 19 individuals already returned to Rwanda to stand trial for genocide, 36 individuals have faced domestic criminal trials outside of Rwanda for a range of international crimes and 31 individuals have had their extradition to Rwanda denied. In addition, 29 people have had their refugee protection, residency permits or citizenship revoked or have been prosecuted for immigration offences on the basis of an allegation of their involvement in an international crime. The continuation of these activities is notable. Eight days after Rusesabagina’s arrest, the press reported that another Rwandan national Charles Ntahontuye Ndereyehe has been arrested in the Netherlands on charges of genocide.

In recent criminological discussions, Mary Bosworth has coined the phrase ‘penal humanitarianism’, describing how calls to humanitarianism and the use of aid-related funding in areas of criminal law and migration allow penal power to traverse national boundaries and travel globally. Building on this work, Kjersti Lohne examines international criminal law as an instance of penal humanitarianism ‘disembedded from the nation state altogether’. Drawing on these insights, my work examining the refugee exclusion, trial, extradition or deportation of Rwandan nationals provides an example of how international penal humanitarianism is then ‘re-nationalised’ and enmeshed in domestic practices of immigration, extradition and criminal law around the world.

The recent arrest warrant for Rusesabagina is different from my larger dataset in that it does not include an allegation of involvement in an international crime but rather a ‘transnational’one. The crime of terrorism sits on the dividing line between ‘core international crimes’ over which international tribunals can have jurisdiction and those deemed transnational when international treaties require states to criminalise conduct at the national level.

What is crucial is that in all of these cases the mechanisms for exercising penal authority are the same. They depend on transnational networks of policing and prosecution services and while drawing on universal claims to the wrong of international and transnational crimes, they are simultaneously reinforcing the borders of the host states. One of the emerging features of the domestication of international criminal law into national frameworks is that once these processes, institutions and professional networks are in place, we see a pivot from core international crimes towards transnational crimes such as human trafficking, money laundering, organ trafficking, corruption and indeed, terrorism. The initial processes and institutions are built on a basis of prosecuting international crimes and then are widened to include and focus on those of a more transnational nature. The arrest of Rusesabagina fits within this wider trend.

Overall, two key dynamics are at play. First, with proceedings around the world, these cases are enacting very different expressive functions. Inside Rwanda, among some communities, Rusesabagina’s arrest is seen as a crucial response to an individual who has publicly supported the armed overthrow of the current government. He is also widely perceived as having minimised the genocide against the Tutsi, while being internationally recognised as a hero and crowding out the accounts of the Tutsi survivors who were targeted by the violence. For opposition groups inside and outside of the country, Rusesabagina’s arrest is read together with the domestic trials of other opposition leaders including Diane Rwigara and Victoire Ingabire Umuhoza. For these communities this arrest is further evidence of the authoritarian nature of the Rwandan government and offers a crucial opportunity to highlight this reality to international actors

Second, the domestication of international criminal law and transnational criminal law is being drawn on to reinforce border control in predominantly European and North American states. It is the confluence of these dynamics that helps to explain the extensive nature of these proceedings against Rwandan suspects. These cases reinforce the increasing practices of  immigration control and the construction of the notion of the ‘criminal migrant’.

Rusesabagina’s arrest is enabled by the arrests, deportations and extraditions of Rwandan nationals before him. The Rwandan government’s justification for his arrest has focused on the severity of his alleged crimes, underpinned by an international arrest warrant and made possible through ‘international co-operation’. This is the same justification drawn on for a much wider set of legal proceedings against other suspects accused of involvement in international crimes. While Rusesabigina’s arrest has received widespread criticism, these earlier processes have been much more comfortably supported because of the severity of the harm involved in international and transnational criminal law but also because of their coherence with current global border control practices.

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