Hungry for Truth, Peace and Justice

Rwanda: Why Keir Starmer Has To Act

By Alun Jones, QC
Times Online
June 4, 2009

This week a former Baptist church preacher in Rwanda was charged with genocide for his alleged role in the killilngs in 1994. The charge has been brought by Finland. In Britain, meanwhile, the Crown Prosecution Service’s public reaction to the failure of the Rwanda genocide extradition case in April is depressing. There is no jurisdiction, it says, to try the four discharged suspects in Britain.

The International Court for Rwanda in Tanzania is winding down. Various European states have decided, like the High Court, that the despotic regime of President Kagame cannot provide a fair trial for suspects accused of participation in the systematic killing of more than a million people.

The suspects can certainly be investigated and, if appropriate, tried in the UK. There was a widespread conspiracy in Rwanda, transmitted through official or governmental channels, to kill, maim, rape and terrorise. Section 134 of the Criminal Justice Act 1988 permits trial of a person in the UK, whatever his nationality, for torture committed anywhere.

Torture is the infliction of severe physical or mental pain or suffering by persons acting as public officials. If, as alleged in the extradition case, people agreed to carry out conduct intended to involve torture, there is jurisdiction to try the whole course of conduct in the UK under Section 1 of the Criminal Law Act 1977.

It was this combination of the law of conspiracy and torture which made the Pinochet case triable in (and thus extraditable from) the UK in 1999, but for the infamous “sick note”.

The crime of genocide is also triable here by virtue of the International Criminal Court Act 2000, though the matter is untested. This uncertainty does not matter. Genocide is a less suitable offence to prosecute than a 1977 Act conspiracy; although most victims were Tutsis, killed by reason of their ethnic origin, several hundred thousand were “moderate” Hutus, killed by Hutus, and were not the victims of “genocide”.

The principle that underlies all the “international crimes” created by UN instruments (torture, hijacking, attacks on diplomats, etc) is the obligation to extradite or prosecute a suspect found within the territory of a party to the relevant convention. Since a person accused of the genocide is also necessarily accused, in the circumstances of the Rwanda killings, of taking part in systematic torture, the failure of the extradition proceedings surely requires the UK as a matter of international law to investigate this case properly with a view to prosecution.

Lawyers may look back in surprise at the absence of any procedures in our time for determining where crimes triable in more than one jurisdiction should be tried. Since the Crown Prosecution Service is responsible for extradition proceedings as well as ordinary prosecutions, one would expect that clear principles would have been formulated. Such transparent criteria would apply to fraud cases triable, such as the case of the NatWest Three and Ian Norris, both in the UK and America, and also to the various defendants, resident in the UK, accused of Islamic terrorism in the US.

There are at least four in Belmarsh, awaiting extradition. One is Abu Hamza (whom I represent), arrested on an extradition warrant in June 2004, for crimes he is said to have organised in the UK in the late 1990s. Another, Khalid Al-Fawwaz, has been awaiting extradition since 1999 for the murders of persons, many of them American, entitled to diplomatic protection, in East Africa in 1998.

By UN convention, made part of UK law, we have jurisdiction to try that case here, and could have done so, using flexible mutual legal assistance treaties. If the UK authorities are not concerned about subjecting Muslim suspects to the fearsome US trial and prison regime, why do they not appreciate that, such are the delays in Strasbourg alone, trials of such allegations will always take place years earlier in London than the US?

Without established criteria, decisions as to trial venue are apparently made ad hoc, without any proper balancing of forum conveniens factors, and regardless of the rights and convenience of suspects. The leading factor in preferring extradition to the US over a domestic trial seems to be limp deference to an apparently more vigorous prosecution system, whatever the delays and human rights implications.

I suspect that the UK authorities have failed to investigate or try the four Rwanda suspects because there is not the faintest hope of convictions. In accordance with normal extradition practice, the Crown Prosecution Service sought to rely on witness statements without making independent checks, such as would be conducted in a domestic prosecution.

The case against Dr Vincent Brown was composed of statements by apparent eye-witnesses who claimed they saw him organising roadblocks where Tutsis were killed. There were two groups of witnesses. The first were prisoners, detained in Rwanda for up to 12 years, untried, vulnerable to torture or inducements, in prisons recognised to be among the foulest in the world.

The other group presented themselves, implausibly, as Tutsi bystanders observing killings of fellow-Tutsis, but it was discovered last year that one of them happened to be a senior member of the present regime’s much feared security services.

The Rwanda Government stayed silent about this discovery. None of these witnesses, despite giving evidence in Rwanda about the incidents now alleged, had ever mentioned Dr Brown’s name until after our Home Secretary agreed to the extradition proceedings in 2006. By the end of the case, the Rwandan Government was even alleging that Dr Brown, a prominent member of the Hutu diaspora, had simultaneously been murdering people in different parts of the country.

Nevertheless, the witnesses are available to give evidence in the UK, either in person, or, if it is feared that on arrival the non-security service witnesses would all immediately claim asylum, via videolink. If after a UK police investigation there is “no reasonable prospect of conviction”, the suspects should be exonerated. If there is a clear case, let it be presented to a jury.

The extradition proceedings led to a humiliating High Court condemnation of the Rwandan criminal justice system and the destruction of reputation for the four men discharged by the High Court after more than two years’ imprisonment. Everyone has lost. It’s time for clear principles on the extradite or prosecute issue. Keir Starmer, QC, the Director of Public Prosecutions, has an opportunity here.

Note:
The author is head of Great James Street Chambers

Related Materials:
High Court halts extradition of four men wanted for Rwanda genocide

Rwandans face extradition on genocide charges

Another Gift for Kagame

Rwanda: Country Offers Help in Finland Genocide Trial

Rwandan Government Protests UK’s Refusal to Extradite Genocide Suspects

posted by Mamadou Kouyate @ 7:26 PM