GICUMBI – The recent unlawful arrest of Rwanda’s Director of state protocol Rose Kabuye in Germany has sparked a round of condemnation from world leaders like Louis Michel and Tony Blair, the African Union and country wide protests, which have rocked Kigali City and upcountry areas.
The principle of Universal jurisdiction upon which Judge Bruguire banked his indictments against nine senior Rwandan government officials, is potentially itself a violation of international law which Bruguiere claims to defend.
According to Public International Law, the concept of universal jurisdiction revolves around the principle of a states sovereignty, equality and non interference.
The unlawful arrest of Kabuye in Frankfurt while on a official diplomatic mission clearly contravenes the concept of immunity from universal jurisdiction as stipulated in Article 29 of the Vienna convention, which provides that diplomats or persons on diplomatic missions shall not be detained or arrested.
This principle is the most fundamental rule of diplomatic law and the oldest established rule. Public international law on universal jurisdiction further provides that serving heads of state and government officials benefit absolute immunity from the exercise of universal jurisdiction of foreign domestic courts, referred to in Latin as ratione persona, which Bruguiere is much aware as a legal judge.
The absolute immunity, as provided by Public International Law is supported by the International Court of Justice (ICJ) as stipulated in the ICJ 14th February 2002 arrest warrant case, concluded that state officials did have immunity under international law while serving in office. This is to ensure the effective performance of their functions on behalf of their respective states.
ICJ further states that when abroad, state officials enjoy full immunity from arrest in another state on criminal charges, including charges of war crimes or crimes against humanity.
The ICJ, which France is a signatory to further states that government officials “may be subject to criminal proceedings before International Criminal Courts, where they have jurisdiction.”
Examples include the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) or future International Criminal Courts.
The International Criminal Tribunal for Rwanda (ICTR) has categorically distanced itself from Jean Bruguire’s accusations on nine Rwandan government officials, for their alleged part in the downing of former President Juvenal Habyarimana’s plane, as being baseless and politically motivated.
This was revealed at a press conference held in Arusha, where the spokesman for the Tribunal Everard O’ Donnel said: “ICTR prosecutor does not take any instructions from anybody in the world”.
In addition, Article 15 of the ICTR statute provides that: “the prosecutor shall act in total independence. He shall not solicit or receive instructions from any other source”.
Public International law also provides what it termed as the restrictive approach, in which a state enjoys immunity in respect of itself and its property from the jurisdiction of the courts of other states.
The restrictive immunity only specifies commercial acts with no universal immunity as being those: “where a state or private company engages in commercial transactions with a foreign person or company, in which case the courts of another state have jurisdiction over the case when commercial disputes arise, depending on where the commercial contract was signed.”
During the recent protest in Gicumbi district calling for the immediate release of Rose Kabuye by Germany authorities, protesting residents accused France of trying to hide the truth surrounding their participation in the 1994 Rwandan genocide, by intimidating the Rwandan government because of the Mucyo Commission which revealed the truth on France’s active participation in the 1994 Genocide.
“Jean Louis Bruguiere seems to be punishing Rwandan Authorities for violating a French proverb which says: “Toute verite n’est pas a’ dire, or the whole truth should not be told”, said a Byumba resident Jean Claude Twagirayezu.
Legal scholars across the world have also condemned the use of universal jurisdiction by powerful nations to meet their political ends.
Eugene Kontorovich of a USA Northwestern Illinois University research paper observed that certain countries around the world: “use universal jurisdiction to prosecute leaders of other Nations in exchange for something more valuable”.
In this case France is applying the law on universal jurisdiction to silence Rwanda from prosecuting French citizens involved in the 1994 Rwandan genocide.
Another USA legal scholar at Southern Columbia Methodist University Anthony Colangelo in his research paper says “universal jurisdiction remains one of the more confused doctrines of international law”.
Colangelo recommends that if national courts prosecute on grounds of universal jurisdiction, they must use the international legal definitions contained in Customary International Law of universal crimes, otherwise their exercise of universal jurisdiction contradicts the very international law which it protects.
The author admits that certain Nations use universal jurisdiction “for purely political or sensationalist ends”.