In an earlier contribution (‘The Case Against Rose Kabuye: A Comment on Jurisdiction’, The New Times, Kigali, 1 December 2008), I concluded that France (and Germany, acting as proxy) violated Rwanda sovereignty because the ground of jurisdiction asserted in that case (‘passive personality’) is not, under customary international law, binding on Rwanda.
On this procedural basis, I argued that French courts ought to dismiss the case against Rose Kabuye, and order her immediate and unconditional release.
As things stand, the Chief of State Protocol in the Office of the President is still in France, on provisional release assorted with conditions. She is set to spend Christmas in Paris against her will, and few, in Europe, question this fact.
Such is the state of the international system that Rwanda, and Rwandans, find themselves frustrated, left, as they are, without any forum to have their grievances acknowledged, reviewed, and adjudicated.
The international judicial mechanism for settlement of inter-States dispute is weak, to say the least. The International Court of Justice, however impressive in outward appearance (as visitors to the Peace Palace, in The Hague, would attest), lacks an essential feature of adjudication that occurs within states: the absence of mandatory jurisdiction.
While the jurisdiction of the Court is said to be ‘mandatory’ in some instances, international law has, so far, failed to devise a system that would prevent states from walking away whenever their interests so dictate.
If an individual brings a complaint against another individual in a domestic court, or a prosecutor files charges, and the defendant purports to withdraw from the court’s jurisdiction, he will quickly find out that he cannot do such a thing.
A defendant who fails to appear will find himself subject to default judgement in civil litigation; a criminal defendant will be summoned, by force, if need be, to appear.
That France and Germany can disregard the rule of law in international affairs with impunity is anything but unique. States routinely violate international law when the benefits of disregarding the law outweigh the costs of following a particular policy decision.
In 1990, agents working for the U.S. Drug Enforcement Agency (DEA) kidnapped a Mexican doctor, on Mexican soil, and brought him to the United States, where he was indicted for assisting in the torture and murder of a DEA agent.
The doctor, whose name was Humberto Alvarez-Machain, argued that the kidnapping - in violation of traditional notions of State sovereignty as well as the extradition treaty between Mexico and the United States – deprived U.S. courts of jurisdiction, an argument which was rejected by the U.S.
Supreme Court in 1992 [Alvarez, 504 U.S. 655 (1992)]. While Alvarez was eventually acquitted, and the United States - under pressure from Mexico and other nations, as well as lobby groups within the country - agreed not to engage in any more trans-border kidnappings of Mexican nationals, this policy of kidnapping on foreign territory remains in place in its dealings with weaker nations.
Perhaps the most highlighted case of disregard for the rule of law in international relations is the military intervention in Kosovo by North Atlantic Treaty Organization (NATO) forces in 1999.
As was the case for French ‘Operation Turquoise’ in Rwanda in 1994, foreign countries could not intervene in an internal matter, in Serbia, without the approval of the United Nations (UN) Security Council.
Such approval, as it were, was not forthcoming, as neither Russia nor China would withhold their veto. NATO broke international law and intervened.
The military intervention was clearly illegal. Yet, the alternative, according to the UN Charter, was to sit and watch a possible genocide unfold in Kosovo without doing anything about it.
Western commentators were quick to declare the war ‘illegal but legitimate’. It was not long before the Bush administration took them to their words, citing ‘humanitarian concerns’ as one of the justifications for invading Iraq.
The ‘illegal but legitimate’ justification was no longer so appealing, after all.
In 1996, Rwanda openly invaded the then Zaire, though in self-defence, which is a legitimate use of force under the UN Charter.
Since fleeing the country in 1994, ex-FAR and interhamwe militias continued to launch attacks targeting civilians within Rwanda from their ‘refugee’ camps in Zaire, incredulously set up along the borders between Congo and Rwanda.
In August 1998, Rwanda declared that its armed forces would, again, intervene in Congo in order to prevent a genocide directed against the Tutsi minority and instigated by erstwhile ally Laurent Kabila.
Tutsis in Kinshasa, Lubumbashi, Kisangani, Kamina, and elsewhere in Congo were tracked down, rounded, incarcerated, raped, tortured, and executed.
After the appalling failure of the UN Security Council to intervene in Rwanda to prevent the genocide against the Tutsi in 1994, no one dared to tell Rwanda that it needed to wait, again, for a Security Council approval.
A complaint filed in Belgium against the then foreign minister of Congo, Abdoulaye Yerodia Ndombasi, was eventually dismissed by the International Court of Justice on the basis that, as incumbent foreign minister of Congo, he enjoyed personal immunity from prosecutions.
To my knowledge, no Congolese was ever brought to trial for those crimes. Hence, when analysts refer to the ‘Kosovo precedent’, they omit to say that the ‘Congo precedent’ chronologically came first.
Rwanda did take unilateral action to prevent genocide in Congo in 1998, a year prior to the much celebrated ‘illegal but legitimate’ NATO intervention.
For our purpose, however, the point is made that States will comply with international law only when doing so is in their interests, and will not hesitate to break it if, on a costs-benefits analysis, the odds are in favour of disregarding the rule of law. The problem, therefore, is elsewhere.
In classic international law, States enjoy sovereign equality, which means that international law binds all States equally. This, of course, is not true.
In the 19 century, international law was thought to apply mainly to the Great Powers – Britain, France, Russia, Prussia (then Germany), the Austro-Hungarian Empire, Italy, and, later on, the United States and Japan.
Other countries where given either second-class status or no status at all. African nations were mostly in the last category. International law regulated the conduct of soldiers in wars between, say, France and Britain, but not in wars between France and the nations in North Africa.
In those days, Great Powers sent their military forces to invade, conquer, plunder, and exploit all they could, natural and human resources alike, in countless weak nations in Africa and beyond, even while the leaders of the same powers insisted that international law was universal.
Not much has changed since. The relationship between weak nations and powerful ones remain one of substantive inequality even if of formal (sovereign) equality.
International law rests and confirms existing power imbalances and dirty politics in international relations, wherein powerful States enforce the ‘rule of law’ against weak countries.
Wealthy nations get to say, for example, that sanctions ought to be imposed on Rwanda for its alleged involvement in the Congo.
On the other hand, allegations of France’s responsibility in the genocide in Rwanda, the illegal occupation of Iraq, the plights of the Palestinians, or Russia’s disproportionate use of force in Georgia, will never get anywhere near the agenda of the ‘Sanctions Committee’ of the UN Security Council, protest and demonstrate all you wish.
It is, accordingly, not surprising that, somehow, perpetrators of large-scale atrocities and war criminals are all from weak countries. Even Nuremberg is proof to the same. Russia was allowed to sit on the bench while defeated Germany was in the dock.
Suggestions that the UN Tribunal for Rwanda must try crimes committed by ‘both sides’, would be laughable, if this was not so serious an issue. One would have a hard time to imagine an American serviceman on trial at Nuremberg because both the Nazis and the Allied forces committed crimes.
Powerful nations get to define the content of the ‘rule of law’ idea in international relations: the ‘good guy’, the ‘bad fellow’, or the ‘necessary evil’, according to relative worth, or interests, strategic or otherwise.
Norms, value, and interests of the affected communities in weak nations are simply ignored; international law says ‘if you are weak, your values and interests are irrelevant’. It was not different in the nineteenth century, it is the same today, and there is no indication that this is about to change.
Whether weak nations are included in the ‘Yes, We Can’ promise remains to be seen. Underneath the universalistic rhetoric, the reality on the ground is, indeed, that ‘some countries are more equals than others’.
Weak countries around the world, and African countries, in particular, must strengthen their relationships, get to know each other, visit each other – and avoid the additional humiliations, all too common, of trying to get a visa to visit a Wealthy Country -, work together, share resources, and build coalitions.
This is the only way for weak countries to have any bargaining power in international relations. Will Weak Country, you and I, rise to the challenge?