ASIL Insights

In a landmark case, four Rwandans are currently on trial in Belgium for alleged human rights violations during the 1994 genocide in Rwanda. This is the first time a jury of citizens will be asked to determine culpability for alleged violations of international humanitarian law in another state. This is also the first trial under the Belgian law providing for universal jurisdiction for certain international crimes. Unlike recent high profile human rights cases, the defendants here are not former high-ranking government officials like former Chilean President Augusto Pinochet or militia commanders like indicted war criminal Ratko Mladic.1 Two of the defendants, Sister Gertrude (nee Consolata Mukangano) and Sister Maria Kisito (nee Julienne Mukabutera), are Benedictine nuns accused of collaborating with Hutu militia to kill Tutsis seeking refuge at the Sovu convent in Butare, Rwanda. Also charged are Vincent Ntezimana, a professor at the National University of Rwanda, and Alphonse Higaniro, a factory owner and an alleged supporter of President Juvenal Habyarimana, whose death in a mysterious airplane crash set off the genocide. All four have pleaded not guilty.

Factual Basis of the Charges

Both nuns are accused of forcing Tutsis to leave the Sovu convent compound when they knew that armed Hutu militia were gathered outside; thousands of those who had sought sanctuary were allegedly driven out and killed. Sister Gertrude, Mother Superior of the convent, is also accused of contacting officials days later to ask them to remove the last remaining 30 Tutsi. Sister Maria is accused of supplying petrol to the militia to burn the Tutsis who refused to leave the building in which they had sought shelter. At trial, the nuns denied any collaboration, claiming that they were terrified bystanders with no control over the situation. The Prosecutor stated that he finds it hard to believe that the nuns were not collaborators "given that none were killed and the convent was never damaged."2 According to African Rights, a nongovernmental organization, the leader of the local militia has admitted his part in the genocide and stated that the nuns provided vehicles, information and support in killing the Tutsis. He states that "[t]hose two nuns collaborated with us in everything we did. They shared our hatred for the Tutsis. I did not do anything without first discussing it with Kisito and Gertrude. They handed over innocent people, without being threatened in any way, and without us having to use force."3

Ntezimana is accused of drawing up a list of Tutsi colleagues to be killed under the pretext of setting up an evacuation of Tutsis; he is charged with responsibility for the death of several Tutsis including a fellow professor and his wife. He is accused of taking part in the killings in Butare. In addition, he is allegedly the author of a manifesto of the genocidaires, "Appeal to the Conscience of Bahutus," that calls for extermination of the Tutsi. At trial, Ntezimana denied that he wrote or disseminated the tract. He denied that he knew that the list he was making would be used to target Tutsis. He admitted that he let a thug murder a young girl who was living at his house, but claimed he was too frightened to stop the killing.

Higaniro, a former government minister, is accused of owning a factory that was a breeding ground for extremist militia. He is accused of encouraging his employees to "work" and achieve "cleansing." He also allegedly ordered the killing of Tutsis, including one family whose house supposedly blocked the view from his lakeside villa. At trial, he too denied the charges. Higaniro admits he wrote a letter to President Habyarimana referring to the Arusha peace accords with the Tutsi opposition in 1993 as a "civilian coup d'etat," but claims the letter proves he was not involved in politics or a Habyarimana supporter.

It is expected that up to 170 witnesses will testify at trial, including 50 flown from Rwanda. The trial is anticipated to last at least until the end of May.

Legal Basis of the Charges

It is not clear precisely what crimes have been charged here. According to Human Rights Watch, the defendants have been charged with violations of humanitarian law under the Geneva Conventions and with violations of the Belgian penal code. Genocide is not a charge because it was not a crime under Belgian law in 1994, when the events allegedly took place.4 News reports also indicate that all four defendants have been charged with violations of the Geneva Conventions and/or "serious violations of international humanitarian rights." According to several news reports, the two nuns also have been charged with premeditated murder, but there is disagreement over whether the nuns have also been charged with crimes against humanity.5 While there is a clear legal basis for the assertion of universal jurisdiction over violations of the Geneva Conventions, there is no clearly applicable Belgian legislative basis for exercising jurisdiction over extraterritorial crimes against humanity (because the Belgian law was not amended to cover crimes against humanity until after the acts allegedly occurred). Nor does the Belgian penal code clearly extend to homicide outside Belgium.

Universal Jurisdiction over Geneva Conventions: 1993 Law

Under a 1993 law covering grave breaches of the Geneva Conventions and Additional Protocols I and II,6 Belgian courts have jurisdiction over such offenses regardless of where committed, by whom or against whom.7 The four Geneva Conventions establish humanitarian law relating to international armed conflict, in particular, to law covering sick and wounded members of armed forces, prisoners of war, and civilian populations.8 These conventions are inapplicable to conflicts "not of an international character," such as the 1994 mass killings in Rwanda. Only "Common Article 3" -- found in all four conventions -- is relevant to internal armed conflict. Common Article 3 requires all parties to a conflict to treat noncombatants humanely, without discrimination, and prohibits violence against persons such as murder, mutilation and cruel or degrading treatment. Additional Protocols I and II expand Common Article 3 to cover armed conflicts including wars of national liberation (Protocol I) and other internal conflicts (Protocol II).9 Under the 1993 law, Belgian courts have jurisdiction over violations of humanitarian law under the Geneva Conventions and Additional Protocols, regardless of the "character" of the conflict, the location of the alleged acts, or the nationality of the victim or alleged perpetrator.

Universal Jurisdiction Extended to Genocide and Crimes Against Humanity: 1999 Law

In 1999, Belgium added genocide and crimes against humanity to international crimes over which Belgian courts can exercise universal jurisdiction.10 It adopted the definition of crimes against humanity used in the Rome Statute of the International Criminal Court11 which includes acts such as murder when committed as part of a widespread or systematic attack against civilians. It is not clear whether this law is retroactive.

There is a question whether the 1999 law has retroactive effect. On the one hand, it appears that the Belgian government intended to allow the 1999 law to have retroactive effect for offenses previously criminalized by customary law such as crimes against humanity or genocide.12 Moreover, it appears that at least one Belgian court has held that the law does have retroactive effect where the alleged acts already constituted crimes against humanity as defined by international law.13 Because genocide and widespread killing were previously prohibited by customary international law, Belgian courts might assert jurisdiction over such crimes taking place outside the country. But on the other hand, reports of the news media and human rights organizations consistently state that genocide charges have not been brought against any of the defendants due to the non-retroactivity of the 1999 law. If this were true, then -- based on the same reasoning-- charges for crimes against humanity would not have been brought.14 As a result, it appears that the only likely charges are violations of the Geneva Conventions and Additional Protocols. However, the same conduct that would underlie a charge of genocide or crime against humanity may be subsumed under the Geneva Conventions and Additional Protocols. Thus, the defendants may have avoided charges for genocide and crimes against humanity in name only. In fact, at least one commentator has indicated that the Belgian legislature understood that acts of genocide were already covered by the 1993 law; the legislature acted to include genocide explicitly, not for legal effect, but for the "symbolic and educational value of declaring genocide a crime in itself, of 'calling the issues by their proper name.'"15

Universal Jurisdiction for Homicide?

The reported exercise of universal jurisdiction for extraterritorial charges of homicide (not amounting to genocide) brought against noncitizens for the killing of noncitizens, has no evident basis in Belgian law. Some news reports indicate that the 1993 law provides for universal jurisdiction over crimes of an international scope such as homicide and torture. Yet it appears that universal jurisdiction under the 1993 and 1999 acts covered homicide only insofar as it fell under grave breaches of the Geneva Conventions and Additional Protocols (1993) or crimes against humanity and genocide (1999 or earlier).16 While other laws may provide jurisdiction over extra-territorial homicide charges as violations of the Belgian penal code, the existence and source of such jurisdiction is unclear.17 The best reading of the English-language sources is that the defendants have been charged with violations of the Geneva Conventions and Additional Protocols, which include accusations of homicide in certain circumstances.

Significance of the Trial

In addition to being the first trial under the Belgian universal jurisdiction law and the first jury trial to address violations of international humanitarian law in another country, the trial represents another step against impunity for human rights abusers. It might extend the Pinochet precedent18 in terms of eliminating safe havens for human rights violators. As in the UK Pinochet case, the assertion of jurisdiction is tied to certain human rights treaties: here, the Geneva Conventions and Additional Protocols; in Pinochet, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.19 Although the UK decision denying Pinochet immunity involved extradition, it supported the principle of universal jurisdiction by not barring extradition to Spain for trial there of crimes committed in Chile. Belgium is going one step beyond the Pinochet case by prosecuting accused human rights violators in Belgium.20

Belgium is one of the first countries to turn the principle of universal jurisdiction into a legal reality. Although many international human rights treaties provide that states must prosecute or extradite offenders, very few countries have passed implementing legislation. As the confusion over the charges here indicates, the implementation of laws allowing the exercise of universal jurisdiction is a complicated and drawn-out process. It remains to be seen whether more countries will pass such legislation; this may occur, for instance, as states ratify the Rome Statute of the International Criminal Court, which provides for complimentarity of jurisdiction of state courts and the international court for genocide, crimes against humanity, and war crimes. Of course, the mere existence of implementing legislation does not guarantee the political will to investigate and prosecute.

Here, the first complaint of the Rwandan victims was filed in Belgium in 1994. It took a parliamentary inquiry and years of pressure from the investigating judge and human rights groups for this case to come to trial. Investigating Judge Damien Vandermeersch has accused the attorney general's office of impeding the inquiry, and it appears that the case might not have gone forward without a change in the Belgian government. Similarly, the Catholic Church has been accused of obstructing the investigation. The Belgian Church has sheltered the two nuns in a monastery since 1994. According to African Rights, the church has actively impeded justice and tampered with witnesses.21

A Related Case

Belgium's universal jurisdiction laws might make it the forum for addressing accusations against "Africa's Pinochet" Hissene Habre. Human rights groups and victims pushed for the indictment of Habre, former dictator of Chad, in his current country of residence, Senegal. Although a Senegalese court indicted Habre on torture charges, an appeals court ruled that he could not be charged in Senegal for crimes committed in Chad; Senegal had not passed implementing legislation for the Convention Against Torture, although it is a party to it. Victims are now seeking extradition to Belgium. Belgium ratified the Convention Against Torture on June 25, 1999. It is not clear whether implementing legislation has been passed, or whether Belgium might try Habre for torture as it is incorporated under other instruments such as the Geneva Conventions.

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Endnotes

1 It should be noted that the relevant Belgian laws do not provide immunity on the basis of official capacity. See Stafaan Smis & Kim Van der Borght, Belgium: Act Concerning the Punishment of Grave Breaches of International Humanitarian Law, 38 I.L.M. 918, 919 (1999).
2 Gilles Casonguay, We Couldn't Stop the Massacre, Two Rwandan Nuns Tell Court, Toronto Star, May 5, 2001 at A26.
3 African Rights, Press Release, Obstruction of Justice: The Nuns of Sovu in Belgium (2000) (available at <http://www.unimondo.org/AfricanRights/html/homepage.html>).
4 Human Rights Watch, Press Release, Rwanda: Belgian Genocide Trial (April 12, 2001) (available at <http://www.hrw.org>).
5 Compare Rwandan Nuns Go On Trial for Genocide, Nat'l Post, April 18, 2001, at A03 (nuns charged with premeditated murder and crimes against humanity) with Nuns Deny Part in Rwandan Genocide, AP Online, May 4, 2001 (defendants charged with specific murders, not crimes against humanity).
6 Belgium is a party to the Geneva Conventions and both protocols.
7 See Redress, Universal Jurisdiction in Europe (1999) (available at <http://www.redress.org>); Luc Reydams, Belgian Tribunal of First Instance of Brussels (investigating magistrate), November 8, 1998 in International Decisions, 93 Am. J. Int'l L. 700 (1999) (discussing 1993 act in context of Belgian extradition of Augusto Pinochet).
8 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick Members of Armed Forces in the Field, 75 U.N.T.S. 31, entered into force Oct. 21, 1950; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 75 U.N.T.S. 85, entered into force Oct. 21, 1950; Geneva Convention Relative to the Treatment of Prisoners of War, 75 U.N.T.S. 135, entered into force Oct. 21, 1950; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 75 U.N.T.S. 287, entered into force Oct. 21, 1950.
9 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1125 U.N.T.S. 609, entered into force Dec. 7, 1978; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 1125 U.N.T.S. 3, entered into force Dec. 7, 1978.
10 The 1999 law appears in 38 I.L.M. 918 at 921(1999); see also Redress, supra note 7; Reydams, supra note 7.
11 UN Doc. A/CONF.183/9.
12 See Redress, supra note 7; Reydams, supra note 7 at 701 n. 7.
13 Id.Reydams, supra note 7 at 701-02.
14 It is not clear from news reports whether the Rwandan defendants have been charged with crimes against humanity. See supra note 5 and accompanying text.
15 Smis & Van der Borght, supra note 1 at 919.
16 Reydams, supra note 7, at 701-02.
17 Although Human Rights Watch refers to charges of the Belgian penal code, it does not cite any supporting Belgian law. Human Rights Watch, Press Release, Rwanda: Belgian Genocide Trial (April 12, 2001) (available at <http://www.hrw.org>). It is possible that the reference to the Belgian penal code was not intended to indicate a separate charge, but only to highlight that violations of the Geneva Conventions were explicitly part of the penal code prior to 1994.
18 In a decision widely hailed by human rights groups, the Law Lords of the United Kingdom held that former dictator and President Pinochet was not immune as a former head of state from charges of systematic torture in Chile. Although the Law Lords held that extradition to Spain for trial there based on universal jurisdiction could proceed, the final decision rested with the government. The home secretary determined that Pinochet was unfit to stand trial based on medical grounds. Pinochet returned to Chile, where the courts subsequently stripped him of immunity as "senator for life." He is currently under indictment for covering up disappearances related to the Caravan of Death, although his fitness for trial has not been conclusively determined.
19 Although not every Law Lord's finding of no immunity hinged on the Convention, the majority determination did.
20 It should be noted that Belgium has also extradited genocide suspects to the International Criminal Tribunal for Rwanda.
21 African Rights, supra note 3.