Stephen A. Garrett

One of the most striking developments in recent years concerning international law and the protection of human rights has been the emergence of the concept of universal jurisdiction over crimes against humanity. The essence of the concept is that any country can prosecute violators of human rights, regardless of their nationality or that of their victims or the location of their crimes. International treaties as well as the common practice of many states have established what might be called a nascent international constitution that sets out basic standards of human rights. What we are seeing now is a growing belief that all states have a right to enforce this constitution through their own courts and police powers and not just with respect to their own citizens.

The growing power of the idea of universal jurisdiction was vividly demonstrated in a trial held in Brussels, Belgium from April 17 to June 8, 2001. The four defendants were accused of complicity in the massacre of Tutsis by Hutu extremists in Rwanda in 1994. One of these was a Rwandan Professor who was charged with drawing up a list of Tutsi employees and students at the University of Rwanda for the killers. Another person in the dock was a Rwandan businessman who was indicted for inciting his factory staff to finish the cleansing of Tutsi. What gave the Belgian trial its special character, however, was that the other two defendants were Benedictine Hutu nuns who were serving in a convent in Rwanda at the time of the killings.

Sister Gertrude (born Consolata Mukangango) and Sister Maria Kisito (born Julienne Mukabutera) were accused of betraying some 5,000 to 7,000 people who had sought sanctuary at their convent as the massacre escalated. They allegedly forced many of the refugees out of the convent and informed the Hutu militia of the presence of still others in nearby buildings. Sister Maria Kisito was specifically charged with providing containers of gasoline to the death squads so that they could torch a garage in which 500 people were huddling for safety. After an eight-week trial, all four defendants were found guilty and sentenced to prison terms ranging from 12 to 20 years.

In explaining how these four defendants came to be tried and convicted in a Belgian court thousands of miles away from the scene of their crimes, two factors are paramount. For one thing, all were physically present in Belgium, having fled there after the Hutu government was overthrown in Rwanda in late spring of 1994. More important to the present discussion, however, were elements of Belgian law that provided the legal framework for their prosecution. Thus a statute passed in 1993 gave Belgian authorities the power to judge war crimes regardless of where they were committed, the nationality of the victims, or even the place of residence of the accused. This claim to universal jurisdiction was based on the Geneva Conventions, which deal basically with conduct during wartime. Later legislation, however, expanded and redefined the original statute to include crimes against humanity and the commission of genocide.

There have, of course, been other attempts to deal with the horrors of the Rwandan genocide. The International Criminal Tribunal for Rwanda, established by the United Nations and operating in Arusha, Tanzania, has to date convicted eight people and has another 44 in detention, with nine of these currently undergoing trials. Domestic courts in Rwanda itself have tried around 4,500 people (with close to 100 executed) and there still remain more than 100,000 people in jail awaiting judicial decision. The exceptional thing about the Belgian trial, however, was that 12 ordinary Belgian citizens sat in judgment on four individuals whose violence had not affected any Belgian nationals and had taken place in a faraway land of which the jurors (probably) knew relatively little.

One might ask what Belgium’s real motivation was in going to the trouble and expense of trying these four Rwandans. Considerable sums were expended, for example, in bringing numerous witnesses from Rwanda to the Brussels court. Aside from an abstract commitment to the idea of justice, there clearly was a special factor influencing Belgian behavior. Rwanda had been a Belgian trusteeship before independence, and many blamed Brussels’ divide- and-rule policies in Rwanda for exacerbating traditional Hutu-Tutsi tension. More to the point, once the killing began in Rwanda in April, 1994, the Belgian government pulled all of its peacekeepers out of the country. Many observers felt that this was an important step in convincing the Hutu extremists to proceed with their genocide, and the trial of the Rwanda four was evidently at least a partial response to the feelings of guilt shared by many Belgians for their country’s actions.

The Belgian trial in any case represents yet another step toward establishing the principle of universal jurisdiction as a bulwark for human rights because of its potential for punishing those who violate such rights. As an idea it is actually not so startling as might seem at first glance. As long ago as the 19th century, for example, it was widely agreed that the crimes of piracy and slave-trading could be prosecuted by any nation no matter where they took place. The notion here was that such actions were an affront to the values of the international community generally, and thus any member of that community not only had a right but perhaps even a duty to uphold those values by prosecuting offenders within their grasp. Recent developments are simply a logical continuation of these historical examples.

Not everyone approves of the trend toward universal jurisdiction in dealing with human rights abuses. The common fear expressed is that the rights of national sovereignty, not to mention important diplomatic interests, may be seriously compromised by those asserting such jurisdiction. Henry A. Kissinger, in The Pitfalls of Universal Jurisdiction, an article in the July/August 2001 issue of Foreign Affairs, referred to the danger of substituting the tyranny of judges for that of governments, and concluded that we must not allow legal principles to be used as weapons to settle political scores. The concerns about universal jurisdiction, however, are surely outweighed by the goal of ensuring that those committing evil acts will one day face at least an increased possibility of prosecution and punishment for their conduct.

To be sure, we have the international tribunals such as those at the Hague for the former Yugoslavia and at Arusha for Rwanda, but an increasing use of national courts around the world to supplement these limited efforts would seem to be an important requirement for a more just and humane world. Fortunately, an increasing number of countries are establishing universal jurisdiction provisions within their domestic legal codes to deal with human rights violations. The time may be rapidly approaching when all this may begin to have a real deterrent effect on those tempted to commit such crimes.

STEPHEN A. GARRETT is a professor at the Monterey Institute of International Studies in Monterey, Calif.