Pirates and politics: why universal jurisdiction matters for Africa

February 5, 2009

And here is Nicole’s take on why a fairly arcane concept like universal jurisdiction matters for Africa today:

Universal jurisdiction’ is a rather boring brand name for a potentially revolutionary concept. It is of application to two of the most interesting, if disturbing developments in Africa today.

Off the coast of Somalia, pirates present an increasing menace. In recent months in the Gulf of Aden they have successfully captured an enormous oil-tanker – the Saudi Sirius Star, returned only last week after a courier parachuted in to deliver the ransom – and in another bold move, attempted the hijacking of a luxury cruise-ship. And that was the third reported piracy effort off Somalia that day.
In a seemingly completely unrelated development, Rose Kabuye, Rwanda’s head of protocol, was arrested in Germany in early November and transferred to France to stand trial for her alleged involvement in the crash of the aircraft carrying Rwandan President Habyarimana which triggered Rwanda’s 1994 genocide.
This week, she will hear the charges against her – charges based on the principle of universal jurisdiction which maintains that certain crimes, like genocide, crimes against humanity or terrorism, are so serious that every state has a right to prosecute and punish them no matter where they took place. In allowing these charges to be brought France has certainly picked itself a fierce diplomatic fight.
The principle of universal jurisdiction is, in fact, centuries-old, developed originally to cover acts of piracy like those occurring off the coast of Somalia. Nobody can realistically look to Somalia and its nonexistent legal system to police against this new scourge. But piracy has always presented difficulties of policing. Committed on the high seas, where no state has exclusive sovereign power to act, piracy operates in a seemingly law-free zone.
Universal jurisdiction recognised this and was intended to give all states equal right to prosecute and punish piracy. And it is to this principle, in its most ancient formulation, that countries interested in securing safe passage through the waters of the Gulf of Aden should be looking now to counter the Somali pirates’ attacks.
Post World War II, a more modern conception of universal jurisdiction came to attach to crimes like genocide and crimes against humanity, deemed the very worst of crimes. Accordingly, universal jurisdiction appeared largely an expression of uniform revulsion – although it was and still is very much a pragmatic response. Crimes like genocide and crimes against humanity generally only occur in law-free zones, where the state is either actually responsible for committing the crimes, or is unable to enforce the law.
In recent years, efforts to secure universal jurisdiction prosecutions have been directed at individuals like Augusto Pinochet, Ariel Sharon and Donald Rumsfeld. In Africa, Ethiopia’s Haile Mariam Mengistu and Chad’s Hissène Habré have also been targets. But the largest number of successful universal jurisdiction prosecutions has involved alleged genocidaires from Rwanda.
The Rwandan state has not resisted these efforts, in line with their own to bring to justice those responsible for the genocide. But recent indictments of members of the current administration, like Kabuye, by French and Spanish judges have incensed Rwanda’s leadership. Their response has been to call for abandonment of the principle or alternately to threaten retaliatory universal jurisdiction-based indictments of several French nationals for complicity in the genocide – a tactic arguably as damaging as abandonment.
Rwanda finds fertile ground for its assault. Amid the anger in Africa at the International Criminal Court’s workings – its current, exclusively Africa-focused docket; its threatened indictment of Sudanese President Bashir which is feared potentially to scupper the peace process – the entire international criminal justice project looks in jeopardy.
But it would be short-sighted were responsible African states to allow universal jurisdiction to fall by the wayside or for it to be besmirched as an obvious pretext for politically-motivated interference – particularly in a continent whose tragedies routinely go unattended. Instead African states might take the lead in articulating principles to guide the application of universal jurisdiction, a project that the African Union has already suggested it is keen to undertake.      
Such principles might include central principles like the following: that universal jurisdiction only be applied in situations that are comparable to “law-free zones”, or as against those who act as “law unto themselves”.  So, universal jurisdiction-based indictments of those responsible for continuing mass suffering in lawless Zimbabwe would represent proper, responsible application of the principle.
For all its challenges, Rwanda is not lawless: it does not represent a law-free zone. Nor is its leadership a “law unto itself”, in the sense that the government commits massive violations. And yet there must be some disquiet in that although the crimes with which Kabuye and the like are charged were not committed while in government office, they may now use that office in order to suppress efforts at domestic justice.
In any event, residual principles along the lines that states whose motives are easily impugned are not eligible for applying universal jurisdiction would clearly disqualify France, with its own alleged involvement in Rwanda’s genocide, from pursuing prosecutions of Rwanda’s leadership. It might also mean, for example, that Britain would not be best placed to exercise universal jurisdiction in respect of Zimbabwean officials, but South Africa could do so with much greater confidence.
Additionally, while universal jurisdiction gives every state equal right to prosecute and punish, there should be recognition that those states most proximate have greater vested interests. As the US inaugurates the Contact Group on Somali Piracy at the UN this week, it should be those African states with the capacity who lead on this initiative, invoking universal jurisdiction to police the Gulf of Aden, not only because they have the most to lose should that shipping route become unnavigable or because their own shorelines may be contaminated by piracy, but because, for all sorts of reasons, it shouldn’t always be western states adopting or being required to adopt the policing role.


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