If there is a court willing to prosecute the suspects, the host State will be able extradite the asylum seekers who are excluded from refugee protection on the basis of Article 1F(a) of the 1951 Convention. In some cases, the host State can hand over the suspect for trial to the International Criminal Court or to any other international or quasi-international judicial body. In other cases, the State of origin (or any other) might (p. 628) issue an extradition request. The host State will extradite the alleged criminal only if there are reasonable grounds for the arrest warrant and if there are assurances that the suspect will receive a fair trial. Nevertheless, the host State cannot extradite an individual if there is reasonable belief that the person will be killed or inhumanely treated.36
Until recently, European States would not extradite Rwandan nationals to be tried by Rwandan courts. For instance, a ‘Gacaca’ court in Rwanda had already convicted Stanislas Mbanenande,37 but a Swedish court retried him because Swedish law does not recognize Gacacas.38 Lately, though, certain States have started accepting the extradition of Rwandan international crime suspects to Rwanda to be tried. This trend seems to have been justified on the basis that concerned States have received sufficient assurances from Rwanda that measures have been taken to improve the judicial system and the authorities will do everything possible to ensure a fair trial.39
Charles Bandosra, whose trial hearings began in Kigali in 2014, was the first genocide suspect to be extradited to Rwanda on 10 March 2013.40 Bandora was a high-ranking member of the National Republican Movement for Democracy and Development (MRND) party in Bugesera, Rwanda. He is accused of having ordered the killing of hundreds of Tutsis in Ruhula church in April 1994.41 He was arrested on 9 June 2010 at an airport in Norway under the suspicion of travelling with a fake passport. It is reported that he applied for asylum in Norway but Rwanda requested his extradition. He was extradited from Norway to Rwanda after having exhausted all legal avenues to stop his return.42
On 17 June 2014, the Supreme Court of the Netherlands upheld a decision confirming the legality of the extradition of the Rwandan Jean-Claude Iyamuremye. He allegedly committed crimes against humanity, genocide, and war crimes. He is accused, with others, of having organized the Interahamwe massacre in the Official Technical School (ETO) in Kigali, Rwanda.43 According to the Court, there was not enough evidence to support References(p. 629) the assertion that he would suffer any flagrant violation of his right to a fair trial.44 Iyamuremye has lived for twenty years in the Netherlands with his family. At the time of writing, he is still being held in the Netherlands awaiting the decision of the Dutch Minister of Security and Justice on his extradition.45
Early 2015, Norway’s Supreme Court upheld the decision that Eugene Nkuranyabahizi should be extradited to Rwanda to be tried for his alleged involvement in the 1994 Rwandan genocide.46 Nkuranyabahizi lived in Norway since 1999. His citizenship request was denied because of suspicions regarding his involvement in the genocide. The Norwegian court relied on the validity of the allegations and on assurances that he would be offered a fair trial to decide whether the extradition claim was justified.47
However, a recent French decision shows how fragile any extradition practices are. The Supreme Court of France decided that it was not possible to extradite any individual to Rwanda to be tried for genocide. On 26 February 2014, the Court de Cassation in France overturned an appeals court’s judgment that allowed the extradition of Claude Muhayimana and Innocent Musabyimana to Rwanda in order to stand trial. It also upheld the decision not to extradite Laurent Serubuga.48 They all moved to France after the Rwandan genocide. Muhayimana is accused of taking part in the massacre of Tutsis in the western town of Kibuye. Musabyimana is suspected of taking part in the killings in the north-western province of Gisenyi. Serubuga was Rwanda’s deputy army chief-of-staff at the time of the genocide.49 The French decision concluded that the crime of genocide was not defined in the Rwandan criminal code in 1994; therefore, the accused could not be retroactively tried for genocide—this aspect has never been examined before by any other court.50 This case is significant because it questions the legality of all the trials that have taken place in Rwanda so far and also undermines all other extradition decisions.51
Arguably these are (ideal) extradition cases where the individual who was excluded from refugee protection was sent back to their country of origin for trial. Upon release, the accused (either after serving their sentence or after their acquittal) can start their life legally in their country of origin. Alternatively, the host State can initiate criminal proceedings against the suspect. This depends on whether the national laws allow for such prosecution.
Many States have today passed legislation giving their courts universal jurisdiction to try suspects of international crimes. ‘The term “universal jurisdiction” refers to jurisdiction established over a crime without reference to the place of perpetration, the nationality of the suspect or the victim or any other recognized linking point between the crime and the prosecuting state.’52 Universal jurisdiction is mostly limited to specific crimes. The list of crimes might differ from one country to another, but the international crimes discussed in this chapter are largely covered by most universal jurisdiction laws. States often require that the suspect is found in their territory (‘conditional’ universal jurisdiction).53 In 2014, Spain also opted to revise its infamous law and limit its courts’ universal jurisdiction over international crimes to cases in which there are Spanish victims or the alleged perpetrator is on Spanish soil.54 Domestic courts around the world more and more often apply universal jurisdiction to try individuals who are found within their territory and who were excluded from refugee protection as they are suspected of having committed international crimes.
Completed trials against suspects of international crimes
Procedures related to the Syrian conflict
For the first time since the beginning of the Syrian conflict, a Syrian refugee was convicted in early 2015 for war crimes committed before he fled from the conflict.55 A Swedish court sentenced Mouhannad Droubi to five years of imprisonment for abusing a captured member of the Syrian armed forces. The convicted was a member of the Free Syrian Army at the time of the assault. He had applied and obtained asylum in Sweden in 2013. The court was able to build a case against Droubi because he had posted a video of the assault showing him beating and striking the prisoner with several objects on social media. He was charged with attacking an enemy who was defenceless.56 Most probably, the convicted will file an appeal.
In 2014 and late 2013, judicial proceedings against Rwandan nationals that had fled to Europe and other western countries after the genocide in 1994 were completed. For all these trials, the investigating authorities had to travel around the world to interview witnesses and collect additional evidence. The investigation processes have been lengthy and costly.
Closing the first trial connected to the Rwandan genocide in Germany, on 18 February 2014, a German court sentenced Onesphore Rwabukombe to fourteen years in prison for aiding and abetting genocide. Rwabukombe was allegedly responsible for thousands of killings. However, the Court was not able to establish his direct responsibility in committing genocide. Rwabukombe was granted refugee status in Germany in 2002, but now it will probably be revoked.57
On 14 March 2014, in a landmark decision by a French court, Pascal Simbikangwa was found guilty of complicity in genocide. He is considered to be one of the key figures behind the genocide and was involved in numerous massacres, assassinations, and other attacks against opposition parties.58 The French court sentenced him to twenty-five years of prison (instead of imprisonment for life) as one of the instigators and authors of the Rwandan genocide.59 He is the first person to be convicted in France in connection to the genocide in Rwanda. It is one of many investigations taking place in France that has been accused of sheltering senior Hutu figures within the territory.60
On 19 June 2014, a Swedish appeal court upheld a decision convicting Stanislas Mbanenande to life imprisonment for crimes against humanity and genocide. It is the first time a Swedish court has convicted someone for the crime of genocide and the first time they have convicted someone for the Rwandan conflict. According to the decision, Mbanenande had been involved in killings, attempted killings, and kidnapping of civilians in Kibuye area. The court established that he committed all crimes with genocidal intent to destroy the Tutsi ethnic group. Mbanenande fled to Sweden in 2007, where he was recognized as a refugee and was later granted Swedish citizenship.61 His citizenship will now probably be revoked.
In Canada, on 18 December 2014, the Supreme Court rejected the appeal of Désiré Munyaneza.62 The Superior Court of Quebec had convicted Munyaneza for genocide, crimes against humanity, and war crimes committed during 1994 in Rwanda.63 It is the (p. 632) first time the Crimes against Humanity and War Crimes Act (adopted in 2000) has been used to convict an individual. Munyaneza fled to Canada in 1997 and immediately filed a refugee claim. His request was rejected because they already suspected his involvement in the Rwandan genocide. Nevertheless, he was only arrested in 2005. The investigations lasted for another five years and the legal proceedings went on until 2014.64
Munyaneza was left for more than ten years in Canada waiting to be tried, while the second person to be indicted under the Crimes against Humanity and War Crimes Act has been acquitted. Jacques Mungwarere, also a Rwandan national, was granted refugee status in 2002. The investigation around him started in 2003. He was officially indicted for genocide and crimes against humanity in 2010.65 On 5 July 2013, the judge concluded that Mungwarere was probably guilty, but the prosecution was not able to prove its case beyond reasonable doubt. Mungwarere might still lose his refugee status.66 This decision demonstrates the fragile relationship between criminal and refugee determination proceedings. Despite his acquittal in a criminal trial, Mungwarere might still face deportation on the basis of the exclusion clause.
In 2013, Yvonne Basebya, a Rwandan-born Dutch citizen, was convicted for inciting genocide in Rwanda in 1994. She received the maximum sentence of six years and eight months in jail. She was cleared of other charges, including perpetrating genocide, murder, and war crimes. Basebya had arrived in the Netherlands in 1998 and hid her previous activities when seeking refugee protection.67
Arrests of suspects in relation to the first Liberian civil war
The first ever arrests in Europe related to crimes committed during the first Liberian civil war (1989–96) are among the major developments of 2014.68 Charles Taylor, the former Liberian president, is now serving a fifty-year sentence in Britain for crimes committed during the civil war in Sierra Leone and not in Liberia.69 On 17 September 2014, Martina Johnson, a former front line Commander of the National Patriotic Front of References(p. 633) Liberia (NPFL) of Charles Taylor, was arrested and indicted in Belgium. She is accused of participating in war crimes and crimes against humanity (including mutilation and mass killing) committed in 1992.70 Not long after, on 14 November 2014, Alieu Kosiah, a former commander of the United Liberation Movement of Liberia for Democracy (ULIMO), a rebel group that fought against Charles Taylor’s NPFL, was arrested in Switzerland. He is accused of having committed international crimes, including systematic killings of civilians in north-western Liberia between 1993 and 1995.71
These arrests encourage discussion of the prosecution and punishment of perpetrators of international crimes during the civil wars in Liberia. Until now there have been no efforts to investigate and prosecute these crimes. The Truth & Reconciliation Commission, created to investigate, among others, gross human rights violations and violations of international humanitarian law, published a lengthy report in 2009.72 It recommended the prosecution of perpetrators, but there has been no follow-up so far.73 The trials in Europe have not yet taken place and no one can predict their outcome, meanwhile, the two suspects risk losing their residence permits.
After the proceedings are completed
Most of the above-mentioned persons convicted of international crimes will be sent back to their country of origin after they serve their sentence, or even if they are acquitted. By the time the Rwandan nationals serve their sentences, the ‘host’ States should be able to send them back to Rwanda.74 For others, however, the situation in their country of origin will not allow them to be sent back. The host State will be obligated to keep them in its territory, unless another country is willing to receive them. Remaining in the host State’s territory, without refugee protection or residence permit, will put them in an uncertain legal situation.
For instance, the Swedish court did not order Droubi’s deportation due to the situation in Syria, but it is very likely that he will lose his Swedish residence permit and refugee protection.75 Therefore, after he serves his sentence, the deportation decision will be (p. 634) re-examined. Once the situation in Syria improves, he will be sent back. However, for as long as the Syrian conflict continues, Sweden cannot deport him. It is likely that after he serves his sentence he will be left waiting, in an uncertain legal status, until the situation in Syria improves.
These cases still concern suspects of international crimes convicted by a court. In the meantime, many exclusion cases do not necessarily lead to an extradition or a prosecution. Alternatively, asylum seekers suspected of international crimes might be convicted for immigration fraud, be deported, or none of the above.
Convictions for Immigration Fraud
On 10 February 2014, Jorge Sosa Orantes, accused of committing crimes against humanity, genocide, and war crimes during the Guatemalan dictatorship (1982), was found guilty for immigration fraud in the United States. He was convicted for lying to the US immigration authorities. He had not mentioned in his application for US citizenship that he had been a member of a military organization and he had answered negatively to the question regarding the commission of a crime. He was sentenced to ten years in prison, which is the maximum penalty for immigration fraud, and was stripped of his US citizenship. Orantes is wanted by the Guatemalan and Spanish authorities for his participation (among others) in the Dos Erres massacre of 1982. During Efrain Rios Montt’s dictatorship, Orantes was a sub-lieutenant and an instructor at the Kaibil School, which trained special commando units. Guatemala has asked for his extradition. Orantes will most probably be extradited after his prison term ends. Based on the above, Orantes will serve ten years for hiding information about his previous activities and then he will be extradited to be tried for the actual activities.
In an older case in Canada, the court decided to revoke the Canadian citizenship of Branko Rogan because he deliberately gave false information to the immigration authorities about his past. Rogan came to Canada from Bosnia–Herzegovina in 1994 after the war and became a Canadian citizen. An investigation was initiated against him after he was recognized by a Bosnian Muslim refugee also residing in Canada. The testimonies of four former prisoners and a specialist in history were allegedly used to justify the decision.76 In addition, he has been asked to pay the costs for the citizenship revocation procedures (allegedly close to $300,000).77
(p. 635) There are two paradoxes with these convictions. First of all, the two suspected criminals are not tried for the international crimes they committed; instead, they are severely punished for immigration fraud. Orantes will stay in prison for ten years before any trial for the international crimes he is suspected of committing even begins; Rogan was made to pay an incredible administrative fine, without being tried. Immigration fraud is a serious offence. However, it does not seem reasonable to make the effort to prove the previous crimes in order to establish immigration fraud and then not punish them for these previous crimes.
In addition, these sentences seem quite severe for punishing immigration fraud during asylum determination procedures. It is not uncommon for an asylum seeker to fabricate events in order to ensure a successful application. Apart from criminals who try to hide their past, individuals might lie about their membership of a particular group because they have been incorrectly advised that this will secure refugee status.78 Such severe sanctions for lying to the immigration authorities resemble the criminal charges for the perpetration of international crimes. There is no doubt that authorities need to take measures to ensure that asylum seekers are telling the truth; however, there should be some limits in terms of the consequences.
The exclusion clause is still a very good excuse for simply deporting asylum holders without them standing trial. For instance, the US authorities have been investigating and gradually deporting Bosnians because it is believed that they took part in war crimes and ethnic cleansing during the conflict in the former Yugoslavia. The about-to-be-deported-suspected-criminals have no form of protection against such decisions. There have been allegations that the immigration authorities base their deportation decisions purely on the participation of suspects in the Bosnian–Serb army or because they happened to have been close to Srebrenica when the genocide took place. The defence lawyers argued that there is often no other evidence that the deportees had committed crimes during the war.79 There is no indication that they have been deported to face trial in Bosnia–Herzegovina or elsewhere. These allegations bring to light a reoccurring problem: the standard of proof for stripping someone from any kind of protection is much lower than convicting someone under criminal law.80
Finally, there is a last scenario. Even though the authorities can exclude an asylum seeker if there are serious and actual reasons for considering that the applicant has committed international crimes, it is quite often the case that the authorities will not be able to prosecute, extradite, or deport a suspect for a variety of reasons. There might be no State willing to start a trial against them; the host State might not have jurisdiction to try them; or there might not be enough evidence to prosecute the suspects. Also, the host State might not be able to send them back, due to the situation at the country of origin. The United States is able to send people back to Bosnia, but the Netherlands cannot currently send Syrian nationals, suspected of having committed international crimes, back to Syria.81 In such cases, on the one hand, the State finds itself in a very sensitive situation where it is accused of hosting suspects of international crimes. On the other hand, the excluded individuals, who have no right to refugee protection, may become undocumented immigrants, at risk of being deported at any time, and labelled as alleged perpetrators of international crimes without ever standing trial and being convicted.82
36 Particularly on extradition and human rights see Matrigne, J., 2014, ‘La situation de l’exclu au regard de l’extradition’. In Asile et extradition Théorie et pratique de l’exclusion du statut de réfugié edited by Chetail, V. and Laly-Chevalier, C., Bruxelles: Bruylant, p. 257.
39 The policy shifted after the Uwinkindi decision by the International Criminal Tribunal for Rwanda (ICTR) to transfer an accused to Rwanda. The European Court of Human Rights (ECtHR), relying mainly on ICTR’s previous decision, concluded that the Swedish decision to extradite a Rwandan national to Rwanda for trial did not violate the European Convention. Appeals Chamber Dismisses Uwinkindi’s Motion for Stay of Transfer to Rwanda, United Nations International Criminal Tribunal for Rwanda, ICTR, 19 April 2012; ECtHR, Ahorugeze v Sweden (App. no. 37075/09), Judgment, Fifth Section, 27 October 2011.
52 In some cases, where the asylum seekers have already obtained the citizenship of the host country, they might be tried on the basis of the nationality principle. The States are entitled to pass laws to try their own nationals for crimes they committed abroad. International crimes are covered by such laws. Often though, it is required that the perpetrator had the nationality at the time of commission of crime. Cryer, R., An Introduction to International Criminal Law and Procedure, pp. 48 and 51.
53 Ibid., p. 52.
54 Spanish law had one of the broadest universal jurisdiction laws. It allowed Spanish courts to try any case of international crimes, irrespective of where the crime was committed or against whom and irrespective of where the alleged criminal was found. Kassam, A., ‘Spain Moves to Curb Legal Convention Allowing Trials of Foreign Rights Abuses’, The Guardian, 11 February 2014.
65 Apparently, the testimonies seemed to be contradictory and the judge had to drop the last part of the charges after discovering that it was fabricated. Court Proceedings—War Crimes and Crimes Against Humanity, Department of Justice, Government of Canada; TRIAL, Profiles—Jacques Mungwarere (last modified 4 February 2014).
68 The two back-to-back civil wars ended in 2003 and they are estimated to have cost over 250,000 lives. Macdougall, Cl., ‘A Former Commander of Liberian Rebels Is Arrested in Switzerland’, The New York Times, 16 January 2015.
71 Alieu Kosiah is the first ever member of ULIMO to be prosecuted. It is significant that the two cases concern former commanders of two opposing sides. Former Liberian ULIMO Rebel Commander Arrested in Switzerland for Alleged War Crimes, Press Release, Civitas Maxima, 16 January 2015.
73 ‘Executive Summary and Priority Recommendations: A House with Two Rooms: Final Report of the Truth & Reconciliation Commission of Liberia Diaspora Project’, Volume 3, Appendices VII, 30 June 2009, pp. 23–4.