Lawyers must fix the problems with gagging orders before it is too late
The case of Karenzi Karake, head of Rwanda’s intelligence services, will have significant legal and political consequences. The case is fraught with complications and illustrates the difficulties inherent in the exercise of universal jurisdiction.
General Karake was arrested at Heathrow Airport on 20 June as he attempted to leave the UK. The grounds of the arrest are based on a European Arrest Warrant (EAW) issued by Spain in 2008. Gen Karake, along with 39 others, is accused of ordering revenge massacres of Hutus and the murder of three Spanish journalists in the aftermath of the 1994 Rwanda genocide.
The defence team for Gen Karake has challenged the validity of the warrant and argued that the prosecution is politically motivated, as extradition is sought, via private prosecution, by a Spanish charity with links to the FDLR (Democratic Forces for the Liberation of Rwanda - the organisation which is said to have been responsible for bringing about the 1994 Rwandan genocide).
A further complication for the UK is that it is currently in the process of ruling on whether to extradite five Rwandan nationals to stand trial for war crimes in relation to the 1994 Rwandan genocide. Rwandan prosecutors claim that the country’s judicial system has made significant progress since the UK court’s last refusal to extradite (in 2009) and can point to recent decisions in favour of extradition to Rwanda by the European Court of Human Rights, Norway and Denmark. Indeed, Gen Karake’s defence team cited two Mutual Legal Assistance requests between Rwanda and Spain to illustrate Rwanda’s commitment to punishing the crimes at issue in the case.
As head of the Rwandan intelligence services, the arrest of General Karake also raises novel points in the difficult area of immunity. His defence team has said that Gen Karake entered the UK on a visa granted on the basis that his visit had been recognised by the UK as a “Special Mission”. A Special Mission is defined by the 1969 UN Convention on Special Missions as, “A temporary mission, representing the State, which is sent by one State to another State with the consent of the latter for the purpose of dealing with it on specific questions or of performing in relation to it a specific task”. Members of such missions enjoy immunity from arrest and prosecution for the duration of that mission. The Spanish authorities dispute this suggestion, but evidence was presented by the defence that meetings were arranged with an unnamed individual, later claimed in a BBC report to be Alex Younger, the head of MI6.
Gen Karake was granted conditional bail and an extradition hearing has been scheduled for 29 and 30 October. Whatever the outcome, the case will be watched closely and may well set precedents that will govern the future exercise of universal jurisdiction both in the UK and abroad.
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