International criminal law and border control: The expressive role of the deportation and extradition of genocide suspects to Rwanda
Published online by Cambridge University Press: 02 June 2020
The use of criminal law in border control has gained increasing and warranted scholarly attention. International criminal law is no exception, although the orientation of the debates in international law is different from that at the national level. While scholarship on domestic border control is characterized by a deep scepticism of the use of criminal sanction, the focus in international criminal law has been on the exclusion of individuals suspected of involvement in an international crime from the protective sphere of refugee law. The divergence of this scholarship does not fully account for how responses to allegations of involvement in an international crime are often embedded within domestic immigration laws, making concerns regarding domestic border control relevant for discussions in international criminal law. To examine these domestic entanglements, this article analyses an independently generated dataset of 122 cases in 20 countries concerning 102 individuals alleged to have participated in the 1994 genocide in Rwanda. This dataset enables an empirical analysis of the role that international criminal law is playing in their extradition, deportation or domestic prosecution. It argues that these cases are underpinned by plural types of expressive work. They communicate not only an ongoing commitment to recognizing the universal wrong of genocide, but also more ambiguous messaging about what constitutes a fair trial in Rwanda, who constitutes a ‘criminal migrant’ and, to a Rwandan audience, the transnational penal reach of the Rwandan state.
- ORIGINAL ARTICLE
- Leiden Journal of International Law , Volume 33 , Issue 3 , September 2020 , pp. 789 - 807
- © Foundation of the Leiden Journal of International Law 2020
I am very grateful for the excellent research assistance and academic insights offered by Mattia Pinto, Inès Schapira, Leonie Rakaj, and Adrian Kilercioglu. In addition, I am indebted to a range of people for their comments and input including Mark Drumbl, Miles Jackson, Phil Clark, Felix Ndahinda, Thijs Bouwknegt, Nick Huls, Tom de Boer, Timothy Longman, Alan Norrie, Ana Aliverti, and Solange Mouthaan and the invitation and opportunity to present aspects of this work at Boston University, Yale, the University of Warwick, the University of Oxford and at the British International Studies Association annual conference.
1 ‘The 1994 Genocide against the Tutsi in Rwanda’ is the descriptive phrase used in all official commemorative events and currently supported and advocated for by the Rwandan government and a number of genocide survivor groups. In line with this approach, in 2018 the United Nations General Assembly adopted resolution A/72/L.31, amending Resolution A/RES/58/234, to designate 7 April as the International Day of Reflection on the 1994 Genocide against the Tutsi in Rwanda. For a nuanced discussion of the violence in the 1990’s, particularly against Hutu and Twa civilians that is excluded, in part, through this designation see Strauss, S., ‘The Limits of a Genocide Lens: Violence Against Rwandans in the 1990s’, (2019) 21 Journal of Genocide Research 504CrossRefGoogle Scholar.
2 ‘Rwandan man convicted for Immigration Fraud and Perjury in Connection with the 1994 Genocide’, United States Attorney’s Office, District of Massachusetts, 5 April 2019, available at www.justice.gov/usao-ma/pr/rwandan-man-convicted-immigration-fraud-and-perjury-connection-1994-genocide.
3 ‘Rwandan sentenced to 21 months for immigration fraud’, US Immigration and Customs Enforcement: News Release, 11 October 2012, available at www.ice.gov/news/releases/rwandan-national-sentenced-21-months-immigration-fraud.
4 The database discussed in detail in this article records the following individuals being deported to Rwanda from the USA: Enos Irgaba Kagaba, Jean-Marie Vianney Mudahinyuka, Marie Claire Mukeshima, and Leopold Munyakazi.
5 Genocide Fugitive Tracking Unit Report, April 2018, on file with author.
6 See, for example, G. Holliday, ‘Rwanda genocide suspect deported from Canada’, Reuters, 24 January 2012, available at www.reuters.com/article/us-rwanda-genocide-canada/rwanda-genocide-suspect-deported-from-canada-idUSTRE80N1PF20120124.
7 To reach the total of 122 cases it is necessary to note that six individuals did not have their refugee protection revoked in the proceedings against them and one suspect’s extradition was upheld but he fled the country prior to being extradited.
8 There is a growing body of scholarship in this domain concerning both domestic and international law. For a valuable overview see K. F. Aas and M. Bosworth, The Borders of Punishment: Migration, Citizenship, and Social Exclusion (2013).
9 Aliverti, A., ‘The Wrongs of Unlawful Immigration’, (2017) 11 Criminal Law and Philosophy 375CrossRefGoogle Scholar.
10 Bosworth, M., ‘Border control and the limits of the sovereign state’, (2008) 17 Social and Legal Studies 199CrossRefGoogle Scholar.
11 Hathaway, J. C. and Harvey, C. J., ‘Framing Refugee Protection in the New World Order’, (2001) 34 Cornell International Law Journal 257Google Scholar; Bond, J., ‘Principled Exclusion: A Revised Approach to Article 1(F)(a) of the Refugee Convention’, (2013) 35 Michigan Journal of International Law 15Google Scholar.
12 1951 Convention Relating to the Status of Refugees, 189 UNTS 150. The subsequent 1967 Refugee Protocol removed the original temporal and geographical restrictions that limited the Convention’s applicability to the aftermath of the Second World War, 1967 Protocol Relating to the Status of Refugees, 606 UNTS 267. The term ‘Refugee Convention’ will be used to refer to the 1951 Convention as modified by the Protocol.
13 Agreement for the prosecution and punishment of the major war criminals of the European Axis, signed at London, on 8 August 1945, UN Doc. 251.
14 For a discussion of debates supporting this reading at the time of drafting see G. Goodwin Gill and J. McAdam, The Refugee in International Law (2007), 165. It should, however, be noted that the creation of refugee as a category of exception legitimated state control of the movement of people. In this way, national security interests are built into the historical foundations of refugee law.
15 As discussed in detail in Section 4, these claims about the expressive function of international criminal law (ICL) are increasingly prevalent in the literature.
16 This subsection forms part of the wider exclusion clause of Art. 1F which states that: ‘The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations.’
17 UN High Commissioner for Refugees (UNHCR), ‘The Exclusion Clauses: Guidelines on their Application’, 2 December 1996, available at www.refworld.org/docid/3ae6b31d9f.html; for a discussion on this concurrent development see Bond, supra note 11, at 21–5.
18 Holvoet, M., ‘Harmonizing Exclusion under the Refugee Convention by Reference to the Evidentiary Standards of International Criminal Law’, (2014) 12 Journal of International Criminal Justice 1039CrossRefGoogle Scholar.
19 Juss, S. S., ‘The Notion of Complicity in UK Refugee Law’, (2014) 12 Journal of International Criminal Justice 1201CrossRefGoogle Scholar.
20 Rikhof, J., ‘Prosecuting Asylum Seekers Who cannot be Removed: A Feasible Solution?’, (2017) 15 Journal of International Criminal Justice 97CrossRefGoogle Scholar.
21 Reijven, J. and van Wijk, J., ‘Caught in Limbo: How Alleged Perpetrators of International Crimes who Applied for Asylum in the Netherlands are affected by a Fundamental System Error in International Law’, (2014) 26 International Journal of Refugee Law 1CrossRefGoogle Scholar.
22 Bond, J. and Krech, M., ‘Excluding the most vulnerable: Application of Article 1F(a) of the Refugee Convention to child soldiers’, (2016) 20 International Journal of Human Rights 567CrossRefGoogle Scholar.
23 Dauvergne, C., ‘The Troublesome Intersections of Refugee Law and Criminal Law’, in Aas, K. and Bosworth, M. (eds.), The Borders of Punishment: Migration, Citizenship, and Social Exclusion (2013), 78Google Scholar, at 79.
24 Bosworth, M., ‘Penal humanitarianism? Sovereign power in an era of mass migration’, (2017) 16 New Criminal Law Review 39CrossRefGoogle Scholar, at 40.
25 Lohne, K., ‘Penal humanitarianism beyond the nation state: An analysis of international criminal justice’, (2020) 24(2) Theoretical Criminology 145CrossRefGoogle Scholar, at 146.
26 Hale, R., ‘Bargaining, Duress, and Economic Liberty’, (1943) 43 Columbia Law Review 603CrossRefGoogle Scholar. It is important to note that there is increasing interest among international criminal lawyers in legal realism and empirical research; see Powderly, J., ‘International criminal justice in an age of perpetual crisis’, (2019) 32 Leiden Journal of International Law 1, building on editorial insights in E. Van Sliedregt, ‘International Criminal Law: Over-studied and Underachieving?’, (2016) 29 Leiden Journal of International Law 1CrossRefGoogle Scholar.
27 Hathaway, J. C., ‘The Human Rights Quagmire of “Human Trafficking”’, (2008) 49 Virginia Journal of International Law 1Google Scholar.
28 Immigration control is a highly significant factor influencing human trafficking and modern-day slavery, see Halley, J., ‘Anti-trafficking and the New Indenture’, in Kotiswaran, P. (ed.), Revisiting the Law and Governance of Trafficking, Forced Labor and Modern Slavery (2017), 179CrossRefGoogle Scholar.
29 Bond, supra note 11, at 19.
30 Gilbert, G., ‘Undesirable but Unreturnable: Extradition and Other Forms of Rendition’, (2017) 15 Journal of International Criminal Justice 55CrossRefGoogle Scholar, at 58.
31 Bolhuis, M. P., Middelkoop, L. P. and van Wijk, J., ‘Refugee Exclusion and Extradition in the Netherlands: Rwanda as Precedent?’, (2014) 12 Journal of International Criminal Justice 1115CrossRefGoogle Scholar.
32 Gilbert, supra note 30, at 56.
33 For a crucial collection of writings in this vein see K. Engle, Z. Miller and D. M. Davis, Anti-Impunity and the Human Rights Agenda (2016).
34 It is important to note that some of these proceedings have been strongly driven by genocide survivor groups and their supporters in the diaspora; Ndahinda, F., ‘Survivors of the Rwandan Genocide under Domestic and International Legal Procedures’, in Letschert, R.et al. (eds.), Victimological Approaches to International Crimes: Africa (2011)Google Scholar. I am grateful to Felix Ndahinda for highlighting how, in the recent trial of Fabien Neretse in Belgium, Martine Beckers played a key role in pushing for prosecutions and the Gauthier family in France have been another key domestic actor in triggering proceedings in France.
35 The United Nations Mechanism for International Criminal Tribunals (UN MICT) is still in operation and has retained jurisdiction over three Rwandan suspects who are still at large. While the literature on the ICTR and gacaca is wide-ranging and well established, the cases conducted outside of Rwanda are yet to be looked at in their entirety. There is some scholarship on individual cases; see, for example, Reydams, L., ‘Niyonteze v. Public Prosecutor’, (2002) 96 American Journal of International Law 231CrossRefGoogle Scholar.
36 E. Gasana, ‘Inspector General of Police addressing the 84th Interpol General Assembly in November 2015’, available at www.interpol.int/en/News-and-Events/Events/2015/84th-INTERPOL-General-Assembly.
37 Six cases of individuals still at large were transferred from the ICTR to Rwanda. One of these men, Ladislas Ntaganzwa, was arrested and extradited from the DRC.
38 These countries are Sweden, Denmark, the Netherlands, France, Italy, the UK, Finland, Norway, the USA, Canada, Kenya, and South Africa.
39 Aliens Act 2000 (Wet van 23 november 2000 tot algehele herziening van de Vreemdelingenwet), Staatsblad 2000, 495.
40 This requires that D knew or ought to have known that his actions were crimes (‘knowing participation’) and that he states he participated or if there is information that establishes (a) his active participation or (b) that his actions or neglect facilitated or directly contributed to Article 1F crimes. For an example of its application in Sector of Administrative Law, of the Hague District Court 19 March 2009 Case numbers AWB 07/47035, 07/47037 see uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBSGR:2009:BH9344.
41 Code of Entry and Residence of Foreigners and of the Right of Asylum (Code de l’entrée et du séjour des étrangers et du droit d’asile, CESEDA), 24 November 2004, available at perma.cc/943H-E4JD.
42 Agathe Kazinga Habyarimana, Council of State, N° 311793, available at www.asser.nl/upload/documents/DomCLIC/Docs/NLP/France/Agathe_Habyarimana_Conseil_d_Etat_16-10-2009.pdf.
43 1952 Immigration and Nationality Act, Section 208(b)(2)(A)(i), 8 U.S.C. § 1158(b)(2)(A)(i).
44 Leopold Munyakazi v. Loretta E. Lynch, Attorney General, United States Court of Appeals for the Fourth Circuit, No. 15-1735, at 15, referencing Alvarado v. Gonzales, 449 F.3d 915, 930 (9th Cir. 2006), available at www.ca4.uscourts.gov/Opinions/Published/151735.P.pdf.
45 Minister of Citizenship and Immigration v. Léon Mugesera , 2 SCR, para. 114.
46 2001 Immigration and Refugee Protection Act.
47 See Bond, supra note 11, at 39.
48 Mark Drumbl explores the expressive value of both the trial and the resultant punishment as a ‘moral educator’ in M. A. Drumbl, Atrocity, Punishment, and International Law (2007), 173–6.
49 de Guzman, M. M., ‘Choosing to Prosecute: Expressive Selection at the International Criminal Court’, (2012) 33 Michigan Journal of International Law 265Google Scholar.
50 Amann, D. M., ‘Group Mentality, Expressivism, and Genocide’, (2002) 2 International Criminal Law Review 93CrossRefGoogle Scholar.
51 Luban, D., ‘Fairness to Rightness: Jurisdiction, Legality and the Legitimacy of International Criminal Law’, in Besson, S. and Tasioulas, J. (eds.), The Philosophy of International Law (2012), 569Google Scholar.
52 Jain, N., ‘Radical Dissents in International Criminal Trials’, (2018) 28 European Journal of International Law 1163CrossRefGoogle Scholar.
53 de Guzman, supra note 49, at 270; this expressivist turn has recently been described and elaborated on in Sanders, B., ‘The expressive turn of international criminal justice: A field in search of meaning’, (2019) 32 Leiden Journal of International Law 851CrossRefGoogle Scholar.
54 Anderson, E. S. and Pildes, R. H., ‘Expressive Theories of Law: A General Restatement’, (2000) 148 University of Pennsylvania Law Review 1503CrossRefGoogle Scholar.
58 de Guzman, supra note 49, at 268.
59 Sloane, R. D., ‘The Expressive Capacity of International Punishment: The Limints of the National Law Analogy and the Potential of International Criminal Law’, (2007) 43 Stanford Journal of International Law 39Google Scholar, at 41.
60 Roberts, P. and McMillan, N., ‘For Criminology in International Criminal Justice’, (2003) 1 Journal of International Criminal Justice 315CrossRefGoogle Scholar, at 330.
61 For a notable exception that does acknowledge plural expressions see Drumbl, M. A., ‘Victims who Victimise’, (2016) 4 London Review of International Law 217CrossRefGoogle Scholar.
62 Writings on constitutional pluralism have similarly engaged with heterarchical patterns of normative authority; see Walker, N., ‘The Idea of Constitutional Pluralism’, (2002) 65(3) Modern Law Review 317CrossRefGoogle Scholar.
63 Drumbl, M. A., ‘Prosecution of Genocide v. the Fair Trial Principle: Comments on Brown and others v. the Government of Rwanda and the UK Secretary of State for the Home Department’, (2010) 8 Journal of International Criminal Justice 289CrossRefGoogle Scholar, at 300.
64 Prosecutor v. Jean Uwinkindi, Decision on the Prosecutor’s Request for Referral to the Republic of Rwanda, Case No. ICTR-2001-75-R11bis, T. Ch., 28 June 2011; Prosecutor v. Bernard Munyagishari, Decision on the Prosecutor’s Request for Referral to the Republic of Rwanda, Case No. ICTR-05-89-R11bis, T. Ch., 6 June 2012; in addition, six cases concerning ICTR fugitives have been transferred with five suspects still at large.
65 RB (Algeria) v. Secretary of State  2 AC 110.
67 See Gilbert, supra note 30, who contrasts the implications of this decision with NA v. United Kingdom, ECtHR (2008), Section 4, No. 25904, in which it was held that a general situation of violence (in this case in Sri Lanka) might expose the claimant to a real risk of ill-treatment contrary to Art. 3 of the ECHR.
68 It is important to note the legal standard applied in the cases transferred from the ICTR are specific to Rule 11bis of its Rules of Evidence and Procedure.
69 Organic Law No. 11/2007 of 16 March 2007 Concerning the Transfer of Cases to the Republic of Rwanda from the International Criminal Tribunal for Rwanda and From Other States (Official Gazette of the Republic of Rwanda. Year 46, no. special, 19 March 2007).
70 Prosecutor v. Jean Uwinkindi, Decision on Prosecutor’s Request for Referral to the Republic of Rwanda, Case No. ICTR-2001-75-R11bis, Referral Chamber, 28 June 2011, para. 103.
71 Rwanda v. Nteziryayo and Others  EWHC 1912 (Admin), paras. 431–45.
72 Cour de cassation (Criminal Chamber) n° 13-87.888.
73 Cour de cassation (Criminal Chamber) n° 13-86.631.
74 For a detailed discussed of the Simbikangwa case see Trouille, H. L., ‘France, Universal Jurisdiction and Rwandan génocidaires: The Simbikangwa Trial’, (2016) 14 Journal of International Criminal Justice 195CrossRefGoogle Scholar.
75 Cour Nationale du Droit D’Asile (National Court on the Right of Asylum) Mme N. épouse G. N°14005451, 16 October 2015. The Court articulated explicitly that the Rwandan judicial system had evolved and that, in the event the applicant is prosecuted and judged by the Rwandan authorities, she will be given a fair trial.
76 Rwanda v. Nteziryayo and Others  EWHC 1912 (Admin), para. 377.
77 NCIS Norway v. Charles Bandora, Oslo District Court, 11-050224ENE-OTRI/01 (7 November 2011).
78 Ahorugeze v. Sweden, Decision of 27 October 2011  ECHR.
79 Hoge Raad der Nederlanden (Supreme Court of the Netherlands) 17 June 2014 ECLI:NL:PRH:2014:1441.
80 Raad van State (Council of State) 23 June 2014 ECLI:NL:RVS:2014:2382.
81 It is worth noting that this decision was appealed to the (civil) Court of Appeal which declared the case inadmissible. The case then went back before the administrative court, in first instance, to the judge who initially adjudicated on Munyaneza’s residency status. Gerechtshof Den Haag, 25 July 2017.
82 Gerechtshof Den Haag 5 July 2016 ECLI:NL: GHDHA: 2016: 1924.
83 Rechtbank Den Haag (Court of the Hague) 11 November 2011 ECLI:NL: RBDHA:2016: 14405.
84 Seyoboka v. Can. (M.C.I.),  F.T.R. Uned. 180 (FC), 55.
85 Mudahinyuka v. United States, No. 10 C 5812. United States District Court, N.D. Illinois, Eastern Division, 7 February 2011, referring to Mudahinyuka v. Holder, No. 09-3255 (7th Cir.) (Dkt. No. 36) at 4; Mukeshimana v. Holder, No. 11-4334. United States Court of Appeals of the Sixth Circuit, 2012, referring to a previous decision of the Board of Immigration Appeals; Munyakazi v. Lynch, No. 15-1735. United States Court of Appeals of the Fourth Circuit, 16 July 2016.
86 Contrast the positions of F. Reyntjens, Political Governance in Post-Genocide Rwanda (2013) and Booth, D. and Golooba-Mutebi, F., ‘Developmental Patrimonialisam? The Case of Rwanda’, (2012) 111 African Affairs 378CrossRefGoogle Scholar.
87 Bowling, B. and Westenra, S., ‘“A really hostile environment”: Adiaphorization, global policing and the crimmigration control system’, (2020) 24(2) Theoretical Criminology 163CrossRefGoogle Scholar.
88 Where an individual’s refugee or immigration status was upheld, the decision most often turned on a concern that insufficient supporting evidence had been provided.
89 Reijven and van Wijk, supra note 21.
90 Ndahinda, supra note 34.
91 The Minister of Home Affairs v. Ruta (30/2017) ; Consortium For Refugees and Migrants in South Africa v. President of the Republic of South Africa and Others (30123/2011) . It is important to note that there may be a legitimate distinction between diaspora groups that are organizing to enable political opposition and those that are organizing to enable a military offensive to achieve regime change in Rwanda and that drawing this distinction is difficult to do.
92 A. Chakravarty, Investing in Authoritarian Rule: Punishment and Patronage in Rwanda’s Gacaca Courts for Genocide Crimes (2016); B. Ingelaere, Inside Rwanda’s Gacaca Courts: Seeking Justice after Genocide (2016).
93 N. Palmer, Courts in Conflict: Interpreting the layers of justice in post-genocide Rwanda (2015).