The long-awaited judgement in the case of Ahorugeze v Sweden was delivered by the European Court of Human Rights (ECHR) on 27 October. Judges decided that Sylvere Ahorugeze’s extradition to Rwanda would not breach the European Convention on Human Rights: his extradition would not expose him to a real risk of ill-treatment (Article 3) and it conformed with his rights to a fair trial, guaranteed by Article 6.

By *Juergen Schurr, London

Ahorugeze, the former head of the Rwandan Civil Aviation Authority, is wanted by Rwanda to stand trial for his alleged involvement in genocide and crimes against humanity committed during the 1994 genocide in Rwanda.

Hundreds in Europe
While the judgement is not yet final - Ahorugeze may request the referral of his case to the ECHR’s Grand Chamber - it is a crucial decision as it will have an impact far beyond this case. It is the first judgment of the ECHR, indeed of any regional human rights court, to decide on an extradition of a genocide suspect to Rwanda. The judgement is important because it not only believed that hundreds of genocide suspects are currently residing in Europe, but also follows a series of court decisions in Belgium, Denmark, Finland, France, Germany and Switzerland, The Netherlands and the United Kingdom denying the extradition of suspects to Rwanda.

In the majority of these cases, extradition was denied over serious doubts that the Rwandan judiciary could guarantee a fair trial to an extradited genocide suspect.
To date, Rwanda has issued more than 40 extradition requests in respect of key genocide suspects currently residing in Europe. Sweden is the first and only European country to have approved, at all judicial levels, the extradition of a genocide suspect to Rwanda.

Under-used jurisdiction
International law permits, and at times obliges states to prosecute suspects of serious international crimes before their domestic courts when extradition is not an option (either because extradition was not requested or as in the Rwandan genocide cases, where extradition was denied). States can do so by adherence to the principle of universal jurisdiction, which allows courts to try suspects irrespective of where the crimes took place and irrespective of the nationality of the victim or the suspect. To date, only 12 Rwandan genocide suspects have been tried in this way in Europe, including Belgium, the Netherlands, Finland and Switzerland. In most other cases where an extradition was denied, countries failed to investigate and, where necessary, prosecute these suspects on the basis of universal jurisdiction. Thereby effectively allowing genocide suspects to benefit from impunity.

Challenges and complexities
Ahorugeze left Rwanda after the genocide and in 2001 moved to Denmark where he obtained refugee status. In January 2006, Danish authorities initiated an investigation against him with a view to prosecuting him before Danish courts on the basis of universal jurisdiction. Approximately one year later, the prosecutor dropped the case due to insufficient evidence and Ahorugeze was released and awarded compensation. A Rwandan request for his extradition subsequent to his release was denied as Rwandan authorities failed to provide further evidence in support of their request.

Ahorugeze was arrested again in July 2008, this time by Swedish police, when he visited the Rwandan embassy in Stockholm. Swedish police acted upon an extradition request from Rwanda and an outstanding Interpol Red Notice calling for his arrest. In May 2009, the Swedish Supreme Court decided that Ahorugeze could be extradited to Rwanda, as “the circumstances of the case did not constitute a general legal impediment to the extradition of the applicant to Rwanda.” In July 2009, the Swedish government decided that he should be extradited to Rwanda. He then requested the ECHR to review the decision. In July 2011, the Swedish Supreme Court decided to order the release of Ahorugeze from extradition detention, pending the judgement of the ECHR. The Court considered that his right to be free and the presumption of innocence outweighed Rwanda’s interest in having him tried, and that under the circumstances, it was no longer possible to keep Ahorugeze in detention.

No conditions were placed upon his release, and he was reported to have since returned to Denmark to join his family.
Given that Denmark had previously denied an extradition request from Rwanda on the basis of insufficient evidence, and had not found enough evidence to prosecute him before Danish courts, it remains to be seen what effect the ECHR’s judgement will actually have on Ahorugeze himself.

Resonation
There is no doubt, however, that the judgement resonates well within Rwanda, where it is seen as an acknowledgment of the progress made in recent years. Furthermore, the judgement may open up new opportunities for Rwandan authorities who have long been trying to prosecute genocide suspects residing abroad. It is expected that it will lead to more extradition requests in the future, and to a renewal of those requests that have been denied in the past.

Similarly, for some authorities and governments in Europe the judgement came as a sigh of relief, as now future extradition requests from Rwanda are more likely to succeed. There is a natural preference among states to extradite genocide suspects rather than to institute criminal proceedings on the basis of universal jurisdiction. Extradition proceedings can be much more economical than domestic proceedings. Also, states have argued that sending the suspects to face trial in their home countries where the crimes are alleged to have taken place has the advantage of enabling a large number of survivors to participate in the trials, and to see justice being done. By extraditing suspects to Rwanda, trials arguably can have more of an impact upon Rwandan society than universal jurisdiction proceedings.
The ECHR judgment may also help to speed up the conclusion of extradition treaties with Rwanda where treaties are a pre- condition for extradition.

Reason for concern
At the same time, there is reason for concern. If not handled with caution by authorities and governments in Europe, the judgement may open the floodgates for the extradition of suspects to Rwanda, and result in significant numbers of extradited suspects that Rwandan authorities will have difficulties coping with. Already, some officials in Europe have voiced their concern about their place in a race to have suspects residing on their territory extradited to Rwanda. It is therefore important to bear in mind that the ECHR has decided solely on the case of Ahorugeze. Future cases, where suspects request the ECHR to review a positive extradition request may have a different outcome, including where judges are not convinced that Rwandan authorities have the capacity to bring extradited suspects to trial within a reasonable time.

Limited capacity
Rwanda’s capacity to handle huge numbers of genocide suspects extradited from Europe, and possibly elsewhere, as well as cases transferred from the ICTR will be limited. Trials of these suspects will be monitored extensively and be subject to more scrutiny than previous genocide trials in Rwanda. They are likely to last longer as the witness protection mechanisms put in place to receive extradition and transfer cases such as video conferencing of testimonies and the hearing of witnesses abroad may further delay proceedings.
It is therefore important to bear in mind that despite the approval of extradition to Rwanda in this one case, this is not the only possibility for States to comply with their obligation to either prosecute or extradite suspects of crimes under international law: in light of the numbers of suspects involved, States should apply universal jurisdiction to complement accountability efforts undertaken in Rwanda.

*Juergen Schurr is legal officer with REDRESS, London