Even by the usual twists and turns of politicised justice that haunts European courtrooms when dealing with Rwanda, here was an anomaly of striking proportions. In the space of two days, the functional surroundings of Westminster magistrates' court in central London was witness to two cases where the Crown Prosecution Service (CPS) appeared to be facing in opposite directions.
On 18 June 2015, the CPS was acting as prosecutor on behalf of the state of Rwanda in the latest extradition hearing against Dr Vincent Bajinya (Brown) and four others accused of murdering thousands of Tutsi civilians during the 1994 genocide. The case is interminable: Rwanda's legal efforts to have the five returned to the country has been ongoing in one form or another since 2007.
Then, on 20 June, lawyers from the CPS stood up in the same court to act against the state of Rwanda when they argued for the extradition to Spain of Rwanda’s Intelligence chief, General Emmanuel Karenzi Karake, a man credited with a role in bringing that same genocide to an end.
The circumstances surrounding the arrest of such a high-profile representative of the Rwandan government as Karenzi give rise to a number of very troubling questions. These devolve in particular on such matters as the motivation of the UK government and its security organs; the timing of the arrest and who ordered it; and the failure of so-called "universal jurisdiction" and continued neo-colonial attitudes to developing nations, even ones that the UK prides itself are important geostrategic allies.
The 54 year-old Karenzi, a popular and respected figure in international military circles, has been working with the UK's overseas intelligence agency MI6 on and off for twenty-one years. In the four years following the 1994 genocide he was chiefly responsible, alongside senior United States, UK and western security services, with rebuilding the security of a country that faced highly dangerous internal and external threats from extremist genocidal forces, notably those camped on the borders of Rwanda.
It was during this period that allegations arose of reprisal attacks and the deaths of nine Spanish citizens for which Karenzi and thirty-nine other named military officers were in January 2008 held responsible by the Spanish judge Andreu Merelles. At the time, western security chiefs made no comment on any such violations and maintained a close working relationship with the general. Indeed, even as the Spanish judge was issuing his indictment, Karenzi was undergoing substantial vetting procedures before his appointment to the prestigious post of deputy force commander of the United Nations’s peacekeeping operation (UNAMID) in Darfur (having previously served in the same role there for the African Union force). Later, when chosen to head the Rwandan Intelligence Services (NSS), Karenzi was invited to come to the UK for training. To all intents and purposes it seemed this was a man that the British authorities trusted and were happy to work with.
In his role as head of the NSS, Karenzi made one of his regular visits to London in mid-June at the behest of his opposite number in MI6. A meeting between the two had been arranged for 1pm on Thursday 18 June, though the nature of the work meant that no official "invitation" document had been given. On 17 June, the UK’s National Crime Agency (NCA) chose to act on the European arrest warrant (EAW) issued by Merelles against Karenzi in 2008.
Karenzi was informed on the morning of 18 June that MI6 were too busy to meet him as a result of being required urgently to brief the prime minister on an unspecified matter. It would seem at this point senior members of the UK security and government met to decide if this EAW-inspired arrest should go ahead. On the one hand, Karenzi was a "verified" EAW. On the other, he had strong credentials: someone the UK had trusted and done business with for twenty-one years, who had served with the UN, and been a confidant and heavily vetted ally of the United States.
On a legal level, Interpol had already rejected the indictment as politically motivated, and the Spanish high court had dismissed it in January 2015. Several harsh judgments of it were also in the public domain. In April 2008, the US ambassador in Kigali, Michael R Arietti, had summarised the Spanish indictment against Karenzi and thirty-nine other Rwandan officers as "outrageous and inaccurate", and "a Sisyphean retelling of some of the most painful episodes of Rwandan history in outrageously inaccurate terms. The indictment dishonors the actual dead, while conjuring up legions of ghost victims to blame on the Kagame government."
Even rudimentary research would have shown there was now no legal charge to answer in either the UK or Spain. Yet remarkably, despite all the obvious pointers towards the dangers of continuing with the EAW, it was decided to go ahead rather than (for example) undertaking further investigations into the matter.
Two days later, at lunchtime on 20 January, Karenzi was arrested by four armed police from the Metropolitan Police extradition unit as he went through the final ticket-check to board a plane home. Within hours, one of the UK’s leading counter-terrorism and intelligence allies had made his first appearance at Westminster magistrates' court, where he informed the court he would fight being sent to Spain.
The outcry was swift, both from public remonstrations by Rwandans in London and Kigali, and political and diplomatic protests at the very highest level. Meanwhile, Karenzi was held for a week in Belmarsh high-security prison before being released on strict bail conditions, including a £1 million surety. The various UK authorities took cover behind the defence that they were only implementing a legally-binding agreement between member European countries and it was up to the court to decide if extradition was warranted.
After two months, the court reconvened on Monday 10 August for a standard case review. Within ten minutes, CPS lawyers - who had been consistently adamant that they had a duty to arrest the Rwandan general under the EAW - told the judge that in effect, it had all been a mistake, that Karenzi had committed no offence that could be prosecuted in the UK and Spain, and therefore no case was answerable. He was free to go.
The UK authorities have recent form here, in three similar episodes. The first was in September 2010, when the Mongolian intelligence chief Bat Khurts travelled to London after an official invitation by the British government. The UK was trying to build links with the mineral-rich Asian country and the visit was to be an important step forward. Instead, Khurts was arrested at Heathrow airport on an EAW issued by Germany, which alleged he had responsibility for the kidnap of one of its citizens. As with Karenzi, the foreign office (FCO) dismissed Mongolian anger and announced that the judicial process must take its course.
The government in Ulan Bator, an ally of western forces in Afghanistan, reacted furiously, saying their representative had been tricked into a meeting in the UK, with promises of high-level meetings with counter-terrorism officials. Khurts was later extradited to Germany where he was promptly released by German authorities just before Angela Merkel was due to visit Mongolia. As one source pithily summarised the fiasco: "It is like another country arresting the head of MI5 during a diplomatic visit. Were that to happen the British would, rightly, go absolutely ape shit.”
The second such case was in September 2005, involving a senior retired Israeli general, Doron Almog, who narrowly escaped being arrested after his plane arrived at Heathrow. Lawyers working for pro-Palestinians groups in London had applied to a judge at Bow magistrates' court to order the general’s arrest for alleged war crimes in Gaza under the terms of universal jurisdiction. After being warned by an attaché from his embassy when his plane touched down that he would be seized if he entered the terminal, Almog’s plane promptly departed with the general still on it. The then home secretary Jack Straw later apologised to his Israeli counterpart, with a junior minister commenting: "[The (UK) government is currently considering a range of matters relating to the issuing of arrest warrants in international cases, but has not yet concluded what changes, if any, are required."
The third incident was in 2009, when Israel's then foreign minister Tzipi Livni cancelled an official visits to the UK after receiving intelligence that she may also face arrest under such a warrant. In 2011 a legal change required the director of public prosecutions (DPP) to give consent to any arrest of foreign government officials visiting the UK, although those who have retired continue to risk detention.
Such actions raise questions far beyond the individuals involved. After its meeting on 26 June, the African Union issued a communiqué that "strongly condemns the blatant violation of the principle of universal jurisdiction by some non-African States against African government officials and its implications for peace and security on the continent, and stresses that this abuse threatens to reverse the hard-won security and stability in Rwanda and in Africa as a whole."
A week later, on 2 July, Smaïl Chergui, the Algerian commissioner for foreign and commonwealth affairs at the African Union, based in Addis Ababa, wrote to Britain's foreign secretary Philip Hammond on the Karenzi case (the letter was circulated to other African states as well as the Spanish government). He noted that the arrest in London was a matter of the "utmost concern to the AU, given its serious implications not only for Rwanda, but also for the rest of the African continent…the arrest, which was purportedly executed on the basis of an arrest warrant issued by a Spanish judge, further highlights the challenges brought about by the abuse of the principle of universal jurisdiction. The abuse of the principle by magistrates and judges from non-African countries is a clear violation of the sovereignty and territorial integrity of African states and constitutes an attempt to subordinate African legal systems to those of non-African States." Hammond responded with the government line that the FCO could not get involved in legal issues which must take their course, but the AU’s deep concern at apparent abuse in respect of universal jurisdiction failed to garner a response.
The former US assistant secretary of state for African affairs, Jendayi Frazer, has commented that universal jurisdiction was intended to stamp out impunity for genocide and crimes against humanity. The International Criminal Court (ICC) at the Hague was the principle's great white hope: a judicial authority to bring malefactors, wherever they may be found, to book. Instead, many of the world’s most powerful countries - such as the US itself, China, India and Russia - refused to join the court, fearing politically inspired, highly selective "justice" against their leaders. So the ICC has become, in many eyes, more of a great white elephant, and a very costly one at that.
Frazer herself says: "[The] early hope of ‘universal jurisdiction’ ending impunity for perpetrators of genocide and crimes against humanity has given way to cynicism in both Africa and the West. In Africa it is believed that, in the rush to demonstrate their power, these courts and their defenders have been too willing to brush aside considerations of due process that they defend at home." In essence, all "universal" jurisdiction has achieved is to create a two-tier justice system, where western politicians and NGOs can choose which developing world targets to indict, while their own citizens are protected.
With all this in mind, the particular case of General Karenzi contains several odd non-sequiturs. It would seem no one in the National Crime Agency, the Metropolitan Police or the CPS looked at the actual Spanish indictment. All referred to the fact that it was not their job to investigate the charges - that was for the Spanish. They were simply tasked with being alert to the presence of someone wanted on an EAW being in the UK, making the arrest, and bringing the person to court to test the extradition warrant before the law.
Interpol’s refusal to issue "red notices" against the forty Rwandans, since according to its constitution it had to refrain from politically motivated indictments, was not relevant - as the UK does not anyway recognise the legal standing of the latter. The secondary fact that on 21 January the Spanish high court had overruled Merelles's indictment of the forty Rwandan officials, dismissing the arrest warrants, was also immaterial, as the NCA insisted that the EAW was still extant. The EAW remained on the NCA's system - so it had a duty to act upon it.
An NCA spokesman, commenting on this case, noted: “Decisions regarding dual criminality and the extraditability of offences as drafted on an EAW are down to the presiding judge at the Extradition Court [Westminster magistrates]. The NCA acted within the structures as laid down under the Extradition Act 2003 and the EAW / Alert was properly certified and validated.” They denied that the agency was doing anything other than carrying out its lawful task of furthering the EAW to the relevant police force, who would then make their own decision about whether or not to make an arrest.
Moreover, why did other government departments not inform the Metropolitan Police before the arrest that there had been a thorough vetting brief on Karenzi before he took up his Darfur peacekeeping role with UNAMID? Were Britain's MI6, who had worked closely with Karenzi over two decades, and the foreign office (FCO), aware of the views of their close American counterparts, who had worked with Karenzi and whose own research found the Spanish allegations to be false and unsubstantiated? If so, why did they again not feed this information to the police to ensure a stay in any arrest until further investigation could take place?
A final important question remains about the timing of the arrest. It is unclear why, after several years of travel to and from Europe, the NCA chose this particular visit to move towards seeking to arrest Karenzi. As pertinent, and an issue the agency will not comment on, is how did the NCA become aware this time that Karenzi was in London, given it seems not to have known on previous visits. In effect, did someone within the government or security services, who knew of this confidential diplomatic visit, "tip off" the NCA with a view to embarrassing the Rwandan government and further damaging relations between the two countries?
After the collapse of the EAW case against Karenzi, a CPS spokesperson told the media that the case had been abandoned "after careful consideration [as] we do not believe an extradition offence can be established under UK law. The main reason is that the relevant laws on the conduct alleged in this case do not cover the acts of non-UK nationals or residents abroad." Again the question occurs as to why the CPS did not take time and effort to note this this to police before the arrest was made. The blindly observant rush to arrest a long-term ally of the UK on the basis of a politically motivated arrest warrant makes a mockery of justice, rather than serves it.
An immediate lesson can be drawn. It echoes a point made by the barrister Alun Jones, who told Westminster magistrates in the earlier Mongolian case "that the treatment meted out to Mr Khurts, who was travelling on a diplomatic passport, should serve as a warning to other nations sending diplomatic delegations to London. Countries in Asia and the Middle East ought to know that if they are sending senior civil servants to this country the foreign office might be planning to arrest them." African countries can now be added to the list of those who take UK assurances with a large pinch of diplomatic salt.
While the sudden release of Karenzi was greeted with joy and celebration in Rwanda, it was met by a deafening silence from the UK government. No official statement was made, and so far no apology. Both the FCO and NCA, when approached, have declined to take to opportunity to say sorry, though behind the scenes there may well be some strongly worded diplomatic language being used. The UK media that had announced the initial arrest with blazing headlines and speculation, for the most part ignored the resolution to the story. The main evening BBC and Channel 4 television news broadcasts ignored an event that has major implications for UK-African relations. In the case of the right-wing Daily Mail, the story was predictably used purely to attack Cherie Blair, who had acted as defence lawyer in the case. No media outlet has pushed for an urgent government or security-services inquiry of how evident failures in this case - and the previous ones mentioned - were ever allowed to proceed.
There is a creeping suspicion that this arrest went far beyond just the official announcement of being solely an action the UK had a duty to enact following a EAW. Are there now people in senior positions who used the arrest to reflect their own antipathy to President Kagame’s government and to further damage UK-Rwandan relations, already troubled after the BBC documentary shown in autumn 2014 which took a "revisionist" line toward the genocide? The steady rise of a current in media and political circles anxious to denigrate the Rwandan leader at every opportunity is only too apparent.
If this arrest was due to such political opportunism, then David Cameron's government has very serious issues to address in the process of retaining (or regaining) the trust and diplomatic confidence of its erstwhile allies. To fail in this process would risk Rwandan goodwill evaporating in the medium and long term, but also the goodwill of other African nations that may no longer wish to risk closer relations with "perfidious Albion."
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