Transnational trials as transitional justice: lessons from the trial of two Rwandan nuns in Belgium.

• Published date: 22 March 2012
• Author: Rettig, Max L.
• Date: 22 March 2012

I'm convinced that [Srs. Gertrude and Kizito] were convicted as cowards, more than as killers. They were scared like hell. They did not help people to avoid being killed themselves.

Gilles Vanderbeck, Co-Counsel for Sr. Kizito (September 2009)

It's so complicated for us as Europeans to recognize when [a Rwandan] is not telling the truth.

Serge Wahis, Co-Counsel for Sr. Kizito (September 2009)

The trial of Srs. Gertrude and Kizito should have taken place here in Rwanda. It is here that they committed these crimes.

Female farmer from Sovu (May 2007)

ABSTRACT

More than a decade after the landmark trial of two Rwandan nuns for their role in the 1994 genocide, important lessons from the proceedings have yet to be fully explored. While scholars have vigorously debated the merits of international tribunals, hybrid courts, and local justice, comparatively little attention has focused on transnational trials--when national courts, typically in Europe and North America, exercise jurisdiction over foreign persons for crimes allegedly committed in foreign countries. Drawing on evidence collected in Belgium and Rwanda, including interviews, trial transcripts, and public opinion data, this Article uses the trial of the two Rwandan nuns to evaluate the strengths and weaknesses of transnational trials. The story of Srs. Gertrude and Kizito provides an example of how Belgium's exercise of jurisdiction prevented two accused genocidaires from escaping the law's reach. But their story also reveals the challenges associated with conducting a highly sensitive trial in a culturally and geographically distant land. Defense attorneys for the nuns argue that Belgian jurors were ill-equipped to sort truth from fiction because of their lack of familiarity with Rwandan culture. The Belgian government's reluctance to grant a key witness a visa to testify at trial deprived the jury of the opportunity to hear and assess his testimony. Furthermore, public opinion data reveals that the trial failed to capture the attention of the Rwandan people, perhaps detracting from the trial's capacity to promote norm penetration and reconciliation. The trial also implicitly privileged Belgian legal values, like due process and relatively light sentences, over Rwanda's preference for harsher punishments. Before fully embracing universal jurisdiction and transnational trials, policymakers must carefully consider the goals they aim to achieve by prosecuting foreign citizens for crimes committed abroad.

I. INTRODUCTION

The neatly manicured grounds of the monastic compound of Sovu, in southern Rwanda, belie the horror of what happened there. Just beyond the monastery's gates lies a mass grave, the final resting place for as many as 8000 men, women, and children who were murdered outside the monastery during the 1994 genocide. Today, as before, some thirty Benedictine nuns live in the monastery, and members of the community pray in the monastery's chapel on Sundays. In 1994, Sr. Gertrude, the mother superior, and Sr. Maria Kizito, a novice, were among the nuns living there. As the rebel army advanced, they first fled to Zaire with their flock, and then to a Benedictine convent one hour outside of Brussels. They lived quietly in Belgium with other Rwandan and European nuns until the Belgian media published a shocking accusation: these women of God collaborated with local genocide leaders, provided the gasoline used to burn hundreds of Tutsi alive, drove over the bodies of the dying, and cast out refugees who had been hiding in the monastery, knowing they would be slaughtered. In April 2001, seven years to the day after refugees began to seek safety inside the monastery, the trial of Srs. Gertrude and Kizito commenced. (1)

The circumstances of the nuns' trial were as extraordinary as the crimes of which they were accused. The trial did not take place in Sovu, where the crimes were committed. Nor did it take place in Tanzania, where the UN-sponsored international tribunal is headquartered. Rather, it was held four thousand miles away in Belgium, on the soil of Rwanda's former colonial master. (2) The trial was groundbreaking for reasons other than venue too. It was the first trial where a jury of laypersons was asked to hear evidence of international humanitarian law violations allegedly committed by a foreign national on the territory of a foreign state. (3) It was the first trial under Belgium's pioneering, controversial, and now-defunct universal jurisdiction law. (4) And it was among the first of a growing number of transnational trials to focus on the 1994 genocide. (5)

Now more than a decade after the trial of Srs. Gertrude and Kizito, important lessons from the proceedings have yet to be fully explored. (6) These lessons remain relevant today because transnational trials have become a prominent feature of the international criminal justice landscape. Prosecutors in a number of countries, including Belgium, Canada, the Netherlands, Finland, Sweden, and Switzerland, have focused on individuals who allegedly committed atrocities abroad. (7) As of 2001, 125 countries had universal jurisdiction laws on the books for one or more crimes. (8) Even the United States, once an outspoken foe of universal jurisdiction, has enacted universal jurisdiction laws for genocide, (9) recruiting child soldiers, (10) and terrorism. (11) These statutes give prosecutors broad power to indict persons suspected of committing atrocities abroad, irrespective of the accused's nationality. (12)

Although Srs. Gertrude and Kizito were living in Belgium at the time they faced trial, neither was a Belgian citizen, and the crimes they were accused of committing took place in Rwanda against Rwandan victims. To establish jurisdiction to prosecute the Sisters, Belgium relied in part on the 1993 Act Concerning Grave Breaches of International Humanitarian Law. (13) The law, as amended in 1999, gave Belgian courts jurisdiction over cases involving genocide, war crimes, and crimes against humanity regardless of the nationality of the accused, the nationality of the victim, the place the criminal act was committed, and the presence of the accused on Belgian territory. (14) Under Belgium's constitution de partie-civile system, victims were empowered to act as plaintiff-prosecutors by requesting that an investigative judge open an inquiry. Furthermore, though not relevant to the trial of Srs. Gertrude and Kizito, the law dispensed with international law immunity for heads of state. (15) In sum, the law was among the broadest, most progressive jurisdictional laws ever enacted anywhere in the world. It was also highly controversial.

What is universal jurisdiction, and why is it controversial? There are several bases for jurisdiction, including the exercise of jurisdiction over a state's own nationals ("nationality"); over foreign nationals when the victim is a national of the state ("passive nationality"); over foreign nationals when the conduct took place on the state's territory ("subjective territoriality"); and over foreign nationals when the conduct "has or is intended to have substantial effect" within the state ("objective territoriality"). (16) Under international law, the exercise of jurisdiction, no matter the ground, must always be reasonable. (17) Universal jurisdiction breaks with tradition by permitting states to exercise jurisdiction even when none of these traditional bases of jurisdiction is met. (18) Herve Ascensio defines universal jurisdiction as a ground of jurisdiction that "does not require any link or nexus with the elected forum." (19) Luc Reydams defines it in the negative: "universal jurisdiction means that there is no link of territoriality or nationality between the State and the conduct or offender, nor is the State seeking to protect its security or credit." (20) Prominent scholars and policymakers argue that universal jurisdiction statutes leave excessive discretion in the hands of unaccountable foreign prosecutors and judges. (21) By contrast, advocates contend that universal jurisdiction is necessary to combat impunity. (22)

But the intense debate over whether universal jurisdiction is legitimate fails to address an equally fundamental question: whether transnational trials are an effective response to mass atrocity. (23) The story of Srs. Gertrude and Kizito offers several important insights that help answer this question. Belgium's exercise of universal jurisdiction prevented two accused genocidaires from escaping the law's reach, and the trial also afforded the Sisters the procedural protections prized by western criminal justice systems. But their story also reveals the challenges associated with conducting a highly sensitive trial in a culturally and geographically distant land. Defense attorneys for the nuns argue that Belgian jurors were ill-equipped to sort truth from fiction because of their unfamiliarity with Rwandan culture. Because of immigration restrictions, the Belgian government would not allow their chief accuser and alleged collaborator to enter the country to testify; as a result, the jury was deprived of the opportunity to hear and assess important testimony. Furthermore, public opinion data reveals that the trial failed to capture the attention of the Rwandan people, perhaps detracting from the capacity of the trial to promote norm penetration and reconciliation. (24) Finally, the trial implicitly privileged Belgium's legal values, such as due process and relatively light sentences, over Rwanda's preference for harsher punishments. In sum, the trial exposes both the merits and the demerits of prosecuting foreign nationals for crimes committed abroad through the exercise of universal jurisdiction.

This Article evaluates the strengths and weaknesses of transnational trials as a form of transitional justice, using the trial of Srs. Gertrude and Kizito as a case study. Part II describes the methodology underlying this study. Part III sets the...