A Danish court has produced an electric shock effect. The Roskilde county court near Copenhagen found that “there is no legal basis in Denmark to prosecute foreigners charged with genocide in another country”, in a controversial decision on Tuesday 31 May

By Franck Petit

In this landmark case, Emmanuel Mbarushimana, a Rwandan citizen aged 49, is suspected of taking part in the 1994 genocide when he was a primary school inspector in the town of Muganza, south of Rwanda. The investigation into allegations that Mbarushimana committed genocide is still ongoing and an indictment has yet to be issued.

Mbarushimana has been living in Denmark since 2001. He was granted asylum when he was arrested last December in Roskilde, where he was living. He is suspected of planning killings during meetings with Elie Ndayambaje, former mayor of Muganza, who is awaiting judgement at the International Criminal Tribunal for Rwanda, in the Butare Prefecture group trial.

Salutary shock
Mbarushimana’s defence counsel Bjorn Elmquist, a prominent lawyer and politician in Denmark, doesn’t hide the fact he wanted to create a salutary shock in Denmark by asking the Roskilde court to drop the genocide charges against his client.

Elmquist was satified with the court’s decision because it showed that Danish legislators never bothered to clarify whether a non-Danish citizen could be prosecuted for crimes committed abroad – despite Denmark’s ratification of the UN Genocide Convention, Rome Statute – and the 2002 Special International Crimes Office (SICO).

Responsibility
Bjorn Elmquist said that from a moral, judicial and social point of view he finds it “unacceptable that individuals who took part in a genocide stay unpunished. This decision shows a lack of sense of responsibility from the prosecutor, Parliament and Ministry of Justice.”

“This decision is an issue, as it is the first genocide case before a Danish court”, says Birgitte Vestberg, special prosecutor for international crimes and head of SICO. By dropping the genocide charges, the Roskilde tribunal indicates it has jurisdiction over secondary accusations of murder brought by the prosecutor against Mbarushimana.

SICO
Nonetheless, the court decision cannot be seen as a success for SICO, as its mandate is to be “nationally responsible for legal proceedings concerning international crimes such as genocide, crimes against humanity, war crimes, acts of terror and other serious crimes committed abroad”, and SICO has already experienced difficulties in bringing cases to the trial stage. Among the 228 investigations SICO has opened over 9 years, only 2 cases have come to trial. “One resulted in a conviction, the other in an acquittal – and a number of cases were dropped due to insufficient evidence”, points out Vestberg.

In 2006, Kigali indicated that at least 15 Rwandan genocide suspects were living in Denmark. The same year, Denmark announced it would try Rwanda’s former director of civil aviation, Sylvère Ahorugeze. After 11 months in custody, he was released due to lack of evidence. Bjorn Elmquist, his defence lawyer at the time, obtained financial compensation for his client for undue provisional detention. But in July 2008, Ahorugeze was arrested under an extradition request from Rwanda in Stockholm, where he remains in custody without trial.

Genocide Convention
“The Danes and Swedes have both criminalised genocide through implementation of the Genocide Convention. But they have also assumed that the prohibited acts only apply to acts committed on their own territory”, explains Marit Vik, from the Norwegian Centre for Human Rights (NCHR). Though in her opinion the Danish prosecutor has the opportunity to take a step forward after the Roskilde courts decision.

European courts
“The European Court of Human Rights, the International Tribunal for Rwanda, the International Tribunal for Yugoslavia have all stated in various judgements that universal jurisdiction for the crime of genocide is established and accepted. Therefore the Genocide Convention should not be interpreted as to include only prosecution on the territory on which the crimes took place.”
“To me, the [Roskilde] decision is not in compliance with internationally accepted views and interpretation of the Genocide Convention”, said Vik.

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