Guest Post: Bidding for Justice

The following is a guest post by Lt. Col. Chris Jenks, the Chief of the International Law Branch in the Office of the Judge Advocate General. Lt. Col. Jenks is posting in his personal capacity.

A Canadian Court recently sentenced Désiré Munyaneza, a former Rwandan Army officer, to life imprisonment with eligibility for parole following his conviction in May for genocide, crimes against humanity, and war crimes he committed in Rwanda in 1994.  The prosecution was Canada’s first under its Crimes Against Humanity and War Crimes Act, which Canada enacted in 2000 to implement its obligations under the Rome Statute of the International Criminal Court.  Under the Act, a person who commits genocide, war crimes, and/or crimes against humanity, whether the offenses occur in or outside Canada, may be prosecuted.  There are temporal qualifiers to the Act’s grant of jurisdiction, one of which, and the basis for jurisdiction against Munyaneza, is that after the offenses are alleged to have been committed, the person is present in Canada.  Canada was the first states party to the Rome Statute to modify its domestic law and some, in Canada and the international community, are pointing to the prosecution as proof of a derivative benefit from the ICC and indicative of international criminal justice to come.  Certainly accountability and punishment for the heinous crimes Munyaneza both orchestrated and participated in is welcome and long overdue.  Yet the Munyaneza trial may be more cautionary than complimentary in augering the future of international criminal justice.  The trial lasted two years, required hearings in five countries, and estimates of its cost to date range up to $4 million, which does not include the cost of the appellate process or of incarceration, and Munyaneza reportedly will serve 21 years in confinement before being eligible for parole.  Some may respond that by ICTY or ICTR standards the Munyaneza trial was relatively quick and economical.  But that misses the point, implicit in the seemingly inexorable drive towards universal jurisdiction is the role of individual state action and responsibility.  But how much responsibility and thus cost should any one state assume?  Similarly, what are the implications of, and for, a state which assumes too much?

The Munyaneza case alone has already consumed roughly a quarter of the $15.6 million annual budget of Canada’s War Crimes Program.  To its international credit, but fiscal detriment, in the week following Munyaneza’s sentencing Canada announced the second use of its CAH and War Crimes Act. Following a six year investigation, Jacques Mungwarere, a Rwandan national living in Ontario, was charged with genocide stemming from his role in the 1994 massacres.  For some perspective, the Canadian Centre  for International Justice estimates that there are approximately 1,500 war criminals from various conflicts currently living in Canada.  If Munyaneza, and now Mungaware’s multi year investigation, are indicative of required due process norms and the associated costs of meeting those norms, where does that leave Canada, let alone the majority of the international community which can’t afford such investigations and trials?  And what does that say about the norms?  Perhaps the majority of the international community will remain on the outside of the process, meaning, for example, justice for crimes committed by and against Rwandans, in Rwanda, administered elsewhere, in this case, Canada.  Alternatively, states may remain involved in the process and attempt to outsource the cost of justice, as with Senegal’s claim it would delay the trial of former Chadian President Hissene Habre pending receipt of roughly $38 million for the trial.  As unpleasant as those options sound, the alternatives seem even worse.  Laudable though the trial was on many levels, Munyaneza clouds more than clarifies the road ahead for international criminal justice.  Instead, the way forward requires an uncomfortable discussion on reassessing due process  norms and how much justice the international community can afford or impunity it can tolerate.