First UK Prosecution Arising from the Rwandan Genocide: The Extradition Decisions Behind the Charges
The Crown Prosecution Service has announced the first criminal charges brought in the United Kingdom in connection with the 1994 genocide against the Tutsi in Rwanda.
Dr Vincent Brown, formerly known as Vincent Bajinya, has been charged with one offence of conduct ancillary to genocide and six offences of conduct ancillary to murder as a crime against humanity.
The charges concern alleged conduct in Kigali in April 1994. The case is particularly significant from an extradition perspective because Dr Brown was previously the subject of two attempts to extradite him to Rwanda, both of which ultimately failed following concerns about whether he could receive a fair trial there.
The earlier extradition proceedings did not determine Dr Brown’s guilt or innocence. The allegations will now be considered through the criminal justice process in England and Wales.
The First Extradition Proceedings: Brown v Government of Rwanda [2009]
The first extradition proceedings arose from requests by the Government of Rwanda for the surrender of Dr Brown and several other individuals accused of involvement in the events of 1994.
The proceedings culminated in Brown and Others v Government of Rwanda [2009] EWHC 770 (Admin). The Divisional Court allowed the appeals against extradition, concluding that there was a real risk that the requested persons would suffer a flagrant denial of justice if returned to Rwanda for trial.
The seriousness of the allegations did not remove the court’s obligation to determine whether extradition would be compatible with the requested persons’ fundamental right to a fair trial.
Importantly, the decision concerned whether extradition could lawfully take place. It did not determine whether Dr Brown or the other requested persons were guilty or innocent of the underlying allegations.
The Second Extradition Attempt: Government of Rwanda v Nteziryayo and Others [2017]
The Government of Rwanda subsequently pursued further extradition proceedings against Dr Brown and four other individuals.
Following an extensive hearing at Westminster Magistrates’ Court, extradition was refused. Rwanda appealed that decision to the High Court.
In Government of Rwanda v Nteziryayo and Others [2017] EWHC 1912 (Admin), the Divisional Court upheld the refusal of extradition. The court considered whether developments in Rwanda’s criminal justice system were sufficient to address the fair-trial concerns that had prevented extradition in the earlier proceedings.
The case demonstrated that improvements to a requesting state’s legal framework do not necessarily resolve concerns about how a trial would operate in practice. The court was required to examine the safeguards actually available to the requested persons and whether extradition would expose them to a real risk of a flagrant denial of justice.
Why the Refusal of Extradition Did Not Prevent a UK Prosecution
Extradition proceedings determine whether a person may lawfully be surrendered to another state to face criminal proceedings or serve a sentence. They do not ordinarily determine the person’s guilt or innocence of the underlying allegations.
The refusal of Dr Brown’s extradition therefore prevented his surrender to Rwanda in the circumstances considered by the courts. It did not give him immunity from prosecution for the alleged underlying conduct.
The allegations subsequently became the subject of an investigation in the United Kingdom. The decision to bring criminal charges here illustrates an important distinction between extradition proceedings and domestic criminal prosecution: a court may conclude that a person cannot safely or fairly be extradited to another country while leaving open the possibility that the alleged offences can be prosecuted within the United Kingdom’s own criminal justice system.
The Legal Basis for Prosecution in the United Kingdom
The charges have been brought under the International Criminal Court Act 2001, which enables certain international crimes, including genocide and crimes against humanity, to be prosecuted in England and Wales where the statutory jurisdictional requirements are satisfied.
The legislation was subsequently amended so that relevant offences can apply to qualifying conduct committed on or after 1 January 1991. This is important in the present case because the alleged conduct occurred during the Rwandan genocide in 1994, before the International Criminal Court Act itself came into force.
The proceedings therefore demonstrate how UK domestic criminal law may provide a route to prosecution for alleged international crimes committed overseas, even where an earlier attempt to extradite the accused to the country in which the alleged crimes occurred has failed.
The Significance for Extradition Law and International Criminal Justice
The history of the Brown proceedings raises an important question: what happens when a person accused of exceptionally serious international crimes cannot lawfully be extradited to the state seeking their surrender?
The answer is not necessarily that the allegations can never be prosecuted. Extradition and domestic prosecution are distinct legal processes, governed by different statutory provisions and serving different purposes.
The 2009 and 2017 decisions demonstrate the importance of judicial scrutiny even in extradition cases involving allegations of the utmost seriousness. The gravity of the alleged offending does not remove the requirement to consider whether extradition would expose a requested person to a flagrant denial of justice.
Equally, refusal of extradition does not necessarily bring the possibility of criminal accountability to an end. The present proceedings demonstrate how allegations may subsequently be investigated and prosecuted in the United Kingdom where the necessary domestic jurisdiction exists.
The Criminal Proceedings
Dr Brown has been charged but has not been convicted of the offences alleged against him. The previous extradition judgments did not determine his criminal responsibility for the events of 1994.
The allegations will now be considered through the criminal justice process in England and Wales. Dr Brown is entitled to the presumption of innocence and a fair trial.
As criminal proceedings are active, it is important to distinguish allegations advanced by the prosecution from facts established by a criminal court.
The case represents a significant development in the relationship between extradition law, domestic criminal jurisdiction and the prosecution of alleged international crimes. It also demonstrates that refusal of extradition on human-rights grounds does not necessarily prevent the underlying allegations from subsequently being examined by the courts of the requested state.
