The Prosecution Service v. T.

Court	Supreme Court of Denmark, Denmark
Case number	2/2012
Decision title	Order of the Supreme Court of Denmark
Decision date	26 April 2012
Parties	The Prosecution Service, Special International Crimes Office T (identity withheld)
Categories	Crimes against humanity, Genocide, War crimes
Keywords	extraterritorial jurisdiction, genocide, Murder, universal jurisdiction
Links	Order: Original text Order: Translation (English)

Summary

A Rwandan national who had lived in exile in Denmark under a false name was brought before a Danish court for committing genocide, namely heading a death squad and participating in the slaughter of 25,000 Tutsis in a Rwandan town in 1994.

The Danish Supreme Court was asked to decide whether the 1955 Genocide Act permitted Danish courts to prosecute persons accused of genocide, even where the genocide was not committed in Denmark and the Accused was not a Danish national. The Supreme Court reversed the decisions of two lower courts and found that the charge of genocide in Rwanda by a Rwandan national could be raised before Danish courts indeed. The wording of the 1955 Genocide Act made genocide a criminal offense in Denmark, even if it was committed outside Denmark; moreover, Danish law did not require the accused to be a Danish national. It suffices that genocide is a crime both under Danish and Rwandan law: therefore, T. could be prosecuted before a Danish court

Procedural history

The Court of Roskilde (Denmark), in an order of 31 May 2011, held that it had no jurisdiction to prosecute a Rwandan citizen for genocide on the ground that there is no legal basis in Denmark to prosecute foreign citizens charged with genocide. However, the Court upheld secondary charges of murder and complicity.

On appeal by the Prosecutor, the 6th Division of the Eastern High Court, in an order of 26 October 2011 upheld the finding of the lower court. It based its decision on the wording of the 1955 Genocide Act, which it found did not demonstrate an intention to give the law extraterritorial applicability. The Court also pointed out that the 1948 UN Convention on Genocide does not oblige countries to prosecute cases of alleged genocide perpetrated outside their countries.

Related developments

Tthe Accused’s trial was set to commence in September 2012 in Denmark. His lawyer, Bjørn Elmquist, requested Rwanda’s cooperation in handing over approximately 50 witnesses.

However, in Februari 2012, the Rwandan authorities had already requested T's extradition; therefore Rwanda refused to respond until Denmark has decided whether or not to grant extradition. On 29 June 2012 the Danish minister of Justice decided that T. was to be extradited to Rwanda indeed. T. challenged this decision in court, but both in first instance (19 November 2012) and in appeal (22 March 2013) the decision to extradite was affirmed. The Danish Supreme Court agreed with this conclusion: on 6 November 2013, it decided that there were no reasons to not extradite T. He would receive a fair trial and he would not risk torture or other inhumane treatment.

The preparation of T.'s extradition was stalled after he issued a complained at the European Court for Human Rights (ECtHR), claiming that his fundamental rights would be violated if he were to be extradited to Rwanda. However, the ECtHR dismissed his complaints on 12 January 2014 and affirmed the Supreme Court's order authorising the extradition.

Legally relevant facts

The Accused was a school inspector during the Rwandan genocide in 1994 and allegedly acted as the head of a death squad resulting in the deaths of 25 000 Tutsis. Later, the Accused fled to Denmark where has has lived under a false name in exile, until the Danish police arrested him in the December 2010.

The Danish Prosecutor brought charges of genocide against the Accused pursuant to the 1955 Genocide Act, which criminalised genocide in Denmark.

Both the Roskilde City Court and the Eastern High Court dismissed charges of genocide on the grounds that the Genocide Act does not provide a legal basis for the exercise of jurisdiction over the crime of genocide where it was perpetrated outside the territory of Denmark and by a non-Danish national.

Core legal questions

Can the Danish courts assert jurisdiction over alleged crimes of Genocide committed by non-Danish nationals outside of the territory of Denmark?
Does the Danish domestic Genocide Act have universal scope or is territorially limited to Denmark alone?
Are Danish Courts competent to prosecute alleged crimes of genocide committed in Rwanda?

Specific legal rules and provisions

Articles I-VI of the Convention on the Prevention and Punishment of the Crime of Genocide.
Sections 1(a)-(e) and 2 of Danish Act No. 132 on punishment of genocide.

Court's holding and analysis

The Supreme Court raised two conditions that must be met in order to enable Danish courts to prosecute alleged crimes of genocide perpetrated by foreigners. Firstly, genocide committed in Rwanda must be a criminal offence under Danish law, and secondly, the Danish Courts must be competent to prosecute such an offence (p. 6).

Concerning the first condition, the Court concluded that the crime of genocide has a universal scope, basing its decision on the provisions of the Genocide Convention, and on the internationally accepted view on this matter. Furthermore, it determined that the domestic Genocide Act lacks any provision that would geographically limit the scope of application of that instrument to the territory of Denmark alone. Accordingly, the Court concluded that the Danish Genocide Act provides with the authority to prosecute alleged crimes of genocide committed in Rwanda (p. 6).

Concerning the second condition, the Court examined the Danish Criminal Code, and found that the criteria for a criminal prosecution under that instrument have been fulfilled since genocide is an offence under Rwandan law as well (p. 7).

Accordingly, reversing the judgment of 26 October 2011 of the High Court, the Supreme Court ordered that the charges of genocide against the accused shall not be dismissed (p. 7).

Further analysis

General information

'Prosecuting and Investigating International Crimes in Denmark', Guest Lecture by Birgitte Vestberg;
E. Musoni, 'Danish Court Okays Trial of Genocide Suspect', All Africa News, 30 April 2012;
Jyllands-Posten, 'Rwandan can be Tried for Genocide, Court Finds', The Copenhagen Post, 27 April 2012.

For further information on universal jurisdiction over the crime of genocide, see:

C. Ryngaert, Universal Jurisdiction in International Law, Oxford: Oxford University Press, 2008;
M. Inazumi, Universal Jurisdiction in Modern International Law, Antwerp: Intersentia, 2005;
L. Reydams, Universal Jurisdiction, International and Municipal Legal Perspectives, Oxford: Oxford University Press, 2003).

Instruments cited

Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS 227, 9 December 1948, entered into force 12 January 1951.
Danish Act No. 132 Concerning the Punishment of Genocide, 29 April 1955.

Related cases

Supreme Court of Canada, Leon Mugesera et al v Minister of Citizenship and Immigration, Docket No. 30025, On Appeal from the Federal Court of Appeal, 28 June 2005 (see on his deportation from Canada).
Superior Court of Quebec, R v. Désiré Munyaneza, Case No. 500-73-002500-052, Jugement sur la Peine (Sentencing Judgment), 29 Octobre 2009 (was sentenced to life in prison in 2009, with no chance of parole not until after 25 years).
Conseil d'Etat, Agathe Habyarimana v. France, Case No. 311793, Decision, 16 October 2009 (in French only).
European Court of Human Rights, Sylvère Ahorugeze v. Sweden, Case No. 37075/09, Judgment, 27 October 2011 ("Framställning om utlämning till Republiken Rwanda av SA").
Superior Court of Justice of Ontario, Jacques Mungwarere v. R.