The following is a guest-post by Owiso Owiso and Doris Uwicyeza Picard. Owiso is an international lawyer, scholar and researcher whose primary interests and areas of specialisation include general public international law, international criminal law/justice, international arbitration and dispute settlement, law of international organisations, human rights, and transitional justice. Uwicyeza Picard is an international law scholar and researcher whose areas of research include public international law, the law of international organizations, third-party remedies in international law, international humanitarian law, peacekeeping, human rights and international criminal law. She currently serves as Chief Technical Advisor in the Ministry of Justice of the Government of Rwanda. Her views are made in her personal capacity and do not represent the views of the Government of Rwanda.
Fulgence Kayishema appears at a Cape Town court earlier this month (Photo: Yahoo)
After nearly three decades on the run, Fulgence Kayishema was arrested on 25 May 2023 in a grape farm in Paarl, South Africa where he had apparently been residing and working as a labourer. Kayishema, a former senior police officer, is suspected of playing a prominent role in the Genocide against the Tutsi in 1994, particularly in killings in Kivumu commune in Kibuye préfecture, including the particularly notorious massacre of approximately 2,000 Tutsi civilians in Nyange Catholic Church. Kayishema was indicted by the International Criminal Tribunal for Rwanda (ICTR) in 2001, charged with genocide; complicity in genocide; conspiracy to commit genocide; and crimes against humanity. In this post, we explore what his arrest tells us about South Africa's role in harbouring genocidaires and where Kayishema should be transferred and prosecuted.
South Africa's complicated 'relationship' with suspected Rwandan genocidaires
Similar to questions that France faced in 2020 – but is yet to answer – when alleged genocide financier Félicien Kabuga was arrested in an affluent Paris suburb after nearly 26 years on the run, it is inevitable that many are wondering how Kayishema managed to live so long in South Africa unbothered by authorities. Indications are that South Africa knew of Kayishema's presence long before his arrest on 25 May 2023. Addressing the UN Security Council in 2021, the Prosecutor of the IRMCT Serge Brammertz accused the South African government of stone-walling the search for Kayishema. The Prosecutor had earlier claimed that South Africa had initially acknowledged, as a reason for not arresting and extraditing Kayishema, that it had granted him refugee status, but later changed its position and pointed to legal difficulties in cooperating with the IRMCT. South Africa, however, changed its tune in 2022, ramping up cooperation with the IRMCT and establishing an operational task-team that eventually apprehended Kayishema.
South Africa's dalliance with suspected genocidaires is not new; it goes back to Apartheid South Africa, which, alongside France, is reported to have been one of the main arms suppliers to the genocidal Rwandan regime in the years leading up to the Genocide against the Tutsi. Elements of the Apartheid regime ensured that the arms flow to Rwanda continued even after the official collapse of the Apartheid in South Africa, without much interference by the newly elected democratic South African government. It is no surprise, therefore, that many Rwandans fleeing the collapse of the genocidal regime found their way to South Africa. While Kayishema's case has been the most prominent due to his indictment by the ICTR, he is reportedly not the only fugitive known to be residing in South Africa. Kigali has claimed that at least four other persons suspected by Rwandan authorities of involvement in the genocide eventually made their way to South Africa, and reside and work there to this day.
Where will/should Kayishema be prosecuted?
Apart from the reputational embarrassment of having hosted a suspected genocidaire, Kayishema's arrest now raises another uncomfortable dilemma for South Africa, that is, where Kayishema will be extradited to. While Kayishema was indicted by the ICTR in 2001, in 2012 the ICTR referred his case, among others, to Rwandan authorities. In May 2014, the ICTR issued an arrest warrant for Kayishema, requesting States to arrest and transfer him to Rwanda for trial. With this referral, it follows therefore that Kayishema ought to be transferred to Rwanda for trial.
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