by Claire Umurungi
Oklahoma City – The widows of two African presidents slain in the 1994 missile attack on the presidential plane that triggered the Rwanda Genocide filed notice with the 10th Circuit Federal Court of Appeals challenging “head-of-state immunity” granted to the current president of Rwanda, Paul Kagame, by the Obama administration in Habyarimana v. Kagame.
The memoir of top U.N. Prosecutor Carla Del Ponte states she was fired by the U.S. in 2003 when she publicly announced she had the evidence to prosecute Kagame and the RPF for Rwanda Genocide crimes. Carla Del Ponte is a former chief prosecutor of two United Nations international criminal law tribunals. A former Swiss attorney general, she was appointed prosecutor for the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) in August 1999.
A federal district court in Oklahoma City dismissed the wrongful death lawsuit against Kagame for the assassination of Rwandan President Juvénal Habyarimana and Burundian President Cyprien Ntaryamira after the Obama administration claimed that “head-of-state” immunity applies to acts Mr. Kagame allegedly committed as a private citizen, not related to any government policy, which occurred long before he became Rwandan head of state.
The Supreme Court has already established in Clinton v. Jones, 520 U.S. 681 (1997), that U.S. presidents may not claim immunity for acts committed before becoming head of state. In June 2010, the Supreme Court held in Samantar v. Yousuf, 130 S.Ct. 2278 (2010), that individual immunity is derived from the sovereign immunity of the state, and individuals may claim immunity only for acts committed on behalf of a government, when acting in an official capacity.
According to Professor Peter Erlinder, IHLI director and co-counsel on appeal with John Zelbst Esq. of Lawton, Oklahoma: “Whether Mr. Obama has the power to grant an expansive immunity from suit in U.S. courts to a foreign head of state that Mr. Obama could not claim for himself – nor could it be claimed by Mr. Kagame – is a question of first impression that raises a basic separation of powers question: Does the Supreme Court or the executive branch ultimately decide the scope of immunity from suit in Article III courts? It is a question the Supreme Court will eventually have to decide.”
Erlinder is professor of Constitutional Criminal Law and International Humanitarian Law at William Mitchell College of Law, U.S. Supreme Court Chief Justice Warren Burger’s Minnesota alma mater. Erlinder is also lead defense counsel in the Military-1 trial at the U.N. Tribunal for Rwanda, the case in which four former top military leaders were acquitted of conspiring or planning to commit genocide or any other crimes and the highest ranking defendant was acquitted of all charges, in December 2008. Erlinder is also president of ICTR-ADAD (Association des Avocats de la Defense), past president of the National Lawyers Guild, headquartered in New York City, and director of the International Humanitarian Law Institute, St. Paul, Minn.
Rwandan-born writer Claire Umurungi lives in Belfast, U.K., and can be reached at firstname.lastname@example.org. This story first appeared on The Proxy Lake: Views and News on the African Great Lakes Region.