by Professor Peter Erlinder, International Humanitarian Law Institute
Rwandan President Juvenal Habyarimana and Burundi President Cyprien Ntaryamira died when their French-piloted plane was hit by missiles and crashed in the presidential compound in Kigali on April 6, 1994. The widows of the slain presidents filed a civil suit for money damages against Rwanda’s current President Paul Kagame on May 1, 2010, for these intentional “extra-judicial killings,” charging that Kagame intended to trigger the mass violence now known as the 1994 Rwanda genocide.
The ‘imperial presidency’ is the real issue
The Obama administration issued a “suggestion of immunity” from federal court jurisdiction for Kagame, even though the assassinations of the two presidents occurred before the present government of Rwanda existed and before Kagame was an official in any government, much less head of state. The 10th Circuit and 4th Circuit ruled differently on whether a “suggestion of head-of-state immunity” must be obeyed by the Supreme Court and the other federal courts.
Unofficial acts not entitled to immunity: Supreme Court 2010
Presidential immunity from federal jurisdiction by decree is contrary to Samantar v. Yousuf, the Court’s 2010 ((Ironically, Samantar v. Yousuf was decided while counsel for petitioners was being held in respondent Kagame’s 1933 Prison while facing a 25-year sentence for having represented the plaintiffs in this action. Petitioner’s counsel was released on “humanitarian grounds” following an international campaign.)) ruling that held head-of-state immunity is “derivative of” the “sovereign immunity” of nations which Congress defined in FSIA (Foreign Sovereign Immunity Act of 1976) and limited to “official acts.” The president cannot create, or ignore, federal jurisdiction properly established and interpreted by the other branches.
‘Suggesting immunity’ for Kagame aligns U.S. with known war criminals – why?
Whether now-President Kagame should be protected by Obama administration-invoked immunity from federal jurisdiction is a separate policy question that was widely discussed during the congressional vetting process of Susan Rice’ candidacy for Secretary of State in late 2012, ((“Helene Cooper, U.N. Ambassador, Questioned on U.S. Role in Congo Violence,” New York Times, Dec. 9, 2012)) in light of:
- Rwanda’s responsibility for the mass violence perpetrated by M23 in the Congo, reported by U.N. Experts in November 2012; ((Final Report of the U.N. Security Council Committee established pursuant to Resolution 1533 (2004) concerning the Democratic Republic of the Congo, Nov. 15, 2012))
- Rwanda’s responsibility for the mass violence in Congo 1993-2003, including genocide and war crimes in yjr U.N. Mapping Report of Oct. 1, 2010; ((UNHCHR Mapping Report, Democratic Republic of the Congo (Crimes Committed in Congo) (1993-2003) October 1, 2010))
- Rwanda’s responsibility for resource rape of the Congo, reported by UNSC Experts 2001-08; ((Final Report(s) of the Group of UNSC Experts on the Illegal Exploitation of Resources and Other Forms of Wealth of Democratic Republic of the Congo (2001, 2002, 2003, and 2008))) and,
- Kagame’s responsibility for the assassination of the two presidents, which was well known within the ruling RPF party, according to the Oct. 1, 2011, confession of President Kagame’s former Chief of Staff Dr. Theogene Rudisingwa, MD; ((October 1, 2011, Public Confession of Theogene Rudesingwa))
In Habyarimana v. Kagame, the Supreme Court will have the opportunity to determine whether Mr. Obama, or any chief executive, has the power to ignore federal jurisdiction established by Congress (FSIA and TVPA, Trafficking Victims Protection Act) as interpreted by the Supreme Court in Samantar v. Yousuf.
Professor Peter Erlinder, past president of the National Lawyers Guild, president of ADAD, the UN-ICTR defense lawyers associations, Arusha, Tanzania, a founding member of the National Coalition to Protect Civil Freedoms and the Minnesota Bill of Rights Defense Coalition, is director of the International Humanitarian Law Institute of St. Paul, Minn. He can be reached at email@example.com.