U.S. Supreme Court to decide whether Kagame has immunity in U.S. courts

by Professor Peter Erlinder, International Humanitarian Law Institute

RWANDA PRESIDENTS CRASHThe widows of the assassinated presidents of Rwanda and Burundi have petitioned the Supreme Court in Habyarimana v. Kagame to reject Obama administration claims of unreviewable executive power to strip federal courts of jurisdiction for money damages for “extra-judicial” murders and other violations of international law committed by Paul Kagame, the current president of Rwanda.

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.

Gen. Kagame on satellite phoneThis is yet another facet of unreviewable executive discretion of the “imperial presidency” that includes targeted assassinations by predator drone and NDAA-authorized detention of U.S. citizens in military prisons by presidential decree. Unlimited “suggestions of immunity” put the jurisdiction of the federal courts under the control of the executive branch.

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:
Rwandan President Juvenal Habyarimana

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 proferlinder@gmail.com.