Rwanda: Is Kagame's Case Justiciable in US Courts?

By David O’Brian
AfroAmerica Network
May 3, 2010

I would like to comment on the assertion by some of the Kagame’s apologists that the case by the widows of the late Rwandan and Burundian Presidents is not receivable in the US. Actually, the case is not only receivable but also falls in documented statutes and court precedents.

I agree though that Paul Kagame's immunity may guarantee that he may not be arrested as long as he is president, unless the US State Department revokes his immunity. As president of a recognized government, he is immune for civil or criminal prosecution. The reason he cannot be arrested is that the US has signed "a treaty" regarding the protection of diplomats and reciprocity. The treaty known as "The Vienna Conventions on Diplomatic Relations” of 1961 defines a framework for diplomatic relations between independent countries. It provides for the privileges and favors given to diplomatic missions that enable diplomats to perform their function without fear of coercion or harassment by the host country. This forms the legal basis for diplomatic immunity. This treaty protects both the Rwandan Dictator Paul Kagame and any other Rwandan on a diplomatic mission in USA and their families, especially in its articles 27, 29, and 37. However, within the framework of the treaty, the US Government may declare Paul Kagame and his ministers, persona non grata, and arrest and prosecute them upon entering the US.

Now, the most interesting part: it is also because the US has signed another treaty that the case of Ms Habyarimana and Ms. Ntaryamira vs Mr. Paul Kagame is receivable by US Courts and prosecutable. The treaty known as "The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment" of 1984 requires signatory nations to take necessary measures, including prosecution, arrest, and detention to prevent torture around the world. The Convention also requires states and nations to take effective measures to prevent torture within their borders, and forbids states to return people to their home country if there is reason to believe they will be tortured. It is with that treaty that Paul Kagame and his lieutenants can, should, and will be prosecuted in the US, soon or later. This has happened to former heads of states and will apply to him as well.

In fact, the Alien Tort Statute, 28 U.S.C. § 1350, also called ATS, or the Alien Tort Claims Act (ATCA) is specific about such cases and clarifies the statutes of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment treaty ratified by the US. The ATS provides that: “The district courts shall have original jurisdiction of any civil action by an alien for tort only, committed in violation of the law of nations or a treaty of the United States.” Using the ATS, US courts have successfully prosecuted foreign leaders.

Several examples can be given here. The most talked about is Filartiga v. Pena-Irala, decided by the US Court of Appeals in 1980. This landmark case facilitated many more decided based on ATS. With this case the US Supreme Court even said that experts (such as Professor Peter Erlinder) would help guide this type of cases, by concluding: “ [W]here there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators who by years of labor, research, and experience have made themselves peculiarly well acquainted with the subjects of which they treat.”

A defining moment came with the 2004 case of Sosa v. Alvarez-Machain, in which the Court affirmed that actions committed abroad that violate contemporary customary international law (including applicable treaties) fall under ATS. The Sosa v. Alvarez-Machain case is really an interesting one and may be the precedent applicable to Mrs. Habyarimana and Ntaryamira vs. Paul Kagame et al. In fact, in that case and regarding the Alien Tort Statute claim, the Court unanimously ruled that the ATS did not create a separate ground of suit for violations of the law of nations, but was intended only to give courts jurisdiction over traditional law of nations cases - those involving ambassadors, for example, or piracy.

Hence, the ATS, because it clarifies the “law of the nations” and “a treaty” ratified by the United States, is applicable in this case. In Xuncax v. Gramajo, the Federal District Court held that the ATS grants plaintiffs both subject matter jurisdiction and a private right of action for tortious violations of international law or a treaty of the United States and that ATS does not even require international agreement, but an international norm: "[F]or a court to determine whether a plaintiff has a claim [under the ATS] for a tort committed in violation of international law, it must [first] decide whether there is an applicable norm of international law ... and [then] whether it was violated in the particular case.” That’s it. This means, it is great if there is a law of nations or a treaty; but a norm is good enough.

However, as I said, the case against Paul Kagame et al may be hurt or facilitated by what is known as “prudential considerations”, because the US State Department and US Department of Justice may render the case nonjusticiable by invoking prudential consideration such as national security, separation of powers, political questions, public policy, reticence of domestic courts to command foreign relations, and judicial restraint in legislating new common law.

Finally, African leaders and officials have been prosecuted in the US for crimes committed in foreign countries on non US residents or citizens:

1) Hirute ABEBE-JIRA; Edgegayehu Taye; Elizabeth Demissie, Plaintiffs-Appellees v. Kelbessa NEGEWO a/k/a Kelbessa Negaw, a/k/a Kellbessa, Defendant-Appellant.

Neither the accusers nor the accused were US residents or US Citizens when the crimes were committed in Ethiopia. They only met in US 20 years later.

2) Plaintiffs represented by World Organization for Human Rights USA and Florida International University v Chuckie Taylor. Although he is a US Citizen, he committed crimes while working with his father in Liberia. The plaintiffs were not US residents or Citizens when the crimes were committed.

So, YES the case against Paul Kagame and his acolytes should and will be receivable, prosecuted, tried, and judged in the US, soon or later!

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