U.S. Supreme Court to decide whether Kagame has immunity in U.S. courts
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 20101ruling 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 2012,2 in light of:
- Rwanda's responsibility for the mass violence perpetrated by M23 in the Congo, reported by U.N. Experts in November 2012;3
- 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;4
- Rwanda's responsibility for resource rape of the Congo, reported by UNSC Experts 2001-08;5) 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;6
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.
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