Australian officials’ explanation for why they accepted a U.S. request to take in two Rwandan men formerly charged with massacring tourists points to a contrast in the way the U.S. and its close ally resolved the question of whether the men may have committed atrocities or other abuses while guerrilla fighters in Africa two decades ago.
In the wake of an exclusive POLITICO Magazine reportrevealing the men had been sent to Australia for resettlement after more than 15 years in U.S. jails, Australian officials faced a firestorm of criticism and pointed questions about why they accepted the men and whether it was part of a multipart deal cut with the Obama administration in 2016 to empty offshore detention centers home to refugees seeking homes in Australia.
Australian Prime Minister Scott Morrison said Thursday that security and intelligence officials in Australia “cleared” the two Rwandan men of involvement in a 1999 massacre of tourists in Uganda and other atrocities or war crimes.
“I can confirm … that the two individuals that were the subject of this reporting were subject to the security and character assessments and the work that must be done in terms of assessing whether there are any war crimes that are associated with persons who are coming as a refugee, and that security process cleared those individuals,” Morrison told the Australian Broadcasting Corporation.
Asked where the men are, the prime minister said: “They're in Australia, and they were cleared of those particular matters in terms of Australia's assessment of those particular matters, and I can confirm that.”
Speaking to reporters before an Australian national election Saturday, Morrison seemed to dismiss the death-penalty terrorism charges filed against the men by U.S. prosecutors in 2002 and 2003 as mere “claims.”
“I know what the claims are. But the claims and facts are different,” Morrison said Thursday during a stop in Queensland, according to The Associated Press. “These specific allegations were reviewed by our security agencies and by our immigration authorities and they were not found to be upheld. … As a result, they were allowed to come to Australia.”
A judge in the criminal case threw out the confessions of the two Rwandans, Leonidas Bimenyimana and Gregoire Nyaminani, as well as third Rwandan, Francois Karake, concluding that their statements were the product of torture at the hands of Rwandan authorities. Justice Department officials later dropped the prosecution but indicated they remained convinced of the three's guilt and would reopen the case if other evidence became available.
The legal battle turned to U.S. immigration courts after the three men claimed asylum and asserted they faced renewed torture if returned to their home country.
Although the Australians say they determined the men were “cleared” of involvement in a 1999 attack that killed eight Westerners and at least one Ugandan and Morrison has suggested the review of the Rwandans’ background absolved them of partaking in any abuses, immigration court rulings obtained by POLITICO show that the three men were denied asylum in the U.S. based in part on the “persecutor bar” — a provision in immigration law that refuses asylum to individuals deemed to have persecuted others.
Arlington, Va.,-based immigration Judge Wayne Iskra issued three separate decisions in late 2007 finding that the fact that the three men admitted to having been fighters for the Army for the Liberation of Rwanda amounted to evidence that they engaged in “persecution of others on account of race, religion, nationality, membership in a particular social group, or political opinion.”
Iskra concluded that he was bound to ignore the three men’s confessions in the 1999 massacre because of the judge’s ruling in the murder case that the defendants were tortured. However, Iskra said other evidence and admissions from the men in other settings pointed to their involvement in the militia’s targeted attacks.
Nyaminani “stated he was a section leader in [the Army for the Liberation of Rwanda’s] Irondelle company, and that he accompanied his section to the Bwindi park in Uganda once between January and March 1999,” Iskra wrote, citing testimony Nyaminani gave in immigration court. “Respondent … indicated that he saw ‘white people’ speaking with the company head, and while returning through the bush, he saw soldiers with white people in one place. … There is considerable evidence in the record that ALIR committed terrorist acts while Respondent was a member.”
The decision in Bimenyimana’s case was complicated by his refusal to testify in the immigration court about his actions related to the March 1, 1999, attack that led to the criminal case. Iskra said Bimenyimana, who has more education than the other men and had worked as a police officer in Rwanda, cited his Fifth Amendment rights in declining to answer a series of questions about his role as a second lieutenant in the Army for the Liberation of Rwanda.
Iskra found that, because Bimenyimana refused to answer those questions, the court could presume he was involved in the 1999 attack and others.
“It is proper for the Court to draw an unfavorable inference from his refusal to answer pertinent questions where such refusal is based upon a permissible claim of privilege, such as his Fifth Amendment Rights,” the judge wrote. “Based on the adverse inference, the Court finds that Respondent participated in the persecution of others based on race or nationality and that there are reasonable grounds for regarding him a danger to the security of the United States.”
Iskra’s decision on Karake’s claims contains similar language.
Based on the rulings, the immigration judge turned down all three men’s asylum claims but found they could not be returned to Rwanda because of the likelihood they’d be tortured again there. The U.S. is party to an international convention pledging not to send individuals into situations in which they are likely to face torture.
U.S. immigration officials later sought to override that part of the judge’s decision by getting assurances from Rwandan officials that the men would not be tortured. Bimenyimana and Nyaminani abandoned their court challenges on that issue when they agreed to be resettled in Australia on “humanitarian” grounds. Karake’s court challenge is still pending after Australian officials apparently declined to grant him permission to live in Australia.
Normally, immigration court rulings in asylum cases are not public, but the decisions for the three were filed publicly by their attorneys in connection with the legal challenges. Immigration appeals panels took issue with aspects of Iskra’s rulings in Bimenyimana's and Karake’s cases but he reaffirmed them in 2008.
While Bimenyimana and Nyaminani were permitted to migrate to Australia in November, Karake remains in immigration detention in Florida.