March 16, 2013
by Professor Peter Erlinder, International Humanitarian Law Institute
“The assassination of (Rwandan President) Juvénal Habyarimana and (Burudian President) Cyprien Ntaryamira on the evening of April 6, 1994,” when their plane was shot down as it prepared to land in Kigali, Rwanda, “was the catalyst for the Rwandan Genocide. … The assassination set in motion some of the bloodiest events of the late 20th century, the Rwandan Genocide and the First Congo War,” according to Wikipedia.
The 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 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.
Plaintiffs’ complaint in Habyarimana vs. Kagame promises to prove that then Gen. Paul Kagame, now president of Rwanda, ordered the assassination of Rwandan President Habyarimana and Burundian President Ntaryamira on April 6, 1994.
This 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.
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.
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 email@example.com.