The arrest of Paul Rusesabagina, the Hotel Rwanda film ‘icon’, has attracted the attention of international media. In all the stories, the popular and often recycled narrative is that Paul Rusesabagina, a baptised hero, and humanitarian activist, was abducted from Dubai and taken to Kigali by agents of a dangerous totalitarian leader.
Even if some acknowledge that he is the co-founder and the chairman of the Rwandan Movement for Democratic Change (MRCD) and its militia wing, Front for National Liberation (FLN) and that this militia group has on different occasions attacked and killed innocent people inside Rwanda, they still have mercy to call for the intervention of international community to save ‘this good man’ from an imminent ‘unfair’ trial. For instance, Human Rights Watch (HRW) acknowledges that ‘Rusesabagina pledged an “unreserved support” to the FLN, the armed wing of the MRCD’, and that ‘since 2018, the FLN has claimed responsibility for several attacks around Nyungwe forest, Southern Province, near the border with Burundi.’
However, it goes ahead to argue that ‘the fact that Rwandan authorities circumvented the legal process of extradition in Rusesabagina’s case, seriously undermines their claims as to the legitimacy and good faith of their efforts to prosecute him.’ Several local commentators have attributed this bizarre and clearly contradictory analysis to his very well-coordinated PR machine around Paul Rusesabagina Foundation. This is the basis of this piece.
I am interested in legal questions more than whether he is a hero. I am not interested in his role in the 1994 genocide against the Tutsi, or whether he is indeed a humanitarian activist. The legal question I am interested in is whether the manner in which he was arrested (abducted or lured into arrest) is something that violated his pre-trial rights to an extent that would persuade an independent Court to vacate his case. I will ignore though the claim of ‘enforced disappearance’ or ‘torture’ because I think those are claims intended to attract unnecessary attention using an unknown expansive legal interpretation.
According to the Rome Statute, enforced disappearance occurs when the arresting state refuses to ‘acknowledge the whereabouts of the person’ and for ‘a prolonged period of time,’ and for the case of torture, given the status of the person in question, Rwanda knows that it is being watched, and I strongly believe that it is in its interests to keep him safe. In the process of arresting a suspect, some rights are fundamental and these include the suspect’s right to remain silent, the right to be informed that he or she is being arrested and the reasons for the arrest, the right to counsel and if she or he cannot afford one, the right to legal aid.
The right to counsel and the right to remain silent are rights a suspect is entitled to invoke during interrogation and the investigator(s) will be obliged to stop the questioning, but these are rights a suspect also has the right to waive as well. Article 9 (1) of the International Covenant on Civil and Political Rights states that: ‘Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.’ Therefore, what we need to discuss is whether Rusesabagina’s arrest was done according to a procedure established by law, and if not, are the (alleged) violations so serious to vitiate the integrity of a criminal process (rightful trial).
The details concerning the arrest of Rusesabagina still remain a big mystery. However, given the available information so far, it looks like he was lured into a trap of arrest as opposed to abduction (kidnapping). This distinction is very important to make because it is more tolerable to lure a suspect into arrest than abducting him or her. This is so because luring a suspect does not involve violence, and more importantly, it does not violate the sovereignty of the hosting state. Of course, some scholars still wonder whether we should consider an arrest to have occurred at the time that person was deceived, or whether it is when the actual physical arrest happened.
Note that the existing jurisprudence supports the view that arrest takes place when there is an actual restriction of someone’s liberty, and in this case, it is not when Rusesabagina was in Dubai, but it is when the handcuffs were put on him at Kigali International Airport. It appears that, as Paulussen notes (in his 2010 Male Captus Bene Detentus…), ‘as long as the deceived person boards the plane (…) of his own free will and not under duress, (…) comes voluntarily to a jurisdiction where the arrest can be executed, (…) there is nothing wrong with this technique (…).’ In brief, whereas abduction involves the use of violence and violates state sovereignty, luring is not, and thus somewhat tolerable.
For purposes of argument, let us take a moment to assume that he might have been abducted (which is unlikely given the fact the CNN quoted an anonymous source in Dubai indicated that Rusesabagina boarded a private jet on his own will), the existing jurisprudence from different national and international courts regarding the prosecution of suspects (who are victims) of wrongful arrests is not uniform. The court’s decision will always depend on balancing the alleged violations that occurred during the arrest – whether such violations are so flagrant to vitiate a rightful trial in a due process – and the serious nature of crimes she or he is suspected of.
It is a common doctrine of law, especially in matters of public security, that a person might be wrongly arrested but still be accorded proper detention and a rightful trial (male captus bene detentus). Paulussen again notes, ‘the use of irregular means was and is still considered an option in apprehending suspects, especially when the interests are (considered to be) strong.’ The list of suspects who have been tried after wrongful arrests is long. The abduction of Adolf Eichmann in 1960 from Argentina and his effective trial in Israel, the cases of Slavko Dokmanovic and Dragan Nikolić before the International Criminal Tribunal for the former Yugoslavia, the case of Jean Bosco Barayagwiza before the International Criminal Tribunal for Rwanda, the case of Abdullah Öcalan v. Turkey before the European Court of Human Rights, the case of Alvarez-Machain v. U.S., or Fawaz Yunis v. U.S., and the famous application of the Ker-frisbie doctrine, where U.S. courts are permitted to prosecute a suspect even when the arrest did not follow an established due process of extradition.
In the case of Barayagwiza, even if his case was not abduction, but his pre-trial rights had been violated including unlawful detention in the Republic of Cameroon. Amnesty International reacting on the ICTR Appeals Chamber’s decision, for the stay of the proceeding and his release, stated that ‘Amnesty International regrets that there have been violations of the procedural rights of fair trial of Jean-Bosco Barayagwiza (…) but nonetheless argued the Prosecution to file for ‘a request for a review of the decision’ which effectively resulted in the decision of March 31, 2000, reconsidering the earlier decision and ordered for a reduced sentence if he is found guilty and financial compensation if found innocent.
The trial of a person who has been brought before the court under a wrongful arrest is often justified under the protection of the interests of justice, and is more accepted when the prosecuting state had either applied other means (lawful) and failed, or when other means would not have resulted in a surrender of the suspect – the principle of Nunquam decurritur ad extraordinarium sed ubi deficit ordinarium (we should never resort to what is extraordinary, not until what is ordinary fails). This could be due to the fact that the hosting state is reluctant in executing the arrest warrant. For this case, it is fair to argue that charges against Rusesabagina are very serious (terrorism, murder, arson, etc.) making his trial justifiable under the interests of justice, and Rwanda had issued an arrest warrant against him, but given his popularity (visible in the current western media attention), it is predictable that Rwanda would have faced an uphill battle to obtain his extradition.
Therefore, it does make sense to suggest that when it is established that there was indeed some kind of violations of his pre-trial rights, that another remedy such as the reduction of the sentence be found, or financial compensation (if found innocent) as provided for under ICCPR (in its Article 9(5)) that: ‘Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.’ These are some of the legal issues we need to be discussing more, as we wait for his day in court, the rest is a distraction.
Dr. Alphonse Muleefu is a Senior Lecturer at the School of Law and Acting Principal of the College of Arts and Social Sciences (CASS) both of the University of Rwanda and is a member of the Rwanda Bar Association.