US Secretary of State defending a convicted terrorist; say it ain’t so!

Antony Blinken, the US Secretary of State, is in Africa visiting South Africa, the Democratic Republic of Congo (DRC) and Rwanda. In the announcement of this visit, it was indicated that he intends to discuss with Rwanda “the wrongful detention of the U.S. lawful permanent resident Paul Rusesabagina.” This announcement attracted a response from Rwanda’s Ministry of Foreign Affairs and International Cooperation reminding us that Paul Rusesabagina is a Rwandan citizen and that his arrest and conviction were lawful under both Rwandan and international laws. The main issue of contention is the alleged ‘wrongfulness’ in the process that led to Rusesabagina’s arrest and detention. The irony of this criticism coming from a US official shouldn’t be lost on anyone. Here is why.  

The United States has a well-established tradition of abducting or luring suspects on the territories of other states into the US. In 1886 (Ker v. Illinois, 119 U.S. 436), the United States Supreme Court judges ruled that a court cannot be stopped from hearing a case on grounds that a suspect was abducted from abroad. This ruling was affirmed in 1952 (Frisbie v. Collins, 342 U.S. 519) when it was concluded that kidnapping suspects for a criminal trial does not constitute a violation and should not stop a court process. Just to take a few examples out of a litany of them: in 1987, Fawaz Yunis, a Lebanese national, was lured from his residence in Cyprus into international waters, where he was arrested and taken to the U.S. for trial and was sentenced to 30 years in prison. In another case, the U.S. Supreme Court upheld the same position in 1992 (United States v. Alvarez-Machain, 504 U.S. 655) following the arrest and trial of Alvarez-Machain, a Mexican citizen, who was kidnapped from Mexico and forcibly taken to Texas where he was tried and convicted on charges related to his role in murders and other drug-related crimes. The U.S. Ker-Frisbee doctrine states that the fact that a fugitive was brought into a court’s jurisdiction by means of an illegal arrest or a forcible abduction in violation of the defendant’s rights does not automatically divest the court of its jurisdiction.

Interestingly, the US is not the only western country whose courts’ rulings in cases of abduction of elusive suspects could make one raise their eyebrows. Many other courts have also made a distinction between the means of arresting suspects and criminal jurisdiction. For instance, in April 2000, unknown individuals abducted Dragan Nikolić from the Federal Republic of Yugoslavia and handed him over to the NATO-led Stabilization Force in Bosnia and Herzegovina, who arrested and transferred him to the International Criminal Tribunal for the Former Yugoslavia in The Hague where he was subsequently put on trial. In 2013, Belgium arrested Mohamed Abdi Hassan after luring him to Brussels on promises that he was going to make a film on his life. In 2019, the Germany Regional Court in Wiesbaden tried and sentenced Ali Bashar Ahmad Zebari, who was arrested in Iraqi Kurdistan territories by the German Federal Police. In all of these, the courts dismissed concerns about the methods used to arrest suspects and prioritized the pursuit of justice.

In brief, there is an avalanche of evidence in both national and international laws supporting the legal doctrine: male captus, bene detentus (the fact that a person may have been wrongly or unfairly arrested, will not prejudice their rightful detention or trial under due process).

The above examples convincingly respond to the question of whether we can relate them to the arrest and conviction of Paul Rusesabagina. In fact, it does not require us to look far to appreciate the fact that the manner in which Rusesabagina has been treated is much more humane and acceptable than the way U.S. authorities (mal)treated suspects of terrorism.

In his discussion of the Extraterritorial Seizure of Individuals under International Law, Henderson notes that ‘a capture rather than kill policy by the US is certainly preferable from many perspectives than the targeted killings that we have become used to.’ Human rights law is also very clear on the fact that, in circumstances that threaten the life of a nation, states may derogate certain human rights provisions. And that there is nothing that threatens the life of a nation than a situation of war, which Rusesabagina openly declared on Rwanda and put in practice through his FLN militia.

I understand that Blinken will also discuss the issue of Eastern DRC, and I can assure you that despite the existence of good intelligence to his benefit, he will prefer the interpretation of the recently leaked UN report that ignores the root causes of the conflict. Otherwise, how could he justify advocating the release of someone who is on record for creating a militia group (FLN) that is operating in the DRC, and at the same time advocate for peace in the region? In a world of rational beings, these two positions cannot cohabit in one person. But since it is coming from the US, many won’t see any issues with that – but that’s hypocritical!

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