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Tenth Circuit: Head of State Immunity Bars Rwanda Genocide Case

By Robyn Hagan Cain on October 10, 2012 | Last updated on March 21, 2019

On April 16, 1994, two surface-to-air missiles downed an aircraft carrying then Rwandan and Burundi Presidents, Juvenal Habyarimana and Cyprien Ntaryamira, both of Hutu ethnicity, over the Rwandan capital of Kigali. Both were killed in the attack.

The killings fueled the Rwandan genocide, and cost more than one million innocent victims their lives.

Some people, including the presidents' widows, believe the then Tutsi-led Rwandan Patriotic Front -- headed by current Rwandan President Paul Kagame -- was behind the killings. Even if that's true, the Tenth Circuit Court of Appeals ruled this week that the widows cannot sue Kagame in a U.S. court due to head of state immunity.

In 2010, the former presidents' widows filed a wrongful death lawsuit for $350 million against Kagame in an Oklahoma federal court while Kagame was in the state to speak at Oklahoma Christian University graduation. (They asserted claims under Alien Tort Claims Act, the Torture Act, the Racketeeer Influenced and Corrupt Organization Act (RICO), and a slew of state and international laws.) The plaintiffs, represented by William Mitchell College of Law professor Peter Erlinder, claimed that Kagame ordered their husbands' deaths.

The district court dismissed the lawsuit based on head of state immunity.

The widows asked the Tenth Circuit Court of Appeals to reinstate their claim, arguing that the courts shouldn't bow to the U.S. government's determination that Kagame cannot be sued due to head of state immunity.

Wednesday, the Tenth Circuit Court of Appeals affirmed the district court's decision to dismiss the case.

While the case was pending in the district court, the U.S. government, (at the request of the Rwandan government), submitted a "Suggestion of Immunity" on behalf of President Kagame. The district court, deferring to the Suggestion of Immunity, dismissed the action.

According to the Tenth Circuit, that was the correct decision.

The appellate court, quoting Judge Wisdom, noted that "American courts have consistently applied the doctrine of sovereign immunity when requested to do so by the executive branch," and that the Foreign Sovereign Immunities Act does not affect the State Department's role in head of state immunity determinations.

Finding that "it is ... not for the courts to deny an immunity which our government has seen fit to allow," the appellate court affirmed dismissal.

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