This background briefing was prepared by staff attorneys of the American Bar Association Center for Human Rights and reflects their views. It has not been approved by the House of Delegates or the Board of Governors of the American Bar Association and therefore should not be construed as representing the policy of the American Bar Association as a whole. Further, nothing in this briefing should be considered as legal advice in a specific case. Additionally, the views expressed in this briefing are not necessarily those of the Clooney Foundation for Justice.
January 26, 2021
Rwanda: Background Briefing on Proceedings Against Paul Rusesabagina
The American Bar Association Center for Human Rights (ABA) is monitoring the criminal proceedings against Paul Rusesabagina in Rwanda as part of the Clooney Foundation for Justice’s TrialWatch initiative. The Center has prepared this background briefing in advance of the opening of Mr. Rusesabagina’s trial.
Mr. Rusesabagina – who is best-known for his efforts to save lives during the Rwandan genocide, as depicted in the film Hotel Rwanda – disappeared from Dubai on August 27, 2020. On August 31, 2020, the Rwanda Investigation Bureau announced that Mr. Rusesabagina was in its custody and alleged that he was “suspected to be the founder, leader, sponsor and member of violent, armed, extremist terror outfits including MRCD and PDR-Ihumure.”[1] He was subsequently charged with multiple offenses, including creating an illegal militia and murder as an act of terrorism. Mr. Rusesabagina is in detention pending his trial before the High Court Chamber for International Crimes in Nyanza.
The High Court Chamber has formally granted trial monitors access to the trial, in line with Rwanda’s treaty obligations under the International Covenant on Civil and Political Rights (ICCPR) and the African Charter on Human and Peoples’ Rights (African Charter).[2]
This briefing describes developments in the case to date and sets forth applicable international and regional legal standards, in particular relating to the right to freedom from arbitrary detention, the right to counsel, the right to effective participation, and the right to humane treatment in detention. The briefing does not assess the merits of the allegations against Mr. Rusesabagina or draw conclusions. In an accompanying statement, TrialWatch Expert Geoffrey Robertson has identified issues that the trial court must address. At the conclusion of the proceedings, a TrialWatch Fairness Report on the trial as a whole will be released.
Background
Paul Rusesabagina became famous worldwide after the release of the film Hotel Rwanda, which depicted his experience as manager of the Hotel Mille Collines in central Kigali during the genocide in 1994.[3] Mr. Rusesabagina helped save over a thousand people who sought refuge at the hotel.[4] In the aftermath of the genocide, Paul Kagame, former commander of the Rwandan Patriotic Front, came into power. In 1996, following an assassination attempt, Mr. Rusesabagina fled Rwanda and obtained asylum in Belgium, eventually becoming a Belgian citizen.[5] He is also a permanent resident of the United States and, up until August 2020, lived with his family in San Antonio, Texas.[6] In 2005, U.S. President George W. Bush awarded Mr. Rusesabagina the Presidential Medal of Freedom.[7]
In the years since he fled Rwanda, Mr. Rusesabagina has been an outspoken opponent of Rwanda’s ruling party, which he holds responsible for numerous human rights violations.[8] In 2018, he co-founded the Rwandan Movement for Democratic Change (Mouvement Rwandais pour le Changement Démocratique, or MRCD), a coalition of opposition groups in exile.[9] Mr. Rusesabagina has described the MRCD as a group that uses “‘diplomacy’ to represent the millions of Rwandan refugees and exiles.”[10] The armed wing of the MRCD, known as the National Liberation Forces (Forces de Libération Nationale, or FLN), is alleged to have perpetrated several attacks in Rwanda.[11] In 2018, Mr. Rusesabagina publicly expressed his “unreserved support” for the FLN, encouraging the “use [of] any means possible to bring about change in Rwanda as all political means have been tried and failed.”[12]
In August 2020, Mr. Rusesabagina departed the United States on a plane to Dubai. While Mr. Rusesabagina did not provide details about the trip to his family,[13] he later told a New York Times reporter that he had planned to stop in Dubai en route to Burundi: according to Mr. Rusesabagina, he had been invited by a local pastor to speak at churches in Bujumbura, the capital of Burundi.[14] The Rwandan government has instead alleged that Mr. Rusesabagina was traveling to Burundi to coordinate with armed rebel groups.[15]
Mr. Rusesabagina arrived in Dubai for a layover at approximately 7:00 p.m. on August 27, 2020.[16] At around 11:00 pm that evening, he spoke to his family.[17] Thereafter, he vanished. “His wife and children attempted to reach him through a variety of ways over the following days, but were unable to do so.”[18] As Mr. Rusesabagina relayed to the New York Times, he was meant to fly by private jet from Dubai to Bujumbura, but when the plane landed he found himself in Kigali surrounded by Rwandan security forces.[19] According to Mr. Rusesabagina, he was tied up at some point during the flight[20] and subsequently spent the next several days tied up and blindfolded in an unknown location.[21] Mr. Rusesabagina’s lawyers have stated that they can prove that the Rwandan government paid for the private plane, operated by GainJet, to transport him from Dubai to Kigali: according to counsel, GainJet has an office in Kigali and is regularly chartered to fly Rwandan officials, including President Kagame.[22]
Mr. Rusesabagina’s whereabouts were unknown until August 31, when the Rwanda Investigation Bureau announced on Twitter that he was in custody in Rwanda and had been arrested “through international cooperation,” indicating that the authorities had obtained an international arrest warrant.[23] That same day, police paraded a handcuffed Rusesabagina before the media.[24]
On September 2, the United Arab Emirates denied involvement in Mr. Rusesabagina’s arrest and appearance in Rwanda, with which it does not have an extradition agreement.[25] On September 8, Rwandan authorities announced that Mr. Rusesabagina had been taken into custody without the assistance of another country and that other countries only helped in “the form of collecting evidence on his involvement in crimes.”[26]
Concurrently, President Paul Kagame appeared on national television and suggested that Mr. Rusesabagina had been tricked into boarding the flight for Rwanda:
It’s like if you fed somebody with a false story that, you know, fits well in his narrative of what he wants to be and he follows it and then finds himself in a place like that . . . There was no kidnap. There was not any wrongdoing in the process of his getting here. He got here on the basis of what he believed and wanted to do. It is like dialing, you are calling a number. You want to get in touch with somebody, and you find you have called a wrong number. That is how it happened. So, there was no kidnap. It was actually flawless.[27]
Rwanda’s spy chief, Brigadier General Joseph Nzambwita, has made similar comments, stating of Mr. Rusesabagina: “He delivered himself here. Quite a wonderful operation.”[28]
After Mr. Rusesabagina was paraded before the media on August 31, there was no further news about him until September 3. On that date, the newspaper The East African claimed to have obtained an exclusive interview with Mr. Rusesabagina, in which Mr. Rusesabagina allegedly stated that he had been treated well, was putting together a legal team, and was anticipating a fair trial.[29] It is unclear whether The East African did indeed conduct this interview, as there has been no independent corroboration and, according to Mr. Rusesabagina’s international defense team (more on this team below), Mr. Rusesabagina had yet to obtain access to “authorized counsel” on September 3.[30]
A September 7th urgent request from Mr. Rusesabagina’s international counsel to the United Nations Special Rapporteur on Torture stated that neither Mr. Rusesabagina’s family nor contacts in Rwanda had heard from him between August 31 and the submission of the request.[31] Later on September 7, the Belgian Deputy Ambassador in Kigali was allowed to visit Mr. Rusesabagina in prison.[32] On September 8, Mr. Rusesabagina’s family was able to speak to him on the phone for the first time.[33] On September 14, Mr. Rusesabagina appeared before the Kicukiro Primary Court.[34] At the hearing, he was formally charged with offenses related to FLN activities, although the specific charges were not announced publicly at that time.[35] According to the indictment issued on November 16, Mr. Rusesabagina has been charged with:
The creation of an illegal unit;
Being a member of a terrorist organization;
Sponsoring terrorism;
Murder as an act of terrorism;
Illegal human trafficking as an act of terrorism;
Armed robbery as an act of terrorism;
Raiding of buildings, and transporting persons or objects to commit terrorist attacks;
Murder as an act of terrorism; and
Beating and intentionally injuring as an act of terrorism.[36]
For these alleged offenses, the prosecution has requested that Mr. Rusesabagina be sentenced to life imprisonment.[37] In addition to Mr. Rusesabagina, the indictment lists seventeen co-accused. It further notes that the Belgian authorities cooperated with the Rwandan authorities in the investigation of Mr. Rusesabagina, assisting with, among other things, the procurement of evidence.[38]
During the initial month of Mr. Rusesabagina’s detention, there was confusion as to who represented him as counsel and how those individuals were selected. In a press conference on September 5, a Rwandan lawyer named David Rugaza claimed to represent Mr. Rusesabagina.[39] Mr. Rugaza said that Mr. Rusesabagina had chosen him from a list of pro bono lawyers provided by the Rwandan Bar Association (RBA).[40] Mr. Rusesabagina’s family, however, stated that Mr. Rugaza was not Mr. Rusesabagina’s lawyer of choice and was under the control of the government,[41] as evidenced by the fact that Mr. Rugaza never raised the issue of Mr. Rusesabagina’s alleged abduction before courts considering his pretrial detention.[42] According to the family, Mr. Rusesabagina would not have chosen a lawyer without consulting them.[43] When the Belgian Deputy Ambassador visited Mr. Rusesabagina in prison, he found Mr. Rusesabagina to be in good health but “afraid to speak due to the presence of the Government-imposed legal counsels.”[44] Mr. Rusesabagina’s family similarly reported that he appeared hesitant to speak openly in the presence of counsel.[45]
Mr. Rusesabagina’s family stated that it had hired independent local counsel, Gatera Gashabana, to represent Mr. Rusesabagina,[46] a fact that was reportedly not relayed to Mr. Rusesabagina. According to Mr. Rusesabagina’s family, in the initial days following Mr. Rusesabagina’s arrest, Mr. Gashabana repeatedly attempted to visit Mr. Rusesabagina in prison but was denied access.[47]
According to Mr. Rusesabagina’s international defense team, Mr. Gashabana was finally allowed a brief visit with Mr. Rusesabagina the week of October 12.[48]
In early November, Mr. Rusesabagina’s two State-appointed lawyers were recalled by the RBA, replaced by Mr. Gashabana.[49] Since that date, according to Mr. Rusesabagina’s international defense team, Mr. Gashabana has been able to visit his client a total of five times: the week of November 27, December 23, December 29, January 7, and January 15.[50]
In addition to Mr. Gashabana, Mr. Rusesabagina’s family has also hired lawyers from Belgium, the United States, Canada, and Australia to assist in his case.[51] Two of Mr. Rusesabagina’s international lawyers attempted to visit Mr. Rusesabagina in Rwanda in October but were denied access.[52] The head of the RBA stated that access was denied because the lawyers did not possess visa and work permits and also because the RBA does not have a reciprocity agreement with the Brussels Bar Association.[53] Mr. Rusesabagina’s international defense team has stated that the authorities have not imposed these requirements in past cases.[54] According to the international defense team, on December 29, 2020, Mr. Rusesabagina gave a letter to the prison authorities specifically designating international lawyers Kate Gibson, Philippe LaRochelle, and Peter Choharis as counsel in his case.[55] This letter was meant to be forwarded to the RBA.[56] On January 7, 2021, the prison authorities reportedly stated that the letter had yet to be forwarded.[57] On January 18, the RBA informed Mr. Gashabana that it had yet to receive the letter.[58] As of the writing of this briefing, the RBA has yet to designate the aforementioned international lawyers as Mr. Rusesabagina’s counsel.[59]
Notably, Rwandan President Paul Kagame has commented on the case against Mr. Rusesabagina. In the aforementioned September 6 television appearance, he stated: “Rusesabagina heads a group of terrorists that have killed Rwandans. He will have to pay for these crimes. Rusesabagina has the blood of Rwandans on his hands.”[60]
Procedural history
The Rwandan Investigation Bureau transferred its file on Mr. Rusesabagina to the Public Prosecutor on September 9, 2020.[61] A hearing was held before the Kicukiro Primary Court on September 14, at which Mr. Rusesabagina was formally charged.[62] At the hearing, the defense argued that Rwanda lacked jurisdiction to try Mr. Rusesabagina because of his Belgian citizenship.[63] The defense further argued that Mr. Rusesabagina should not be held responsible for the actions of the MRCD as a whole.[64] With respect to jurisdiction, the prosecution countered that Mr. Rusesabagina was arrested at the airport, in the vicinity of the Kicukiro court, and that jurisdiction was thus proper.[65] The prosecution noted that Mr. Rusesabagina had failed to denounce the actions of the FLN.[66] The court rejected all of the defense arguments.[67]
Also at the September 14 hearing, Mr. Rusesabagina asked that he be released on bail due to his poor health:[68] Mr. Rusesabagina is a cancer survivor and suffers from high blood pressure.[69] The prosecution requested that Mr. Rusesabagina remain in custody, deeming him a flight risk.[70] Notably, Mr. Rusesabagina’s lawyer did not contest the legitimacy of his detention with respect to his alleged abduction from Dubai.[71] On September 17, the court denied bail based on the risk of flight and ordered that Mr. Rusesabagina remain in detention for 30 days.[72] On September 25, the Nyarugenge Intermediate Court in Kigali considered Mr. Rusesabagina’s appeal of this decision. On October 2, the Nyarugenge Court denied the appeal.[73]
On October 20, prosecutors asked that the Kicukiro Primary Court authorize an additional 30 days of detention for the purposes of finalizing the investigation, including interviewing witnesses and victims.[74] Mr. Rusesabagina again asked for pretrial release based on his health[75] and challenged the court’s jurisdiction based on his Belgian citizenship.[76] The lawyer representing Mr. Rusesabagina again did not contest the legitimacy of his detention with respect to the circumstances of his arrival in Rwanda.[77] On October 23, the Kicukiro Primary Court extended Mr. Rusesabagina’s detention for another 30 days, finding that “the fact that he is sick is not alone a ground to release him on bail.” [78] This hearing was held virtually.[79]
On October 27, Mr. Rusesabagina’s international defense team filed a complaint with the East African Court of Justice in Arusha, Tanzania, alleging violations of his right to a fair trial and claiming he was illegally arrested and detained.[80] The complaint asks for Mr. Rusesabagina’s immediate release and a permanent stay of the proceedings against him.[81]
On November 16, the prosecution issued the “Documents of Complaint” (i.e. the indictment), charging Mr. Rusesabagina, as well as 17 other defendants allegedly connected to the FLN, with various terrorism-related offenses.[82] The charges specific to Mr. Rusesabagina are listed above.
On November 27, the Nyarugenge Intermediate Court considered Mr. Rusesabagina’s appeal of the extension of his detention,[83] again via videoconferencing technology.[84] This was the first hearing at which Mr. Rusesabagina was represented by Mr. Gashabana.[85] At the hearing, Mr. Gashabana raised the issue of Mr. Rusesabagina’s transfer from Dubai to Rwanda:[86] as noted above, his previous lawyer had not done so. Specifically, Mr. Rusesabagina’s counsel said he “had been held incommunicado and [had] his rights violated” and that he had been forcibly brought to Rwanda.[87] Mr. Rusesabagina himself stated, “I was kidnapped to come here . . . They tied my legs and my arms and I was blindfolded.”[88] Mr. Gashabana also argued that Mr. Rusesabagina had been denied access to legal counsel[89] and called for his release on medical grounds.[90] On December 2, the Nyarugenge Intermediate Court denied Mr. Rusesabagina’s appeal.[91] Because the order was not made public, it is unclear whether the court specifically addressed the allegations defense counsel had raised regarding Mr. Rusesabagina’s transfer from Dubai to Rwanda and ensuing detention.
On December 3, 2020, the High Court Chamber for International Crimes approved the prosecution’s request to merge the trial of Mr. Rusesabagina and his co-accused with ongoing proceedings against Callixte Nsabimana and Herman Nsengimana, former spokesmen for the FLN.[92] The trial was initially scheduled to begin on January 26, 2021 but has since been postponed due to COVID concerns. President Kagame has stated that the trial will be open.[93]
Applicable Law
Rwanda is party to the International Covenant on Civil and Political Rights (ICCPR) and the African Charter on Human and Peoples’ Rights (African Charter).
Transfer to Rwanda
Legal Standards Relating to Lawfulness of Detention
The manner in which an individual comes into State custody can implicate the right to be free from arbitrary detention, enshrined in both the ICCPR and the African Charter.
Under Article 9(1) of the ICCPR, “[e]veryone 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.” The United Nations Human Rights Committee has advised that the concept of “arbitrariness” must be “interpreted broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law, as well as elements of reasonableness, necessity and proportionality.”[94] The African human rights system also prohibits arbitrary arrest and detention. Under Article 6 of the African Charter, “[e]very individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained.”
The United Nations Human Rights Committee has held that forcible abduction of an individual from one state to another for the purposes of a criminal prosecution violates Article 9(1) of the ICCPR.[95] In Sergio Euben Lopez Burgos v. Uruguay, the Committee considered a case where a Uruguayan citizen living in Argentina was kidnapped by Uruguayan security forces and thereafter secretly brought to Uruguay to stand trial.[96] As a threshold matter, the Committee ruled that States are bound by the Covenant “for violations of rights under the Covenant which its agents commit upon the territory of another State, whether with the acquiescence of the Government of that State or in opposition to it.”[97] The Committee deemed “the act of abduction into Uruguayan territory . . . an arbitrary arrest and detention,” in violation of Article 9(1).[98] The Committee thereby called on Uruguay “pursuant to article 2 (3) of the Covenant, to provide effective remedies to Lopez Burgos, including immediate release [and] permission to leave Uruguay.”[99]
The United Nations Working Group on Arbitrary Detention has likewise characterized the transfer of a person from one state to another without procedural safeguards as “irremediably in conflict with the requirements of international law.”[100] In Ayman Ardenli and Muhammad Haydar Zammar v. Syrian Arab Republic, the Working Group considered a case where a German citizen was secretly transferred from Morocco to Syria to stand trial “outside of any procedure contemplated by law,” finding a violation of Article 9 of the ICCPR.[101] Similarly, in Amine Mohammad Al-Bakry v. Afghanistan and United States of America, the Working Group considered the case of a man who allegedly “was abducted . . . during a business trip to Bangkok” and transferred to the United States Baghram Air Force Base in Afghanistan.[102] The Working Group concluded that his detention was a “very serious form of ‘arbitrary detention’ and an extremely grave violation of his human rights.”[103]
Legal Standards Relating to the Right to be Heard and Right to Review
The circumstances of a transfer may also implicate an individual’s right to be heard and right to review with respect to his or her removal from the country of origin.
Article 13 of the ICCPR provides: “an alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.” Article 12(4) of the African Charter contains a similar requirement: “A non-national legally admitted in a territory of a State Party to the present Charter, may only be expelled from it by virtue of a decision taken in accordance with the law.”
A competent authority’s review of a removal case pursuant to legal frameworks is particularly important where the individual in question is at risk of torture or cruel, inhuman or degrading treatment in the receiving country. Both the ICCPR[104] and the African Charter[105] prohibit the use of torture or cruel, inhuman, or degrading treatment. Meanwhile, Article 3 of the Convention against Torture bars States from “expel[ing], return[ing] (‘refoul[ing]’) or extradit[ing] a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture,” known as the principle of non-refoulement.
The U.N. Committee against Torture has outlined steps that must be taken to comply with the principle of non-refoulement, stating: “[e]ach case should be examined individually, impartially and independently by the State party through competent administrative and/or judicial authorities, in conformity with essential procedural safeguards, notably the guarantee of a prompt and transparent process, a review of the deportation decision and a suspensive effect of the appeal. In each case, the person concerned should be informed of the intended deportation in a timely manner.”[106] The Committee has made clear that in applying the principle of non-refoulement States should take into account not only the danger that individuals will be exposed to torture but also the danger that individuals will be exposed to cruel, inhuman, or degrading treatment.[107]
Similarly, the U.N. Human Rights Committee has held that Article 7 of the ICCPR (through Article 2 of the ICCPR, which requires States to respect and ensure Covenant rights for “all persons in their territory and all persons under their control”) entails an obligation not to remove an individual to a country where there is a substantial risk of torture or cruel, inhuman, or degrading treatment,[108] which in turn entails an obligation to “adopt clear and transparent procedures with adequate judicial mechanisms for review before individuals are deported.”[109] In the words of the Committee, “where one of the highest values protected by the Covenant, namely the right to be free from torture, is at stake, the closest scrutiny should be applied to the fairness of the procedure applied to determine whether an individual is at a substantial risk of torture.”[110] The African Commission has echoed these conclusions, indicating that under Article 5 of the African Charter “[s]tates should ensure no one is expelled or extradited to a country where he or she is at risk of being subjected to torture.”[111]
Human rights bodies have held that a transfer that occurs outside of legal frameworks and, correspondingly, that lacks an assessment of whether the transfer might expose the individual in question to a substantial risk of torture or cruel, inhuman, or degrading treatment, is inconsistent with these obligations.[112] The Working Group on Arbitrary Detention, for instance, has stated: “[w]hen a Government eludes procedural safeguards, in particular the affected person’s right to be heard, it cannot in good faith claim that it has taken reasonable steps to protect that person’s human rights after removal.”[113] The U.N. Committee against Torture has likewise deemed an “inability to contest an expulsion decision before an independent authority, in that case the courts, to be relevant to a finding of a violation of article 3.”[114]
Mr. Rusesabagina’s Case
In the present case, there are allegations that Mr. Rusesabagina was transferred to Rwanda without the benefit of legal process.
Mr. Rusesabagina has stated that he was tricked into getting on a flight that he believed was heading to Burundi; was tied up en route; and was taken into custody in Kigali.[115] Both President Kagame and Brigadier General Joseph Nzambwita have made comments indicating that Mr. Rusesabagina was tricked into traveling to Rwanda, which contradicted earlier statements from the Rwandan authorities that Mr. Rusesabagina had been brought to Kigali through cooperation with the UAE.
It is unclear why Mr. Rusesabagina would voluntarily return to Rwanda. Mr. Rusesabagina is a high-profile political opponent of President Kagame and fled Rwanda for fear of his life when President Kagame assumed office.[116]
The indictment against Mr. Rusesabagina notes that he “could not be extradited to Rwanda for trial” but provides no further explanation.[117]
Right to Counsel
Legal Standards
Article 14(3)(b) of the ICCPR requires that defendants be granted “prompt access to counsel”[118] at all stages of criminal proceedings, including the initial detention period. In Kelly v. Jamaica, for example, the U.N. Human Rights Committee found a violation of Article 14(3)(b) where police officers ignored the complainant’s request to speak to a lawyer for the first five days he was in custody.[119] Additionally, defendants must be provided counsel “of [one’s] own choosing.”[120] In Lyashkevich v. Uzbekistan, the Human Rights Committee considered a case where authorities prevented a suspect’s privately-hired lawyer from meeting with him, after which he was interrogated in the presence of his state-appointed lawyer.[121] The Committee found that the suspect’s Article 14(3)(b) rights had been violated because he was denied “access to the legal counsel of his choice.”[122]
Like the ICCPR, Article 7(1)(c) of the African Charter establishes the right to “be defended by counsel of [one’s] choice.” The African Commission’s Fair Trial Principles affirm the right to counsel at all stages of a criminal prosecution: according to the Commission, “this right begins when the accused is first detained or charged”[123] and includes the right to “legal assistance of [one’s] own choosing.”[124] The Commission has stated: “[a] judicial body may not assign counsel for the accused if a qualified lawyer of the accused's own choosing is available.”[125]
The right to counsel also requires the State to ensure that counsel has regular access to his or her client. In Öcalan v. Turkey, where “contact between the applicant and his lawyers was restricted to two one-hour visits per week,” the European Court of Human Rights ruled that “the restriction on the number and length of the applicant's meetings with his lawyers” violated the applicant’s right to counsel.[126]
Finally, the right to counsel requires that accused persons be able to communicate with counsel over secured channels. As stated by the Human Rights Committee, counsel must “be able to meet their clients in private and to communicate with the accused in conditions that fully respect the confidentiality of their communications.”[127] The African Commission has likewise stated that the right to counsel encompasses the “the right to confer privately with one’s lawyer.”[128]
In terms of the import of violations of the right to counsel, the European Court has held that “[t]he rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for conviction.”[129]
Mr. Rusesabagina’s Case
Access to Counsel
In the present case, Mr. Rusesabagina appears to have been denied access to a lawyer from August 27, when he was arrested, until at least September 3, when he told The East African that he had been “offered an option to choose [his] defense team.”[130] On September 5, David Rugaza held a press conference proclaiming that Mr. Rusesabagina had chosen him as counsel from a list of lawyers provided by the RBA.[131] During the period between August 27 and September 5, as evidenced by the indictment’s references to statements made by Mr. Rusesabagina, he was questioned at least three times: on August 31 (by the judiciary), September 4 (by the judiciary), and September 5 (by the judiciary and police).[132] Also during this time, Mr. Gatera Gashabana, a local lawyer hired by Mr. Rusesabagina’s family, reportedly attempted to visit Mr. Rusesabagina in prison but was denied access.[133]
From September 5 to early November, Mr. Rusesabagina was represented by Mr. Rugaza and another lawyer appointed by the RBA, who appeared on his behalf at several hearings: the initial hearing on September 14, at which Mr. Rusesabagina was formally charged, and several hearings held to review the lawfulness of Mr. Rusesabagina’s detention. During this period, as evidenced by the indictment’s references to statements made by Mr. Rusesabagina, he was questioned at least three times: on September 11 (by the prosecution), September 14 (by the judiciary at his remand hearing), and September 16 (by the prosecution).[134]
Mr. Rusesabagina’s family has alleged that Mr. Rugaza was not Mr. Rusesabagina’s counsel of choice. In this regard, the following facts bear noting: Mr. Rusesabagina is not indigent and therefore did not need a state-appointed lawyer; Mr. Rusesabagina did not consult with his family before allegedly selecting Mr. Rugaza, conduct that his family has described as out-of-character; when the Belgian Ambassador visited Mr. Rusesabagina in prison, he noted that Mr. Rusesabagina seemed “afraid to speak due to the presence of the Government-imposed legal counsels;”[135] Mr. Rusesabagina’s family similarly reported that he appeared hesitant to speak openly in the presence of counsel;[136] and Mr. Rusesabagina’s RBA counsel never raised the issue of the circumstances of Mr. Rusesabagina’s arrival in Rwanda. When Mr. Gashabana was finally permitted to represent Mr. Rusesabagina in court, he raised the issue immediately.
In early November, Mr. Rusesabagina’s two lawyers were recalled by the RBA, replaced by Mr. Gashabana.[137] According to Mr. Rusesabagina’s international defense team, Mr. Gashabana has been able to visit and/or speak to his client a total of five times since that date: the week of November 27, December 23, December 29, January 7, and January 15.[138] Notably, prison authorities in Rwanda have restricted the frequency of counsel visits because of the COVID-19 pandemic. Mr. Rusesabagina’s international lawyers have relayed that since replacing State-appointed counsel, Mr. Gashabana has been denied access to Mr. Rusesabagina at least once: reportedly, prison authorities prevented Mr. Gashabana from entering the prison on January 5 despite the fact that he had prescheduled a visit, failing to provide an explanation.[139]
Apart from visits, Mr. Rusesabagina has on limited occasions been able to use a cellphone provided by the prison to call Mr. Gashabana.[140] According to Mr. Rusesabagina’s international defense team, the cellphone is shared by all prisoners; in order to make a call, a prisoner must file a request 24 hours in advance; the calls are monitored; and the calls are restricted to five minutes at a time.[141]
Use of Statements in the Indictment
The indictment relies on statements made by Mr. Rusesabagina during the period when he was either apparently not represented by counsel or, as alleged by his family and defense team, not represented by counsel of his choice. With respect to the allegation that Mr. Rusesabagina was a key leader in the FLN, for example, the indictment cites Mr. Rusesabagina’s statement to the judiciary on August 31, 2020, before Mr. Rugaza’s press conference announcing that he was representing Mr. Rusesabagina, “where he explained that he had provided personal financial assistance [to the FLN] and advocated for it to the best of his ability”;[142] Mr. Rusesabagina’s statement to the judiciary on September 4, 2020, again before Mr. Rugaza’s press conference, that “[r]egarding the operations of the FLN forces, we have authorized the FLN . . . they have been reporting to us to prevent any information leaks”;[143] and Mr. Rusesabagina’s “admission” to the prosecution on September 11, when he was represented by Mr. Rugaza but had not yet been able to speak with Mr. Gashabana, that he was one of the founders of the FLN.[144]
The indictment likewise depends on such statements to link Mr. Rusesabagina to specific charged offenses. For the charge of murder as an act of terrorism in the context of killings perpetrated in “Nyabimata sector in the Nyaruguru district and the Kitabi sector in Nyamagabe district,”[145] the evidence listed that relates to Mr. Rusesabagina (much of the evidence set forth is the testimony of victims who do not mention Mr. Rusesabagina) are statements he made on August 31,[146] September 5,[147] September 11,[148] and September 14:[149] all given before he had been able to speak with Mr. Gashabana.
Notably, it is unclear whether Mr. Rusesabagina’s co-accused or other witnesses had access to counsel of choice when making statements inculpating Mr. Rusesabagina. For example, former FLN spokesperson and co-defendant Callixte Nsabimana disappeared while visiting the Comoros Islands and reappeared two weeks later in police custody in Kigali.[150] The indictment cites Mr. Nsabimana’s “confession,” taken while he was in detention, that Mr. Rusesabagina played a key role in FLN crimes.[151]
International Counsel
Lastly, Mr. Rusesabagina has requested that certain international lawyers be designated as counsel to assist with the preparation and presentation of his case: on December 29, he reportedly provided a letter to the prison authorities that was meant to be forwarded to the RBA and which contained an official request for these lawyers to serve as his counsel. As of the writing of this briefing, the RBA has yet to designate the lawyers mentioned in the letter as Mr. Rusesabagina’s counsel, with the result that they have yet to be afforded direct access to Mr. Rusesabagina and cannot participate in the proceedings before the High Court Chamber of International Crimes.
Right to Effective Participation
Legal Standards
An accused’s ability to effectively participate in the proceedings against him is widely considered a key component of the right to a fair trial. As stated by the European Court of Human Rights, Article 6 – the European Convention’s elaboration of the right to a fair trial – “read as a whole, guarantees the right of an accused to participate effectively in a criminal trial, which includes, inter alia, not only his or her right to be present, but also to hear and follow the proceedings.”[152]
This understanding of the right to a fair trial is affirmed by various subcomponents of Article 14 of the ICCPR and Article 7 of the African Charter: the right to be tried in one’s presence, which implies the ability to understand and follow the proceedings;[153] the right to defend oneself, which of necessity assumes the ability to understand and follow the proceedings;[154] and the right to communicate with counsel, which likewise assumes that the accused is able to understand and follow the proceedings and confer with counsel accordingly.[155] In this regard, the African Commission has stated that an accused person is entitled to “consult legal materials reasonably necessary for the preparation of his or her defence.”[156] In the aforementioned case of Öcalan v. Turkey, the European Court of Human Rights ruled that an accused must be permitted the opportunity to conduct a detailed examination of the prosecution’s evidence in order to effectively participate in his or her own defense.[157]
Mr. Rusesabagina’s Case
According to Mr. Rusesabagina’s international defense team, the prison authorities have confiscated various case-related documents that Mr. Gashabana has given Mr. Rusesabagina during his visits to the prison, including defense-strategy memoranda and evidence that is part of the case file.[158] With respect to the defense strategy memoranda, the prison leadership reportedly asserted that Mr. Rusesabagina could not keep the materials because they were “going against the State.”[159]
Right to Humane Treatment in Detention
Legal Standards
Under Article 10(1) of the ICCPR, “[a]ll persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.” Anyone who is deprived of their liberty may not be “subjected to any hardship or constraint other than that resulting from the deprivation of liberty . . . Persons deprived of their liberty enjoy all the rights set forth in the Covenant, subject to the restrictions that are unavoidable in a closed environment.”[160] There can be no limitation of this right, even in states of emergency.[161] The United Nations Human Rights Committee has found violations of Article 10(1) where states have failed to provide detainees with appropriate medical care.[162] Under Article 5 of the African Charter, “[e]very individual shall have the right to the respect of the dignity inherent in a human being.” The African Commission has specified that in accordance with the African Charter, “[s]tates shall ensure that all persons under any form of detention or imprisonment are treated in a humane manner and with respect for the inherent dignity of the human person.”[163]
Mr. Rusesabagina’s Case
Mr. Rusesabagina is 66 years old, suffers from hypertension and cardiovascular disease, and is a cancer survivor.[164] His family has reported that he has complained about “dizziness, headaches, and faintness, probably caused by uncontrolled high blood pressure and the conditions of his confinement.”[165] Mr. Rusesabagina been taken to the hospital several times since his arrest.[166] According to his family, he has yet to receive an independent medical evaluation and the Rwandan authorities have not given him medicine sent by his treating doctor from Belgium: Mr. Rusesabagina had been taking this medicine for years to treat his hypertension.[167]
The family further believes that Mr. Rusesabagina’s health has deteriorated over the past month: on a recent phone call, Mr. Rusesabagina reportedly informed the family that his dizziness was worsening and that his blood pressure was “really high.”[168] Mr. Rusesabagina likewise told his lawyer, Mr. Gashabana, that he thinks he will die of a stroke.[169] He has lost a significant amount of weight since his arrest.[170] Notably, Mr. Rusesabagina’s treating doctor in Belgium has stated: “The interruption or modification of antihypertensive treatment and intense stress of all kinds carries a risk of severe hypertensive attacks and complications such as a stroke. It is reported to me that his hypertension is currently severe despite a triple antihypertensive, requiring management in a specialized center.”[171]
Conclusion
The briefing above has outlined developments in Mr. Rusesabagina’s case thus far and has set forth applicable regional and international standards. The Center remains committed to monitoring the upcoming trial as part of the TrialWatch initiative and observing how the court resolves these and other issues raised by the proceedings to date.
View Report
[1] Clooney Foundation for Justice, American Bar Association Center for Human Rights, “American Bar Association Center for Human Rights to Monitor the Trial of Paul Rusesabagina in Rwanda”, September 16, 2020. Available at https://cfj.org/wp-content/uploads/2020/09/American-Bar-Association-Center-for-Human-Rights-to-Monitor-the-Trial-of-Paul-Rusesabagina-in-Rwanda_Sep16.pdf.
[2] Article 14(1) of the International Covenant on Civil and Political Rights, to which Rwanda acceded in 1975, states that everyone is entitled to a “fair and public hearing by a competent, independent, and impartial tribunal established by law.” The African Commission has interpreted Article 7 of the African Charter, which Rwanda ratified in 1983, to comprise the right to a public trial.
[3] Human Rights Watch, “Rwanda: Rusesabagina Was Forcibly Disappeared”, September 10, 2020. Available at https://www.hrw.org/news/2020/09/10/rwanda-rusesabagina-was-forcibly-disappeared.
[4] Perseus Strategies, Urgent Action Request to Special Rapporteur on Torture, September 7, 2020, pg. 2. Available at https://www.perseus-strategies.com/wp-content/uploads/2020/09/Complaint-to-UNSRT_Paul-Rusesabagina_FINAL-1.pdf.
[5] Id., pgs. 1, 3.
[6] Id., pg. 2.
[7] Id.
[8] See New York Times, “How the Hero of ‘Hotel Rwanda’ Fell into a Vengeful Strongman’s Trap”, September 18, 2020. Available at https://www.nytimes.com/2020/09/18/world/africa/rwanda-paul-rusesabagina.html.
[9] Human Rights Watch, “Rwanda: Rusesabagina Was Forcibly Disappeared”, September 10, 2020.
[10] New York Times, “How the Hero of ‘Hotel Rwanda’ Fell into a Vengeful Strongman’s Trap”, September 18, 2020.
[11] Human Rights Watch, “Rwanda: Rusesabagina Was Forcibly Disappeared”, September 10, 2020; The East African, “Hotel Rwanda Hero Denied Bail for the Third Time”, December 3, 2020. Available at https://www.theeastafrican.co.ke/tea/news/east-africa/hotel-rwanda-hero-denied-bail-for-the-third-time-3217668.
[12] Human Rights Watch, “Rwanda: Rusesabagina Was Forcibly Disappeared”, September 10, 2020.
[13] See New York Times, “How the Hero of ‘Hotel Rwanda’ Fell into a Vengeful Strongman’s Trap”, September 18, 2020.
[14] New York Times, “‘Hotel Rwanda’ Hero, in Jailhouse Interview, Says He Was Duped into Arrest”, September 17, 2020. Available at https://www.nytimes.com/2020/09/17/world/africa/paul-rusesabagina-rwanda-interview.html.
[15] New York Times, “How the Hero of ‘Hotel Rwanda’ Fell into a Vengeful Strongman’s Trap”, September 18, 2020.
[16] Perseus Strategies, Urgent Action Request to Special Rapporteur on Torture, September 7, 2020, pg. 4.
[17] Id.
[18] Id.
[19] New York Times, “‘Hotel Rwanda’ Hero, in Jailhouse Interview, Says He Was Duped into Arrest”, September 17, 2020.
[20] Hotel Rwanda Rusesabagina Foundation, “Bank Robbers Have Getaway Cars, Paul Rusesabagina’s Kidnappers Had GainJet”, December 16, 2020. Available at https://www.prlog.org/12850959-bank-robbers-have-getaway-cars-paul-rusesabaginas-kidnappers-had-gainjet.html.
[21] New York Times, “How the Hero of ‘Hotel Rwanda’ Fell into a Vengeful Strongman’s Trap”, September 18, 2020.
[22] Hotel Rwanda Rusesabagina Foundation, “Bank Robbers Have Getaway Cars, Paul Rusesabagina’s Kidnappers Had GainJet”, December 16, 2020.
[23] Rwanda Investigation Bureau, Twitter Post, August 31, 2020. Available at https://twitter.com/RIB_Rw/status/1300350300377710594.
[24] The East African, “Hotel Rwanda Hero Denied Bail for the Third Time”, December 3, 2020.
[25] Perseus Strategies, Urgent Action Request to Special Rapporteur on Torture, September 7, 2020, pgs. 4–5.
[26] The East African, “We Arrested ‘Hotel Rwanda’ Hero on Our Own, Kigali Says”, September 8, 2020. Available at https://www.theeastafrican.co.ke/tea/news/east-africa/we-arrested-hotel-rwanda-hero-on-our-own-kigali-says--1934892.
[27] Rwanda TV, “President Kagame discusses Rusesabagina's arrest, crimes and how he arrived in Kigali”, September 6, 2020. Available at https://www.youtube.com/watch?v=LvG-cqnknKg?t=365.
[28] New York Times, “How the Hero of ‘Hotel Rwanda’ Fell into a Vengeful Strongman’s Trap”, September 18, 2020.
[29] The East African, “I’m Ready to Face the Terror Charges Against Me, Says ‘Hotel Rwanda’ Hero”, September 3, 2020. Available at https://www.theeastafrican.co.ke/tea/news/east-africa/hotel-rwanda-hero-ready-to-face-terror-charges--1931064.
[30] Perseus Strategies, Urgent Action Request to Special Rapporteur on Torture, September 7, 2020, pgs. 6–7.
[31] Id. See also Hotel Rwanda Rusesabagina Foundation, “Rwanda Blocks Rusesabagina's Real Lawyers”, September 6, 2020. Available at https://www.prlog.org/12837072-rwanda-blocks-rusesabaginas-real-lawyers.html.
[32] Letter from the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, the Working Group on Arbitrary Detention, the Working Group on Enforced or Involuntary Disappearances, and the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism to Rwanda, AL RWA 1/2020, September 30, 2020, pg. 3.
[33] Human Rights Watch, “Rwanda: Rusesabagina Was Forcibly Disappeared”, September 10, 2020.
[34] Letter from the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, the Working Group on Arbitrary Detention, the Working Group on Enforced or Involuntary Disappearances, and the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism to Rwanda, AL RWA 1/2020, September 30, 2020, pg. 3.
[35] Id.; The New Times, “Rusesabagina Charged with 13 Counts, Seeks Bail”, September 14, 2020. Available at https://www.newtimes.co.rw/news/rusesabagina-charged-13-counts-seeks-bail.
[36] Documents of Complaint, Republic of Rwanda National Prosecuting Authority, November 16, 2020, Section 2.1.
[37] Id. at Part VII.
[38] Id. at paras. 69–73, 101–105.
[39] The East African, “We Arrested ‘Hotel Rwanda’ Hero on Our Own, Kigali Says”, September 8, 2020.
[40] Id; Amnesty International, “Rwanda: Paul Rusesabagina Must Be Guaranteed a Fair Trial”, September 14, 2020. Available at https://www.amnesty.org/en/latest/news/2020/09/rwanda-paul-rusesabagina-must-be-guaranteed-a-fair-trial/.
[41] Hotel Rwanda Rusesabagina Foundation, “Rwanda Blocks Rusesabagina's Real Lawyers”, September 6, 2020; The East African, “We Arrested ‘Hotel Rwanda’ Hero on Our Own, Kigali Says”, September 8, 2020; AllAfrica, “Rwanda: I Am Not Rwandan, Try Me as a Belgian - Rusesabagina”, October 20, 2020. Available at https://allafrica.com/stories/202010210216.html.
[42] Hotel Rwanda Rusesabagina Foundation, “Humanitarian Paul Rusesabagina’s Nov 27 Hearing: Kidnapped, Illegally Detained, & Tortured by Rwanda”, November 27, 2020. Available at https://www.prlog.org/12848470-humanitarian-paul-rusesabaginas-nov-27-hearing-kidnapped-illegally-detained-tortured-by-rwanda.html; Hotel Rwanda Rusesabagina Foundation, “Trial of Paul Rusesabagina to Commence in Rwanda on 26 January 2021”, December 3, 2020. Available at https://www.prlog.org/12849223-trial-of-paul-rusesabagina-to-commence-in-rwanda-on-26-january-2021.html; Human Rights Watch, “Rwanda: Rusesabagina Was Forcibly Disappeared”, September 10, 2020.
[43] Hotel Rwanda Rusesabagina Foundation, “Rwanda Blocks Rusesabagina's Real Lawyers”, September 6, 2020.
[44] Letter from the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, the Working Group on Arbitrary Detention, the Working Group on Enforced or Involuntary Disappearances, and the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism to Rwanda, AL RWA 1/2020, September 30, 2020, pg. 3.
[45] Human Rights Watch, “Rwanda: Rusesabagina Was Forcibly Disappeared”, September 10, 2020.
[46] Hotel Rwanda Rusesabagina Foundation, “Rwanda Blocks Rusesabagina's Real Lawyers”, September 6, 2020.
[47] Id.
[48] Information Provided to ABA Center for Human Rights by Paul Rusesabagina’s International Defense Team, December 28, 2020.
[49] All Africa, “Rwanda: Rusesabagina’s Appeal Hearing Adjourned to Next Week”, November 6, 2020. Available at https://allafrica.com/stories/202011070130.html.
[50] Information Provided to ABA Center for Human Rights by Paul Rusesabagina’s International Defense Team, December 28, 2020; Information Provided to ABA Center for Human Rights by Paul Rusesabagina’s International Defense Team, January 17, 2021; Information Provided to ABA Center for Human Rights by Paul Rusesabagina’s International Defense Team, January 18, 2021.
[51] Hotel Rwanda Rusesabagina Foundation, “Rwanda Blocks Rusesabagina's Real Lawyers”, September 6, 2020.
[52] Thomson Reuters Foundation News, “Foreign Lawyers for ‘Hotel Rwanda’ Hero Say They Have Been Denied Access to Him”, October 15, 2020. Available at https://news.trust.org/item/20201015184949-k535b.
[53] Id.; The New Times, “Rwanda Bar Association Clarifies on Reciprocity in Legal Practice”, November 19, 2020. Available at https://www.newtimes.co.rw/news/rwanda-bar-association-clarifies-reciprocity-legal-practice.
[54] Hotel Rwanda Rusesabagina Foundation, “Rusesabagina Is the Name that Cannot Be Said in Rwanda”, October 15, 2020. Available at https://www.prlog.org/12842849-rusesabagina-is-the-name-that-cannot-be-said-in-rwanda.html.
[55] Information Provided to ABA Center for Human Rights by Paul Rusesabagina’s International Defense Team, January 19, 2021.
[56] Id.
[57] Id.
[58] Id.
[59] Id.
[60] Rwanda TV, “President Kagame discusses Rusesabagina's arrest, crimes and how he arrived in Kigali”, September 6, 2020. See also Human Rights Watch, “Rwanda: Rusesabagina Was Forcibly Disappeared”, September 10, 2020.
[61] Letter from the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, the Working Group on Arbitrary Detention, the Working Group on Enforced or Involuntary Disappearances, and the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism to Rwanda, AL RWA 1/2020, September 30, 2020, pg. 3.
[62] Id.
[63] See e.g., The New Times, “Rusesabagina Charged with 13 Counts, Seeks Bail”, September 14, 2020.
[64] Abdi Latif Dahir (New York Times Reporter), Twitter Post, September 14, 2020. Available at https://twitter.com/Lattif/status/1305449800310104065.
[65] The New Times, “Rusesabagina charged with 13 Counts, Seeks Bail”, September 14, 2020; Abdi Latif Dahir (New York Times Reporter), Twitter Post, September 14, 2020. Available at https://twitter.com/Lattif/status/1305449345060409344.
[66] Abdi Latif Dahir (New York Times Reporter), Twitter Post, September 14, 2020. Available at https://twitter.com/Lattif/status/1305449800310104065.
[67] The New Times, “Rusesabagina Charged with 13 Counts, Seeks Bail”, September 14, 2020; Abdi Latif Dahir (New York Times Reporter), Twitter Post, September 14, 2020. Available at https://twitter.com/Lattif/status/1305478801305088001.
[68] Letter from the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, the Working Group on Arbitrary Detention, the Working Group on Enforced or Involuntary Disappearances, and the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism to Rwanda, AL RWA 1/2020, September 30, 2020, pg. 3.
[69] Hotel Rwanda Rusesabagina Foundation, “Humanitarian Paul Rusesabagina Continues to Display Deteriorating Health During Unjust Detention”, November 13, 2020. Available at https://www.prlog.org/12846677-humanitarian-paul-rusesabagina-continues-to-display-deteriorating-health-during-unjust-detention.html; Hotel Rwanda Rusesabagina Foundation, “Trial of Paul Rusesabagina to Commence in Rwanda on 26 January 2021”, December 3, 2020.
[70] The New Times, “Rusesabagina Charged with 13 Counts, Seeks Bail”, September 14, 2020.
[71] Hotel Rwanda Rusesabagina Foundation, “Trial of Paul Rusesabagina to Commence in Rwanda on 26 January 2021”, December 3, 2020.
[72] Letter from the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, the Working Group on Arbitrary Detention, the Working Group on Enforced or Involuntary Disappearances, and the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism to Rwanda, AL RWA 1/2020, September 30, 2020, pg. 3.
[73] The New Times, “Nyarugenge Court Dismisses Rusesabagina’s Appeal Against 30-Day Remand”, October 2, 2020. Available at https://www.newtimes.co.rw/news/nyarugenge-court-dismisses-rusesabaginas-appeal-against-30-day-remand.
[74] All Africa, “Rwanda: I Am Not Rwandan, Try Me as a Belgian - Rusesabagina”, October 20, 2020; Associated Press, “Rwanda Keeps ‘Hotel Rwanda’ Hero in Jail for Another 30 Days”, October 23, 2020. Available at https://apnews.com/article/child-soldiers-kigali-trials-east-africa-africa-4fca67d79c94ce3cc09572978552720c.
[75] Associated Press, “Rwanda Keeps ‘Hotel Rwanda’ Hero in Jail for Another 30 Days”, October 23, 2020; Information Provided to ABA Center for Human Rights by Paul Rusesabagina’s International Defense Team, December 28, 2020.
[76] All Africa, “Rwanda: I Am Not Rwandan, Try Me as a Belgian - Rusesabagina”, October 20, 2020.
[77] Hotel Rwanda Rusesabagina Foundation, “Trial of Paul Rusesabagina to Commence in Rwanda on 26 January 2021”, December 3, 2020.
[78] Associated Press, “Rwanda Keeps ‘Hotel Rwanda’ Hero in Jail for Another 30 days”, October 23, 2020.
[79] Information Provided to ABA Center for Human Rights by Paul Rusesabagina’s International Defense Team, December 28, 2020.
[80] Hotel Rwanda Rusesabagina Foundation, “Paul Rusesabagina Seizes the East African Court with Complaint Against Rwanda”, October 27, 2020. Available at https://www.prlog.org/12844377-paul-rusesabagina-seizes-the-east-african-court-with-complaint-against-rwanda.html.
[81] Id.
[82] Documents of the Complaint, Republic of Rwanda National Public Prosecution Authority, November 16, 2020.
[83] Information Provided to ABA Center for Human Rights by Paul Rusesabagina’s International Defense Team, December 1, 2020.
[84] Information Provided to ABA Center for Human Rights by Paul Rusesabagina’s International Defense Team, December 28, 2020.
[85] Hotel Rwanda Rusesabagina Foundation, “Rusesabagina's Family & Legal Team Respond to November 27th Hearing”, December 3, 2020. Available at https://www.prlog.org/12849180-rusesabaginas-family-legal-team-respond-to-november-27th-hearing.html.
[86] Hotel Rwanda Rusesabagina Foundation, “Humanitarian Paul Rusesabagina’s Nov 27 Hearing: Kidnapped, Illegally Detained, & Tortured by Rwanda”, November 27, 2020.
[87] Swissinfo.ch, “‘Hotel Rwanda’ Hero Says He Was Kidnapped and Blindfolded before Arrest”, November 27, 2020. Available at https://www.swissinfo.ch/eng/-hotel-rwanda--hero-says-he-was-kidnapped-and-blindfolded-before-arrest/46189142; Information Provided to ABA Center for Human Rights by Paul Rusesabagina’s International Defense Team, December 1, 2020.
[88] Swissinfo.ch, “‘Hotel Rwanda’ Hero Says He Was Kidnapped and Blindfolded before Arrest”, November 27, 2020.
[89] Hotel Rwanda Rusesabagina Foundation, “Humanitarian Paul Rusesabagina’s Nov 27 Hearing: Kidnapped, Illegally Detained, & Tortured by Rwanda”, November 27, 2020; Information Provided to ABA Center for Human Rights by Paul Rusesabagina’s International Defense Team, December 1, 2020.
[90] Id.
[91] The East African, “Hotel Rwanda Hero Denied Bail for the Third Time”, December 3, 2020.
[92] KT Press, “Rusesabagina And FLN Group Trial Merged, Hearing Due January 2021”, December 3, 2020. Available at https://www.ktpress.rw/2020/12/rusesabagina-and-fln-group-trial-merged-hearing-due-january-2021/.
[93] Voice of America, “Rwanda’s President Says ‘Hotel Rwanda’ Hero Must Stand Trial”, September 7, 2020. Available at https://www.voanews.com/africa/rwandas-president-says-hotel-rwanda-hero-must-stand-trial#:~:text=KIGALI%2C%20RWANDA%20%2D%20Rwanda's%20president%20says,for%20allegedly%20supporting%20rebel%20violence.&text=Rusesabagina%20is%20credited%20with%20saving,managing%20during%20the%20mass%20killings.
[94] Human Rights Committee, Ismet Ozcelik et. al. v. Turkey, U.N. Doc. CCPR/C/125/D/2980/2017, May 28, 2019, para. 9.3.
[95] See Human Rights Committee, Lilian Celiberti de Casariego v. Uruguay, U.N. Doc. CCPR/C/13/D/56/1979, July 29, 1981, paras. 9–11; Human Rights Committee, Sergio Euben Lopez Burgos v. Uruguay, U.N. Doc. CCPR/C/13/D/52/1979, July 29, 1981, paras. 12–13.
[96] Human Rights Committee, Sergio Euben Lopez Burgos v. Uruguay, U.N. Doc. CCPR/C/13/D/52/1979, July 29, 1981.
[97] Id. at para. 12.3.
[98] Id. at para. 13.
[99] Id. at para. 14.
[100] See Working Group on Arbitrary Detention, Zhiya Kassem Khammam al Hussain v. Saudi Arabia, Opinion No. 19/2007, November 2, 2007, para. 18.
[101] Working Group on Arbitrary Detention, Ayman Ardenli and Muhammad Haydar Zammar v. Syrian Arab Republic, U.N. Doc. A/HRC/7/4/Add.1, July 5, 2006, paras. 22–25.
[102] Working Group on Arbitrary Detention, Amine Mohammad Al-Bakry v. Afghanistan and United States of America, Opinion No. 11/2007, December 11, 2006, para. 5.
[103] Id. at para. 13.
[104] ICCPR, Article 7.
[105] African Charter, Article 5.
[106] Committee against Torture, General Comment No. 4, U.N. Doc. CAT/C/GC/4, September 4, 2018, para. 13 [internal citations removed].
[107] Id. at para. 28.
[108] Human Rights Committee, General Comment No. 31, U.N. Doc. CCPR/C/21/Rev.1/Add. 1, March 29, 2004, para. 12; Human Rights Committee, General Comment No. 20, March 10, 1992, para. 9.
[109] See Human Rights Committee, Concluding Observations: United States of America, U.N. Doc. CCPR/C/USA/CO/3/Rev.1, December 18, 2006, para. 16.
[110] Human Rights Committee, Ahani v. Canada, U.N. Doc. CCPR/C/80/D/1051/2002, June 15, 2004, para. 10.6.
[111] African Commission on Human and Peoples’ Rights, Resolution on Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (Robben Island Guidelines), April 2008, para. 15.
[112] See Working Group on Arbitrary Detention, Opinion No. 10/2019 concerning Mustafa Ceyhan (Azerbaijan and Turkey, U.N. Doc. A/HRC/WGAD/2019/10, June 26, 2019, paras. 72, 74–77.
[113] Human Rights Council, Implementation of General Assembly Resolution 60/251: Report of the Working Group on Arbitrary Detention, U.N. Doc. A/HRC/4/40, January 9, 2007, para. 50.
[114] Committee against Torture, Ahmed Hussein Mustafa Kamil Agiza v. Sweden, U.N. Doc. CAT/C/34/D/233/2003, May 24, 2005, para. 13.7.
[115] See New York Times, “‘Hotel Rwanda’ Hero, in Jailhouse Interview, Says He Was Duped into Arrest”, September 17, 2020; Hotel Rwanda Rusesabagina Foundation, “Bank Robbers Have Getaway Cars, Paul Rusesabagina’s Kidnappers Had GainJet”, December 16, 2020.
[116] See Perseus Strategies, Urgent Action Request to Special Rapporteur on Torture, September 7, 2020, pgs. 2–4.
[117] See Documents of Complaint, Republic of Rwanda National Prosecuting Authority, November 16, 2020, para. 71.
[118] Human Rights Committee, General Comment No. 32, U.N. Doc. CCPR/C/GC/32, August 23, 2017, para. 34.
[119] Human Rights Committee, Kelly v. Jamaica, U.N. Doc. CCPR/C/57/D/537/1993, July 17, 1996, para. 9.2.
[120] ICCPR, Article 14(3)(b) [emphasis added].
[121] Human Rights Committee, Lyashkevich v Uzbekistan, U.N. Doc CCPR/ C/98/D/1552/2007, May 11, 2010, paras. 2.9–2.11, 9.4.
[122] Id. at para. 9.4.
[123]African Commission on Human and Peoples’ Rights, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, Principle N(2)(d).
[124] Id. at Principle N(2)(a) [emphasis added].
[125] Id. at Principle N(2)(d).
[126] European Court of Human Rights, Öcalan v. Turkey, App. No. 46221/99, May 12, 2005, paras. 134–137.
[127] Human Rights Committee, General Comment No. 32, U.N. Doc. CCPR/C/GC/32, August 23, 2017, para. 34.
[128] African Commission on Human and Peoples’ Rights, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, Principle N(3)(e)(i).
[129] European Court of Human Rights, Salduz v. Turkey, App. No. 36391/02, November 27, 2008, para. 55.
[130] The East African, “I’m Ready to Face the Terror Charges Against Me, Says ‘Hotel Rwanda’ Hero”, September 3, 2020.
[131] See Perseus Strategies, Urgent Action Request to Special Rapporteur on Torture, September 7, 2020, pg. 12; The East African, “We Arrested ‘Hotel Rwanda’ Hero on Our Own, Kigali Says”, September 8, 2020; Amnesty International, “Rwanda: Paul Rusesabagina Must Be Guaranteed a Fair Trial”, September 14, 2020.
[132] See Documents of Complaint, Republic of Rwanda National Prosecuting Authority, November 16, 2020, paras. 56, 126, 163, 176, 212, 240, 242.
[133] Hotel Rwanda Rusesabagina Foundation, “Rwanda Blocks Rusesabagina's Real Lawyers”, September 6, 2020.
[134] See Documents of Complaint, Republic of Rwanda National Prosecuting Authority, November 16, 2020, paras. 56, 146, 205, 224.
[135] Letter from the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, the Working Group on Arbitrary Detention, the Working Group on Enforced or Involuntary Disappearances, and the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism to Rwanda, AL RWA 1/2020, September 30, 2020, pg. 3.
[136] Human Rights Watch, “Rwanda: Rusesabagina Was Forcibly Disappeared”, September 10, 2020.
[137] All Africa, “Rwanda: Rusesabagina’s Appeal Hearing Adjourned to Next Week”, November 6, 2020.
[138] Information Provided to ABA Center for Human Rights by Paul Rusesabagina’s International Defense Team, December 28, 2020; Information Provided to ABA Center for Human Rights by Paul Rusesabagina’s International Defense Team, January 17, 2021; Information Provided to ABA Center for Human Rights by Paul Rusesabagina’s International Defense Team, January 18, 2021.
[139] Information Provided to ABA Center for Human Rights by Paul Rusesabagina’s International Defense Team, January 8, 2021; Information Provided to ABA Center for Human Rights by Paul Rusesabagina’s International Defense Team, January 17, 2021.
[140] Information Provided to ABA Center for Human Rights by Paul Rusesabagina’s International Defense Team, January 18, 2021.
[141] Id.
[142] See Documents of Complaint, Republic of Rwanda National Prosecuting Authority, November 16, 2020, para. 81.
[143] Id. at para. 212.
[144] Id. at para. 127.
[145] Id. at para. 223.
[146] Id. at paras. 240–241.
[147] Id. at para. 242.
[148] Id.
[149] Id. at para. 224.
[150] The Guardian, “‘They Want to Shut Down His Voice’: How Did Hotel Rwanda Dissident End up on Trial?”, September 10, 2020. Available at https://www.theguardian.com/world/2020/sep/10/rwanda-dissident-mystery-kigali-court-paul-rusesabagina; Human Rights Watch, Rwanda: Rusesabagina Was Forcibly Disappeared, September 10, 2020.
[151] See Documents of Complaint, Republic of Rwanda National Prosecuting Authority, November 16, 2020, para. 99.
[152] European Court of Human Rights (Grand Chamber), Murtazaliyeva v. Russia, App. No. 36658/05, December 18, 2018, para. 91.
[153] ICCPR, Article 14(3)(d); African Charter, Article 7; African Commission on Human and Peoples’ Rights, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, Principle N(6)(c).
[154] ICCPR, Article 14(3)(d); African Charter, Article 7(1)(c).
[155] Id; African Commission on Human and Peoples’ Rights, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, Principle N(3).
[156] African Commission on Human and Peoples’ Rights, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, Principle N(3)(e)(v).
[157] European Court of Human Rights, Öcalan v. Turkey, App. No. 46221/99, May 12, 2005, paras. 138–144.
[158] Information Provided to ABA Center for Human Rights by Paul Rusesabagina’s International Defense Team, January 5, 2021; Information Provided to ABA Center for Human Rights by Paul Rusesabagina’s International Defense Team, January 8, 2021; Information Provided to ABA Center for Human Rights by Paul Rusesabagina’s International Defense Team, January 18, 2021.
[159] Information Provided to ABA Center for Human Rights by Paul Rusesabagina’s International Defense Team, January 13, 2021.
[160] Human Rights Committee, General Comment No. 21, April 10, 1992, para. 3.
[161] Human Rights Committee, General Comment No. 29, July 24, 2001, para. 13(a).
[162] See Human Rights Committee, Kelly v. Jamaica, U.N. Doc. CCPR/C/41/D/253/1987, April 10, 1991, para. 5.7; Human Rights Committee, Raul Sendic Antonaccio v. Uruguay, U.N. Doc. CCPR/C/14/D/63/1979, October 28, 1981, paras. 16.1-16.2, 20. See also Human Rights Committee, Pinto v. Trinidad and Tobago, U. N. Doc. CCPR/C/39/D/232/1987, August 21, 1990, para. 12.7; Human Rights Committee, Sannikov v. Belarus, U.N. Doc. CCPR/C/122/D/2212/2012, April 6, 2018, paras. 6.2–6.3.
[163] African Commission on Human and Peoples’ Rights, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, Principle N(7)(a).
[164] See Letter from U.S. Congressperson Carolyn Maloney to Paul Kagame, President of Rwanda, December 14, 2020, pg. 1. Available at https://maloney.house.gov/sites/maloney.house.gov/files/Rusesabagina%20Letter.pdf.
[165] Hotel Rwanda Rusesabagina Foundation, “Humanitarian Paul Rusesabagina Continues to Display Deteriorating Health During Unjust Detention”, November 13, 2020.
[166] See Letter from U.S. Congressperson Carolyn Maloney to Paul Kagame, President of Rwanda, December 14, 2020, pg. 1.
[167] Hotel Rwanda Rusesabagina Foundation, “Humanitarian Paul Rusesabagina Continues to Display Deteriorating Health During Unjust Detention”, November 13, 2020; Hotel Rwanda Rusesabagina Foundation, “Hotel Rwanda Hero Paul Rusesabagina: ‘I Think I Am Going to Die’”, January 13, 2021. Available at https://www.prlog.org/12853935-hotel-rwanda-hero-paul-rusesabagina-think-am-going-to-die.html.
[168] Hotel Rwanda Rusesabagina Foundation, “Paul Rusesabagina’s Health Declines – Dizziness and High Blood Pressure Soars”, December 28, 2020. Available at https://www.prlog.org/12852120-paul-rusesabaginas-health-declines-dizziness-and-high-blood-pressure-soars.html#; Information Provided to ABA Center for Human Rights by Paul Rusesabagina’s International Defense Team, December 28, 2020.
[169] Information Provided to ABA Center for Human Rights by Paul Rusesabagina’s International Defense Team, January 8, 2021; Hotel Rwanda Rusesabagina Foundation, “Hotel Rwanda Hero Paul Rusesabagina: ‘I Think I Am Going to Die’”, January 13, 2021.
[170] Hotel Rwanda Rusesabagina Foundation, “Hotel Rwanda Hero Paul Rusesabagina: ‘I Think I Am Going to Die’”, January 13, 2021.
[171] Id.