Paul Rusesabagina, currently on a much-publicised trial for terrorism-related charges, recently announced he would no longer participate in his trial. One of the reasons advanced for this is that he was a victim of international abduction and could not expect a fair trial from the very state that he accuses of violating his human rights.
Rusesabagina’s objections mirror the comments made by several international news outlets regarding the legality of his arrest. ‘Abducted’, ‘bound and gagged’, ‘extraordinary rendition’, ‘illegal extradition’… These are some of the descriptions constantly used to describe his arrest. The use of these terms denotes a misunderstanding of international law on the matter and a deliberate disregard of the facts surrounding the arrest of Rusesabagina in Kigali.
On August 27, 2020 Rusesabagina willingly boarded a private jet in Dubai heading to what he thought was Bujumbura, after being tricked by Constantin Niyomwungere, a bishop in his circle of allies. This bishop explained how through a series of subterfuges, he managed to dupe both the flight crew and its precious cargo, Rusesabagina.
The private jet, though paid for by Rwanda, was operated by a private civil aviation company and a civilian crew unaffiliated with Rwanda. Niyomwungere himself was acting in his private capacity albeit in the interests of and in collaboration with Rwanda. Pay attention to these James Bond-esque details, they matter in international law.
There are several traditional uncontestably legal methods available for a state seeking to apprehend an individual currently on the territory of another state.
These methods are: extradition, deportation and military rendition. Rwanda is accused of disregarding these methods opting for what has been termed as ‘illegal extradition’, ‘abduction’, and ‘extraordinary rendition’. These terms are used interchangeably by the media revealing a lack of understanding of the distinction under international law.
Moreover, it is simply untrue that Rwanda did not attempt the sole legal method applicable to secure the arrest of Rusesabagina. The fact is, in 2019 Rwanda requested the extradition of Rusesabagina after the FLN’s activities presented a clear threat to Rwandans. This was ultimately not a viable process due to Rusesabagina being a Belgian citizen. Indeed, a state may reject an extradition request if the accused is a national of the receiving state. Civil law countries such as Belgium, exercise extraterritorial jurisdiction. This means that their courts have jurisdictions over crimes committed by their nationals abroad. Due to this, these states always reject extradition requests for crimes committed abroad by their nationals.
Through trial by media, Rwanda is effectively being accused of breaching its international obligations. Let’s analyse each accusation step by step to understand just how careful Rwanda was in the orchestration of this arrest.
The first accusation is one of ‘Illegal extradition’. Though frequently repeated by the media, this concept is not a legal reality. There is no such thing as illegal extradition under international law. The only concept close to this would be ‘disguised extradition’. This refers to a covert agreement between two states whereby state A will misuse its immigration laws to unduly deport an individual to state B where they are wanted for crimes. This is not illegal per se, just merely unethical. From this definition, disguised extradition is clearly not applicable to Rusesabagina’s case.
The second accusation is one of abduction under international law. This, as opposed to kidnapping in domestic systems, is the forcible seizure by state agents of an accused in another state without that state’s knowledge. This is illegal and prohibited under international law. In this case, it would be akin to Rwanda’s security agents forcibly detaining Rusesabagina in Dubai without the UAE’s knowledge and consent.
A key requirement for this crime is that the forcible detention must be done by Rwandan agents without the knowledge of the UAE. Bishop Niyomwungere and the crew flying the plane were not Rwandan agents and UAE authorities released a statement saying that Rusesabagina entered and left the country legally. Therefore, no illegal abduction took place in Dubai. It should be noted that had an abduction taken place, in addition to a diplomatic nightmare, the UAE would have had several recourses against Rwanda.
The third accusation is that of extraordinary rendition, which refers to a state practice, popularized by the US post-9/11. While there is no formal definition of rendition under international law, it is understood as a multi-phased process used to secure the arrest of a suspected terrorist. This begins with the wilful taking of the suspect into custody through illegal means, followed by forcible detention and transportation whereby the suspect is physically restrained (bound and gagged) or under the influence of drugs injected by the state agent. The following step is the taking of the suspect to an untraceable and undisclosed location (black sites) where torture is used as an interrogation technique. After the transfer, the suspect is detained at the black site, indefinitely without trial. The government responsible for this typically denies any involvement.
The legality of rendition is one of those grey areas of international law, the technicalities of which are not relevant to this case. This is due to the fact that Rusesabagina was not forcibly taken using illegal means, he willingly stepped on a plane, as corroborated by the UAE authorities. There was no forcible detention and transfer under the influence of drugs or physical restraint. Rusesabagina drank champagne on a jet and took a nap. He was not taken to a black site to be tortured and held indefinitely without trial. His trial along with that of his co-accused is live-streamed on YouTube. In addition, he has unfettered access to his counsel and to any consular services Belgium wishes to extend to him.
Luring a wanted criminal into a specific jurisdiction is not a novel concept in law enforcement and state practice. The only thing new in this case is the sheer magnitude of empty outrage at an African country pulling it off without breaching a single international law norm. Outrage so empty, the European Parliament, in their resolution, could only regurgitate their medias’ headlines without pointing to a violation of international law beyond a vague unsubstantiated claim of ‘enforced disappearance’.
There is also the not so small matter of the legal doctrine of ‘wrongly captured, properly detained’, according to which the illegality or unfairness of an accused’s arrest does not prejudice a subsequent rightful detention or fair trial.
This means that even if Rwanda had acted illegally in Rusesabagina’s detention, it would have no impact on Rwandan court’s jurisdiction and due process. This doctrine has been most strongly supported and applied by European courts.
It is quite odd to see the European Parliament’s seemingly random sharp departure from the current practice of European states in its rebuke of Rwanda.
As the trial proceeds, let’s hope the media’s attention will be less on how Rusesabagina got in front of a Rwandan court and more on why. The how is a demonstrably legal operation in international law and is consistent with law enforcement practice worldwide.
The writer is a doctoral fellow and legal researcher. She specializes in public international law, the law of international organisations and international humanitarian law.
Twitter: @dodopicard