The United Nations Working Group on Arbitrary Detention (UNWGAD), an arm of the UN’s Human Rights Council, has released an advance version of its opinion on Rwanda’s kidnapping and detention of Hotel Rwanda humanitarian Paul Rusesabagina. UNWGAD found that the deprivation of liberty of Paul Rusesabagina amounts to arbitrary and enforced detention, which is illegal under the Universal Declaration of Human Rights (“Universal Declaration”)
According to the opinion, given the circumstances of the case the appropriate remedy under international law is for Rwanda to immediately “take urgent action to ensure the immediate unconditional release of Mr. Rusesabagina.” In addition, UNWGAD members found that Rwanda should “accord him an enforceable right to compensation and other reparations.”
The key findings of the UNWGAD include:
- The kidnapping of Mr. Rusesabagina, which began in the United States and culminated in him boarding a flight from Dubai to Kigali, was set up by the Rwandan government to take him against his will to Rwanda. This constitutes an abduction and his subsequent detention is therefore arbitrary and illegal.
- The circumstances of Mr. Rusesabagina’s abduction and subsequent treatment on arrival in Kigali, including incommunicado detention, being detained in secret, and no acknowledgement of his arrest, amount to a deprivation of liberty analogous to an enforced disappearance, and mean that Paul’s arrest has no legal basis and is therefore arbitrary.
- Mr. Rusesabagina’s treatment by the Rwandan government resulted from his free expression of his political views and criticisms of that government. Thus his treatment constitutes an illegal violation of his right to freedom of expression.
- Violations of Mr. Rusesabagina’s physical and mental health during his illegal detention should be referred to the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment for appropriate action.
- Given all of the above, the criminal case against him in Rwanda should never have gone to trial and should have been dismissed. That being the case, when it went to trial Mr. Rusesabagina’s due process and fair trial rights were continually violated throughout the trial process.
This opinion lays to rest any question of whether Mr. Rusesabagina was kidnapped by the Rwandan government. While the government consistently denies that he was kidnapped, the facts show otherwise. As the opinion notes “Mr. Rusesabagina’s conveyance from Dubai to Kigali in a private jet was arranged by the Rwandan Government, as admitted by the Minister of Justice, and was without his knowledge and consent.” The opinion concludes that “the whole process of getting Mr. Rusesabagina on board, and transporting him to a destination he did not intend, as constituting an abduction, which also involves a detention.” (para 81)
The fact that Paul was never informed of the grounds of his arrest and never provided with arrest documents, either when he was seized or later, constitutes a violation of his right to freedom from arbitrary arrest (para 82). Additionally, during his first four days in Rwanda he was in a state of incommunicado captivity and was tortured. As the opinion notes: “Holding persons at secret, undisclosed locations and in circumstances undisclosed to the person’s family, violates their right to be brought promptly before a judge and to challenge the legality of their detention before a court or tribunal.” (para 86) This is considered a central safeguard for personal liberty that was clearly violated in this case.
Holding a detainee at a location unknown to their family and lawyers is a deprivation of liberty analogous to an enforced disappearance and is inherently arbitrary, as it places the person outside of the protection of the law. This entails a willful refusal to disclose the fate or whereabouts of the persons concerned or to acknowledge their detention and lacks any valid legal basis under any circumstance. Enforced disappearances violate numerous substantive and procedural provisions of the Covenant and constitute a particularly aggravated form of arbitrary detention. (para 87) Given all of this, the Working Group finds that “Mr. Rusesabagina’s detention has no legal basis and it is therefore arbitrary.” (para 88)
UNWGAD members also recognise that Paul’s kidnapping and imprisonment resulted from the peaceful exercise of his political views and criticism of the Rwandan government. The opinion notes that “freedom of opinion and expression and of peaceful assembly are fundamental human rights,” enshrined in the Universal Declaration and Covenant. “The Government must respect, protect and fulfill the right to hold and express opinions, including those that are not in accordance with its official policy, as well as the right to think and manifest personal convictions that can be at odds with its official ideology.” (para 89)
The Working Group states that Mr. Rusesabagina’s “public criticisms of the President and Government are protected under his right to freedom of expression … Mr. Rusesabagina has been an outspoken critic that the Government wanted to silence for many years. Mr. Rusesabagina’s public criticisms constitute his exercise of a fundamental right and thus cannot be the basis for a deprivation of liberty.” (para 94)
They further conclude that Mr. Rusesabagina’s detention can be “interpreted as a calculated move to curb his dissent by intimidating him and others associated with his work,” (para 95) concluding that since his detention resulted from deprivations of his human rights, his detention must be considered to be arbitrary.
Given all of the above, the opinion emphasizes that with this arbitrary deprivation of his liberty, “in such circumstances, no trial should take place.” With his ongoing detention and the additional allegations, however, the opinion also examines violations of his rights to a fair trial and due process. (para 97)
The opinion then goes on to list numerous allegations of violations of due process and fair trial rights during Mr. Rusesabagina’s detention and during the hearings. These include among others:
- Mr. Rusesabagina was arrested without a warrant and was not informed of the reasons for his arrest. (para 98) The government claimed the existence of an international arrest warrant, but did not produce one. (para 100)
- He was not brought promptly before a tribunal and was denied right to counsel of his own choosing. (para 99)
- The government imposed a public defense lawyer on Mr. Rusesabagina when it was known that another lawyer had been privately appointed to represent him. (para 102)
- Mr. Rusesabagina was denied access to documents and evidence, and was restricted in his ability to communicate with his lawyers in a private and confidential manner in preparation for the case. (para 106)
- He was denied the presumption of innocence when the President of Rwanda on two occasions made publicly broadcast statements of his guilt on TV just before his official charging and at the start of his trial. (para 109 and 110)
In addition, the opinion takes note of Mr. Rusesabagina’s treatment while in arbitrary detention, including his first four days of captivity in which he was physically tortured, more than 260 days in solitary confinement in violation of the Nelson Mandela Rules, and the denial of proper medical treatment. After citing the provisions of the Universal Declaration, the Covenant and the Convention Against Torture that protect detainees from torture (para 113-118), the WGAD then refers the situation to the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment for additional actions. (para 129)
The opinion concludes with the following finding:
“It is clear on the facts that Mr. Rusesabagina has been targeted by the Government on account of work as a human rights defender, due to his criticism against the Government on a broad range of human rights issues, including lack of democracy and unfair elections, freedom of speech, freedom of association and freedom of the press. He has also challenged cases of arbitrary detentions, torture and extra-judicial killings. He has publicly brought out allegations of war crimes and crimes against humanity since before the 1994 genocide and especially since 1998. Mr. Rusesabagina’s criticisms are echoed on a regular basis by civil society organizations, government agencies, amongst others. As Mr. Rusesabagina has been targeted because of his activism as a human rights defender and his political opposition to the Government, his detention is thus discriminatory, contrary to articles 2(1) and 26 of the Covenant and 2 and 7 of the Universal Declaration, and considered arbitrary under category V.” (para 120)
In its final sections, the Working Group restates the numerous violations of key international rights laws. As noted: “The deprivation of liberty of Mr. Rusesabagina, being in contravention of articles 5, 6, 8, 9 and 11 of the Universal Declaration of Human Rights and articles 2, 7, 9, 10, 14, 16, 19 and 21 of the International Covenant on Civil and Political Rights, is arbitrary.” (para 125)
The Working Group concludes its opinion with a definitive statement calling for the urgent and immediate release of Paul Rusesabagina, as follows:
“The Working Group considers that, taking into account all the circumstances of the case, the appropriate remedy would be to release Mr. Rusesabagina immediately and accord him an enforceable right to compensation and other reparations, in accordance with international law. In the current context of the global coronavirus disease (COVID-19) pandemic and the threat that it poses in places of detention, the Working Group calls upon the Government to take urgent action to ensure the immediate unconditional release of Mr. Rusesabagina.”
This UNWGAD opinion is the culmination of an application filed by Robert F. Kennedy Human Rights on behalf of Mr. Rusesabagina, his family and legal team. UNWGAD shared this complaint with the government of Rwanda following Mr. Rusesabagina’s kidnapping, torture, and subsequent imprisonment in August 2020. An independent investigation of the situation showed that there was prima facie evidence to proceed with the case. When the Rwandan government failed to reply to the allegations, the Working Group moved forward with its inquiry according to its regular communications procedure. (Link to application below)
OPINION LINK: Advance version of UN Working Group on Arbitrary Detention (UNWGAD) opinion on Rwanda’s kidnapping and detention of Hotel Rwanda humanitarian Paul Rusesabagina (https://www.ohchr.org/
APPLICATION LINK : Robert F. Kennedy Human Rights petition submitted to the UNWGAD on the Arbitrary Detention of Paul Rusesabagina (https://rfkhumanrights.org/