APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA (D.C. No. 5:10-CV-00437-W) (821 F. Supp. 2d 1244)
The opinion of the court was delivered by: Baldock, Circuit Judge.
United States Court of Appeals
Elisabeth A. Shumaker Clerk of Court
Submitted on the Briefs:*fn1
Before TYMKOVICH, BALDOCK, and GORSUCH, Circuit Judges.
On April 16, 1994, over the Rwandan capitol of Kigali, two surface-to-air missiles brought down an aircraft carrying then Rwandan and Burundi Presidents, Juvenal Habyarimana and Cyprien Ntaryamira, both of Hutu ethnicity. The killings fueled the Rwandan genocide, which spread violence across East Central Africa and cost upwards of one million innocent victims their lives. Some believe the then Tutsi-led Rwandan Patriotic Front headed by current Rwandan President Paul Kagame was behind the killings. Others believe the then government-aligned Hutu Power extremists opposed to a peace accord with the rebel force are responsible.*fn2 For present purposes, the identity of those responsible for downing the aircraft is inconsequential.
What matters is that the widows of the two former heads-of-state, Madame Habyarimana and Madame Ntaryamira, blame President Kagame for their husbands' deaths.*fn3 They filed suit in Oklahoma federal court seeking to hold him liable under the Alien Tort Claims Act, 28 U.S.C. § 1350, the Torture Act, 18 U.S.C. § 2340A, the Racketeeer Influenced and Corrupt Organization Act, 18 U.S.C. § 1962, and a slew of state and international laws.*fn4 At paragraphs six and nine of their amended complaint, the widows allege:
The final order to shoot down the Presidents' plane was given by Defendant Kagame, himself, during a meeting held in Mulindi, Rwanda on or about March 31, 1994, with the planning and the operational phase being entrusted to Col. James Kabarebe, who was specifically charged with the formation of a team specialized in the use of surfaceto-air missiles furnished by Uganda in a conspiracy with members of the non-governmental Rwanda Patriotic Army. . .
Defendant Kagame deliberately chose a modus operandi that, in the context of the particular tension pervading both in Rwanda and [neighboring] Burundi between the Hutu and Tutsi communities, could only bring about bloody reprisals against the Tutsi community, and which offered him a veneer of legitimacy for his renewal of hostilities and his seizing of state power in Rwanda by criminally violent means.
Something else also matters. During the pendency of this action in the district court, the United States, at the request of the Rwandan Government, submitted a "Suggestion of Immunity" on behalf of President Kagame. Paragraph one states:
The United States has an interest in this action because the
Defendant, President Kagame, is the sitting head of state of a foreign state, thus raising the question of President Kagame's immunity from the court's jurisdiction while in office. The Constitution assigns to the U.S. President alone the responsibility to represent the Nation in its foreign relations. . . . The interest of the United States in this matter arises from a determination by the Executive Branch of the Government of the United States, in consideration of relevant principles of customary international law, and in the implementation of its foreign policy and in the conduct of its international relations, to recognize President Kagame's immunity from this suit while in office.
In a published opinion, the district court accurately measured the case, deferred to the United States Suggestion of Immunity, and dismissed the action against President Kagame. Habyarimana v. Kagame, 821 F. Supp. 2d 1244 (W.D. Okla. 2011). We exercise jurisdiction under 28 U.S.C. § 1291, and now affirm for ...