Prosecution of Senior Rwandan Government Official in France: More on Immunity

French authorities have announced this week (see here) that a senior Rwandan official, Rose Kabuye, who is curently detained in France, will be allowed to travel to Rwanda for the Christmas holidays. Rose Kabuye was at the time of her arrest the Chief of Protocol to current Rwandan President Paul Kagame. She is accused (see here), under French Anti-Terrorism laws, of complicity to murder in connection with the killing in 1994 of then Rwandan President Juvenal Habyarimana. It was, of course, that murder which led to the Rwanda Genocide.  She was arrested in November at Frankfurt Airport (Germany) under an arrest warrant issued by French officials. She was subsequently transferred to France. Her arrest has worsened the already bad relations between Rwanda and France. They have also led to a diplomatic row between Rwanda and Germany and Rwanda has expelled the German Ambassador in the country.

Rose Kabuye’s arrest, detention and prosecution raises questions regarding the immunity of foreign officials from criminal prosecution in foreign domestic courts. The particular question at issue in the Kabuye case is: which State officials are entitled to personal immunity? Was it lawful for France to issue an arrest warrant for a senior Rwandan official and was it lawful for German authorities to execute that warrant? Or was (is) Rose Kabuye within that category of officials who are entitled to personal immunity from the jurisdiction of foreign States for so long as they serve in their official position? 

There are two types of immunity which may prevent the prosecution of a State official in a foreign domestic court. Firstly, there is the category of personal immunities (or immunity ratione personae) which prevents prosecution of senior and serving State officials. The second type of immunity – functional immunity (or immunity ratione materiae) – attaches to the acts of all State officials or agents but has been held inapplicable to acts which amounto to international crimes (eg the Pinochet case). The ICJ held in the Arrest Warrant Case that personal immunity prevents prosecutions of Heads of States, Heads of Government and Foreign Ministers,even if they are alleged to have committed international crimes. Also, the ICJ held that this type of immunity applies even where these three types of officials are abroad on a private visit. Rose Kabuye was not a head of State, head of Government or Foreign Minister but it is arguable that personal immunity extends beyond those three categories of officials. In the Arrest Warrant case, the ICJ in describing the rule according immunity ratione personae stated that it applies to “diplomatic and consular agents [and] certain holders of high-ranking office in a State, such as the Head of State, Head of Government and Minister for Foreign Affairs . . .” (para. 53, emphasis added) The use of the words “such as” suggests that the list of senior officials entitled to this immunity is not closed. Also, the ICJ justified the immunity of Foreign Ministers from foreign domestic courts on the basis that Foreign Ministers are responsible  for the international relations of the State and “in the performance of these functions, he or she is frequently required to travel internationally, and thus must be in a position freely to do so whenever the need should arise. (para. 53)” Since this immunity is based on a need to ensure smooth conduct of international relations, the statement of the Court is consistent with the rationale for the immunity. However, there are many State officials whose positions require foreign travel. This basis for immunity ratione personae stated by the ICJ would suggest a more expansive list of those entitled to such immunity.

In a case relating to the then Israeli Defence Minister [Application for Arrest Warrant Against General Shaul Mofaz, (Decision of District Judge Pratt, Bow Street Magistrates Court, England, Feb. 2004)] held that immunity ratione personae extends not only to the Foreign Minister but also to defence ministers but perhaps not other ministers. The Convention on Special Missions 1969 stipulates that the person of officials abroad on special mission for their State are inviolable. This means that officials abroad on special mission are immune from arrest, this creating a broad category of immunity ratione personae – but only for those on official business (and not those on private visit). There is a good argument to be made that despite the fact that only 38 States have ratified this treaty (see here), the provisions on inviolability of the persons of those on special mission represents customary international law.  In one of his posts in 2007 over on  the Opinio juris blog, the Legal Adviser to the US State Department recognised the customary international law status of special missions immunity (see here). Also, it is known that Germany did not arrest Rose Kabuye on an earlier official visit to the country in April 2008, acknowledging that she was immune. It is alleged by Germany (though disputed by Rwanda) that Rose Kabuye was in Germany on a private basis when she was arrested in November 2008. If this is so, she would not qualify for special missions immunity.

So, the position appears to be that there are really three types of immunity (i) a broad immunity ratione personae which is confined to heads of State, heads of government (and, according to the ICJ , to foreign ministers) and which benefits them even when abroad on private visits. Presumably this immunity is based not merely on the fact that these officials need to travel but is based on the fact that these senior official represent in some way, the dignity of the foreign State  (ii) a narrow immunity ratione personae which avails any foreign official abroad on special mission or other official business and who is in the foreign State with the consent of that State; (iii) immunity ratione materiae which attaches to all official acts (though not to certain acts which international law considers criminal and for which international law ascribes individual responsibility and permits extraterritorial jurisdiction).