Rusesabagina v. The Republic of Rwanda

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PAUL RUSESABAGINA, et al., Plaintiffs v. THE REPUBLIC OF RWANDA, et al., Defendants

CIVIL No. 22-469 (RJL)

United States District Court, District of Columbia

January 23, 2023

MEMORANDUM OPINION

RICHARD J. LEON, United States District Judge.

[Dkt ## 18, 25]

Plaintiffs Paul Rusesabagina ("Rusesabagina"), his wife, and his six children (collectively, "plaintiffs") have sued the Republic of Rwanda, its President, Paul Kagame, and three Rwandan officials for harms stemming from Rusesabagina's alleged kidnapping, torture, and detention. Now before the Court are motions to dismiss filed by Rwanda and President Kagame. All plaintiffs' claims against those defendants are barred by foreign sovereign immunity and head of state immunity. Therefore, I will GRANT Rwanda's [Dkt. # 18] and President Kagame's [Dkt. # 25] Motions to Dismiss.

BACKGROUND

I. Factual Background

Except where otherwise noted, the recitation of facts is drawn from the Amended Complaint. See Am. Compl. ("Compl.") [Dkt. #17]. In resolving a motion to dismiss, the Court accepts all well-pleaded allegations in the Amended Complaint as true and draws all inferences in plaintiffs' favor. Bernier v. Allen, 38 F.4th 1145, 1149 (D.C. Cir. 2022).

Paul Rusesabagina is an internationally recognized political activist, citizen of Belgium, and resident of San Antonio, Texas. Compl. ¶ 8. As a hotel manager in Kigali, Rwanda during the 1994 Rwandan genocide, Rusesabagina offered refuge to more than 1,200 Tutsis and moderate Hutus who would otherwise have been at risk of being killed during the violence. Id. Rusesabagina's heroic efforts were later depicted in the 2004 film Hotel Rwanda. Id. After 1994, Rusesabagina became a prominent critic of defendant Paul Kagame, who has served as President of Rwanda since the aftermath of the 1994 genocide. . Id. ¶ 35. Prompted by attempts against his life by Rwandan security forces, Rusesabagina moved to Belgium in 1996 and then to the United States in 2009, Id. ¶ 35, 46. But the Rwandan government continued to monitor Rusesabagina after he moved to the United States because of his ongoing criticism of Kagame and Rwanda. Id. ¶¶ 65-85. This surveillance took multiple forms, including the use of Rwandan government employees operating out of the Rwandan embassy in Washington, DC, other Rwandan law enforcement agents, undercover informants, and illegal electronic surveillance. Id. The Rwandan government sought the extradition of Rusesabagina from Belgium in 2019. Id. ¶ 128. Belgium rejected Rwanda's request. Id. ¶ 129-30.

The events leading to Rusesabagina's ongoing detention in Rwanda began in 2019. A Rwandan man named Constantin Niyomwungere began communicating with Rusesabagina about a potential trip to Burundi, which borders Rwanda. Id. ¶ 133-37. Rusesabagina had first met Niyomwungere, who identified himself as a bishop, on a 2017 trip to Belgium, and they stayed in touch after Rusesabagina returned to the United States. See id. Rusesabagina understood that the purpose of the trip would be to speak at churches and with civic leaders in Burundi about his experiences during the 1994 genocide. Id. ¶ 137. However, unbeknownst to Rusesabagina and apparently under duress, Niyomwungere was working in concert with Rwandan officials in the Rwandan Intelligence Bureau (“RIB”) to lure Rusesabagina back to Rwanda. Id. ¶¶ 139-45. Relying on Niyomwungere's representations that he would charter a private jet from Dubai to Burundi to prevent Rwandan security officers from diverting a commercial flight to Rwanda, Rusesabagina agreed to the trip. Id. ¶ 144-45. He flew from his home outside San Antonio to Dubai on August 26, 2020, where he met Niyomwungere. Id. ¶ 146. They then boarded a private jet that Rusesabagina believed would take them to Burundi. Id. However, the aircraft actually transported Rusesabagina to Kigali, Rwanda. Id. Upon arrival, Rwandan security officers boarded the aircraft and seized Rusesabagina. Id. ¶ 151. He was subsequently charged with terrorism-related offenses, convicted, and sentenced to 25 years in prison. Id. ¶ 21. He alleges that the confessions that formed the basis for his conviction were obtained by torture while in Rwandan custody. Id. ¶¶ 178-79. He remains incarcerated. Id. ¶ 21.

The United States State Department has issued a statement condemning Rwanda in relation to these events, making a finding under the Robert Levinson Hostage Recovery and Hostage-taking Accountability Act that Rwanda “wrongfully detained U.S. Lawful Permanent Resident Paul Rusesabagina.” Id. ¶ 211. Separately, 37 Senators and Members of Congress signed a letter to President Kagame urging Rusesabagina's immediate release and criticizing Rwanda for “extrajudicially transferring]” him from the United Arab Emirates to Rwanda. Id. ¶ 3. The United Nations, European Union Parliament, Human Rights Watch, and others have likewise criticized Rwanda's actions. Id. ¶¶ 4-5, 210.

II. Procedural Background

Plaintiffs initiated this suit on February 22, 2022 and filed the operative Amended Complaint on May 31, 2022. See Complaint [Dkt. # 1]; Am. Complaint (“Compl.”) [Dkt. #17]. Rwanda moved to dismiss on June 14, 2022, see Mot. of Def. the Republic of Rwanda to Dismiss the Am. Compl. (“Rwanda's Mot.”) [Dkt. # 18], followed by President Kagame on July 22, 2022, see Mot. of His Excellency President Paul Kagame, President of the Republic of Rwanda, to Dismiss the Am. Compl. [Dkt. # 25]. Both motions have been fully briefed and are now ripe.

LEGAL STANDARD

In resolving a motion to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1), the Court should “engage in sufficient pretrial factual and legal determinations to ‘satisfy itself of its authority to hear the case' before trial.” Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d 1020, 1027-28 (D.C. Cir. 1997) (quoting Foremost-McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438, 449 (D.C. Cir. 1990)). Two such limitation on that authority are the doctrines of foreign sovereign immunity, which applies to foreign sovereigns as parties, and foreign-sovereign official immunity, which applies to foreign officials including heads of state. See Samantar v. Yousuf, 560 U.S. 305, 313-14,321 n,16(2010).

The Foreign Sovereign Immunities Act (“FSIA”) is the “sole basis for obtaining jurisdiction over a foreign state in our courts.” Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434 (1989). A foreign sovereign is presumptively immune from suit in a United States court unless a statutory exception under the FSIA applies. Rosenkrantz v. Inter-American Dev. Bank, 35 F.4th 854, 861 (D.C. Cir. 2022). Foreign heads of state are categorically immune from suit in American courts. See Lewis v. Mutond, 918 F.3d 142, 145 (D.C. Cir. 2019).

DISCUSSION

Both Rwanda and President Kagame challenge the subject matter jurisdiction of the Court under some theory of foreign sovereign immunity. Because defendants' arguments, if accepted by the Court, would “provide[] protection from suit and not merely a defense to liability,” the Court should “engage in sufficient pretrial factual and legal determinations to ‘satisfy itself of its authority to hear the case' before trial.” Jungquist, 115 F.3d at 102728 (quoting Foremost-McKesson, 905 F.2d at 449). f

I Rwanda

As a foreign sovereign, Rwanda is immune from suit in United States courts unless plaintiffs can establish that an exception applies under the FSIA. Plaintiffs argue jurisdiction is proper under two exceptions to the general grant of immunity under the FSIA: the “commercial activity” exception, 28 U.S.C. § 1605(a)(2), and the noncommercial torts exception, Id. § 1605(a)(5). Unfortunately, plaintiffs have failed to plead facts sufficient to establish jurisdiction over Rwanda under either theory.

The commercial activity exception to the FSIA, as its name implies, requires plaintiffs to establish that the conduct giving rise to the suit stems from “commercial activity” engaged in by the sovereign defendant. Id. § 1605(a)(2). The act defines “commercial activity” as “either a regular course of commercial conduct or a particular commercial transaction or act.” Id. § 1603(d). The Supreme Court has interpreted that definition to mean that an activity must be “the type” of activity “by which a private party engages in” trade or commerce to be considered commercial. Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 614 (1992) (emphasis in original). Moreover, the Court has held that, to fall within the scope of § 1605(a)(2), a court must find that the “particular conduct that constitutes the ‘gravamen' of the suit” is commercial activity. OBB Personenverkehr AG v. Sachs, 577 U.S. 27, 35 (2015) (quotations omitted). While the exception contains three sub-exceptions, differentiated by the relationship between the location of the underlying commercial activity and the claimed harm, none are applicable absent an allegation of commercial activity. See 28 U.S.C. § 1605(a)(2).

In this case, the illegal conduct plaintiffs allege giving rise to their suit does not constitute commercial activity. Rather, plaintiffs allege that Rwanda, acting both through government officials and other agents, undertook a course of conduct to spy on Rusesabagina, intimidate him and his colleagues, discredit him among the Rwandan diaspora in the United States, and, eventually, to lure him to Dubai, kidnap him, and bring him to Rwanda. But none of those activities are “the type” of activity “by which a private party engages in” trade or commerce.” Weltover, 504 U.S. at 614. Therefore, this Court cannot establish jurisdiction under § 1605(a)(2).

Plaintiffs argue that, at a minimum, Rwanda's efforts to recruit Rusesabagina to speak at churches...