Showing posts with label Rwanda. Show all posts
Showing posts with label Rwanda. Show all posts

Tuesday, September 21, 2021

Court sentences 'Hotel Rwanda' activist to 25 years; U.S. plaintiffs serve Greek airline in civil action

Paul Rusesabagina
(NDLA: Creator: Erik Mårtensson/TT | Credit: TT Nyhetsbyrån CC BY-NC-SA 4.0)
Real-life "Hotel Rwanda" protagonist Paul Rusesabagina was sentenced in Kigali to 25 years' imprisonment on terrorism and related charges.

PRI The World's Marco Werman has an interview with journalist and author Michela Wrong about the latest in the case.  I wrote about the case in February.

Besides the concerning criminal proceeding in Kigali, the luring in 2020 of Rusesabagina, a Belgian citizen and U.S. resident, from his San Antonio, Texas, home to his abduction on a Dubai flight purportedly bound for Burundi spawned a lawsuit in the United States.  Claiming under the alien tort statute (ATS) and Torture Victim Protection Act (TVPA), Rusesabagina's family sued GainJet, the Athens-based airline that conveyed Rusesabagina in his abduction to Kigali, and Constantin Niyomwungere, who the complaint alleges was a Rwandan agent pretending to be a pastor conveying Rusesabagina to speak in Burundi.

Upon news of the criminal conviction, I thought it time to check the docket in Rusesabagina v. GainJet Aviation S.A. (Court Listener; see also family statement on conviction and more at Rusesabagina Foundation).  Regrettably, there is little of substance to report.  As one might expect, the plaintiffs have struggled with service of process.

The complaint was filed in the Western District of Texas in December 2020.  In May, plaintiffs reported to the court their intention to drop Niyomwungere from the lawsuit.  Plaintiffs wrote that Niyomungere "gave statements to the Rwanda Investigation Bureau in February and August of 2020 admitting that he had helped to kidnap Mr. Rusesabagina."  However, plaintiffs wrote, Niyomwungere is believed to reside in Burundi, and Burundi is not a signatory to the Hague Service Convention.

Meanwhile, plaintiffs had had service on alleged "co-conspirator" GainJet translated into Greek and delivered to Greek authorities under the Hague convention.  In the latest docket entries, in late August, GainJet returned a waiver of service of summons without waiving any defense of jurisdiction or venue.

Plaintiffs re-alleged in the May report that GainJet told Rusesabagina he was aboard a flight to Burundi.  Then "Gainjet’s pilot and flight crew stood idly by and watched as Mr. Rusesabagina was tied up by the hands and legs, his eyes covered, and his mouth gagged," plaintiffs further alleged, and GainJet accepted payment from the Rwandan government.

A private charter service, GainJet does fly to the United States.  In 2019, the U.S. Soccer Women's National Team flew home from the World Cup in France on a GainJet 757 to New York.  But I've not been able to identify any GainJet office or assets in the United States.  That bodes ill for having a federal district court in Texas exercise jurisdiction.

At the same time, GainJet holds itself out worldwide, and in English, as a luxury charter service.  Ongoing association with the Rusesabagina case can't be good for business amid the jet set.

A defense response in the case is due in late October.

Thursday, February 18, 2021

Alien tort animates U.S. lawsuit in abduction of 'Hotel Rwanda' hero, threatens immunity of social media

Paul Rusesabagina at the University of Michigan in 2014
The alien tort statute has turned up more than usual lately in my newsfeed.  In two compelling appearances, the law is implicated in the criminal prosecution now underway in Kigali of "'Hotel Rwanda' hero" Paul Resesabagina, and it has a cameo in the section-230-reform show now playing on Capitol Hill.

Last week, Professor Haim Abraham, of the University of Essex School of Law, spoke to the Obligations Discussion Group, organized by the University of Oxford Faculty of Law, on his current working paper, "Holding Foreign States Liable in Tort."  Working at the intersection of torts and human rights, Professor Abraham is passionate about the problem of accountability for wrongs perpetrated by state actors.  His present work means to outline a policy framework to support state liability, and he made a reference in passing to the American alien tort statute (ATS).

Dating to 1789, the ATS, complemented by the Torture Victims Protection Act of 1991 (TVPA), is a principal legal avenue to liability for torts committed abroad.  ATS liability, though, runs up against serious hurdles, namely, the law's own vague scope, and foreign sovereign immunity.  On its own terms, the ATS only pertains when a wrong rises to a violation of international law or treaty, often imprecise benchmarks.

The enigmatic 18th-century enactment says little else.  Especially in recent decades, the U.S. Supreme Court has grown fastidious in its interpretation of the law, rejecting claims without sufficient nexus to the United States.  Meanwhile, ATS plaintiffs must take care to pursue wrongdoers as rogues, lest defendants present as state actors entitled to foreign sovereign immunity.  The TVPA was a mitigation of that latter limitation.

Sharing Professor Abraham's appetite for accountability, not to mention my self-interest in full employment for torts professors, my attention is captured anytime the ATS turns up in a way that might yield fresh fruits.  And so it has.

Graves of genocide victims in Rwanda in 1995
(photo by Gil Serpereau CC BY-NC-ND 2.0)
The New York Times, among others, has reported on the shady chain of events that led to the presently ongoing criminal trial in Kigali of Paul Resesabagina, the man who saved some 1,200 lives during the Rwandan genocide in 1994 and whose story was turned into a major motion picture starring Don Cheadle.  Living outside Rwanda first in Belgium and then in the United States, Resesabagina has been an outspoken critic of Rwandan authorities, both as to the genocide and as to subsequent Rwandan foreign policy, including alleged involvement in war crimes in the Democratic Republic of Congo.  He knew better than to return to Rwanda, but, reports state, Resesabagina thought he was on a plane to Burundi for a speaking engagement when the plane landed in Kigali, and he was placed under arrest on terrorism charges.

There's plenty to debate about the criminal matter in Rwanda, but my focus here is on events back home.  Rusesabagina's family in San Antonio, Texas, in December 2020, sued GainJet and Constantin Niyomwungere in federal district court under the ATS and TVPA, and in Texas tort law on counts of fraud, false imprisonment, intentional infliction of emotional distress, and civil conspiracy.  GainJet is the company that conveyed Rusesabagina from his Dubai layover to Kigali, and the family alleges that Niyomwungere, a purported pastor who invited Rusesabagina to to speak in Burundi, was in fact a secret operative of the Rwandan government.

The pleadings mean to represent the abduction as a violation of international law, besides common law torts, and to bring the case within the scope of the TVPA, too.  The complaint characterizes the abduction of Rusesabagina as "extraordinary rendition" and charges the defendants with torture of Rusesabagina upon or after his landing in Kigali, stating that he was kept bound, blindfolded, and gagged for days and "physically and psychologically tortured" in interrogation.

GainJet B757 ascending from Coventry, England, in 2015
Niyomwungere is characterized alternatively as a state actor or a free agent working with the state, to deal with immunity on that front.  Either he was a state actor, in which case the state would have to concede its role in the abduction, or he was a rogue, subject to tort liability (if he can be brought within U.S. jurisdiction).  The complaint furthermore alleges that GainJet, a private charter company based in Athens, Greece, was a knowing co-conspirator with the Rwandan government, so the GainJet pilot and co-pilot, knowing what was afoot, failed to signal an emergency in the air.  The complaint catalogs GainJet commercial outreach to Rwanda and speculates that the firm was anxious for work amid the Greek economic debacle.

The complaint asserts that the matter in sum sufficiently "touches and concerns the United States" to satisfy Supreme Court requirements, because the defendant-conspirators reached out to Rusesabagina at his Texas residence to lure him abroad.  That by itself is a thin reed, but the U.S. residency of the plaintiffs bolsters the nexus.

Meanwhile, in Washington, D.C., Senate Democrats are circulating a proposed bill that would carve out some slices of Internet service providers' infamous tort immunity under section 230 of the Communications Decency Act of 1996.  Section 230 reform has become a bipartisan cause since both Democrats and Republicans, often for different reasons, have sought to blame social media companies for our present national discontent, whether for not censoring enough or for censoring too much.

The proposal does not represent a wholesale repeal and reinstatement of conventional publisher liability in tort, as some congresspersons called for.  Among proposed new immunity exceptions are actions in civil rights law, antitrust law, "stalking, harassment, or intimidation laws," wrongful death, and, lo and behold, "international human rights law," specifically, the ATS.

The theory behind the proposal as to the ATS is that social media companies over which the United States has jurisdiction could be held liable for having facilitated human rights violations abroad.  As Lauren Feiner observed for CNBC, this measure

could be particularly risky for Facebook, which acknowledged in 2018 that it was “too slow to prevent misinformation and hate” on the platform as Myanmar military officials sought to weaponize it in what became characterized as a genocide against the minority Rohingya Muslims. The SAFE TECH Act would clarify that Section 230 immunity should not bar suits under the [ATS], which could allow survivors of the genocide in Myanmar to bring cases against the platform in the U.S.

People displaced by violence in Myanmar in 2012
(photo by UK Department for International Development CC BY-SA 2.0)
Myanmar would be only a starting point, as social media, including Facebook's WhatsApp, have been blamed for eruptions of violence around the world, notably including mob violence in India (which I talked about at a Dubai event in 2019 sponsored by India-based Amity University).  Plaintiffs would face the usual high hurdles of the ATS, including the international law requirement and the requisite U.S. nexus, as well as hurdles in conventional tort law, such as duty and proximate causation.  But it's not hard to imagine plaintiffs surviving dismissal to see discovery.  Even without further process, discovery would be a boon to human rights advocates.

Over its centuries of life on the books, the alien tort statute has been counted out as a dead relic, resurrected as a reputed redeemer, and wrangled as a menacing mischief-maker.  What seems certain now, whether under the ATS, TVPA, or instruments yet to be devised, is that in our smaller world, the challenges of legal accountability for both states and corporations for transnational misconduct cannot be written off easily as beyond the scope of national concern or domestic jurisdiction.

The case in Texas is Rusesabagina v. GainJet Aviation, S.A., No. 5:20-cv-01422 (W.D. Tex. filed Dec. 14, 2020).  At the time of this writing, PACER shows no activity since filing.

The section 230 reform bill was introduced in the Senate, 117th Congress (2021-2022), on February 8, 2021, as S.299.

Thursday, December 6, 2018

Ecuador reexamines repressive comm law, but would keep journalist licensing. Is that so bad?

The struggle between press and government in Ecuador is not new. Protestors
pictured above in 2011 supported a complaint to the Inter-American Human
Rights Commission over press freedom after Rafael Correa, president from
2007 to 2017, brought lawsuits seeking civil and criminal penalties, to the
tune of US$10 million and four years' imprisonment, against journalists
writing about corruption and against the publishing company and directors
of El Universo, a Guayaquil-based daily. More at the Knight Center for
Journalism in the Americas
. Photo by Cancillería Ecuador (CC BY-SA 2.0).

A legislative commission in Ecuador is recommending freedom-friendly reform of the country's repressive 2013 communications law, Observacom reports.  But the commission looks to be holding on to one piece of the law: journalist licensing.  While Western human rights advocates regard journalist licensing as a plain infringement of the freedom of expression, the reality is more complicated. Even in the United States, the idea of journalist licensing has been floated as a possible remedy to our "fake news" problem.

Journalist licensing is just what it sounds like.  Some countries require that professional journalists meet certain educational and vocational training requirements, such as a university degree in journalism and periodic continuing education.  A newspaper might publish op-eds and occasional contributions from unlicensed persons.  But regular, bylined writers must be licensed.  A licensing authority oversees the membership and may sanction malpractice, such as fabricated reporting.

The typical Western reaction to this arrangement—my reaction when I first learned of it as an undergraduate journalist in 1990—is horror.  Quasi-public officials with the power to impose sanctions and the benefit of hindsight second-guess the judgment of reporters and editors over questions such as whether a story is appropriately balanced or even newsworthy?  Policing journalism like that is asking for trouble.  How can the Fourth Estate be a zealous watchdog when the watch-ee bites back?

The U.S. Society of Professional Journalists decided in the 1990s that journalistic ethics must be aspirational and non-definitive, rendering ethics guidelines that are fundamentally incompatible with legalistic rules.  Minimize harm, a sort of Hippocratic oath for journalists, became the overriding principle, espoused by academic and practitioner leaders, such as the Poynter Institute's Bob Steele (no relation).

Empowering an enforcement authority over journalism is bound to have a chilling effect on free expression, and worse, to invite control and abuse of media.  There is no doubt that that has happened; licensing has been weaponized infamously by leaders in countries such as Iran and the Philippines.  Media licensing and enforcement authorities are fairly identified by free expression NGOs, such as Observacom, Freedom House, and the Committee to Protect Journalists, as a sign of authoritarianism and a strike against freedom.

In 1985, upon an inquiry by Costa Rica—then the United States' democratic darling in Central America—the Inter-American Court of Human Rights (IACtHR)—then presided over by American judge Thomas Burguenthal, now a law professor emeritus—issued an advisory opinion concluding that journalist licensing is incompatible with the freedom of expression in the Inter-American Convention on Human Rights. (I wrote about this for my university honors thesis.  Go easy on me; I was 22.)

But step back from the problem for a moment and reconsider.  Journalism is important.  It might in fact be essential to democracy.  "[T]he press" is the only private-sector institution mentioned in the U.S. Constitution.  And especially in today's media-obsessed society, "the press" is powerful, shaping the public agenda in a way that it never has before.  Yet anyone can become a journalist, simply by saying so.  Prophylactic media privileges will protect this person from liability, or accountability, even upon publication of defamatory falsehoods, regardless of whether the person claimed journalistic credentials in good faith or published in the public interest.  To wield this power, or to abuse this power, there is no licensing, and there is no enforcement.

Meanwhile, in many American states, we license cosmetologists, interior designers, and real estate agents, and we sanction persons who would hold themselves out as having those competencies if they do not have licenses.  No disrespect to those occupations, but the republic will not fall upon their negligent practice.

Is there not some rational line to be found between licensing as a tool for authoritarian oppression, and licensing as a tool to bolster education and competence for informed democratic participation?

That question was not on my mind when I went to Costa Rica in 1992 to learn more about the colegio de periodistas, the journalism professional organization.  Rather, properly indoctrinated into the ideology of free speech absolutism, I sought only to understand how and why this anachronistic entity could persist—if as a voluntary organization since the IACtHR opinion—in evident juxtaposition with a famously liberal society.  In fact, I hoped to witness its death throes before it disappeared.

The colegio that I found was not what I expected.  Quite to the contrary, there was nothing remotely authoritarian about it.  And it was thriving.  I interviewed reporters, editors, lawyers, and people on the street, and the vast majority favored the colegio, heartily.  Indeed, its journalistic members were its strongest proponents.  They welcomed me as a fellow journalist and invited me to an evening gala with dinner and a speaker at the colegio's headquarters building in San José.  They celebrated their professional association.  When I asked about the incompatibility of journalist licensing with the freedom of expression, they frowned and shook their heads as if they simply did not understand.

The colegio in fact was more like a labor association than a lawyers' bar.  As an organization, the colegio advocated for better wages and employment terms for members, besides sponsoring professional peer dialog, continuing education, and social events.  Members helped and supported one another, professionally and personally.  They all had paid their dues—literally, and in terms of their university degrees and reporting experience—and they were happy to be part of the in crowd.  Colegio journalists were horrified at the idea of a journalistic free-for-all, the ill-informed masses practicing the reporter's craft at the public's risk, just as I had been horrified at the idea of licensing.  The Colegio de Periodistas de Costa Rica was not a public regulatory office, nor a lawyers' bar; it was more like a union and a lot like an academic fraternity.

An excellent 2010 report by journalism professor Steven Strasser, for the Center for International Media Assistance, a project of the National Endowment for Democracy, took a thorough and uncharacteristically evenhanded look at journalist licensing around the world.  While amply expounding the down side of licensing, Strasser wrote too about the up side.  He wrote about the labor angle that I discovered in Costa Rica, observing that publishers, as employers, might be as motivated by commercial self-interest as by idealism when they advocate for the incompatibility of licensing with human rights.

Strasser also observed that journalist licensing is a deliberate feature of sustainable development strategy.  Rwanda, for example, sought to use licensing as leverage to enhance the educational attainment of journalists, and thus indirectly to strengthen democracy with informed public participation.  "Fake news," after all, was in part responsible for the Rwandan genocide.  In Uganda, sensational and false reporting, perpetuating abhorrent stereotypes, has fueled brutal violence against the LGBTQ community.

That licensing might be an antidote to runaway sensationalism and "fake news" has not escaped notice by American legislators.   A Michigan legislator proposed voluntary journalist registration and a licensing board in a 2010 bill.  Membership, as a sort of service mark, would certify the writer as having a journalism or similar university degree, three years' experience, and "good moral character," Michigan Live reported.

Indiana Rep. Jim Lucas proposed journalist licensing in a 2017 bill, somewhat to mock licenses to carry firearms, according to the Indy Star.  Drawing a parallel between the First and Second Amendments, the Indiana bill would fingerprint journalists and exclude those with "felony or domestic battery convictions" from carrying a mighty pen.  Still, on the professionalism point, Lucas tweeted Trumpesquely, "Network news has become so partisan, distorted and fake that licenses must be challenged and, if appropriate, revoked. Not fair to public!"

Unlike colegio members in Latin America, journalists in the United States have rallied against any talk of licensing.  (See also this 2017 point-counterpoint in Canada.)  And Ecuador is hardly the poster child for licensing's up side.  After the 2013 communication law went into effect, the Correa administration wasted no time in going after editorial cartoonist Xavier "Bonil" Bonilla at the newspaper El Universo for criticizing heavy-handed search and seizure by police as politically motivated.  The "Superintendent of Information and Communication," an office created by the communication law, "accuse[d] Bonil of perverting the truth and promoting social unrest," reported the Knight Center for Journalism in the Americas (source of cartoon, inset, published Dec. 28, 2013).




I doubt that licensing will cure our "fake news" problem.  And I'm not much on licensing in general, more for the burden on economic freedom than the risk to political freedom.  We lawyers demonstrate very well how licensing is an addictive means to economic protectionism, ultimately working at cross-purposes with consumer protection.  Moreover, regarding journalism, licensing would seem to undermine the benefits of (momentarily notwithstanding the problems with) citizen journalism in the internet age.
 
At the same time, I don't think that the licensing of journalists merits a knee-jerk reaction of detestation.  What passes for journalism in America is transforming into something frightening, more akin to the yellow journalism of the 1890s than the Woodward-and-Bernstein reporting of the 1970s.  Was journalism's twentieth-century engagement with professionalism aberrational? a racy flirtation during a midlife crisis for democracy?

Maybe we need more journalists who went to journalism school.

Can somebody please check to see whether we still have any journalism schools?