On Saturday June 20, 2015, Rwanda’s Head of the National Intelligence and Security Services, Lt. Gen Karenzi Karake, was arrested in London while on official visit by the UK on a European arrest warrant following a request issued by a Spanish judge. The Chief of Intelligence and 39 other senior Rwandan officials were indicted in 2008 by a Spanish court on charges of war crimes and the killing of three Spanish nationals working for Medicos del Mondo. This article specifically analyses immunity accorded to a person in special mission abroad.

Karenzi Karake’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 Karenzi’s arrest is: was he entitled to personal immunity? Was it lawful for UK to arrest a senior Rwandan official who was on official duties in the UK? Or was Karenzi Karake 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 capacity?

There are two types of immunity which may prevent the prosecution of a State official in a foreign domestic court. First, international law confers upon certain State officials personal immunity (or ratione personae immunity) that attach to the office or status of the official. These immunities are accorded only as long as the official remains in office. The predominant justification for such immunities is that they ensure the smooth conduct of international relations and, as such, they are accorded to those state officials who represent the state at the inter­national level. The second is functional immunity (or ratione materiae immunity), which is attached to official acts, rather than private acts. As this type of immunity attaches to the official act rather than the status of the official, it may be relied on by all who have acted on behalf of the state with respect to their official acts. Thus, this conduct-based immunity may be relied on by former officials in respect of official acts performed while in office as well as by serving state officials.

The International Court of Justice (ICJ) articulated in the Congo vs Belgian Case that "diplomatic and consular agents and certain holders of high-ranking office in a State, such as Head of State, Head of Government and Foreign Ministers..” The use of words ‘such as’ suggests illustrative examples of senior officials entitled to immunity but not an exhaustive list. Lt. Gen Karenzi Karake is not a Head of State or Head of Government or Foreign Minister but it is arguable that personal immunity extends beyond those three categories of officials. In particular, the personal immunity of state officials on special missions is spelt out in Article 29 of the Convention on Special Missions 1969, which provides that: "the persons of the representatives of the sending State in the special mission and of the members of its diplomatic staff shall be inviolable. They shall not be liable to any form of arrest or detention. The receiving State shall treat them with due respect and shall take all appropriate steps to prevent any attack on their persons, freedom or dignity.” 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). In this regard, I want to underline that Karenzi Karake was entitled to immunity under the Convention on Special Missions. Under customary international law persons on special missions accepted as such by the receiving State are at least entitled to immunity from suit and freedom from arrest for the duration of the mission.

Furthermore, Convention on Special Missions provides that the sending State must first secure the consent of receiving state. As a matter of fact, presumably the UK embassy in Kigali issued a travel visa to Karenzi Karake which implies a consent, and thus entitled to a protection. If his visit were on private basis, he would not qualify for Special missions immunity. Let me conclude by saying that a state official accorded immunity cannot be arrested unless the immunity is waived to begin with. UK was not supposed to have arrested him, neither is it allowed to extradite him to Spain. It seems that the UK-Court will decide whether to extradite Karenzi Karake to Spain or release him. Whatever the outcome of the Court’s ruling, what UK did, reneges to comply with its international obligation regarding immunity enjoyed by Karenzi Karake. As we wait to see how the court will make it, I appeal to the State to spare no effort to fight this legal battle based rather on hegemony.    

Fred K. NKUSI, Lecturer, international law expert.