1 August, 2022
by Sam Biden, Global Leadership Fellow
Memorandum of Understanding (MoU)
The UK-Rwanda agreement has come under heavy scrutiny in the past 6 months, especially amongst refugee rights advocates and international bodies. The agreement between the parties allows for a burden-sharing arrangement regarding the exchange of irregular migrants that entered the UK unlawfully. A primary aim of the agreement is to address the illegally facilitated and unlawful cross-border migration from Central Europe. Rwanda supposedly ensures that all asylum seekers will have their claim heard in accordance with the Refugee Convention, other international documents as well as Rwandan legislation. One key guarantee Rwanda must offer and does offer is protection from torture and inhuman or degrading treatment, the triggering circumstances for a violation of the principle of non-refoulement.
Human Rights Violations in Rwanda
Burden-sharing agreements for migration are valid bilateral, multilateral and even international agreements, yet they fail if the procedural safeguards guaranteed to asylum seekers & refugees are not achievable, are violated or do not exist in the arriving state. From this, an assessment of Rwanda’s human rights record is necessary.
1. Arbitrary Deprivation of Life and Other Unlawful or Politically Motivated Killings
The Rwandan government has been credibly accused of both arbitrary and unlawful killings. The Rwandan Investigation Bureau (RIB) is the de facto authority in these matters. The RIB is supplemented by the Ministry of Justice, the National Public Prosecution Authority (NPPA), the Rwandan National Police (RNP) as well as the Inspectorate of Services.
Multiple reports of police killings during an arrest have been made, yet have been somewhat excused due to the detainee resisting arrest or attempting to escape police custody. Regardless of the circumstances, causing the unlawful death of a detainee is a violation of the right to life. Additionally, media reports suggest that some of those in breach of the prior COVID-19 curfews set by the government have been killed while their arrests were being attempted. The bodies mentioned above are responsible for investigations into such matters, yet the US Government reports that they did not follow through with any full, timely or transparent investigations into unlawful deaths, particularly those of political dissenters.
2. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
The Rwandan Constitution enshrines protection from torture and other cruel, inhuman or degrading treatment or punishment. This is the highest level of domestic protection offered in the State. These provisions theoretically ensure protection against these acts and offer a 20-25 year prison sentence for any citizen as well as a life sentence for any public official deemed guilty of violating these rights. Yet as of 2021, the US Government found no instances of this statute being applied in ongoing cases in Rwanda.
One such instance is that of Paul Rusesabagina. Mr Rusesabagina was found guilty of terrorism charges in 2020. In August 2020, he was coerced into going on a private jet for a supposed ‘business trip’, yet he was taken to Rwanda, arrested and presented to the media as a terrorist. His family last spoke to him on 27 August, and he was last seen in the media on 31 August. In this short four-day period, he was subjected to an enforced disappearance on behalf of the Rwandan government. In May 2021, Mr Rusesabagina’s legal team presented an urgent appeal to the Special Rapporteur on Torture, alleging that he had been subjected to at least one count of torture by an agent of the RIB. Additionally, Mr Rusesabagina claims he was subjected to other forms of ill-treatment at the hands of high-ranking government officials.
Human Rights Watch has continued to report instances of torture against illegally detained individuals in unofficial detention centres. 29 presumed victims were identified by the Committee Against Torture (CAT). These victims testified in their own public hearings that they had been subjected to torture during detention and gave the names of the perpetrators, yet no evidence of follow-up investigations can be found. Military police, intelligence personnel as well as the RNP have all been credibly accused of allowing for and executing torturous acts. These acts have been done to coerce confessions and extract information from political rivals as well as supposed enemies of the Rwandan regime. Additionally, there are countless reports of personnel from the District Administration Security Support Organ (DASSO) beating citizens while enforcing local administrative orders, particularly COVID-19 rules. Impunity for these acts has run rampant in Rwanda. Despite a plethora of allegations with credible evidence being made against public officials, only six officials have been convicted in 11 cases raised. CAT notes that this poor success rate can be attributed to both the fear of reprisal on behalf of the victim and that the burden of proof lays primarily upon the victim’s ability to prove any matter in their claim.
3. Secret and incommunicado detention
CAT has noted the continual use of ‘secret’ detention facilities in an undetermined location, supposedly in the vicinity of the Office of Military Prosecution, yet this has not been confirmed. Additionally, counter-terrorism legislation in Rwanda allows for the 48-hour detention of any potential detainee by security agents or other ‘authorized persons’. The locations of the supporting detention centres are undisclosed but are likely near the instance of initial documenting, such as near police stations. Other facilities being used include military bases such as those of Kami, Mukamira and a facility nicknamed “Gendarmerie” in Rubavu. In these private custodial settings, there have been a number of associated deaths. There has only been one official case of a violent death in police custody. Despite this, CAT continue to question other deaths during police custody, particularly when involving alleged escapes by detainees.
The asylum framework is very well established, and there are a number procedural safeguards as well as requirements that must typically be fulfilled regarding matters of migration. It is common state practice and regularly asserted that the processing of irregular migrants must typically be done in the original arriving state – in this instance, the UK. The MoU in place does not usually allow for this process but instead creates a burden-sharing agreement in which processing is handled by the Rwandan government. In an attempt to rid the UK government of liability, a critical error has been made. The claim that this transfer of the ‘burden’ means that the UK government is immune from liability for non-refoulement, making them ipso facto a non-violating party, is a flawed argument. These obligations are not transferred from party to party via bilateral agreements, but instead continue to exist towards those being transferred, meaning the UK government is still liable for any violations of migration law. In an attempt to shift the burden of international obligations, the UK has violated international law as all burden-sharing agreements must not exist in a ‘burden-shifting’ manner, the exact process the UK is going for. Such arrangements must have satisfy two conditions; contribution to the enhancement of the overall protection space and that they do not attempt to divest a State of its obligations. The UNCHR notes that the UK government is not enhancing international cooperation or enhancing the protective space for asylum seekers, nor are they attempting to maintain their international responsibility for such removals. The UNCHR supports this claim by demonstrating that many African states host the vast majority of global refugees, yet such small percentages are capable of relocating to Europe, let alone overcrowding the already over-burdened African migration systems.
With this in mind, the processing of asylum claims in the African Union more broadly present major challenges to the judicial guarantees in the Refugee Convention. There is a serious risk of consistent delays in processing, leading many to not receive a protected refugee status for a long period of time. Additional procedural requirements only support this perspective. It is required that asylum seekers subject to transfer must be guaranteed protection against refoulement but also have access to fair and efficient procedures regarding the granting of refugee status. Given predictions for delayed judicial guarantees, refoulement to Rwanda could hardly represent a ‘fair and efficient’ system regarding refugee status.
Non-refoulement is an absolute prohibition of international human rights and migration law. This principle is non-derogable, meaning a State must enforce it at all times. It restricts the right of a State to remove or transfer any persons, regardless of their status, to a State where there are substantial grounds for believing they may be at risk of harm such as torture, inhuman or degrading treatment and other fundamental rights violations. Under the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (CAT), the competent authorities of a State must take into account all relevant considerations including, where applicable, the existence in a State of consistent patterns of gross human rights violations.
There are very clear indicators that asylum seekers being sent to Rwanda may become subjects of torture and inhuman or degrading and other cruel treatment. There is a consistent history of mistreatment in detention including; torture, coerced confessions, the denial of a fair trial, intimidation of detainees as well as arbitrary detention and enforced disappearances. Additionally, the very poor conviction rate of torturers, fear of reprisals and transfer to secret facilities only heightens the chances of these acts occurring without sufficient redress. It would therefore not only be a major risk, but also a major violation of refugee law to send asylum seekers to Rwanda given their shaky and often violent human rights record.
In conclusion, the UK has violated international law on four grounds.
First, they UK has, albeit not admittingly, attempted to palm off their international obligations upon another State. This attempt is not only non-permissable under international law but also does not relieve the UK of their obligations to the Refugee Convention, of which they are a signatory party. Second, they have failed to account for the efficient and safe documenting system required of the Refugee Convention. With the overcrowding and ever worse-developing migration network in Africa, the chance of a successful application in a given timeframe grows smaller and smaller, increasing the chance for mistreatment during holding or detention. Third, the use of ‘secret’ or ‘unlisted’ detention facilities only greys the area surrounding treatment of asylum seekers. If the UK is not able to justifiably verify the health and wellbeing of all asylum seekers they transfer, then they breach their international obligations. Finally, given the horrific human rights track record of Rwanda, particularly when concerning the detention network (of which asylum seekers will be a temporary yet major part), the UK cannot guarantee the safety of these asylum seekers and their freedom from torture and other cruel, inhuman or degrading treatment or punishment.