CAN THE US STATE DEPARTMENT SURRENDER RWANDAN FUGITIVES
TO THE UN CRIMINAL TRIBUNAL?©
Paul J. Magnarella
In an Order filed on 7 August 1998 in the US District
Court for the Southern District of Texas, Laredo Division, Judge John
D. Rainey ruled that Rwandan fugitive Elizaphan Ntakirutimana is properly
extraditable to the UN International Tribunal for Rwanda (ICTR) (1).
Judge Rainey's Order reversed a 17 December 1997 ruling by Magistrate
Marcel Notzon, who had held that the executive agreement supported by
congressional legislation "enabling" the US government to
surrender or extradite indicted fugitives to the ICTR was unconstitutional
and that the evidence in support of the charges against Mtakirutimana
did meet the probable cause standard (2).
Allegedly, Ntakirutimana, the elderly former pastor
of a Seventh-Day Adventist Church in Rwanda's Kibuye Prefecture, had
conspired with and assisted Hutu militias in the murder of hundreds
of his own Tutsi parishioners, who had sought refuge in his church during
the height of the genocidal rampage in Rwanda on April 16, 1994. Shortly
thereafter, Ntakirutimana allegedly led bands of armed Hutu into the
countryside of the Bisesero region to hunt down and kill those Tutsi
who had survived the earlier attack. He subsequently left Rwanda, eventually
coming to the US in December 1994 where he joined one of his sons, an
anesthesiologist living in Laredo, Texas.
As a result of its investigations, the ICTR indicted
Ntakirutimana on 20 June 1996 and again on 7 September 1996 on charges
of genocide, conspiracy to commit genocide, crimes against humanity,
and serious violations of Article 3 Common to the Geneva Conventions
and of Additional Protocol II thereof.
After the ICTR's indictment of Ntakirutimana and
its request for his surrender were properly certified by the US Ambassador
in the Netherlands (the location of the ICTR's chief prosecutor) and
transmitted to the US Secretary of State, FBI agents arrested the former
pastor in Texas on September 26, 1996. He remained in jail from that
date until his release on December 17, 1997. Former U.S. Attorney General
Ramsey Clark, who serves as defense counsel for Ntakirutimana, claims
the ICTR is illegal and that his client is falsely accused.
Ntakirutimana's release embarrassed the U.S. government.
While the U.S. was encouraging, even pressuring, African countries to
transfer Rwandan suspect over to the ICTR, one of its own courts had
freed the only Rwandan indictee in US custody. Determined to correct
this situation, the US government refiled its request for surrender
on 29 January 1998, seeking review by an Article Three judge in the
Laredo division. The court granted the government's request for review
and issued an arrest warrant for Ntakirutimana on 26 February 1998.
In his August 1998 Order, Judge Rainey concluded
that the Government's second request for the surrender of Ntakirutimana
was properly before the court. He concluded that, given the nature of
extradition proceedings, res judicata would be inappropriate; the second
request would be considered de nova; and the previous magistrate's opinion
would not be dispositive (3).
Contrary to Magistrate Notzon, who maintained that
extradition could be executed only under the terms of a valid treaty,
Judge Rainey held that the US Constitution does not require a treaty
for extradition; the Supreme Court has repeatedly stated that extradition
may be effected either by treaty or by statute; allowing surrender pursuant
to either treaty or statute is consistent with the Constitution's provision
that treaties and statutes are entitled to equal dignity as the supreme
law of the land; and the Executive's power is at its highest when his
actions are approved by Congress, as they were in this case (4).
With respect to the issue of probable cause, the
judge held that the Government's supplemental declaration offering more
detailed and corroborating evidence of the alleged crimes, as well as
an explicit explanation of the conditions under which the evidence was
gathered was sufficient to establish probable cause to sustain the charges
in the Tribunal's indictments (5).
Consequently, the Court certified to the US Secretary
of State that Ntakirutimana may properly be surrendered to the ICTR,
and ordered that Ntakirutimana be arrested and detained. His transfer,
however, was delayed for thirty days to provide his counsel an opportunity
to file a habeas petition. In September, Ntakirutimana's counsel told
this writer that he had filed such a petition. Hence, the final outcome
of this case remains to be determined.
Nevertheless, ICTR Registrar Agwu Ukiwe Okali was
buoyed by Judge Rainey's decision. He publicly thanked the US Government
for its efforts to cooperate and render judicial assistance to the ICTR
1. In the Matter of Surrender of Elizaphan
Ntakirutimana, U.S. Dist. Ct. Southern Dist. of TX, Laredo Div., Civil
Act. No. L-98-43. (7 Aug. 1998).
2. In the Matter of Surrender of Elizaphan Ntakirutimana,
U.S. Dist. Ct. Southern Dist. of TX, Laredo Div., Misc. No. L-96-5 (17
Dec. 1997). For a discussion of this ruling, see Paul J. Magnarella,
"Is US Cooperation with the UN Criminal Tribunal for Rwanda Unconstitutional?"
African Studies Quarterly Vol. 1, Issue 4 (1998). Online. Internet.
Available http://web.africa.ufl.edu/asq/v1/4/6.htm. For background to
the ICTR, see 79. "Judicial Responses to Genocide: The International
Criminal Tribunal for Rwanda and the Rwandan Genocide Courts",
African Studies Quarterly Vol. 1, Issue 1, (1997). Online. Internet.
3. In the Matter of Surrender of Elizaphan Ntakirutimana,
4. Ibid., p. 17. The Court relied on such cases as:
Grin v. Shine 187 US 181 (1902); Valentine v. United States 299 US 5
(1936); United States v. Rauscher 290 US 276 (1933); United States v.
Walczak 783 F. 2D 852 (9th Cir. 1986); Dames & Moore v. Regan 453
US 654 (1981).
5. In the Matter of Surrender of Elizaphan Ntakirutimana,
6. "U.S. praised for Surrendering Rwandan Genocide
Suspect," Xinhua News Agency (6 Aug. 1998), Lexis-Nexis News File.