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The Freeing of Ntakirutimana in the United States and ‘Extradition’ to the ICTR*

Published online by Cambridge University Press:  17 February 2009

Jordan J. Paust
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Extract

On 17 December 1997, US magistrate Judge Marcel Notzon ordered the release of Elizapban Ntakirutimana, who had been held in custody in Texas pending a decision on a request by the United States for his extradition to the International Criminal Tribunal for Rwanda (ICTR).

Type
Current Developments
Information
Yearbook of International Humanitarian Law , Volume 1 , December 1998 , pp. 205 - 209
Copyright
Copyright © T.M.C. Asser Instituut and the Authors 1998

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References

1. The US request was made pursuant to a Warrant of Arrest and Order for Surrender, issued by Judge William H. Sekule of the ICTR, on 7 September 1996, and served on the US government on 12 September 1996. The Warrant was accompanied by the two indictments issued against Elizaphan Ntakirutimana by the ICTR: the first, ICTR-96-10-I, of 20 June 1996, charges Elizaphan Ntakirutimana, jointly with Gerard Ntakirutimana, Obed Ruzindana and Charles Sikubwabo, with six counts (1 of genocide; 1 of complicity in genocide; 1 of conspiracy to commit genocide; and 3 of crimes against humanity) for crimes allegedly committed during April 1994 at Mugonero Complex in Gishyita Commune, Kibuye Prefecture, Rwanda. The second, ICTR-96–17-I, of 7 September 1996, charges Elizaphan Ntakirutimana, jointly with Gerard Ntakirutimana, with 7counts (1 of genocide; 1 of complicity in genocide; 1 of conspiracy to commit genocide; 3 of crimes against humanity and 1 of serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II) for crimes allegedly committed in Bisesero in Gishyita and Gisovu Communes, Kibuye Prefecture, between April and June 1994.

2. In the Matter of Surrender of Ntakirutimana, Elizaphan, 1997 LEXIS 20714 (S.D. Tex., Laredo Div., 12 17, 1997)Google Scholar. Reprinted at p. 607 of this volume.

3. Idem.

4. See generally Kushen, Robert and Harris, Kenneth J., Surrender of Fugitives by the United States to the War Crimes Tribunals for Yugoslavia and Rwanda, 90 AJIL (1996) p. 510CrossRefGoogle Scholar; Paust, Jordan J., correspondence, 91 AJIL (1997) p. 90Google Scholar; Paust, Jordan J., Bassiouni, M. Cherif et al. , International Criminal Law 76 (letter of ICTY President Cassese), 79 (1996) pp. 403–404Google Scholar [hereinafter Paust, Bassiouni, etal.]; Wedgwood, Ruth, ‘Is US Justice Soft on Genocide?’, The Christian Science Monitor (02 6, 1998), at p. 23Google Scholar. The International Criminal Tribunal for the Former Yugoslavia has already ruled on such general competence under and through the UN Charter and the Security Council. E.g., The Prosecutor of the Tribunal v. Dusko Tadić, Decision on the Defence Motion on Jurisdiction (10 August 1995), revised and affirmed in part by the Appeals Chamber (2 October 1995), extract reprinted in Paust, , Bassiouni, et al. , supra, at pp. 813–823Google Scholar.

5. See e.g., Restatement of the Foreign Relations Law of the United States para. 115, comment c, and para. 303 (3) and comment f, 3rd edn. (1987) [hereinafter Restatement]; Paust, Jordan J., International Law as Law of the United States (1996) pp. 101, 446, 464, 467–468Google Scholar. Section 303, comment f of the Restatement adds: ‘An executive agreement may be made by the President pursuant to a treaty…when the executive agreement can fairly be seen as implementing the treaty…Such an executive agreement has the same effect and validity as the treaty itself…’ US cases have also recognized that an extradition treaty can be extended or revised by executive agreement. See e.g., United States v. Kin-Hong, 110 F.3d 103, 111 (1st Cir. 1997); In re D'Amico, 117 F. Supp. 648, 652 (SDNY 1959).

6. 449 F.2d 513, 521 (8th Cir. 1971), cert, denied, 405 US 926 (1972).

7. Idem. at 521 (‘the Agreement, resting as it does on the delegation of legislative authority…[can] provide such a basis’ of authority as that recognized in Valentine, addressed infra n. 11).

8. See United States v. Salzmann, 417 F. Supp. 1139, 1157 (EDNY 1976).

9. See Starks v. Seamans, 334 F. Supp. 1255 (E.D. Wis. 1971).

10. See e.g., Restatement, supra n. 5, para. 111, reporters' note 4 and para. 303, reporters' note 1.

11. The US cited Grin v. Shine, 187 US 181, 191 (1902) (dictum: ‘Congress has a perfect right to provide for the extradition of criminals in its own way, with or without a treaty to that effect, and to declare that foreign criminals shall be surrendered upon such proofs of criminality as it may judge sufficient.’) The magistrate stated that this dictum merely pertained ‘to the question of whether Congress could require more or less stringent proofs…than those expressly contained in the treaty’ in that case. In the landmark case of United States ex rel. Neidecker v. Valentine, 299 US 5, 8–9 (1936), the Supreme Court declared that the power to extradite ‘is not confided to the Executive in the absence of a treaty or legislative provision’ and ‘[i]t must be found that [a] statute or treaty confers the power,’ indicating that one or the other might be enough. The court did not decide the question but noted ‘[w]hatever may be the power of the Congress to provide for extradition independent of treaty, that power has not been exercised save in relation to a foreign country or territory occupied by or under the control of the United States…’ Idem at 9. The fact that Congress could do so regarding occupied or controlled territory should not be viewed as a limiting circumstance because the United States is entirely a creature of the Constitution and has no power or authority to act inconsistent with the Constitution within the US or abroad. See e.g., Reid v. Covert, 354 US 1, 5–6 (1957); United States v. Tiede, Crim. Case No. 78–001A (US Ct. for Berlin 1979), extract reprinted in Paust and Bassiouni, et al., op. cit. n. 4, at p. 258; Paust, op. cit. n. 5, at pp. 422–423, 432, et seq.

12. See e.g., Bassiouni, M. Cherif, 2 International Criminal Law (1986) pp. 421–422Google Scholar, reprinted in Paust, , Bassiouni, et al. , supra n. 4, at p. 289Google Scholar.