Case Analysis: To Cooperate or not to Cooperate?: The Case of the Failed Transfer of Ntakirutimana to the Rwanda Tribunal

Leiden Journal of International Law

Volumn 11, Issue 2, 1998, Pages 383-395

  Sluiter, Göran ^a,b  

^a UTRECHT UNIVERSITY   (Netherlands)

^b UTRECHT UNIVERSITY   (Netherlands)

Author keywords

extradition law; International Criminal Tribunal for Rwanda; International Criminal Tribunal for the former Yugoslavia; obligation to cooperate; United States

Indexed keywords

EID: 84961615611     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156598000296     Document Type: Article

References (37)

1. Cf. Art. 20(4.d) 1994 Statute of the International Criminal Tribunal for Rwanda, UN Doc. S/RES/955 (1994), Annex; and Art. 21(4.d) 1993 Statute of the International Criminal Tribunal fur the funner Yugosliivia, UN Duu. 3/23704 (1993), Aiuica.
2. See Fourth Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the 1-ormer Yugoslavia Since 1991, UN Doc. A/52/375 (1997) and IJN Doc. S/1997/729, para. 183.
3. As far as the Republika Srpska is concerned, it has to be mentioned that the new Prime Minister Dodik has promised to work intensively to facilitate voluntary surrenders, and thus seems to adopt a different attitude than his predecessors-Indeed, recently some indicted war criminals who resided on the territory of the Republika Srpska have surrendered voluntarily to The Hague. Cf. D. Scheffer, The Clear and Present Danger of War Crimes, Address at the University of Oklahoma College of i.aw, 24 February 1998, unpublished. However, at this point in time it is uncertain whether this more cooperative attitude will continue and whether Dodik has sufficient authority to “persuade” every single indicted war criminal on the entire territory of the Republika Srpska to hand himself over to the Tribunal.
4. See Art. 10 of the Croatian Constitution; this provision, however, refers to extradition to another state, which is clearly different from transfer of an accused to the Tribunal.
5. BlaSkic was the first Croatian who surrendered himself voluntarily to The Hague; in October 1997 a group of 11 Croatians, including Kordl6, surrendered themselve,s to the Yugoslavia Tri-b'UTia\.
6. See 1994 Statute of the International Criminal I'ribunal tor Rwanda, BlaSkic was the first Croatian who surrendered himself voluntarily to The Hague; note 1; except for the Tribunal's subject matter jurisdiction, the Statute of the Rwanda Tribunal is almost identical to the 1993 Statute of the International Criminal Tribunal for the former Yugoslavia, BlaSkic was the first Croatian who surrendered himself voluntarily to The Hague; note 1.
7. Both the US Secretary of State, Madeline Albright, and US Ambassador at Large for War Crimes, David Scheffer, have on numerous occasions expressed in public the support of the United States for the Ad Hoc Tribunals and a permanent international criminal court; see, e.g.Address by David Scheffer at the University of Oklahoma College of Law, “The Clear and Present tlanger of War Crimes”, 24 February 1998, unpublished.
8. Jjee ON Doc. S/KE5/827 (1993).
9. See UN Doc. S/RES/955 (1994).
10. fhe Rules of Procedure and Lvidcnce, adopted on 11 February !994 and latest revised on 20 October and 12 November 1997, UN Doc. IT/32/Rev.l2, have been adopted by the Rwanda Tribunal, as is envisaged by Art. 14 of the 1994 Statute of the Rwanda Tribunal, UN Doc. note 1. Therefore, when reference i.s made to “the Rule.s” this concems the Rules of Procedure and Evidence of both Tribunals.
11. See First Annual Report of the International Tribunal tor the Prosecution ofi'ersons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991, UN Doc, A/49/342 (1994) and UN Doc. S/1994/1007, para. 86.
12. See Prosecutor v. Tihomir Bla5kic, Decision ofTrial Chamber II of 18 July 1997 on the Objection of the Republic of Croatia to the Issuance oiSubpoenae Duces Tecum, Case No. ri'-95-14-PT, and Prosecutor v. Tihomir BlaSkic, Judgment of 29 October 1997 of the Appeals Chamber on the Request of the Republic of Croatia for Review of the Decision ofTrial Chamber II of !8 July 1997, Case No. IT-95-14-ARI08iis.
13. BlaSkic Decision ofTrial Chamber II, Prosecutor v. Tihomir Bla5kic note 13, para. 77; views confirmed by tlie Bla5kic Decision of the Appeals Chamber, Prosecutor v. Tihomir Bla5kic note 13, which stated, inter alia, that Art. 29 does not envisage any exception to the obligations of states to comply with requests and orders of a Trial Chamber; see para. 63.
14. Examples of inappropriate grounds of retusal are the non-extradition of nationals, the political offencc exception, and the double criminality requirement. See K.J. Harris & R. Kushen, Sur-render of Fugitives to the War Crimes Tribunals for Yugoslavia and Rwanda: Squaring International Legal Obligations With the U.S. Constitution, 7 Criminal Law Forum 570-574 (1996).
15. See, e.g., the Fourth Annual Report, Examples of inappropriate grounds of retusal are the non-extradition of nationals, the political offencc exception, and the double criminality requirement. note 2, para, 186.
16. Cf Art. 2(1) of the Danish implementing legislation (Act on Criminal Proceedings Before the International Tribunal for me Prosecution of Persons Responsible for War Crimes Committed in the Territory of the Former Yugoslavia, Act No. 1099 of 21 December 1994); Section 2 of the Norwegian implementing legislation (Bill Relating to the Incorporation Into Norwegian Law of the UN Security Council Resolution on the Establishment of an International Criminal Tribunal tijr the Former Yugoslavia, Law 19S)4-U6.24 JS JU/Jt-l-tyys); Section i of the Swedish implementing legislation (Act Relating to the Establishment of an International Tribunal for Trial of Crimes Committed in Former Yugoslavia which entered into force on 1 July 1994); and Art. 7 of the Bosnian implementing legislation (Decree with force of law on extradition at the request of the International I ribuna), 1*K number 1786/95,6 April 1995, Sarajevo).
17. See, e.g., the Hungarian implementing legislation (Act XXXIX of 1996 on the fulfillment of obligations deriving from the statute of the International Tribunal established for punishing the serious violations of international humanitarian law committed in the territory of the former Yugoslavia, May 1996).
18. See 1994 United States-Yugoslavia Tribunal Agreement on Surrender of Persons; and 1995 United States-Rwanda Tribunal Agreement on Surrender of Persons, printed in Amnesty Internationa!, International Criminal Tribunals: Handbook for Government Cooperation, August 1996, A1 Index: lUK 4U/07/96.
19. R. K-UsKen & K.J. Hariis, Surrentfer o/ Fugitives by ite United States to tiie War Crimes Tribunals for Yugoslavia and Rwanda, 90 AJIL 513 (1996); the Fourth Amendment to the US Cnnstihition requires, infer alia, that “no warrants shall issue, but upon probable cause”.
20. See National Defense Authorization Act, Pub. 1., No. 104-106, 110 Stat. 486 (1996), para. 1342.
21. M., Section (a).
22. Extradition, and now also surrender of persons to the Tribunals, involves a deprivation of liberty that implicates rights under the Fnurth, Fifth, and FoEirteenth Amendments; sm Kushen & Harris, M. note 20, at 516 and 517.
23. In the matter of surrender of Elizaphan Ntakirutimana, Misc. No. L-96-5, US District Court for the Southern District of Texas, Laredo division, 1997 US Dist. LEXIS 20714, 17 December 1997, Decided. Citations in Section 4 are all to this decision.
24. See Harris & Kushen, the matter of surrender of Elizaphan Ntakirutimana note 15, at 578.
25. See Interim Headquarters Agreement Between United Nations and United States of America, 11 UNTS 347 (1947).
26. See note 11, Interim Headquarters Agreement Between United Nations and United States of America.
27. This prncedure bas been applieH in, mter tihct, the cases of Karadzic and Mladic (Decision of Tiial Chamber 1 of U July 1996, Review of Indictment Pursuant to Rule 61, Cases No. lT-95-5 and IT-95-18), and the case of Nikolic (Etecision of Trial Chamber I of 9 October 1995, Review of Indictment Pursuant to Rule 61, Case No. lT-94-2).
28. Cf. Rills 61(C) nf the Rules of Procedure and Evidence, This prncedure bas been applieH in note 11.
29. Cf. Rule 61(D) and Rule 61(E) of the Rules of Procedure and Evidence, Cf. Rills 61(C) nf the Rules of Procedure and Evidence note 11.
30. It is in this respect noteworthy that US Ambassador at Large for War Crimes, David Schaffer, has in one of his presentations referred to the United States as a country that “has led the effort to bring indictees to The Hague, and will continue to do so”. See note 7, Cf. Rule 61(D) and Rule 61(E) of the Rules of Procedure and Evidence.
31. Cf, Rwandan Arrested in War Crimes, the Associated Press, 27 February 1998.
32. See Rwandan Arrested in War Crimes, The Associated Press, 27 I'ebruary 1998.
33. Id.
34. See Kushen & Harris, Id. note 20, at 579.
35. Decision of Trial Chamber II of 22 October 1997 on the Motion for Release by the Accused Slavko Dokmanovic, Case No. IT-95-13a-PT, para. 67.
36. BiaSkit Decision of Appeals Chamber, Case No. IT-95-13a-PT note 13, para. 47.
37. Recent developments point out tiiat the Republika Srpska tends to adopt a more cooperative attitude vis-a-vis the 1 ribunal; see note J, BiaSkit Decision of Appeals Chamber.