BRIEF OF THE LAWYERS COMMITTEE FOR HUMAN RIGHTS AS AMICUS CURIAE
In the Matter of the Surrender of Elizaphan Ntakirutima
United States District Court
Southern District of Texas Laredo Division
Preliminary Statement
The Lawyers Committee for Human Rights (the "Lawyers Committee") respectfully seeks leave to file this brief as amicus curiae, in support of the United States' second request for the surrender to the International Tribunal for Rwanda1 (the "Rwanda Tribunal") of Elizaphan Ntakirutimana, a Rwandan national charged by the Rwanda Tribunal with genocide, complicity in genocide, conspiracy to commit genocide, and crimes against humanity in connection with the killings of thousands of members of the Tutsi ethnic minority in Mugonero and Bisesero, Rwanda, in the spring of 1994.
On December 17, 1997, Magistrate Judge Marcel C. Notzon issued a Memorandum and Order denying the United States' first request for the surrender of Ntakirutimana to the Rwanda Tribunal on two grounds. See In the Matter of the Surrender of Ntakirutimana, 988 F. Supp. 1038 (S.D. Tex. 1997). First, Magistrate Judge Notzon held that the federal statute providing for the surrender of fugitives by the United States to the Rwanda Tribunal, Section 1342(a) of Public Law No. 104-106 (1996), is unconstitutional because it purports to authorize surrender of a fugitive in the absence of a formal Article II treaty of extradition, and therefore that he lacked jurisdiction to consider the United States' request. Second, the Magistrate Judge ruled that, in any event, the United States had failed to establish "probable cause" to support the surrender of Ntakirutimana.
These holdings are incorrect as a matter of law. Controlling Supreme Court precedent and pertinent authority from lower federal courts — which the Magistrate Judge failed to address — hold that a federal statute provides a proper basis for the surrender of a fugitive even in the absence of a treaty.Moreover, even if a treaty were required, Section 1342 implements the United States' obligations arising under a properly ratified Article II treaty — the United Nations Charter — and thus provides a valid basis to surrender Ntakirutimana to the Rwanda Tribunal.
Moreover, the Magistrate Judge's decision did not apply the proper standards in concluding that there was no "probable cause" to support the request for surrender. Under any fair evaluation of the supporting evidence — which included eyewitness accounts of Ntakirutimana's personal participation in mass murder — the evidence was sufficient to establish probable cause and thus to authorize his surrender to the Rwanda Tribunal.
The Lawyers Committee urges this Court to reconsider the Magistrate Judge's rulings. Adherence to his decision would seriously compromise the United States' ability to fulfill its international obligations to the Rwanda Tribunal arising under the United Nations Charter, and effectively permit a suspected war criminal to find asylum in the United States from charges properly leveled against him on behalf of the community of nations. Moreover, the failure to surrender Ntakirutimana will undermine the United States' efforts to encourage other nations — most notably Serbia and Croatia — to comply with their similar obligations to surrender suspected war criminals to the United Nations Tribunal for the former Yugoslavia. Neither law nor basic standards of justice permit such a result.
Footnotes:
1 The full name of the Tribunal is the "International Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighboring States." See National Defense Authorization Act, Pub. L. No. 104-106, § 1342, 110 Stat. 486 (1996) ("Public Law 104-106").
