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International Criminal Tribunal for Rwanda—genocide—length of detention pending indictment and formal appearance before Tribunal—delay in informing defendant of charges—suspension of proceedings as remedy for abuse of process by prosecutor—review of prior decision by appeals chamber

Published online by Cambridge University Press:  27 February 2017

William A. Schabas
William A. Schabas*
Affiliation:
National University of Ireland, Galway Director, Irish Centre for Human Rights
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Type
International Decisions
Information
American Journal of International Law , Volume 94 , Issue 3 , July 2000 , pp. 563 - 571
Copyright
Copyright © American Society of International Law 2000

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References

44 Supplemental Brief for Plaintiffs-Appellees at 8, United States v. Lombera-Camorlinga, 170 F.3d 1241 (9th Cir. 1999) (Nos. 98–50347 and 98–50305).

45 United States v. Lombera-Camorlinga, 206 F.3d 882 (9th Cir. 2000) (en banc). [Editor’s note: the case will be addressed in a subsequent issue.]

46 See, e.g., Breard v. Greene, 523 U.S. 371 (1998).

1 Three of the original judges sat in the second decision: Mohamed Shahabuddeen, Lai Chand Vohrah, and Rafael Nieto-Navia. President Gabrielle Kirk McDonald and Judge Wang Tieya were replaced by President Claude Jorda and Judge Fausto Pocar. Decisions of the ICTR are available online at <http://www.ictr.org.

2 Prosecutor v. Barayagwiza, Indictment, No. ICTR-97–19 (Oct. 22, 1997) (confirmed on Oct. 23, 1997, Prosecutor v. Barayagwiza, No. ICTR-97–19-I); Prosecutor v. Barayagwiza, Amended Indictment, No. ICTR-97–19 (June 28, 1999) (leave to amend granted on April 11, 2000, Prosecutor v. Barayagwiza, No. ICTR-97–19-I). The trial chamber had delayed its decision on the amended indictment until the appeals chamber decided whether the prosecution against Barayagwiza could proceed (which was the central issue in the March decision).

3 SC Res. 955, annex (Nov. 8, 1994), UN SCOR, 49th Sess., Res. & Dec, at 15, UN Doc. S/INF/50 (1994), reprinted in 33 ILM 1602 (1994).

4 On the role of hate propaganda and the media in the Rwandan genocide, see Jean-Pierre, Chrétien, Jean, François Dupaquier, Kabanda, Marcel, & Ngarambe, Joseph, Rwanda: Les Médias Du Génocide (1995)Google Scholar; Chalk, Frank, Hate Radio in Rwanda, in The Path of A Genocide : The Rwanda Crisis From Uganda to Zaire 93 (Adelman, Howard & Suhrke, Astri eds., 1999)Google Scholar; Final Report of die Commission of Experts Established Pursuant to Security Council Resolution 935, UN Doc. S/1994/1405 (1994); Jamie, Frederic Metzl, Rwandan Genocide and the International Law of Radio Jamming, 91 AJIL 628 (1997)Google Scholar; Article 19, Broadcasting Genocide: Censorship, Propaganda & State-Sponsored Violence in Rwanda 1990–1994, at 157–58 (1996).

5 Barayagwiza v. Prosecutor, Decision, No. ICTR-97–19-AR72, para. 61 (Nov. 3, 1999) [hereinafter November decision].

6 According to the annex to the latest annual report by the president of the ICTR, at least nine of those awaiting trial in Arusha were detained for more than 96 days prior to their initial appearance. UN Doc. A/54/315 (1999); UN Doc. S/1999/943 (1999).

7 November decision, supra note 5, para. 101.

8 Id., para. 76.

9 Barayagwiza v. Prosecutor, Decision (Prosecutor’s Request for Review or Reconsideration), No. ICTR- 97–19-AR72, §V(A), “Conclusion” (Mar. 31, 2000) [hereinafter March decision]. [Editor’s note: This decision has no numbered paragraphs but is organized in headings that follow standard outline format. These headings will be used insofar as possible to locate source material, but unfortunately, the numbering for the outline format has occasionally been misapplied in the online version of the decision. The “Conclusion,” for example, should be section V(A) (4) but, as of the closing date for this issue of the Journal, is incorrectly identified as V(A) (1). The “Conclusion” cited infra note 11 is designated as section I even though the previous sections of the decision are designated as sections I through V.]

10 Id.

11 Id., “Conclusion” (identified with a roman numeral I at end of decision).

12 November decision, supra note 5, para. 106; see also id., para. 73.

13 Id., para. 75.

14 R. v. Horseferry Road Magistrates Court, ex parte Bennet, [1994] 1 App. Cas. 42 (H.L.).

15 R. v. Oxford City Justices, ex parte Smith, [1982] 75 Crim. App. 200.

16 Bell v. D.P.P. of Jamaica, [1985] 2 All E.R. 585 (P.C.).

17 R. v. Hartley, [1978] 2 N.Z.L.R. 199, 217, 11. 32–33.

18 Id. at 219, 11. 36–39.

19 March decision, supra note 9, §V(A), “Were the new facts known to the Prosecutor?”

20 Id.

21 Id.

22 Id.

23 Id. §rv(A).

24 November decision, supra note 5, para. 85.

25 Id.

26 March decision, supra note 9, §V(A) (3) (a).

27 International Covenant on Civil and Political Rights, Dec. 16, 1966, Art. 9(2) (entered into force Mar. 23, 1976) 999 UNTA 171.

28 Convention for the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 UNTS 277 (entered into force Jan. 12, 1951)Google Scholar.

29 Decision of the Cour d’appel du Centre de Cameroon, No. 337 (Feb. 21, 1997).

30 November decision, supra note 5, para. 107.

31 Cameroon also told the Committee for the Elimination of Racial Discrimination that it refused to extradite individuals charged with genocide to Rwanda because Rwanda’s legislation provides for the death penalty. UN Doc. CERD/C/SR.1201, para. 74.

32 Earlier in 1999, Belgium encountered the same frustration when the prosecutor decided to withdraw charges against Bernard Ntuyahaga, who was alleged to have participated in the killing of 10 Belgian paratroopers at the outset of the genocide in April 1994: the ICTR refused to hand Ntuyahaga over to Belgium and ordered his release. See Prosecutor v. Ntuyahaga, Decision on Prosecutor’s Motion to Withdraw Indictment, No. ICTR-98- 40-T (Mar. 18, 1999).

33 Agreement Between the United Nations and the United Republic of Tanzania Concerning the Headquarters of the International Tribunal of Rwanda, Art. XX, UN Doc. S/RES/977 (1995).

34 UN Doc. A/CONF.183/9* (1998).