Ntakirutimana v. Reno, PETITIONER-APPELLANT

Citation184 F.3d 419
Decision Date05 August 1999
Docket NumberPETITIONER-APPELLANT,RESPONDENTS-APPELLEES,No. 98-41597,98-41597
Parties(5th Cir. 1999) ELIZAPHAN NTAKIRUTIMANA,, v. JANET RENO, ATTORNEY GENERAL OF THE UNITED STATES; MADELEINE ALBRIGHT, SECRETARY OF STATE OF THE UNITED STATES; JUAN GARZA, SHERIFF OF WEBB COUNTY, TEXAS,
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

[Copyrighted Material Omitted] Appeal from the United States District Court for the Southern District of Texas

Before Emilio M. Garza, DeMOSS, and Parker, Circuit Judges.

The opinion of the court was delivered by: Emilio M. Garza, Circuit Judge

Elizaphan Ntakirutimana appeals the district court's denial of his habeas corpus petition that challenged the district court's grant of a second request for surrender. He alleges that the district court erred because (1) the Constitution of the United States requires an Article II treaty for the surrender of a person to the International Criminal Tribunal for Rwanda ("ICTR" or "Tribunal"),1 (2) the request for surrender does not establish probable cause, (3) the United Nations ("U.N.") Charter does not authorize the Security Council to establish the ICTR, and (4) the ICTR is not capable of protecting fundamental rights guaranteed by the United States Constitution and international law. We affirm.

I.

Rwanda has been the source of ongoing ethnic conflict between members of the majority Hutu and minority Tutsi tribes. In April 1994, President Juvenal Habyarimana of Rwanda, a Hutu, was killed when his aircraft crashed due to an artillery attack. The crash triggered a wave of violence by the Hutus against the Tutsis, which resulted in the deaths of between 500,000 and one-million persons. Tutsi rebels triumphed over the Hutus, and the Tutsi-dominated government then requested the U.N. to create an international war crimes tribunal. An investigation by the U.N. established that the mass exterminations of the Tutsis--motivated by ethnic hatred--had been planned months. The Security Council adopted Resolution 955, which created the ICTR to prosecute and to punish the individuals responsible for the violations in Rwanda and its neighboring states between January 1 and December 31, 1994. The Resolution directed that "all States shall take any measures necessary under their domestic law to implement the provisions of the present resolution and the Statute [of the ICTR]."2 S.C. Res. 955, U.N. SCOR, 49th Sess., 3453d mtg. at 1-2 (1994), reprinted in 33 I.L.M. 1598, 1601 (1994).

In 1995, the President of the United States entered into an executive agreement with the ICTR, entitled the Agreement on Surrender of Persons Between the Government of the United States and 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 ("Agreement"). The Agreement provided that the United States "agrees to surrender to the Tribunal . . . persons . . . found in its territory whom the Tribunal has charged with or found guilty of a violation or violations within the competence of the Tribunal." Agreement, art. 1, cl. 1, Jan. 24, 1995, U.S.-Int'l Trib. Rwanda, 1996 WL 165484, at *1 (Treaty). In 1996, Congress enacted Public Law 104-106 to implement the Agreement. See National Defense Authorization Act, Pub. L. 104-106, §§ 1342, 110 Stat. 486 (1996). Section 1342(a)(1) of this legislation provides that the federal extradition statutes (18 U.S.C. §§§§ 3181 et seq.) shall apply to the surrender of persons to the ICTR. Among the statutory provisions made applicable is 18 U.S.C. §§ 3184. This section authorizes a judicial officer to hold a hearing to consider a request for surrender. If the judicial officer finds the evidence sufficient to sustain the charges under the treaty or convention, then the officer certifies to the Secretary of State that the individual may be surrendered. See also 18 U.S.C. §§ 3186 (conferring final authority on the Secretary of State to order a fugitive's surrender where a judicial officer has ruled that the requirements for extradition have been met).

In June and September 1996, the ICTR returned two indictments against Pastor Ntakirutimana, charging him with the crimes of genocide, complicity in genocide, conspiracy to commit genocide, crimes against humanity, and serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II thereto.3 At the time of the charges, Ntakirutimana, a Hutu, served as President of the Seventh Day Adventist Church for all of Rwanda. He was based in a church complex (the "Complex") in Mugonero, Gishyita Commune, Kibuye Prefecture, Rwanda,4 and was well known in the Complex and the community. The first indictment alleges that, following the beginning of the wave of violence in 1994, Ntakirutimana and other individuals prepared and executed a plan by which they encouraged large numbers of the local Tutsi population to seek refuge in the Complex. They separated the Hutus from the Tutsis and encouraged the Hutus to leave. Ntakirutimana then raised an armed mob of Hutus, led them to the Complex, and directed the slaughter of the Tutsis who had sought shelter there. A Tribunal Judge confirmed the indictment and issued a warrant for Ntakirutimana's arrest.

The second indictment charges Ntakirutimana with conduct that occurred after the massacre at the Complex. The survivors of the attack fled to the Bisesero area of Kibuye Prefecture, Rwanda. The indictment alleges that Ntakirutimana drove armed Hutu soldiers into the Bisesero region, hunted for hiding Tutsis, and ordered the soldiers to kill them. A Tribunal Judge confirmed the second indictment and issued another warrant for Ntakirutimana's arrest.

Ntakirutimana has legally resided in Laredo, Texas since he left Rwanda in 1994. The ICTR requested that the United States extradite Ntakirutimana to the ICTR pursuant to the Agreement. In September 1996, the Government filed a request for Ntakirutimana's surrender to the ICTR in the Southern District of Texas. A Magistrate Judge, serving as the judicial officer, denied the Government's request for surrender. He held that Public Law 104-106 is unconstitutional because, based on historical practice, extradition requires a treaty. See In re Surrender of Ntakirutimana, 988 F. Supp. 1038, 1042 (S.D. Tex. 1997). He held alternatively that the request for surrender, and the supporting documents, did not provide probable cause to support the charges. See id. at 1044.

To address the evidentiary issues raised by the Magistrate Judge, the Government added two declarations, and filed another request for surrender in the same court.5 The district court certified the surrender to the ICTR.6 The court held that the Agreement and Public Law 104-106 provide a constitutional basis for the extradition of Ntakirutimana. Among other reasons, the court found that the Constitution sets forth no specific requirements for extradition, that the Supreme Court has indicated its approval of extraditions made in the absence of a treaty, and that there is precedent wherein fugitives were extradited pursuant to statutes that "filled the gap" left by a treaty provision. See In re Surrender of Ntakirutimana, No. CIV. A. L-98-43, 1998 WL 655708, at * 9, 17 (S.D. Tex. Aug. 6 1998). The court also held that the evidence sufficed to establish probable cause for the charges against Ntakirutimana. See id. at *30. Ntakirutimana filed a petition for a writ of habeas corpus under 28 U.S.C. §§ 2241. The district court denied the petition, and Ntakirutimana has timely appealed.7

II.

The scope of habeas corpus review of the findings of a judicial officer that conducted an extradition hearing is extremely limited. See Garcia-Guillern v. United States, 450 F.2d 1189, 1191 (5th Cir. 1971). We inquire only into (1) whether the committing court8 had jurisdiction, (2) whether the offense charged is within the treaty, and (3) whether the evidence shows a reasonable ground to believe the accused guilty. See Fernadez v. Phillips, 268 U.S. 311, 312, 45 S. Ct. 541, 542, 69 L. Ed. 970 (1925); Garcia-Guillern, 450 F.2d at 1191. A writ of habeas corpus in a case of extradition is not a means for rehearing the findings of the committing court. See Fernandez, 268 U.S. at 312, 45 S. Ct. at 542; Oteiza v. Jacobus, 136 U.S. 330, 334, 10 S. Ct. 1031, 1032, 34 L. Ed. 464 (1890); Escobedo v. United States, 623 F.2d 1098, 1101 (5th Cir. 1980).

III.

Ntakirutimana alleges that Article II of the Constitution of the United States requires that an extradition occur pursuant to a treaty. It is unconstitutional, he claims, to extradite him to the ICTR pursuant to a statute in the absence of a treaty. Accordingly, he claims it is unconstitutional to extradite him on the basis of the Agreement and Pub. Law 104-106 (the "Congressional-Executive Agreement").9 The district court concluded that it is constitutional to surrender Ntakirutimana in the absence of an "extradition treaty," because a statute authorized extradition. We review this legal issue de novo.10 See United States v. Luna, 165 F.3d 316, 319 (5th Cir. 1999), cert. denied, ___ U.S. ___, 119 S.Ct. 1783 (1999) (reviewing constitutionality of extradition statute de novo).

To determine whether a treaty is required to extradite Ntakirutimana, we turn to the text of the Constitution. Ntakirutimana contends that Article II, Section 2, Clause 2 of the Constitution requires a treaty to extradite. This Clause, which enumerates the President's foreign relations power, provides in part that "[the President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers...

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