Surrender of Ntakirutimana

• Decision Date: 17 December 1997
• Docket Number: No. L-96-5.,L-96-5.
• Citation: 988 F.Supp. 1038
• Parties: In the Matter of SURRENDER OF Elizaphan NTAKIRUTIMANA.
• Court: U.S. District Court — Southern District of Texas

988 F.Supp. 1038

In the Matter of SURRENDER OF Elizaphan NTAKIRUTIMANA.

No. L-96-5.

United States District Court, S.D. Texas, Laredo Division.

December 17, 1997.

Donald DeGabrielle, Houston, TX, for Plaintiff.

Lazaro Garza-Gongora, Jr., Garza-Gongora & Gutierrez, Laredo, TX, Ramsey Clark, Lawrence (Larry) W Schilling, New York City, for Defendant.

MEMORANDUM AND ORDER

NOTZON, United States Magistrate Judge.

Pending before the Court is a request by the United States (the Government) for this Court to authorize the surrender of ELIZAPHAN NTAKIRUTINIANA (the Extraditee) to 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 or Other Such Violations Committed in the Territory of Neighboring States (the Tribunal). For the reasons stated below, the Court DENIES this request and ORDERS the immediate release of the Extraditee.

FACTUAL BACKGROUND

The Extraditee is a 73 year old Rwandan citizen currently detained at the Webb County Law Enforcement Center. At the time of the events which form the basis of the charges against him, he was the President of the Seventh Day Adventist Church in Rwanda and was based in a church complex in Mugonero, Gishyita Commune, Kibuye Prefecture, Rwanda.¹ He is charged with luring several ethnic Tutsis to his church complex in the days immediately following the death of Rwandan President Habyarimana on April 6, 1994, and then organizing and leading an attack on his church complex on April 16, 1994, to kill all of these Tutsis. The Extraditee is an ethnic Hutu.² After the April 16, 1994 attack, the Extraditee is accused of leading armed bands of men into the countryside of the Bisesero region of Rwanda in an effort to hunt down and kill those Tutsis who survived the attack at Mugonero.³ At some point after the attack on the Mugonero compound, the Extraditee was admitted to the United States and was legally residing with his son in Laredo, Texas, when he was arrested pursuant to these proceedings.⁴

On September 26, 1996, the Extraditee was provisionally arrested on the above charges. The Government timely submitted the packet containing the charges against the Extraditee, the official request for surrender from the tribunal and the documents intended to support that request on October 18, 1996. The instant request for surrender was made in the Government's "Motion for Hearing on Request for the Surrender of Elizaphan Ntakirutimana," filed on January 9, 1997 (Docket No. 19).

Since the filing of the request, the parties have submitted copious filings in this matter both on their own initiative and in response to directives from the Court. The Court has reviewed all of these filings, as well as all amicus curiae, prior to issuing this Memorandum and Order.

DISCUSSION

In matters of extradition, the Court must determine 1) whether the Court has jurisdiction to determine whether the fugitive is subject to surrender, and whether the Court has proper jurisdiction over the fugitive, 2) whether the fugitive is being sought for offenses which the applicable agreement permits surrender, and 3) whether there is sufficient evidence to establish the fugitive has committed the offenses for which he is being charged. See Bingham v. Bradley, 241 U.S. 511, 516-517, 36 S.Ct. 634, 637, 60 L.Ed. 1136 (1916); McNamara v. Henkel, 226 U.S. 520, 523, 33 S.Ct. 146, 147, 57 L.Ed. 330 (1913); Ornelas v. Ruiz, 161 U.S. 502, 508-509, 16 S.Ct. 689, 691, 40 L.Ed. 787 (1896); Austin v. Healey, 5 F.3d 598, 600-01 (2nd Cir.1993), cert. denied, 510 U.S. 1165, 114 S.Ct. 1192, 127 L.Ed.2d 542 (1994); Garcia-Guillern v. United States, 450 F.2d 1189, 1191 (5th Cir., 1971), cert. denied, 405 U.S. 989, 92 S.Ct. 1251, 31 L.Ed.2d 455 (1972); Sayne v. Shipley, 418 F.2d 679, 683-84 (5th Cir., 1969), cert. denied, 398 U.S. 903, 90 S.Ct. 1688, 26 L.Ed.2d 61 (1970); Zanazanian v. United States, 729 F.2d 624, 625-626 (9th Cir.1984). As will be shown below, the instant request fails on the first and third prongs of the above inquiry.

Jurisdiction:

The Government seeks the surrender of the Extraditee pursuant to the "Agreement on Surrender of Persons between the Government of the United States and the Tribunal" (Agreement) signed January 24, 1995, and the provisions of Section 1342 of Public Law 104-106. This section makes applicable to the instant case the procedures applicable to international extradition pursuant to 18 U.S.C. § 3184 et seq., and the interpretative case law pertaining to those procedures. Accordingly, Congress has instructed the Court to treat the Agreement as if it were a treaty of extradition negotiated between the United States and some other sovereign country. After much careful consideration, the Court is of the opinion that Congress cannot so instruct the Court and that Public Law 104-106, as it pertains to the Tribunal⁵, is unconstitutional. Accordingly, the Court has no jurisdiction to hear the Government's requests and it will be DISMISSED.

On August 28, 1997, the Court invited the parties to comment on the authority of the Executive to negotiate treaties with parts of a multi-national body like the Tribunal and Congress' ability to effectuate such a treaty by enacting enabling legislation rather than adhering to a traditional ratification process by the Senate.

The Government cites the Court to four cases dealing with the United States-United Nations (U.N.) Headquarters Agreement for the proposition that the Executive has unlimited ability to make treaties and that courts have given effect to those agreements. See Concerned Jewish Youth v. McGuire, 621 F.2d 471 (2nd Cir.1980), cert. denied, 450 U.S. 913, 101 S.Ct. 1352, 67 L.Ed.2d 337 (1981); United States v. Palestine Liberation Organization, 695 F.Supp. 1456 (S.D.N.Y., 1988); International Society for Krishna Consciousness, Inc. v. New York, 501 F.Supp. 684 (S.D.N.Y., 1980); Greenberg v. Murphy, 329 F.Supp. 37 (S.D.N.Y.1971). While these cases support, silently, the Executive power to make international agreements, none of these cases addressed whether the Headquarters Agreement itself is constitutional. Rather they were all concerned with regulating other activities tangentially related to the Headquarters Agreement.

McGuire and International Society for Krishna Consciousness, deal with restrictions on First Amendment activity around the U.N. Both found the minor restrictions on First Amendment rights immediately around the U.N. were justified by the need for the United States to uphold international agreements. They did not pass on whether the Headquarters agreement was properly enacted. Additionally, United States v. Palestine Liberation Organization, which decided whether the Anti-Terrorism Act of 1988 authorized the closing of the PLO mission to the U.N., recognizes that there is a difference between treaties and other international agreements. However that difference was not important to the decision of the court and was not addressed. United States v. Palestine Liberation Organization, et al., 695 F.Supp. at 1458, n. 3 ("We refer to the Headquarters Agreement as a treaty, since we are not concerned here with making a distinction among different forms of international agreement. The applicable law implicates all forms, including the Headquarters Agreement.").

Moreover, the Headquarters agreement was enacted pursuant to a treaty ratified with Senatorial advice and consent. The preamble to the agreement states, "Whereas the Charter of the United Nations was signed on behalf of the United States on June 26, 1945, and was ratified on August 8, 1945, by the President of the United States, by and with the advice and consent of the Senate, and the instrument of ratification of the said Charter was deposited on August 8, 1945." Joint Res. Aug. 4, 1947, c. 482, 61 Stat. 756 (emphasis added). Clearly, the Headquarters Agreement was made to effectuate a validly negotiated, signed and ratified treaty entered into by the United States. This places it in marked contrast to the Agreement with the Tribunal in the instant case.

While the cases cited by the Government support the assertion that the Executive may have unlimited ability to make international agreements, these cases have no bearing on how Executive agreements are constitutionally implemented. Thus they are of little value in the instant context.

Of more value is the justification given by the Government for Congressional enactment. The Government cites the Court to Grin v. Shine, 187 U.S. 181, 191, 23 S.Ct. 98, 102, 47 L.Ed. 130 (1902) for the proposition that Congress may provide for the extradition of fugitives without treaty and without Executive action. The Court can find no support for this contention in the text of that case. Indeed Grin v. Shine involved an extradition of a fugitive to Russia, a country with which the United States had a valid extradition treaty. The wording seized upon by the Government ("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." Grin v. Shine, 187 U.S. at 191, 23 S.Ct. at 102.) pertains to the question of whether Congress could require more or less stringent proofs for surrendering a fugitive than those expressly contained in the treaty between Russia and the United States. It was not a statement by the Court that Congress can make extradition policy of its own accord. Indeed the entire res of the Shine case dealt with the application of provisions of a valid treaty between the United States and Russia. For the Government to claim that this case supports Congressional action in the field of extradition without a valid treaty is inapposite at best.

The Government also refers the...