Prosecutor v. Ntuyahaga, Case No. ICTR-98-40-T, Declaration on a Point of Law (Apr. 22, 1999).

OR : FR.

DECLARATION ON A POINT OF LAW

BY

JUDGE LA�TY KAMA, PRESIDENT OF THE TRIBUNAL,
JUDGE LENNART ASPEGREN AND
JUDGE NAVANETHEM PILLAY

1.         Trial Chamber I of the International Criminal Tribunal for Rwanda, composed of Judge Navanethem Pillay, presiding, Judge Lennart Aspegren and Judge La�ty Kama, rendered on 18 March 1999 a decision in the matter of "The Prosecutor versus Bernard Ntuyahaga" (Case no. ICTR 98-40-T) wherein it :

(i) granted the Prosecutor leave to withdraw the indictment against Bernard Ntuyahaga;

(ii) ordered in the absence of any other charge against him, the immediate release of Bernard Ntuyahaga from the Tribunal’s Detention Facilities; and

(iii) instructed the Registrar to take all the necessary measures to execute the present Decision, if need be with the cooperation of the authorities of the Host State, the United Republic of Tanzania.

2.         In light of said Decision, Defence Counsel for Mr. Bernard Ntuyahaga, Mr. Georges Komlavi Amegadjie, filed a motion on 22 March 1999, seeking a stay of execution of the above-mentioned Decision. On 25 March 1999, Presiding Judge Pillay sent a letter to the Registrar, Mr. Agwu U. Okali, to the effect that the case "The Prosecutor versus Bernard Ntuyahaga" is closed before the Chamber, that the Defence motion was inadmissible and that the Decision rendered by the Chamber on 18 March 1999 had immediate effect; in the execution of said Decision, the Registrar was to take into account any considerations that may arise, notably factors pertaining to the security of Bernard Ntuyahaga.

3.         Some days thereafter, the Registrar informed the Judges of Trial Chamber I that he had carried out their instructions to him through, namely, a "Decision by the Registrar in execution of the Decisions rendered by Trial Chamber I ordering the release of Mr. Bernard Ntuyahaga", dated 29 March 1999. In this Decision, the Registrar instructed the Commanding Officer of the Detention Facility to release Mr. Ntuyahaga to the Chief of the Security and Safety Section on 29 March 1999, and instructed the latter to escort Mr. Ntuyahaga on the same day to Dar es Salaam, United Republic of Tanzania.

4.         On 31 March 1999, the Prosecutor, Ms Louise Arbour, filed a motion submitting that the Registrar of the Tribunal, Mr. Agwu U. Okali, had issued to Mr. Bernard Ntuyahaga a document entitled "Safe Conduct" and dated 29 March 1999, covering the period 29 March to 13 April 1999, by which the Registrar :

" Request Member States of the United Nations, other States, International Organizations and all other persons to whom it may concern, to accord safe conduct to Bernard Ntuyahaga and extend to him any necessary cooperation to enable him to move freely in or transit through, without let or hindrance, any country to his final destination, in accordance with the relevant provisions of International Law."

In her motion, the Prosecutor requested the Chamber to rescind the said safe conduct on the grounds, firstly, that neither the provisions of the Statute nor those of the Rules of Procedure and Evidence permit the Registrar to issue such a document and, secondly, that neither the Statute nor the Rules nor International Law impose on States and international organizations the obligation to comply with a Safe Conduct document issued by the Registrar.

5.         The Judges learned of the document entitled "Safe Conduct" through the motion filed by the Prosecutor. At the request of the President of the Tribunal, a copy of the so-called "Safe Conduct" document was delivered by the Registry to Trial Chamber I on 12 April 1999.

6.         By an inter-office memorandum dated 12 April 1999, the President invited the Registrar to submit to him any comments that he may have in response to the aforementioned motion filed by the Prosecutor. The Registrar sent a Reply dated 12 April 1999 to the President, in which he argues in the main the following:

(i) the Trial Chamber cannot admit the Prosecutor’s motion because the case is closed before it;

(ii) the Prosecutor’s motion was moot because the safe conduct no longer had any merit, the authorities of the United Republic of Tanzania having taken Bernard Ntuyahaga into custody;

(iii) the Safe Conduct document issued by the Registrar was consistent with the Trial Chamber’s Decision of 18 March 1999 and the letter of 25 March 1999 and was therefore valid.

7.         The Judges wish to emphasize, first of all, that the motion submitted to them by the Prosecutor, whereas said Chamber had already clearly ruled that the case "The Prosecutor versus Bernard Ntuyahaga" is closed before it, is ipso facto inadmissible.

8.         In addition, the Judges wish to make the following three comments on the matter:

(i) The Prosecutor sought from the Chamber leave to withdraw the indictment and has thus terminated proceedings against Mr. Bernard Ntuyahaga. Therefore, she no longer has standing to file a motion in the matter "The Prosecutor versus Bernard Ntuyahaga", which matter is unquestionably closed;

(ii) The document entitled "Safe Conduct" issued by the Registrar in favour of Mr. Bernard Ntuyahaga has in no way prejudiced the Prosecutor, since she had sought leave to withdraw the indictment;

(iii) Since Mr. Ntuyahaga has been arrested by the authorities of the United Republic of Tanzania during the period of validity of the document entitled "Safe Conduct" issued to him by the Registrar, it appears that the authorities of the United Republic of Tanzania attached no weight to the document issued by the Registrar. Consequently, it is clear that the Prosecutor’s motion seeking annulment of said document is clearly moot.

9.         However, in light of the significance of the issue raised by the Prosecutor as to whether the Registrar has authority under the provisions of the Statute and the Rules of Procedure and Evidence to issue a document granting safe conduct, the Judges have decided to issue this declaration in order to clarify any ambiguity there may be, in particular, to the status of the document entitled "Safe Conduct" issued by the Registrar on 29 March 1999.

10.       The Judges note that in his document entitled "Safe Conduct", the Registrar indicated that said document was issued:

"(...) pursuant to the authority vested in him by the Tribunal’s Statute and Rules of Procedure and Evidence, and in furtherance of the execution of said Decision of 18 March 1999."

11.       First of all, as concerns the provisions of both the Statute of the Tribunal and the Rules of Procedure and Evidence, the Judges agree with the Prosecutor that none of the provisions grant the Registrar the authority to issue a safe conduct. The Judges observe in this respect that the Registrar himself did not refer to the specific provisions conferring such authority upon him and that, in his Reply dated 12 April 1999, he failed to offer a response to the Prosecutor on the matter.

12.       Notwithstanding the above, the Judges note paragraph 2 of Security Council resolution 955 of 8 November 1994, which provides that the Security Council decides:

"(...) that all States shall cooperate fully with the International Tribunal and its organs (...)".

The Judges note that the Security Council did, indeed, make ample provision for States to cooperate with the organs of the Tribunal, including its Registry, but they are of the opinion that such a provision in no way confers upon the Registrar the authority to seek the cooperation of States in matters not explicitly provided for in the Statute or in the Rules of Procedure and Evidence which provisions provide that the Registrar acts under the direction of a Judge or a Chamber. Indeed, the Judges hold that the Registrar has power to seek the cooperation of States only in the exercise of the functions specifically assigned to him under the Statute and the Rules of Procedure and Evidence, such as the transmittal of a warrant of arrest or a request for transfer duly issued by a Judge at the request of the Prosecutor.

13.       The Judges, noting that neither the provisions of said Security Council resolution, nor those of the Statute, nor those of the Rules of Procedure and Evidence empower the Registrar to issue a safe conduct, thus find that the Registrar, by so doing, acted ultra vires.

14.       With respect to the Registrar’s contention that he issued the document entitled "Safe Conduct":

"(...) in furtherance of the execution of the Tribunal’s Decision of 18 March 1999",

the Judges note that the Decision rendered by Trial Chamber I on 18 March 1999 clearly:

" Instructs the Registrar to take all the necessary measures to execute the present Decision, if need be with the cooperation of the authorities of the Host State, the United Republic of Tanzania."

In accordance with said ruling, the Registrar had valid grounds to take all necessary measures to execute the Decision by the Chamber, that is, to execute the order to release Bernard Ntuyahaga immediately from the Tribunal’s Detention Facility and to set him free. The Registrar acted specifically to this end by issuing the document signed on 29 March 1999 by which he issued various instructions to the Commanding Officer of the Detention Facility and the Chief of the Security and Safety Section of the Tribunal. However, neither the Chamber’s Decision of 18 March 1999, nor the letter of 25 March 1999 from the Presiding Judge to the Registrar, empowered the latter to issue a safe conduct to Bernard Ntuyahaga.

15.       In his Reply to the Prosecutor’s motion, the Registrar, first of all, in paragraph 23, submitted that the issuance of a Safe Conduct document was part of the "necessary measures" he was instructed to take in order to execute said Decision by the Chamber and went on to assert in paragraph 29 that the Chamber’s Decision did not expressly preclude him from issuing such a document. The Judges will only declare in this regard that issuing a Safe Conduct document goes beyond the scope of measures necessary to effect release, even though the Judges had requested the Registrar to take into account considerations that may arise, notably factors relating to the security of Bernard Ntuyahaga. Clearly, the instructions given by the Chamber were in no way a licence to the Registrar to exceed the powers ordinarily vested in him under the Statute and the Rules of Procedure and Evidence. Consequently, and granted that the Decision of 18 March 1999 or the letter of 25 March could have led the Registrar, in good faith, to consider affording certain guarantees to Bernard Ntuyahaga, the Judges are of the view that the Registrar therefore should have definitely consulted the Chamber. The Judges hold that, in instant case, "The Prosecutor versus Bernard Ntuyahaga", it was incumbent upon the parties, particularly the Defence, where necessary, to seek relief measures, if any, from the Trial Chamber for Bernard Ntuyahaga. The Registrar when seized of such a request, should have transmitted it to the Trial Chamber or, at least, informed it about it.

16.       Indeed, the Judges are of the opinion that, under the provisions of the Statute and the Rules of Procedure and Evidence and in light of case-law developed by the International Criminal Tribunal for the Former Yugoslavia, only a Trial Chamber could be empowered to issue a safe conduct, as held by the Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia, presided over by Judge Gabrielle Kirk McDonald, in the decision rendered on 22 October 1997 in the matter "The Prosecutor versus Mile Mrksic, Miroslav Radic, Veselin Sljivancanin and Slavko Dokmanovic" (Case No. IT-95-13a-PT).

17.       In light of the foregoing, the undersigned Judges, anxious that the issuance by the Registrar of a document entitled "Safe Conduct" does not set a precedent and mindful of the need for the Tribunal to ensure proper respect and compliance for the law, declare the following:

(i) neither the provisions of Security Council resolutions, nor those of the Statute, nor those of the Rules of Procedure and Evidence, nor any instructions rendered by the Trial Chamber, empower the Registrar to issue the document entitled "Safe Conduct’, dated 29 March 1999, and which he delivered to Mr. Bernard Ntuyahaga; by so doing, the Registrar acted ultra vires;

(ii) consequently, the document entitled "Safe Conduct"is null and void;

(iii) this declaration is public and the Registrar is instructed to immediately and formally notify it to the Prosecutor of the Tribunal, to Mr. Bernard Ntuyahaga, to his Counsel, Mr. Georges Komlavi Amegadjie, to the Government of the United Republic of Tanzania, the Host State of the Tribunal, and to the Government of the Kingdom of Belgium, which appeared as Amicus Curiae in the matter "The Prosecutor versus Bernard Ntuyahaga."

Arusha, 22 April 1999,

(Seal of the Tribunal)