Janet Reno must soon decide the fate of Elizaphan Ntakirutimana, a Rwandan pastor who allegedly lured Tutsi neighbors to his Seventh Day Adventist church in April 1994, and then led Hutu militia on a rampage that killed hundreds in the church precincts.
Mr. Ntakirutimana was indicted for genocide by the International Criminal Tribunal for Rwanda - a court set up in Arusha, Tanzania, by the UN Security Council at the urging of the United States. He fled to the United States and was found living with his son in Laredo, Texas, where he was arrested by the FBI. Another son, Gerard, already is in custody in Arusha for participating in the church massacre.
In late December 1997, Ntakirutimana was set loose by US magistrate Marcel Notzon, who casually overturned a congressional statute designed to surrender genocide suspects to the international tribunal.
Spurning Congress's wish that indicted suspects be returned to the international tribunal, magistrate Notzon ruled that only a treaty could authorize extradition. This ignores controlling Supreme Court authority. In the 1936 case Valentine v. United States ex. rel. Neidecker, Chief Justice Charles Evans Hughes explained that authority for extradition "does not exist save as it is given by act of Congress or by the terms of a treaty."
And there is a treaty underlying the surrender. The UN Charter is a treaty instrument of 50 years standing, and directs that decisions of the Security Council are binding on member states. The US championed the resolution that says states must send suspects to the tribunal.
The magistrate claims he wasn't persuaded by the proof against Ntakirutimana. But the standard for extradition is probable cause, not proof beyond a reasonable doubt.
Ntakirutimana will receive a full trial in Arusha. The Rwanda tribunal has as its chief prosecutor Canadian jurist Louise Arbour, who also prosecutes in the International Criminal Tribunal for the former Yugoslavia. The record of the Yugoslav tribunal is reassuring; it has acquitted where proof was inadequate, and the judge has dismissed other cases outright.
Belgian police officer Arjen Mostert, working for the international tribunal, gave the Texas court an affidavit attesting that four survivors from the church attack in Kubuye, Rwanda, identified Ntakirutimana as a person who "participated in the attack." Ntakirutimana shot at a group of Tutsis inside the church complex, telling his fellow attackers, "Kill them." Another survivor saw Ntakirutimana drive armed Hutu militiamen into the surrounding hills to hunt down and shoot fleeing civilian Tutsis. Notzon fails to notice this evidence at all.
No doubt, the magistrate felt he was doing his duty in raking through the proof with a broken-tooth comb. We should respect the independence of federal judges, even limited-term magistrates. But we should not acquiesce in a mistaken judgment. Sending to Rwanda for a supplementary affidavit would be a wise and face-saving gesture. Then the case should be refiled in front of a more reasonable jurist.
Otherwise, every country that puts politics ahead of justice will use this case as its excuse. The Bosnian Serbs will argue that sheltering indicted war criminals Radovan Karadzic and Ratko Mladic is nothing unusual. The UN ambassador for Libya recently used the Ntakirutimana case to defend his country's failure to turn over suspects in the Pan Am 103 bombing.
Congress also should fill a gap in American law. It has provided that genocide and grave breaches of the Geneva Conventions committed abroad can be prosecuted in US federal courts if the offender is a US citizen. The law should be broadened to allow prosecution of anyone involved in genocide who tries to take up residence in the US. American hospitality should not protect genocidists.
* Ruth Wedgwood is a professor at Yale Law School and a senior fellow at the Council on Foreign Relations.