ICTR to Hear Ntagerura’s Motion to Order Canada to Grant Him Asylum

by Kevin Jon Heller

Since being unanimously acquitted by the ICTR Appeals Chamber in 2006, Andre Ntagerura has lived as a virtual prisoner in a UN safehouse in Arusha, unable to find a country that will take him. Last November, he filed a motion asking the ICTR to order Canada, his first choice, to grant him asylum. On Wednesday, the Court decided to hear what he has to say:

The President of International Criminal Tribunal for Rwanda (ICTR), Justice Dennis Byron, has granted an application to hear a motion of genocide acquitted former Rwandan Transport and Communications minister, Andre Ntagerura, who seeks relocation to Canada.

The former minister had asked the ICTR last November to order Canada to grant him asylum, stressing that it had systematically ignored the request for more than three years made by the tribunal’s administration.

The decision was posted Wednesday on the tribunal’s official website. The date for hearing has yet to be fixed.

Ntagerura had also requested the ICTR president to refer to the Security Council the Canadian authorities refusal to co-operate on the matter [relocation], but the argument was rejected.

If accurately reported — I can’t find the decision on the ICTR website — Justice Byron’s decision is rather surprising. Although Article 28 of the ICTR Statute requires states to “comply without undue delay with any request for assistance or an order issued by a Trial Chamber,” I find it very unlikely that the ICTR would actually order a state to grant Ntagerura asylum. I sympathize with his plight, and have strongly criticized states’ reluctance to even consider acquittees’ asylum requests, but I don’t think states should — or can — be forced to take them. What does seem fair is precisely what Justice Byron refused to do: refer Canada to the Security Council, which imposed on states the duty to cooperate with the ICTR in the first place.

We’ll see what happens. Readers who are interested in these issues might want to check out my essay “What Happens to the Acquitted,” which will appear in the Leiden Journal of International Law in the next couple of months. It’s available on SSRN here.

ADDENDUM: Peter Robinson, one of the leading defense attorneys at the ICTY and ICTR, has used my article as part of his efforts to convince the ICTR to amend Article 99 of the ICTR Statute to include the following paragraph:

(C) Upon application by an acquitted person, the President may request a State, pursuant to Article 28 of the Statute, to allow such a person to reside within its territory. The President may report a State which fails to comply with such a request to the United Nations Security Council pursuant to Rule 7 bis.

Neither Peter nor I are optimistic that his efforts will succeed, but it’s still gratifying to have some impact, however minor, on the practice of international criminal law!

http://opiniojuris.org/2008/04/20/ictr-to-hear-ntageruras-motion-to-order-canada-to-grant-him-asylum/

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