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The Rwandan government suspects the Jean-Claude Iyamuremye, a Rwandan national residing in the Netherlands, of having taken part in the 1994 Rwandan genocide as Interahamwe militia leader. He is indicted for genocide, crimes against humanity and war crimes. On 25 September 2013, Rwandan authorities issued an extradition request with the Netherlands. The accused challenged the request, arguing that war crimes were not prohibited as such in Rwandan law in 1994, and that therefore he cannot be extradited. He also alleged that Rwanda would not provide him with a fair trial; if he were to be extradited, the Netherlands would violate their obligations forthcoming from the European Convention for Human Rights (ECHR).
The Court dismisses both arguments. Since genocide was prohibited by both Rwandan and Dutch law in 1994, the double criminality requirement has already been fulfilled. And concerning fair trial rights, the Court found that it was obliged to apply a marginal test, since the Netherlands and Rwanda are both parties to the Genocide Convention and, thus, have to trust each other on fulfilling their respective treaty obligations. It ruled that extradition would not lead to a flagrant denial of a fair trial; hence the Court ruled the extradition request admissible.
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On 25 september 2013, the Rwandan government requested the Netherlands for extradition of the acused, in order to have him prosecuted in Rwanda. Hearings took place on 8 October and between 2 and 9 December 2013.
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About the extradition
Now that the extradition request has been declared admissible, the Minister of Security and Justice will have to decide whether to grant it or not, taking into account the interests of the state (both the requesting and requested state) and the individual.
After ruling the extradition request admissible, the judges issued an advisory opinion (in Dutch / French translation) on the conditions of a possible extradition to the minister of Justice. In cooperating with the accused's extradition, the minister was advised to stipulate that the Rwandan authorities take into account the time already spent in detention if the accused were to be sentenced to a prison sentence not being life imprisonment.
Considering the possibility of life imprisonment, which the accused argued to be a form of inhumane treatment contrary to Art. 3 ECHR, the judges emphasised - referring to the ECtHR's judgment in Harkins & Edwards v. United Kingdom - that this is not the case (see also Joseph M before the Dutch Supreme Court). Life imprisonment is allowed as long as it serves a reasonable goal and early release is not de iure and de facto impossible. At this moment the accused is not even sentenced yet; moreover, since he is accused of genocide, life imprisonment is not necessarily disproportional. The judges also noted that the death sentence was abolished in Rwanda in 2007, and was substituted by life imprisonment with and without special provisions. The "special provisions" mean solitary confinement, but include possibilities of early realease and pardon. The sentence without such provisions does not mention such possibilities, however; while it would seem logical that these are available for the "regular" life sentence as well, the minister is advised to ask the Rwandan authorities about the issue.
Additionally, the minister is suggested to stipulate guarantees about the safety of the accused when in Rwanda, and to closely monitor the proceedings in Rwanda after extradition. It has been reported repeatedly that fair trial rights, such as the right to remain silent and defence rights, are not always respected. Especially with a view to other, ongoing extradition requests, it was found beneficial - and advisable - to monitor these issues.
Iyamuremye's defence counsel appealed in final instance at the Supreme Court against the decision to extradite, but the Court rejected the appeal: on 17 June 2014, it ruled that the extradition could and should take place since there were no reasons not to do so, affirming the previous courts' conclusions that extradition would not violate Iyamuremye's fair trial rights (in Dutch only).
Complaint against Rwandan president Kagame
On 4 April 2014, Iyamuremye's lawyers stated that he had lodged a complaint against current Rwandan president Paul Kagame, before both Dutch and Rwandan authorties. Iyamuremye accuses Kagame of (complicity in) genocide, crimes against humanity, war crimes, torture and enforced disappearances during the Rwandan genocide (in Dutch).
Extradition of Iyamuremye to Rwanda
On 17 June 2014, the Dutch Supreme Court decided that the Netherlands is allowed to extradite Jean-Claude Iyamuremye to Rwanda. The Genocide Convention provides a sufficient legal basis for extradition as Rwanda has withdrawn a reservation to the Convention, and the extradition request offers sufficient guarantees to assure a fair trial (in Dutch).
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Legally relevant facts
In the east-African state of Rwanda, genocidal mass killings - known as the Rwandan genocide - took place in 1994, when ethnic Hutus (especially members of the Interahamwe militias) massacred ethnic Tutsis and their supporters. This led to the creation of the International Criminal Tribunal for Rwanda (ICTR) by the United Nations, in order to investigate and prosecute especially the higher-ranking and more influential perpetrators. Many perpetrators have fled the country, many of whom were arrested and extradited to either Rwanda or the ICTY in The Hague. Others were tried (or are still to be tried) by domestic courts of the countries where they tried to hide.
In the current case, the accused, who was arrested in the Netherlands, has been indicted by the Rwandan prosecution for his alleged role as Interahamwe militia leader. He is accused of committing genocide and of complicity and conspiracy thereto, of murder and extermination as crimes against humanity and of war crimes (para. 4) through, inter alia, murdering and aiding in the large-scale murdering of Tutsis at those places where they sought their refuge, such as school buildings and medical posts.
Rwanda now requests the accused's extradition. The accused challenged his extradition, stating that war crimes were not prohibited as such in Rwandan criminal law in 1994. He also challenged the constitutionality of the Dutch War Crimes Surrender Act, and argued that since his trial would be unfair, Art. 6 ECHR (the right to a fair trial) prohibits the Netherlands to extradite him.
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Core legal questions
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- Can the accused be prosecuted in Rwanda for the facts he is accused of (has the requirement of double criminality been fulfilled)?
- Is the War Crimes Surrender Act constitutional?
- Does the accused risk to be subject to an unfair trial in Rwanda?
Specific legal rules and provisions
- Articles 3 and 6 of the European Convention for Human Rights (ECHR).
- Articles II, III and VII of the Genocide Convention.
- Article 26 of the Vienna Treaty on the Law of Treaties.
- Article 3 of the Convention against Torture (CAT).
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- Articles 5 and 12 of the Dutch Extradition Act.
- Articles 1(2)(a) and 2 of the Dutch War Crimes Surrender Act.
- Article 57 of the Dutch Penal Code.
Court's holding and analysis
The accused's first objection was quickly dispatched by the Court: the fact that the accused was indicted for genocide, which was a crime in both the Netherlands and Rwanda in 1994, was already enough for approval of the extradition (para. 6.5).
With regard to the War Crimes Surrender Act, the Court noted that the Dutch constitution prohibits constitutional review of any law or treaty. It could assess whether the extradition would be in conformity with the law, though: here the Court found that the (regular) Extradition Act's requirement that any extradition should have a basis in a treaty was fulfilled now that the Genocide Convention allows for extradition of genocide suspects (para. 6.6).
The Court rejected the other argument as well. While there was no formal extradition treaty between Rwanda and the Netherlands, the fact that both states are parties to the Genocide Convention obliges them to fulfil their respective duties that come forth from the Convention in good faith. Both states have therefore to be able to rely, in principle, on each others' statements and promises. This means that the assessment whether the accused will have a fair trial in Rwanda is a marginal one; Rwanda's ensuring that his trial will be fair must be assumed valid, unless serious doubt exists as to whether promises will be held.
The Court acknowledged that there might be challenges to the accused's fair trial: defence lawyers are sometimes "negatively affected" by Rwandan society, but there is still sufficient access to professional legal assistance. Also other acknowledged challenges, such as flawed witness protection systems and difficulties with finding or hearing defence witnesses, have been recently addressed (at least partly) by the Rwandan High Court. In conclusion, the Court finds there is not enough ground to assume that the accused would suffer a flagrant violation of his fair trial rights (para. 6.8).
During the hearing the accused stated that he would risk ill-treatment (in the form of torture) in Rwanda. If this were the case, Articles 3 ECHR and 3 CAT would bar the Netherlands from extraditing him. However, the Court noted that it is only allowed to assess such violations if they had already occurred in connection with the charges. The accused had not put forward any evidence thereof; hence, the Court ruled that the argument could only be accepted if the Executive - the minister of Justice - were to find such risk of possible ill-treatment or torture to exist. It is beyond the competence of the judiciary to assess such risks on its own (para. 6.9).
The extradition request was declared admissible.
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- European Convention for the Protection of Human Rights and Fundamental Freedoms, ETS 5, 213 UNTS 222, 4 November 1950.
- Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS 227, 9 December 1948, entered into force 12 January 1951.
- Vienna Convention on the Law of Treaties, 331 UNTS 1155, 23 May 1969.
- Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, New York, 10 December 1984.
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- Dutch Extradition Act (Uitleveringswet) (in Dutch only) of 9 March 1967.
- Dutch War Crimes Surrender Act (Wet Overlevering inzake Oorlogsmisdrijven) (in Dutch only) of 19 May 1954.
- Dutch Penal Code (in Dutch only) of 3 March 1881.
Decisions on extradition of other Rwandan genocide suspects:
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- T., Supreme Court of Denmark, Case No. 105/2013, 6 November 2013.
- Ahorugeze v. Sweden, ECtHR, Case No.37075/09, 27 October 2011.
- Brown et al. v. Rwanda, UK High Court of Justice, Case No. CO/6247/2008, 8 April 2009.
- J. Nishimwe, 'Dutch Courts Grant First Extradition of Rwandan Genocide Suspect', Jambonews, 23 December 2013.
- E. Mussoni, 'Dutch Court Approves Extradition of Genocide Suspect', The New Times, 21 December 2013.
- Rwanda, Ministry of Justice, 'Netherlands to Extradite Rwandan Genocide Suspect Iyamuremye', Media Center, 2 October 2013.
- 'Rwanda Preparing Extradition Request for Fugitive Iyamuremye', Great Lakes Voices, 13 July 2013.
- Office of the Prosecutor, 'Rwandan Suspected of Genocide Placed under Arrest for Extradition', Press Releases, 1 October 2013.