Seven Rwandan nationals placed under unlawful house arrest in Niger for over 19 months now are facing extended uncertainty and potentially dire conditions after the International Residual Mechanism for Criminal Tribunals (IRMCT) president, Graciela Gatti Santana, dismissed their transfer request.
The detainees were among the individuals tried, acquitted and or released by the International Criminal Tribunal for Rwanda (ICTR) between 2004 and 2014 for their alleged involvement in the 1994 Rwandan genocide. They were moved to Niger from the Tanzania-based United Nations IRMCT, the successor institution to the ICTR and the International Criminal Tribunal for the former Yugoslavia (ICTY), supposedly to live freely and permanently.
After their arrival in Niger, however, they were subjected to unlawful house arrest, denied access to basic services, and the Nigerien government has refused to end their illegal detention. On July 3, 2023, Major François-Xavier Nzuwonemeye, 67; joined by Alphonse Nteziryayo, 75; and Prosper Mugiraneza, 66, filed a request for a temporary transfer to The Netherlands. This request was based on a recent decision by the IRMCT president, Judge Graciela Gatti Santana in the Milan Lukic case.
Lukic, a former Bosnian Serb paramilitary leader who was convicted by ICTY for crimes against humanity and war crimes committed during the Bosnian war, had requested a transfer from Estonia, where he is serving his ICTY sentence.
But in her decision issued on 20 June 2023, Judge Gatti Santana denied Lukic’s request stating that; “A request for transfer will only be granted where allegations of basic human rights violations are made that are of the most serious nature, and where it has been found that there is a direct and continuing threat to the rights of the convicted person which cannot be cured through co-ordination with the relevant authorities.”
This decision, ironically, presented the Rwandan detainees with new grounds for transfer, distinct from their earlier transfer pursuits. They invoked the new criteria set by the IRMCT president in Lukic’s case and highlighted the urgency of their situation and the dire consequences of their extended, unjust detention, even after being acquitted. However, their hopes were dashed as Judge Gatti Santana dismissed their plea, citing a lack of a clear legal basis for the transfer.
“Nzuwonemeye fails to identify a legal basis upon which the Mechanism could order the transfer of the Relocated Persons to the Netherlands,” said Judge Gatti Santana.
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This decision has escalated concerns about the detainees’ living conditions and the ongoing infringement of their rights during their extended stay. While the IRMCT emphasised the complexity of the legal landscape and the importance of adhering to established agreements and regulations, the plight of the detainees is hard to ignore.
Since their relocation from Tanzania in December 2021, the detainees have faced considerable hardships which have stripped them of their liberty and their mental and physical health.
Tragically, Tharcisse Muvunyi, one of the detainees whose transfer was pending, passed away on June 10. Mr Muvunyi had appealed through his lawyer for urgent medical assistance and requested to be flown to the United Kingdom (UK) for treatment. Reports show that the lawyer never got a response from IRMCT.
Mr Muvunyi is not alone. In a joinder to Major Nzuwonemeye’s request for transfer, Kate Gibson, Mr Mugiraneza’s legal representative highlighted the deteriorating conditions her client and others face in detention, emphasising the physical and mental toll it is taking on them.
“Mr Mugiraneza’s situation in detention in Niger can no longer be characterised as static. Rather, it is worsening. The consequences of the ongoing illegal deprivation of Mr Mugiraneza’s liberty on his physical and mental wellbeing, have become even more pronounced,” said Ms Gibson about the detainee’s withdrawal of medical aid and his inability to get any form of physical exercise.
Since diplomatic channels have proven ineffective in securing their release, the lawyers emphasise that co-ordination with the relevant authorities in Niger alone cannot resolve the violations of their rights. The IRMCT has repeatedly ordered Niger to release them, but the government has ignored or defied these orders.
Throughout 2022, the detainees’ and their lawyers filed a series of legal motions and appeals in their desperate attempt to secure their release. Yet, their pleas met with mixed responses, leading to complex legal proceedings. By May 27, 2022, the Appeals Chamber acknowledged jurisdiction limitations in matters related to the relocation of acquitted individuals.
Citing instances where transfers were considered necessary for the safety of individuals or due to unenforceable sentences, the lawyers had hoped that the IRMCT president would extend the same approach to the Rwandan nationals. Transferring them temporarily to a neutral location, such as The Netherlands, could’ve provided respite from their unlawful detention, which goes in line with the “obligation of the Mechanism to protect the human rights of those to whom it owes a duty of care.”
It is important to note that the distinction between relocation and enforcement agreements bears no significance concerning the Mechanism’s obligation to safeguard the rights of those under its care. Major Nzuwonemeye and the other detainees, despite being placed in Niger through a Relocation Agreement, are still entitled to the Mechanism’s ongoing duty of care, which also extends to all detainees, irrespective of the agreement’s nature or purpose.
Nevertheless, the IRMCT president says that Major Nzuwonemeye’s request rests on the Mechanism’s supervisory role in enforcing sentences from the ICTR, the International Criminal Tribunal for the former Yugoslavia, and the Mechanism itself.
Consequently, Judge Gatti Santina added that, unlike traditional sentence enforcement agreements, the “Agreement between the Government of the Republic of Niger and the United Nations on the Relocation of Persons Released or Acquitted by the International Criminal Tribunal for Rwanda or the International Residual Mechanism for Criminal Tribunals” does not allow for the termination of the relocation arrangement and subsequent transfer of the relocated individuals to another jurisdiction through a judicial order. This agreement places the detainees in a unique legal position, which has complicated their prospects for transfer.
Peter Robinson, the American lawyer who represents Major Nzuwonemeye, notes that the recent coup in Niger made it even more urgent for the United Nations to find a way to resettle the men in a country where their safety and freedoms are guaranteed.
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Meanwhile, the detainees’ uncertain prospects brought on by the IRMCT president’s decision also underscores the broader issues surrounding the unique circumstances of their relocation and the absence of a clear legal framework for their transfer. The decision reflects the complex legal landscape in which the detainees find themselves, underscoring the need for careful consideration of their rights and well-being.
“My client Prosper Mugiraneza, acquitted of all charges by the ICTR, was illegally detained by the Niger authorities in December 2021. While this nightmare has been unfolding, we have explored all credible legal avenues available to us through the IRMCT framework, and this most recent decision will not deter us from using the law to try to solve this problem. The reality is, however, that the problem is a diplomatic one. What we need is a state – one state – to stand up and say that they believe my client deserves to live the remainder of his life in dignity, and with his family. A state that understands that supporting international criminal justice also means providing support to those acquitted by the international courts,” says Ms Gibson.
The eight (8) detainees were political and military officials during the 1994 Rwandan genocide. Major Nzuwonemeye, Mr Mugiraneza, Protais Zigiranyirazo, 85, and Andre Ntagerura, 78, were acquitted at the ICTR between 2004 and 2014. Mr Nteziryayo, Mr Muvunyi (deceased), Anatole Nsengiyumva, 73, and Innocent Sagahutu, 61, were convicted at the ICTR and released after serving their prison sentences.
Although their wives and children have conventional asylum or are citizens of France, Belgium, Luxembourg, The Netherlands, Canada, and Denmark, those countries have refused to allow the detainees to rejoin their families.