Arusha, November 24th, '99 (FH) - The defence counsel for top Rwandan genocide suspect Jean-Bosco Barayagwiza said on Wednesday that Prosecutor Carla Del Ponte's moves to have a controversial Appeal Court Decision reviewed were "the last kick of a dying horse" and were politically motivated, the independent news agency Hirondelle reports. Barayagwiza's Kenyan lawyer Justry Nyaberi told Hirondelle he thought Del Ponte had "no chance" of getting the November 3rd decision changed.

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Asked about the Rwandan government's request to appear as amicus curiae (friend of the court), he said "On what? The case is closed. "On November 3rd, the Appeal Court of the ICTR, based in The Hague, Netherlands, ordered the immediate release of top genocide suspect Jean-Bosco Barayagwiza, on the grounds that procedures had been repeatedly violated during his initial detention in Cameroon, and after his transfer to the ICTR prison in Arusha, Tanzania. The release order was "with prejudice to the prosecutor", meaning that the ICTR cannot rearrest Barayagwiza. The release order on Barayagwiza caused the Rwandan government to suspend cooperation with the ICTR , based in Arusha. It is also threatening to withhold a visa from Del Ponte, who arrived in Arusha on Tuesday. In a notice dated November 19th, Del Ponte said she planned to file for a review of the Appeal Court decision on the basis of "new facts". She said she had no objection to the government of Rwanda appearing as amicus curiae. Also on November 19th, Rwanda asked to present its arguments to the Appeal Court, so that the judges review their decision to have Barayagwiza returned to Cameroon, where he was originally arrested. Kigali also said that if Barayagwiza were sent to Rwanda, it would guarantee he would not be sentenced to death, even if found guilty. However, in an "Extremely Urgent Appellant's Response", dated November 22nd, the defence says "It is obvious the Prosecutor wants to reopen the matter without any legal basis". According to the ICTR Rules of Procedure and Evidence, an Appeal Court decision can only be reviewed on the basis of a new fact "which was not known to the moving party at the time of the proceedings before a Chamber and could not have been discovered through the exercise of due diligence". But the defence response says the Prosecutor's intention "is not to produce new fact [. . . ] but rather to review her arguments and to reopen the proceedings by introducing 'additional facts'". It also says that "the Chamber to which the Prosecutor directed her Notice is not the competent one". Since the decision, Judge Gabrielle Kirk MacDonald of the United States has been replaced as President of the Appeal Court by Judge Claude Jorda of France. Trying to please Rwanda?"The Appellant would like, however, to draw to the attention of the Appeals Chamber that the Prosecutor's move has a political motive. ," says the defence response. It says she is trying to "attain certain objectives even if the Decision is not reviewed or reconsidered". Among these objectives, according to the defence, is to "introduce political elements in the judicial proceedings in order to put pressure on the Appeals Chamber and please the Government of Rwanda. Such a poltical motive in a judicial matter is not tolerable by a U. N. Tribunal, which is suppoesd to protect human rights, including those of an accused person". The defence also alleges that the Prosecutor is "cooperating with Rwanda to oppose the Appeal Chamber's Decision. [. . . ] That is why she is advocating the 'Request by the Republic of Rwanda for leave to appear as Amicus Curiae'. That kind of cooperation aiming at undermining the action of the Tribunal by means of political pressure is not tolerable and should be denounced by the Appeals Chamber in strongest words". Defence counsel Nyaberi further told Hirondelle that the Rwandan government's offer to waive the death penalty if his client were sent to Rwanda was "an attempt to hoodwink us". "As soon as he got to Rwanda," Nyaberi continued, "they would say 'we have to apply the law'. And in any case, my client would never get a fair trial. All they see is the end result, not the procedure. "Barayagwiza was a founder of the hate radio Radio Télévision des Mille Collines, which incited Hutus to kill Tutsis, and of the hardline Hutu political party CDR. He was also foreign policy advisor to the Rwandan interim government that presided over the genocide. Despite the release order, Barayagwiza is still being held in the UN detention facility in Arusha. The ICTR Registry says it is awaiting a response from the government of Cameroon on whether and how it can take him back . JC/FH (BR§1124e)