Arusha, November 22nd, '99 (FH) - The Chief Prosecutor of the International Criminal Tribunal for Rwanda (ICTR) is to ask for a review of a controversial Appeal Court decision that caused Rwanda to suspend relations with the ICTR. 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.

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The release order was "with prejudice to the prosecutor", meaning that the ICTR cannot rearrest Barayagwiza. Prosecutor Carla del Ponte says she plans to file for a review on the basis of new facts. In a notice dated November 19th, she said the ICTR's Rules of Procedure and Evidence allow for this. If it is found that these facts could have been a decisive, then she says the Appeal Court is required to "review the judgement, hold a hearing between the parties and pronounce a further judgement". Del Ponte points out that there was no oral hearing for the decision. She also says "the Prosecutor has no objection to the Republic of Rwanda being granted leave to appear as amicus curiae" (friend of the court). The Arusha-based magazine Ubutabera reported on Monday that the Rwandan government has 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. In a November 19th document, Rwanda also said that if Barayagwiza were sent to Rwanda, it would guarantee he would not be sentenced to death, even if found guilty. The document was signed by the prosecutor general of the Rwandan Supreme Court, Gerald Gahima. Gahima subsequently refused to talk to Hirondelle. Despite the Prosecutor's latest move, Rwanda has said it will not grant her a visa to visit her office in Kigali. Del Ponte has expressed concern at the Appeal Court decision and said she would visit Kigali this month to examine the circumstances. "Where lessons are to be learned, I will take appropriate measures," she said earlier this month, "and will do all I can to ensure that the Prosecutions of other cases are conducted with proper dispatch in future. "Rwanda's special representative to the ICTR, Martin Ngoga, said what Rwanda wanted was "not a series of meetings and consultations, but justice for our people". He said the visa refusal was part of the decision to suspend cooperation with the Tribunal and that Del Ponte's visit was not necessary. "The basis of the motion is that she already knows what went wrong, without coming to Kigali," he said, in a telephone interview from Rwanda. "This is not the right time for the Prosecutor to come," he told Hirondelle. Ngoga said the government was also considering preventing witnesses from Rwanda coming to testify at the ICTR. He has so far refused to take up his new post in Arusha, until the Barayagwiza issue is "resolved". Paul Risley, spokesman for Carla del Ponte, told Hirondelle from the Hague that the Prosecutor was still hoping to go to Kigali next week. She is due to arrive at the ICTR in Arusha on Tuesday. "She is a diplomat of the UN and her offices are located in Kigali," he said. "I'd like to stress that the Rwandan government has a Memorandum of Understanding with the UN, allowing UN personnel freedom of movement within the country. "Risley said that Del Ponte was hoping not only to be able to go to Rwanda, but also to meet with Rwandan officials. So far they have said they will not receive her. "It is a clear priority to resolve this issue," Risley told Hirondelle. "The Prosecutor's visit is also important because she is new to this job. This would be her first visit to Rwanda. " Del Ponte was oppointed to her post on September 15th. JC/FH (BR§1121e)