"We submit that the state to whose custody the Appellant should be transferred is the state of Rwanda. "Gahima was appearing before the Appeals Chamber of the ICTR in an amicus curiae (friend of the court) presentation on behalf of the Rwandan government. His arguments came at the end of a full day's hearings in which ICTR Prosecutor Carla Del Ponte asked the Appeals Court to review its controversial decision ordering Barayagwiza's release on procedural grounds. On November 3rd, the ICTR Appeals Court ordered his release on the grounds that the Prosecutor had repeatedly violated the rights of the accused during his initial detention in Cameroon and after his transfer to the ICTR prison in Arusha. It said that Barayagwiza should be sent back to Cameroon, where he was originally arrested, and that the release should be "with prejudice to the Prosecutor". This means that, if the decision is maintained, the ICTR cannot re-arrest Barayagwiza, even though he has not yet been tried. Barayagwiza was a founder of the hate radio station Radio Télévision des Mille Collines, which incited Hutus to kill Tutsis, and of the hard-line Hutu political party CDR. He was foreign policy spokesman for the Rwandan interim government that presided over the 1994 genocide. The ICTR has indicted him for genocide and crimes against humanity. Gahima argued that it would be inappropriate to send Barayagwiza back to Cameroon. "First of all, and most important, the Court of Appeal of Yaounde [. . ] has said that the Appellant cannot be tried in Cameroon because it has not yet passed legislation that criminalises the offences of which he is accused," Gahima told the Appeals Court judges. "Now you cannot be party to a decision that will ensure that he evades justice for ever. "The Rwandan Attorney-General said all the evidence pointed to the fact that Cameroon could never try the Appellant. He said Barayagwiza could perhaps be released in Tanzania, but that Tanzania's host country agreement with the ICTR also left the possibility that he could escape. "This agreement provides that if the Tribunal decides to release a person in Tanzania, Tanzania cannot arrest him for a period of 15 days. So if the Appellant was released in Tanzania, he would have a period of 15 days within which he would be free to go to a country where he would never be brought to account," he argued. Gahima said Barayagwiza should be sent to Rwanda. This, he said would uphold the intent of the international Genocide Convention. He said Rwanda had jurisdiction and had already passed legislation to try the offences of which Barayagwiza is accused. "It is very important that if the Appellant cannot be tried by this Tribunal, in spite of the Tribunal's obligation to do so, he should be handed over to our country [. . ] because it is the only country that it is appropriate to transfer him to," he told the court. Gahima said doubts had been raised about whether the accused would receive a fair trial in Rwanda, but said his government was willing to give guarantees. "We are prepared to bring the Appellant to trial without undue delay," he said. "We shall provide him with all the legal representation that he requires, we shall invite international observers to observe his trial. "We are committing ourselves to ensure that if he is tried and convicted to the death sentence, we would never carry it out," Gahima continued. "In the event that he is sentenced to a prison term, we are quite prepared to ensure that his period of arbitrary detention is reduced from the period of sentence. "Barayagwiza is classed as a "Category One" genocide suspect in Rwanda, reserved for architects and leaders of the genocide. He would normally face the death penalty upon conviction in Rwanda. The country's over-stretched judicial system is normally unable to ensure speedy trials for the inmates of the country's overcrowded prisons. Called to orderThe Appeals Court invited Gahima to speak despite the fact that it has not yet reached a decision on the Prosecutor's request. If the court accepts Del Ponte's arguments, it could allow her to re-indict Barayagwiza, and the question of release would become a moot point. Appeals Court president Judge Claude Jorda of France called Gahima to order at the beginning of his address when the Rwandan Attorney-General began to expound upon the genocide and the Appellant's role in it. Barayagwiza's defence lawyers also objected that this was inappropriate. "I think what the government of Rwanda now proposes is to excoriate Mr. Barayagwiza," said the defendant's American co-counsel David Danielson, "and then somehow to tie this into the release issue. There is no connection, and to talk about its view of what Barayagwiza did is inappropriate. The amicus was granted on a very a limited basis, and that is, if this court decides to release him, where he should be released. "Gahima agreed to stick to the point. He did, however, manage to return to Barayagwiza's role in the genocide, without interruption from the court president. "In the scheme of the Rwandan genocide, he was one of the prime architects," Gahima said. "He is an intelligent person, an educated man, a senior public servant, a former international civil servant who decided to put his abilities, his talent to a campaign designed to exterminate his fellow countrymen. "Fortunately, because the Appellant sought to propagate his heinous views by employing the media, his crimes are very well documented in Rwanda," Gahima continued. "Everyone in Rwanda knows about him. He was a man consumed with hate, he propagated this hate through the radio station, through the media, through newspapers, with catastrophic consequences. That's why we believe that it is your obligation to ensure that he never evades justice. "Lead defence counsel Carmelle Marchessault of Canada said Gahima's statements proved that Barayagwiza would never receive a fair trial in Rwanda. "He said that [. . . ] the victims were expecting that this person be not released for technical reasons. He has just proven, by so saying, that a trial would be seen as unnecessary because everyone agrees that Mr Barayagwiza has already been found guilty. [. . . ] Mr Barayagwiza, according to the prosecutor representing the government of Rwanda, is already involved in genocide crimes and will not in any manner whatsoever enjoy the presumption of innocence. "The Appeals Court judges left Tuesday night for The Hague (Netherlands), where they are normally based. No date has been given for their decision on the Barayagwiza case. Speaking after the hearing, ICTR spokesman Kingsley Moghalu nevertheless said that a quick decision was likely. "If the record of this composition of the Appeals Court is any indication, I think we can expect a decision fairly soon," he told journalists. "I would be surprised if it took more than three weeks, given their track record. "JC/FH (BR%0222g)