Arusha, April 1st, 2000 (FH) - Appeals Court judges of the International Criminal Tribunal for Rwanda (ICTR) have reversed their earlier decision to free a top genocide suspect on procedural grounds, but stressed their decision was not influenced by political considerations. The Appeals Court's November 3rd decision ordering the release of Jean-Bosco Barayagwiza provoked an angry reaction from the government of Rwanda, which suspended cooperation with the ICTR.

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Prosecutor Carla del Ponte then filed for a review of the decision, on the grounds that she had "new facts". In a unanimous March 31st decision, the Court accepted a certain number of these new facts, which it said rendered the sanction on the Prosecutor (release of the suspect, with no possibility for the ICTR to rearrest him) disproportionate. However, the five judges also went to considerable lengths to stress that they had not been influenced by political considerations. "The Chamber wants to stress that the Tribunal is an independent judicial organ, whose decisions are based entirely on justice and the law," says the decision, "and that if any government decided, for one reason or another, not to cooperate with the Tribunal, the Tribunal would seize the Security Council of the matter. "Two of the judges issued declarations expanding on the point. Judge Rafael Nieto-Navia of Colombia begins with a reference to the words of Prosecutor Del Ponte at the Appeals Court hearing of February 22nd, when she said:"Whether we want it or not, we must come to terms with the fact that our ability to continue with our prosecution and investigations depend on the government of Rwanda. [. . . ] Either Barayagwiza can be tried by this Tribunal, [. . . ] or the only other solution that you have is for Barayagwiza to be handed over to the state of Rwanda, to his natural judge [. . . ]. Otherwise [. . . ] we can as well put the key to that door, close the door and then open that of the prison. ""I refute most strenuously," says Judge Nieto Navia, "the suggestion that in reaching decisions, political considerations should play a persuasive or governing role, in order to assuage States and ensure co-operation to achieve the long-term goals of the Tribunal. On the contrary, in no circumstances would such considerations cause the Tribunal to compromise its judicial independence and integrity. This is a Tribunal whose decisions must be taken, solely with the intention of both implementing the law and guaranteeing justice to the case before it, not as a result of political pressure and threats by an angry government. "Nieto Navia's declaration is backed by that of Judge Lal Chand Vohrah, while Judge Mohamed Shahabudeen also addresses the issue as part of a lengthy "Separate Opinion". He compares the public and media interest in this case to the second time that the extradition case of ex-Chilean dictator Augusto Pinochet went to Britain's House of Lords. "Here too there has been interest worldwide, " Shahabudeen says, "including a well-publicized suspension by Rwanda of cooperation between it and the Tribunal. On the one hand, the appellant has asked the Appeals Chamber to 'disregard. . . the sharp political and media reaction to the decision [of November 3rd], particularly emanating from the Government of Rwanda'. On the other hand, the Prosecutor has laid stress on the necessity for securing the cooperation of Rwanda, on the seriousness of the alleged crimes and on the interest of the international community in prosecuting them. "These positions have to be reconciled," Shahabudeen continues. "How? This way: the sense of the international community has to be respectfully considered by an international court which does not dwell in the clouds; but that sense has to be collected in the whole. The interest of the international community in organising prosecutions is only half of its interest. The other half is this: such prosecutions are regarded by the international community as also designed to promote reconciliation and the restoration and maintenance of peace, but this is possible only if the proceedings are seen as transparently conforming to internationally recognized tenets of justice. The Tribunal is penal; it is not simply punitive. "JC/FH (BR%0401f. doc)