By RUGEMINTWAZA Erasme
The case of 8 Rwandans acquitted or released by the International Criminal Tribunal for Rwanda (ICTR) and relocated to Niger continues to generate in interesting occupation for media houses. A matter of international law which turns into a political joust, and thus creates an arm wrestling between the UN and the Government of Niger. Under the pretext of diplomatic reasons, the Government of Niger decided to break with the Relocation Agreement of 8 Rwandans that it signed with the UN only a few weeks earlier and decreed the expulsion order. Now the UN, for the second time, is calling for respect for the agreement but Niger seems stubborn and is silent, it seems rather jealously holding tightly to its decision to expel these 8 people who are crying out for, their rights violated. What about the situation?
General recontextualization of the case
On November 15, 2021, the UN and the Republic of Niger signed an agreement relating to “The resettlement of persons released or acquitted by the International Criminal Tribunal For Rwanda (ICTR) or the International Mechanism called to exercise the residual functions of the Criminal Courts”, henceforth “Mechanism”.
Article 1 of the this agreement stipulates, in paragraph 2: “This Agreement reacts to the procedure relating to the resettlement of the following released or acquitted persons on the territory of the Republic of Niger:
1) Jérôme-Clément Bicamumpaka
2) Prosper Mugiraneza
3) Tharcisse Muvunyi
4) Anatole Nsengiyumva
5) André Ntagerura
7) François Nzuwonemeye
8) Innocent Sagahutu
9) Protais Zigiranyirazo “.
These 9 people with the exception of JC Bicamumpaka who remained in Arusha for health reasons, landed on the soil of Niger on 12/06/2021 and received Residence permits from the Government of Niger, as permanent resident, in accordance with the Agreement.
But a week after their arrival in Niger, the Rwandan Government, through its Permanent Representative to the UN, Ms. Valentine Rugwabiza, just on 12/13/2021, raised the issue of the transfer of these Rwandans to the UN Security Council alleging that her country was not informed.
Through intense and subtle activity, Kigali with the help of France obtained the Order for the expulsion of these Rwandans from the territory of Niger . The order of the Ministry of the Interior and Decentralization of Niger of December 27, 2021, just three weeks in the country, expelled the 8 Rwandans duly relocated in Niger. It was the astonishment of the whole world especially that the reasons,-very honest-, invoked by Niger do not appear in the Agreement: Diplomatic reasons!
The UN Charter of October 24, 1945 as well as and the Universal Declaration of Human Rights of December 10, 1948 are tools or better still instruments for guaranteeing human rights. However, what Niger has done not only violates the Agreement it signed but also is in deep contradiction with the spirit of the UN: to guarantee human rights. It is for this reason that the UN Courts quickly seized the case to try to put in order the turmoil or the chaos created by the Nigerian Order of expulsion of 8 Rwandans.
First Order to stay the Expulsion Order
After a series of legal formalities, on December 31, 2021, an order was issued by Judge Joseph E. Chiondo Masancha ordering Niger to suspend the expulsion.
In quality of Duty Judge in Arusha, Joseph E. Chiondo Masanche, in full power conferred on him by the Presiding Judge, ordered the Nigerian Government to suspend the expulsion of these 8 Rwandans for a period of 30 working days.
Here is the content:
“ORDER TO THE REPUBLIC OF NIGER TO STAY THE EXPULSION ORDER OF RELOCATED PERSONS AND ORDER FOR SUBMISSIONS
IN THE MATTER OF
FRANÇOIS-XAVIER NZUWONEMEYE PROSPER MUGIRANEZA PROTAIS ZIGIRANYIRAZO ANATOLE NSENGIYUMVA ALPHONSE NTEZIRYAYO ANDRÉ NTAGERURA
HEREBY INSTRUCT the Registry to serve the present Order on Niger;
INVITE the Government of Niger to provide, within 30 days of service of the present Order,written submissions regarding the validity of the Expulsion Order and its compliance with theRelocation Agreement;
ORDER Niger to stay the Expulsion Order and to allow the Relocated Persons to remain on its territory, in accordance with the terms of the Relocation Agreement, pending the final adjudicationof this matter;
INSTRUCT the Registry to serve the present Order on all the Relocated Persons, includingMuvunyi and Sagahutu, and on all counsel recognised as currently representing them;
INSTRUCT the Registrar to file submissions, within 30 days of the present Order; and
REMAIN SEISED of the matter.”
To this order of Judge Joseph E. Chiondo Massancha, Niger gave a verbal response, on January 04, 2022, accepting the 30 days while forgetting the major question which brought these 8 people on its soil: the search for permanent asylum and not the prison. However, the current situation has transformed these 8 once again into undocumented migrants but worse into prisoners, because they do not leave their residences which under surveillance by the arch-armed security forces.
The context for this second order
The 8 Rwandans in distress then graciously resorted to the “Mechanism” to claim their violated rights.
Thus, according to the requests of these Rwandans, received in good and due form, the Duty Judge in Arusha, Joseph E. Chiondo Masanche, in full power conferred on him by the Presiding Judge of the Criminal Courts, Carmel Agius, and in charge of the files of these 8 people in distress, gives the second order relating to this file, to the Nigerien Government, on 01/14/2022.
Almost the entire Order follows:
“I, Joseph E. Chiondo Masanche, Judge of the International Residual Mechanism forCriminal Tribunals (“Mechanism”) and the Duty Judge seised of this matter, ‘ note the motionsfiled, respectively:
– byMr. Francois-Xavier Nzuwonemeye and Mr. Prosper Mugiraneza on29 December 2021,
– by Mr. Protais Zigiranyirazo, Mr. Anatole Nsengiyumva, Mr. AlphonseNteziryayo, and Mr. Andre Ntagerura on 30 December 2021,
– by Mr. Tharcisse Muvunyi on31 December 2021 , by Mr. Innocent Sagahutu, on 1 January 2022,
– by Nsengiyumva on4 January 2022,
– by Zigiranyirazo on 7 January 2022, and
– by Nteziryayo on 10 January 2022,2 in relation to the relocation agreement signed on 15 November 2021 between the United Nations andthe Republic of Niger (“Relocation Agreement”).
. On 27 December 2021, the authorities of Niger issued an order requiring, for diplomaticreasons, that the Relocated Persons leave the territory of Niger within seven days of notification ofthis order (“Expulsion Order”).
. On 29 December 2021, Nzuwonemeye filed a motion seeking an order from the Mechanismto Niger, pursuant to Article 28 of the Statute of the Mechanism, to permit his continued presence on the territory of Niger until the Mechanism has made arrangements for his relocation to anothersafe State or until the Expulsion Order is reversed.” Mugiraneza, Zigiranyirazo, Nsengiyumva, andNteziryayo filed motions in joinder on 29 and 30 December 2021, respectively.’
. On 30 December 2021, Ntagerura filed a confidential and ex parte motion requesting, interalia, that the Mechanism issue an order to Niger not to expel him to any country and provide himwith the necessary assistance to be relocated to a safe country or back to Tanzania or the Kingdomof the Netherlands, as host States of the Mechanism.On 30 December 2021, the President of the Mechanism, noting that the Expulsion Orderappears to be in violation of both the spirit and letter of the Relocation Agreement, instructed theRegistrar to continue to engage with Niger and to take all necessary actions to ensure that theExpulsion Order does not cause any prejudice to the fundamental rights of the Relocated Persons.’
. On 31 December 2021, I issued an order stating, inter alia, that the Expulsion Order may bein breach of the Relocation Agreement and ordering the stay of the execution of the Expulsion Order pending the final adjudication of the matter. I further invited Niger to provide within 30 days, in line with Article 11 of the Relocation Agreement, written submissions regarding thevalidity of the Expulsion Order and its compliance with the Relocation Agreement.
. On 31 December 2021 and 1 January 2022, respectively, Muvunyi and Sagahutu filedmotions requesting to be immediately evacuated from Niger and relocated to a safe country.”
. On 4 January 2022, Nsengiyumva filed a motion requesting that the States with seats on theSecurity Council be ordered, pursuant to Article 28 of the Statute, to decide on an urgent basiswhich safe State will “promptly and sustainably” relocate him to its territory.
. On 4 January 2022, the Registrar filed a confidential and ex parte submission indicating thathe was informed, by a note verbale dated 4 January 2022, that the Government of Niger has decidedto grant an additional 30 days to the Relocated Persons to leave the territory of Niger in order toallow the Mechanism to find another relocation country.
. On 7 January 2022, Zigiranyirazo filed a motion, wherein he submits that his fundamentalrights have been violated and requests that the Relocation Agreement applies fully pending finaladjudication, 18 and in particular that: (i) Niger cease his detention , restore seized identitydocuments, and ensure his freedom of movement;” (ii) Niger provide a written commitment that itwill respect the Order of 31 December 2021;20 and (iii) the Registrar or his representative travel toNiger immediately and remain present until final resolution of the matter.” Nteziryayo filed amotion in joinder on 10 January 2022 stressing, amongst other, that the suspension by Niger of theExpulsion Order for a period of 30 days does not equate to a stay until final adjudication of thismatter, in the sense of the Order of 31 December 2021.23II.
. Article 28 of the Statute mandates that States shall cooperate with the Mechanism andcomply without undue delay with any order issued by a Judge or Chamber. Security CouncilResolution 1966, adopted under Chapter VII of the United Nations Charter on 22 December 2010,requires that all States comply with such orders” and the United Nations Security Council has onseveral occasions called upon all States to cooperate with and render all necessary assistance to the Mechanism in relation to the relocation of acquitted and released persons. The Mechanism furtherhas a duty to ensure the welfare of the acquitted persons and to enquire whether their life or libertywould be at risk upon relocation.” I am therefore properly seised of the matter before me.
. As a preliminary matter, I recall that, in my Order of 31 December 2021, I ordered Niger,pursuant to Article 28 of the Statute and Rule 55 of the Rules of Procedure and Evidence (“Rules”),to stay the execution of the Expulsion Order and to allow the Relocated Persons to remain on theterritory of Niger in accordance with the terms of the Relocation AgreementI’ which entered intoforce on 15 November 2021. I emphasize that such order to stay the Expulsion Order shall apply until final adjudication of the dispute concerning the compliance of Niger with the binding Relocation Agreement’ and shall not be limited to a period of 30 days to allow the Mechanism tofind another host country for the Relocated Persons, as suggested in the note verbale received fromNiger on 4 January 2022.
A. Residence and Freedom of Movement in Niger
. The Relocated Persons, who received residence permits upon arrival in Niger, reportedlyhad their identity documents confiscated by the authorities of Niger and have been placed uponhouse arrest, with armed guards posted outside their residence, since at least 27 December 2021. Ntagerura, Zigiranyirazo, and Nteziryayo submit that this constitutes violations of the RelocationAgreement and request that the Mechanism urgently intervenes to ensure that Niger respects its obligations. Zigiranyirazo and Nteziryayo further submit that the Registrar, being responsible forthe resolution of the present dispute and for the respect of the Order of 31 December 2021, should travel to Niger or send a representative to actively protect their rights.
.The Relocation Agreement entered into force on 15 November 2021 and sets out thegeneral conditions under which the relocation of the released or acquitted persons, whom Niger hasaccepted on its territory, shall be executed.” The Relocation Agreement notably provides that Nigershall grant the Relocated Persons permanent residence status and other relevant associatedidentification documents within three months of their relocation” It further provides that Nigershall take all necessary measures to ensure the efficient execution of the Relocation Agreement.’ that the parties shall designate focal points for its practical implementation-” and that any dispute,controversy, or claim shall be settled by negotiation or a mutually agreed mode of settlement.’
. I reiterate that Niger shall continue to execute and apply all dispositions of the Relocation Agreement, in full compliance with their letter and spirit, and to ensure the safety and welfare of the Relocated Persons pending final adjudication of the matter,” In particular, Niger should ensure thatthe Relocated Persons have their identification documents returned and enjoy freedom of movementon its territory, in accordance with Article 5 of the Relocation Agreement, until this dispute isresolved.
. The Registrar shall also continue to actively engage with the authorities of Niger to ensurethe respect of the fundamental rights of the Relocated Persons, as ordered by the President of the Mechanism,” including in relation to their freedom of movement onto the territory of Niger and tothe provision of identification documents. This may, if needed, require the presence of a United Nations official on the ground to assist and be a liaison for the Relocated Persons during thisdispute. The Registrar should designate a contact on the ground in Niger or if appropriate at the Arusha Branch for the Relocated Persons to contact in case of an emergency. This order may berevisited to issue a mandate of a presence in Niger if necessary.
B. Requests for Immediate Evacuation and Relocation
. Ntagerura, Sagahutu, Muvunyi, and Nsengiyumva further request to be immediatelyevacuated from Niger andlor relocated to another safe country or a country of their choice.f Asrecalled above, the Expulsion Order has been stayed and the Relocated Persons shall be entitled toremain on the territory of Niger pending the final adjudication of the matter, in accordance with theterms of the Relocation Agreement” and in full compliance with their letter and spirit. In view of its obligations to the United Nations Security Council, I do not find it necessary to order Niger to provide written guarantees .
. Accordingly, I find that there is no basis, at this stage, to order the immediate evacuation ofthe Relocated Persons from Niger and/or their relocation to another country. Likewise, I do not find it necessary to address contentions regarding potential violations of Article 7(1) of the Statute and Article 7 of the Relocation Agreement, according to which the Relocated Persons shall not beextradited in breach of the non his in idem principle.
. I therefore dismiss these requests as premature, without prejudice.
For the foregoing reasons, pursuant to Article 28 of the Statute and Rule 55 of the Rules, I hereby:
REITERATE that the order to stay the Expulsion Order should apply until final adjudication of thedispute concerning Niger’s compliance with the Relocation Agreement;
FIND that Niger should adhere to the rule of law in relation to the Relocated Persons and ensuretheir fundamental human rights;
ORDER Niger to continue to execute and apply all dispositions of the Relocation Agreement, infull compliance with their letter and spirit, and to ensure the safety and welfare of the RelocatedPersons pending final adjudication of the matter;
ORDER Niger to ensure that the Relocated Persons have their identification documents returnedand enjoy freedom of movement on its territory, in accordance with Article 5 of the RelocationAgreement, pending final adjudication of the matter;
INSTRUCT the Registrar to continue to actively engage with the authorities of Niger to ensure therespect of the fundamental rights of the Relocated Persons, including in relation to their freedom ofmovement onto the territory of Niger and to the provision of identification documents;
AWAIT Niger’s submissions on the expulsion of the Relocated Persons;
DISMISS the requests for immediate evacuation and relocation as premature, without prejudice;and
REMAIN SEISED of the matter.
Very briefly, we can say that the case of these 8 former Rwandan dignitaries of the regime overthrown by the RPF-Inkotanyi, former tenants of the “Secure Residence” in Arusha, is complicated between the UN and Niger. But it is clearly visible that behind Niger’s groping, there is a secret strong hand that holds the sword of Damocles. Because the diplomatic reasons evoked are only worse maneuvers and pernicious “diplomatic” tricks! The UN, as the guarantor of human rights, must stand up and make justice prevail. Fortunately, everything is pure law, and the task should of course be easy for the UN. Let’s wait!