219. The Appeals Chamber notes that the Statute and Rules of the Tribunal are silent with regard to the manner and method in which an arrest of a suspect is to be effected by a cooperating State under Rule 40 of the Rules at the urgent request of the Prosecution. For example, no mention is made of ensuring the suspect’s right to be promptly informed of the reasons for his or her arrest or the right to be promptly brought before a Judge.[1] It is for the requested State to decide how to implement its obligations under international law.[2]

220. The Appeals Chamber finds that under Rule 40 of the Rules, the Prosecution and Benin had overlapping responsibilities during the first period of the Appellant’s arrest and detention in Benin. This flows from the rationale that the international division of labour in prosecuting crimes must not be to the detriment of the apprehended person. Under the prosecutorial duty of due diligence, the Prosecution is required to ensure that, once it initiates a case, “the case proceeds to trial in a way that respects the rights of the accused.”[3] With regard to the responsibility of the Benin authorities, the Appeals Chamber is mindful of the fact that a cooperating State, when effecting an urgent arrest and detention pursuant to the Prosecution’s request under Rule 40 of the Rules, must strike a balance between two different obligations under international law. First, the State is required under Security Council Resolution 955 and Article 28 of the Tribunal’s Statute to comply fully without undue delay with any requests for assistance from the Tribunal in fulfilling the weighty task of investigating and prosecuting persons accused of committing serious violations of international humanitarian law. On the other hand, the cooperating State still remains under its obligation to respect the human rights of the suspect as protected in customary international law, in the international treaties to which it has acceded,[4] as well as in its own national legislation.

221. Therefore, a shared burden exists with regard to safeguarding the suspect’s fundamental rights in international cooperation on criminal matters. A Judge of the requested State is called upon to communicate to the detainee the request for surrender (or extradition) and make him or her familiar with any charge, to verify the suspect’s identity, to examine any obvious challenges to the case, to inquire into the medical condition of the suspect, and to notify a person enjoying the confidence of the detainee[5] and consular officers.[6] It is, however, not the task of that Judge to inquire into the merits of the case. He or she would not know the reasons for the detention in the absence of a provisional or final arrest warrant issued by the requesting State or the Tribunal. This responsibility is vested with the judiciary of the requesting State, or in this case, a Judge of the Tribunal, as they bear principal responsibility for the deprivation of liberty of the person they requested to be surrendered.

222. Accordingly, the Prosecution is under a two-pronged duty. The request to the authorities of the cooperating State has to include a notification to the judiciary, or at least, by way of the Tribunal’s primacy, a clause reminding the national authorities to promptly bring the suspect before a domestic Judge in order to ensure that the apprehended person’s rights are safeguarded by a Judge of the requested State as outlined above. In addition, the Prosecution must notify the Tribunal in order to enable a Judge to furnish the cooperating State with a provisional arrest warrant and transfer order.

223. In this context, the Appeals Chamber recalls the words of Judge Vohrah, which, although made in relation to the status of an accused, apply to suspects as well:

if an accused is arrested or detained by a state at the request or under the authority of the Tribunal even though the accused is not yet within the actual custody of the Tribunal, the Tribunal has a responsibility to provide whatever relief is available to it to attempt to reduce any violations as much as possible.[7]

231. […] [T]he Appeals Chamber finds that [the Trial Chamber] erred in failing to find that his detention in Benin for a total of 85 days without charge and without being brought promptly before a Judge was clearly unlawful and was in violation of his rights under the Tribunal’s Statute and Rules as well as international human rights law. The Appeals Chamber finds that the Prosecution is responsible for these violations because it failed to make a request within a reasonable time under Rules 40 and 40bis for the Appellant’s provisional arrest and transfer to the Tribunal. Moreover, its request would have included the provisional charges, which would then have been served on the Appellant.[1] Although Rules 40 and 40bis do not explicitly state how long a suspect may permissibly remain in the provisional custody of a cooperating State pursuant to a Rule 40 request, the Appellant’s prolonged detention in Benin was unreasonable. The evidence on the record indicates that the Appellant was never informed by a Judge of the charges against him, even provisionally, until sometime between 29 August 1998 and 7 September 1998, when he was formally served with an arrest warrant and a copy of the redacted indictment against him from the Tribunal.[2] The Appeals Chamber does not accept that 85-days’ delay after a suspect’s arrest may be considered “prompt” or “immediate” within the meaning of this Tribunal’s Statute or Rules.[3] Additionally, although 90 days may be permissible for the finalizing of a formal indictment, 85 days of provisional detention without even an informal indication of the charges to be brought against the suspect is not reasonable under international human rights law, given that nothing less than an individual’s fundamental right to liberty is at issue. While it is true that the Appellant was served with the arrest warrant and redacted indictment within days of their issuance by a Judge of this Tribunal on 29 August 1998, at a minimum, the Appellant should have been informed as soon as possible after his arrest on 5 June 1998 of any reliable information possessed by the Prosecution with regard to why he was considered a suspect and as to any provisional charges against him.[4] The Appeals Chamber considers that the Prosecution was able to directly request the Benin authorities to do so on its behalf, given that it stated that when it sent its request letter of 6 June 1998 to the Benin authorities, it had compelling and consistent evidence of the Appellant’s participation in the commission of crimes in Rwanda.[5]

232. Furthermore, the Appeals Chamber finds that as a result of the Prosecution’s failure to make a Rule 40bis transfer and provisional detention request within a reasonable period of time, the Appellant was not promptly brought before a Judge, either of this Tribunal or in Benin during the first period of his detention of 95 days. The Appeals Chamber notes that there are important purposes underlying the right to be promptly brought before a Judge in the requested State, inter alia: to allow for the suspect to be informed of the provisional charges against him or her; to ascertain the identity of the detained suspect;[6] to ensure that the suspect’s rights are being respected while in detention; and to give the suspect an opportunity to voice any complaints. The Appeals Chamber considers that this violation of the Appellant’s right is not solely attributable to the Prosecution. The Appeals Chamber notes in this context that the Benin Constitutional Court found, in response to a motion filed by the Appellant before it on 24 August 1998, that his detention from 5 June 1998 to 7 September 1998 by the Benin Director of Police and the Benin General Public Prosecutor Office, was in violation of the Constitution of Benin.[7] Nevertheless, although the violation is not solely attributable to the Tribunal, it has to be recalled that it was the Prosecution, thus an organ of the Tribunal, which was the requesting institution responsible for triggering the Appellant’s apprehension, arrest and detention in Benin.

233. The Appeals Chamber emphasizes that “it is important that Rule 40 and Rule 40bis be read together” and restrictively interpreted.[8] The purpose of Rule 40 and Rule 40bis is to place time limits on the provisional detention of a suspect prior to issuance of an indictment[9] and to ensure that certain rights of the suspect are respected during that time. The Appeals Chamber considers that it is not acceptable for the Prosecution, acting alone under Rule 40, to get around those time limits or the Tribunal’s responsibility to ensure the rights of the suspect in provisional detention upon transfer to the Tribunal’s custody under Rules 40 and 40bis, by using its power under Rule 40 to keep a suspect under detention in a cooperating State.[10] The Appeals Chamber notes the Prosecution’s submission, made at the Appeal Hearing, that the 95-days’ delay in the Appellant’s transfer to the custody of this Tribunal was due to the fact that the period in which the Appellant was arrested was an extremely busy one for the Prosecution with numerous ongoing investigations against dozens of suspects and numerous indictments being drafted simultaneously.[11] While the Appeals Chamber is sympathetic to the workload carried by the Prosecution at that time, in no way does this fact justify the Appellant’s arbitrary provisional detention in Benin without charge for 85 days, and detention in Benin without appearance before a Judge for a total of 95 days.

251. […] the Appeals Chamber concludes that […] the Appellant was arbitrarily detained in Benin for 85 days without an arrest warrant and a transfer order from the Tribunal being submitted to the Benin authorities by the Prosecution within a reasonable time and without being promptly informed of the charges against him in violation of Rule 40 of the Rules and Articles 9(2) and 14(3)(a) of the ICCPR. Finally, the Appellant was detained in Benin for a total of 95 days without being brought before a Judge or an official acting in a judicial capacity in clear violation of Article 9 of the ICCPR.

See paragraphs 46-47, 53-54, 61-63 of the decision.

See also paragraphs 48-51, 55-57, 64, 67 of the decision.

[RULE 40 bis OF THE ICTR STATUTE WAS AMENDED ON 26 JUNE 2000 AND 30 MAY 2001]

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