¹ Technically, transfers to the Tribunal, see infra note 3, are deemed surrender, not extradition. Because the latter is the term used in other contexts and there is no substantive difference in the procedural rules applied, this case report uses the term “extradition” throughout.

² UNSC Res. 955, UN Doc. S/RES/955 (1994) (Nov. 8, 1994), reprinted in 33 ILM 1598 (1994).

³ Statute of the International Tribunal for Rwanda [Annex to UNSC Res. 955] Art. 28, §§1,2 (d) & (e), reprinted in 33 ILM 1598,1612 (1994). The Statute, after laying out the full name of the Tribunal, states that it will thereafter be referred to as the “International Tribunal for Rwanda”; in this note it is referred to simply as the “Tribunal.”

⁴ Agreement on Surrender of Persons, January 24,1995, U.S.-Int'l Trib. Rwanda, available in 1996 WL 165484.

⁵ Pub. L. No. 104–106, §1342, 110 Stat. 186, 486 (1996) (“Judicial Assistance to the International Tribunal for Yugoslavia and to the International Tribunal for Rwanda”).

⁶ 18 USC §§3181-3196.

⁷ §1342, 110 Stat, at 486.

⁸ The events in Mugonero and Bisesero, including Ntakirutimana's alleged role therein, are described in Philip Gourevrrch, We Wish to Inform You That Tomorrow We will Be Killed with Our Families 25–43 (1998). Gourevitch takes his title from a letter sent to Ntakirutimana on April 15, 1994, by a number of Tutsi pastors who had taken refuge in the Mugonero church; their prediction was correct.

⁹ 988 F.Supp. 1038 (S.D.Tex. 1997).

¹⁰ Id. at 1042.

¹² Id.

¹³ Id. at 1044.

¹⁴ Because rulings on extradition requests are viewed as akin to probable cause determinations by a judicial official, rather than a final determination by a court, they are not appealable. The government may refile a denied request; the prospective extraditee can challenge the grant of a request by a motion for habeas corpus. The habeas decision, in turn, is appealable. See generally M. Cherif Bassiouni, International Extradition: United States Law & Practice (3d ed. 1996) 737–38, 778–79.

¹⁵ In addition to his treaty and probable cause arguments, Ntakirutimana also claimed that the UN Charter did not authorize the Security Council to establish the Tribunal and that the Tribunal could not guarantee his fundamental rights. The court quickly dismissed these as “beyond the scope of habeas review.” 184 F.3d 419, 430.

¹⁶ 299 U.S. 5 (1936).

¹⁷ 184 F.3d at 424 (quoting 299 U.S. at 8).

¹⁸ Id. at 426–27 (citing Laurence H. Tribe, American Constitutional Law §§4–5 at 228–29 (2d ed. 1988); Restatement (Third) of Foreign Relations Law, §303 cmt. e (1986)).

¹⁹ 184 F.3d at 431.

²⁰ Mat 433.

²¹ Id. at 435–36.

²² Id. at 431 (capitalization in original).

²³ As the court noted, the finding “must be upheld if there is any competent evidence in the record to support it.” Id. at 427 (quoting Quinn v. Robinson, 783 F.2d 776, 791 (9th Cir. 1986)).

²⁴ Id. at 427–28.

²⁵ Id. at 428–29.

²⁶ Id. at 430.

²⁷ Id. (quoting Tang Yee-Cun v. Immundi, 686 F.Supp. 1004, 1009 (S.D.N.Y. 1987)).

²⁸ Id. at 429 n.19. Ntakirutimana had also made a series of other arguments, including the claim that the Tribunal would not protect his right to a fair trial. The court properly concluded that the rule of noninquiry barred the court (though not the executive, which has the ultimate authority in extradition proceedings) from considering the fairness of proceedings following an extradition. See, e.g., Gallina v. Fraser, 278 F.2d 77 (2d Cir. 1960).

²⁹ 184 F.3d at 430–31.

³⁰ See United States v. Alvarez-Machain, 504 U.S. 655, 666 (1992) (“nations are authorized, notwithstanding the terms of an extradition treaty, to voluntarily render an individual to the other country on terms completely outside of those provided in the Treaty”).

³¹ See Valentine v. Neidecker, 299 U.S. 5, 8–9 (1936).

³² See Neeley v. Henkel, 180 U.S. 109 (1901) (permitting extradition to Cuba, then a territory under United States military authority, pursuant to a statute and consistent with the treaty with Spain, the former colonial power); see also Kenneth J. Harris & Robert Kushen, Surrender of Fugitives to the War Crimes Tribunals for Yugoslavia and Rwanda: Squaring International Legal Obligations with the United States Constitution, 7 Crim. L.F. 561, 578 n.47 (1996) (noting extraditions from the United States to the Marshall Islands pursuant to the extradition provisions of an executive agreement, the Agreement on Extradition, Mutual Assistance in Law Enforcement Matters, and Penal Sanctions of Oct. 10, 1986, U.S.-Marshall Is. & Fed. States of Micronesia, TIAS No. 1161.).

³³ See Williams v. Rogers, 449 F.2d 513 (8th Cir. 1971), cert, denied, 405 U.S. 926 (1972). At least one United States court has also permitted extradition pursuant to a statute authorizing extradition of United States citizens, and a treaty uiat, like that in Valentine, permitted but did not require such extradition. Hilario v. United States, 854 F.Supp. 165 (E.D.N.Y. 1994).

³⁴ See 59 Stat. 1031 (1945).

³⁵ See, e.g., Edwin Borchard, Shall the Executive Agreement Replace the Treaty, 53 Yale L.J. 665 (1944); Myres S. McDougal & Asher Lans, Treaties and Congressional-Executive orPresidential Agreements: Interchangeable Instruments of National Policy, 54 Yalel J. 181 (1945) & 54 Yale L.J. 534 (1945); Edwin Borchard, Treaties and Executive Agreements - A Reply, 54 Yale L J. 616 (1945). See also Quincy Wright, The United States and International Agreements, 38 AJIL 341 (1944) (in effect, concurring with McDougal and Lans in support of the legitimacy of congressional-executive agreements).

³⁶ See, e.g., Weinberger v. Rossi, 456 U.S. 25,30 n.6 (1982) (recognizing that “the President may enter into certain binding agreements with foreign nations without complying with the formalities required by the Treaty Clause”).

³⁷ See, e.g., Restatement (Third) Foreign Relations of the United States §303 cmt. e (1987); Louis Henkin, Foreign Affairs and the Constitution (Norton ed. 1972) 175 (“it is now widely accepted that the Congressional-Executive Agreement is a complete alternative to a treaty”).

³⁸ Dames & Moore v. Regan, 453 U.S. 654, 668 (1981) (quoting Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579, 637(1952)).

³⁹ Ntakirutimana v. Reno, 184 F.3d at 435.

⁴⁰ See Bruce Ackerman & David Golove, Is nafta Constitutional? 108 Harv. L. Rev. 799 (1995); Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation, 108 Harv. L. Rev. 1221 (1995); see also Dedev F. Vagts, International Agreements, the Senate and the Constitution, 36 Colum. J. Transnat'l L. 143 (1997) (summarizing the debate).

⁴¹ Tribe, supra note 40.

⁴² Id. at 1266.

⁴³ Id. at 1267.

⁴⁴ Vagts, supra note 40, at 153.

⁴⁵ See Valentine v. United States, 299 U.S. 5, 8, 9 (1936); Grin v. Shine, 187 U.S 181, 191 (1902); Terlinden v. Ames, 184 U.S. 270, 289 (1902).

⁴⁶ See supra notes 32–33. Although each of these cases involved an unusual context for extradition, the relationship between the United States and the Tribunal is also distinctive. Moreover, the special nature of the Tribunal's jurisdiction makes it clear that Congress has the power to act under Article I, §8, cl. 10 of the U.S. Constitution, which establishes the power to “define and punish … Offences against the Law of Nations.” Arguably, such power is lacking in typical state-to-state extradition agreements, which encompass a wider range of crimes. Accordingly, such agreements would need to be approved through the Article II treaty process.

⁴⁷ Ackerman & Golove, supra note 40.

⁴⁸ Tribe, supra note 40, at 1227.

⁴⁹ See, e.g., Phillip R. Trimble & Alexander W. Koff: All Fall Down: The Treaty Power in the Clinton Administration, 16 Berkeley J. Int'l L. 55, 60–61 (1998) (criticizing Clinton administration for acceding to Senate demands to subject certain military agreements to the treaty process).

⁵⁰ Cf. Grin v. Shine, 187 U.S. 181,184 (1902) (“[i]n the construction and carrying out of [extradition] treaties the ordinary technicalities of criminal proceedings are applicable only to a limited extent. Foreign powers are not expected to be versed in the niceties of our criminal laws”).

⁵¹ That decision was discussed in newspapers throughout the United States, including a front-page story in the New York Times. The decision after refiling and the decision of the Fifth Circuit each received only about half as much press coverage. (A Wesdaw search for “Ntakirutimana” in all United States papers in the three weeks following each decision generated twenty-five, thirteen, and eleven citations, respectively.)

⁵² 988 F.Supp 1038, 1043.

⁵³ See Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v. United States, 393 U.S. 410 (1969).

⁵⁴ Illinois v. Gates, 462 U.S. 213 (1983).

⁵⁵ 2 Wayne R. LaFave, Search and Seizure §3.4 (3d ed. 1996). There is also no requirement that such citizen-witnesses be placed under oath, Collins v. Loisel, 259 U.S. 317 (1922), though the magistrate seemed to find the absence of such oaths significant. 988 F.Supp. 1038, 1043. Indeed, one wonders if the magistrate would have been so painstaking in reviewing the adequacy of statements from a dozen witnesses in a probable cause hearing involving a domestic narcotics case. His decision here may reflect his apparent isolationist concern about extradition as an incursion on United States sovereignty. See David Mclemore, Rwandan War Crimes Suspect to Remainjaikd in Laredo, Dallas Morning News (Oct. 12, 1996 at 25a) (quoting the magistrate as asking “whether we are acting here to subordinate U.S. sovereignty to the United Nations”).

⁵⁶ 988 F.Supp. 1038, 1043–44.

⁵⁷ See, e.g., Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (1963); Gourevitch, supra note 7. One need not go abroad for examples of crimes against humanity carried out by pillars of the local community. See, e.g., Stanley M. Elkins, Slavery: A Problem in American Institutional and Intellectual Life (3d ed. 1976).

⁵⁸ Cf. Extradition Act of 1984, H.R. 3347 (98th Cong. 2d Sess.). This bill would have permitted an appeal by either party of a finding of extraditability or nonextraditability, required such appeal to be heard promptly, and barred the habeas corpus route of review. Proposed §3195. See H.R. Rep. 98-998 (98th Cong. 2d Sess.). Thus, for example, there would have been one hearing in Ntakirutimana's case (before a district judge or magistrate) and one prompt appeal before the Fifth Circuit. Instead, there were four proceedings over a period of more than two years. The bill failed because of controversial provisions regarding the rule of noninquiry. See Lauren Sara Wolfe, Note, Gill & Sandhu v. Imundi: Due Process andjudicial Inquiry Into Potential Mistreatment of Extraditees By Requesting Countries, 13 Loy. L.A. Int'l. & Comp. L.J. 1009, 1011–12 (1991).

⁵⁹ Some of these complexities are probably unavoidable, such as the need for ajudicial determinadon of probable cause before extradition. Note also that although the Statute of the Tribunal and the Security Council resolution establishing it require member states to comply with requests for surrender, they recognize that such cooperation may be subject to municipal law. Security Council Resolution 955(2) calls on states to “take any measures necessary under their domestic law to implement the provisions of the present resolution and the Statute.” U.N. Doc. S/RES/955 (1994).

⁶⁰ Ahmad v. Wigen, 910 F.2d 1063, 1065 (2d Cir. 1990).

⁶¹ United States v. Doherty, 786 F.2d 491,501 (2d Or. 1986); Hooker v. Klein, 573 F.2d 1360, 1367–68 (9th Or. 1978).

⁶² See In reMackin, 668 F.2d 122, 128 (2d Cir. 1981)

⁶³ Oen Yin-Choy v. Robinson, 858 F.2d 1400, 1408 (9th Cir. 1988).