SEPARATE OPINION OF JUDGE SHAHABUDDEEN
Preliminary
I agree with the Appeals Chamber that the appellant should be released and the indictment dismissed. But I do so only on the ground of delay between the time which elapsed between the appellant’s transfer to the detention unit of the Tribunal on 19 November 1997 and the time of his initial appearance before the Trial Chamber on 23 February 1998. With regard to pre-transfer delay, I am not able to support the decision of the Appeals Chamber ("Decision"). As, in these respects, matters of some importance are involved, I should like to explain my position below. But it will be convenient to say something in the first place on the branch on which I agree with the Decision.
1. Post-transfer delay
The appeal is from the Trial Chamber’s decision of 17 November 1998 on the appellant’s Urgent Motion of 24 February 1998 (dated 19 February 1998). So far as concerns delay between transfer and initial appearance, paragraphs 2 and 9 of the Urgent Motion spoke of the appellant’s "continued provisional detention". That would include the period following on transfer. This was made clear in Annexure DM2 to that motion. Under the heading "Violations of my Rights" and the subheading "Summary on detention time", this annexure stated the following: "98 days of detention after transfer and before initial appearance (19 November 97 - 23 February 98)" (emphasis as in the original).
At the time of his transfer, the appellant had already been indicted. He was then no longer a suspect and liable to be treated under the scheme of Rule 40bis of the Rules of Procedure and Evidence of the Tribunal ("Rules"); he was now an accused within the meaning of Rule 62 of the Rules. The delay of 98 days was in breach of the requirement of Rule 62 that, upon "his transfer to the Tribunal, the accused shall be brought before a Trial Chamber without delay ...".
That requirement of promptitude, which corresponds to standard international norms, was imposed by a specific provision having the force of law. That provision (Rule 62) is susceptible of the interpretation that non-compliance would result in loss of jurisdiction, on the view that jurisdiction was granted by the Statute to the Tribunal subject to defeasance for non-observance of certain fundamental principles stated or implied by the Statute, one of which was later reflected in that provision of the Rules. A different view seems to be taken in paragraph 71 of the Decision, which suggests that "delay between the transfer ... and ... initial appearance" does "not result in the Tribunal losing jurisdiction…". If jurisdiction continued, it is not easy to see how the appeal could be allowed under Rule 72(D). The appeal, under that Rule, is "in the case of dismissal of an objection based on lack of jurisdiction". The appeal invites the Appeals Chamber to uphold the objection based on lack of jurisdiction. It is difficult to appreciate how the Appeals Chamber can uphold an objection based on lack of jurisdiction if it finds that there was jurisdiction. My own respectful view is that, if there is impermissible delay, jurisdiction is lost and the Rule thereupon becomes applicable.
Matters to be taken into account in evaluating whether that consequence follows from a breach of the requirement of promptitude include the seriousness of the offences with which the accused is charged. Here the offences were serious. But the requirement of promptitude was fundamental, and its breach was also grave, the delay extending to a little over three months. On balance, I respectfully agree with the Appeals Chamber that the administration of justice by the Tribunal would suffer from proceeding with the case notwithstanding the delay.
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To be fair to the Trial Chamber, it has, however, to be pointed out that the oral arguments before it were devoted to the question of pre-transfer delay. As is shown by the transcript of the proceedings relating to the appellant’s Urgent Motion, no issue was presented as to delay between transfer and initial appearance. The Trial Chamber was not given any reason to believe that there was such an issue.
Also, apart from the fact that the point was not raised orally before the Trial Chamber, it did not form part of the grounds of appeal. Twenty-two grounds of appeal were listed by the appellant in his Memorandum of Appeal of 27 November 1998 (filed on 10 December 1998); none of these grounds referred to delay between transfer and initial appearance. That can be seen from the summary of the appellant’s arguments as presented in paragraphs 14-18 of the Decision of the Appeals Chamber, as well as from the summary of the Prosecutor’s responding arguments, as presented in paragraphs 20-28 of that Decision. It does not appear that the Prosecutor thought that she was being called upon to meet an argument about delay between transfer and initial appearance. On the contrary, and obviously without thinking that there was such an issue, the Prosecutor was relying, inter alia, on the initial appearance to "cure" any previous defect. (Decision, para. 27).
That the appellant’s appeal concerned pre-transfer delay is clear from paragraph 25 (the last paragraph) of the Defence Written Brief of 15 February 1999 (filed on 18 February 1999). There counsel for the appellant said:
" ... the upshot of our submissions is that the Appellant was unlawfully held in Cameroon for about 21 months thereby robbing the Trial Chamber II of personal jurisdiction over him. His detention prior to his transfer to the Tribunal’s detention unit was manifestly illegal and unlawful; it was long, arbitrary, tortuous and oppressive. He ought to be discharged unconditionally. Trial Chamber II’s
decision was wholly unacceptable and we urge the Appeals Chamber to quash it and set the Appellant free".
Thus, what the appellant was seeking to do in the appeal was to challenge the decision of the Trial Chamber on his claim that his arrest and detention were illegal by reason of matters occurring before his transfer. The question of delay between transfer and initial appearance was not presented to the Appeals Chamber in the appellant’s early appeal papers. The appellant has only activated the point in response to the recent query about it which was made by the Appeals Chamber on 3 June 1999.
It is also the case that the appellant is not on record as objecting to the Trial Chamber, which took his initial appearance, that there was lack of jurisdiction on the ground of delay between transfer and initial appearance. That is where the objection should naturally have been made.
Nevertheless, the delay was mentioned in the Urgent Motion, even though only clearly stated in an annexure. I consequently agree with the Appeals Chamber that the appellant is entitled to redress for it, but, in the circumstances mentioned above, I would exempt the Trial Chamber whose decision is under appeal from any significant responsibility.
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I do not, however, agree with the fourth item of the disposition in the Decision, under which the Appeals Chamber "DIRECTS the Registrar to make the necessary arrangements for the delivery of the Appellant to the Authorities of Cameroon".
That direction means that custody is extended until "delivery of the Appellant to the Authorities of Cameroon" is effected – i.e., what is extended is the very custody which the Appeals Chamber says is invalid and because of which invalidity, in item three of the disposition, it orders the "IMMEDIATE RELEASE of the Appellant". If Cameroon does not accept delivery, custody by the Tribunal is indefinitely prolonged. If Cameroon accepts delivery, at the point of time at which Cameroon does so the appellant is in the custody of Cameroon. I do not think that the fact that the delivery is to be made on the basis of "necessary arrangements" affects the matter.
If this is not a problem, it must be because it is considered that Cameroon has a duty to accept delivery of the appellant, or that, at any rate, Cameroon has some legal basis for doing so. Has it?
A possible argument is that the direction to the Registrar to make the necessary arrangements for the delivery of the appellant to the authorities of Cameroon can be supported by Cameroon’s obligation to cooperate with the Tribunal. But also possible is an opposing argument that a state’s obligation to cooperate with the Tribunal does not extend to assisting the Tribunal to correct its own errors. Whatever may be the strength of the latter argument, Cameroon can at any rate contend that, even if its duty to cooperate can be so extended, there should be reasonable limits to that duty and that those limits would be exceeded if it were to be required to accept delivery of the appellant in this case.
No doubt, Cameroon was at fault in not transferring the appellant to Arusha as speedily as it should have done in compliance with Judge Aspegren’s order of 4 March 1997. Nevertheless, with full knowledge of that, the Tribunal did later issue an indictment and arrest warrant for the appellant. Thus, the Tribunal really wanted to have the appellant transferred to Arusha. This being so, and Cameroon having eventually made the transfer, why should it be under a duty to take back the appellant from the Tribunal?
The direction in which these arguments lie finds support from another quarter. In paragraph 107 of its Decision, the Appeals Chamber relies on Rule 40bis(H) of the Rules. For the reasons mentioned below, I do not think that that Rule applied; but, on the assumption that it did, the principle of the provision may be consulted.
Rule 40bis(H) of the Rules provides that, if an indictment has not been confirmed and an arrest warrant signed within a maximum period of 90 days after transfer, "the suspect shall be released or, if appropriate, be delivered to the authorities of the State to which the request was initially made". In determining when it is "appropriate" to deliver custody of the suspect to the requested state, it is useful to bear in mind that the Rule applies where, inter alia, "the Prosecutor has requested a State to arrest the suspect and to place him in custody, in accordance with Rule 40, or the suspect is otherwise detained by a State" (Rule 40bis(B)(i)). In the present case, immediately before his transfer from Cameroon to Arusha, the appellant could not be described as "otherwise detained by" Cameroon; he was then indeed detained by Cameroon, but solely at the request of the Tribunal. That being so, Cameroon would have no independent legal basis for asserting custody over the appellant if he was returned. It is, therefore, difficult to see how it could be "appropriate" to direct the Registrar to arrange for the "delivery" of the appellant to Cameroon, with the implication that at the point of delivery the appellant reverts to the custody of Cameroon.
The Appeals Chamber considers the criterion of appropriateness by saying:
"Considering the express provisions of Rule 40bis(H), and in light of the Rwandan extradition request for the Appellant and the denial of that request by the court in Cameroon, the Appeals Chamber concludes that it is appropriate for the Appellant to be delivered to the authorities of Cameroon, the State to which the Rule 40bis request was initially made". (Decision, para. 107).
With respect, I do not appreciate how the dismissal of the extradition request justifies the conclusion "that it is appropriate for the Appellant to be delivered to the authorities of Cameroon, the State to which the Rule 40bis request was initially made". The extradition request was dismissed on 21 February 1997. The appellant was transferred to Arusha on 19 November 1997, that is to say, nine months later. Immediately before the transfer, he was being held by Cameroon but, as observed above, solely at the request of the Tribunal; Cameroon had no other basis for holding him. The Tribunal cannot now give Cameroon a basis which Cameroon does not otherwise have. Therefore it could not be "appropriate" for the Tribunal to require Cameroon to receive delivery of the Appellant from the Tribunal.
For these reasons, I should have thought that the proper order was to set the appellant at liberty and to direct the Registrar to provide him with reasonable facilities to leave Tanzania, if he so wishes.
2. The issue is whether there was lack of jurisdiction
As to the case concerning pre-transfer delay, it is useful to bear in mind that this is not an appeal from a final decision; it is an interlocutory appeal. The competence of the Appeals Chamber in a matter of this kind derives from the Rules. Rule 72(D) of the Rules provides that "[d]ecisions on preliminary motions are without interlocutory appeal, save in the case of dismissal of an objection based on lack of jurisdiction, where an appeal will lie as of right". It has not been contested that the appellant’s Urgent Motion was a preliminary motion.
The Appeals Chamber may interpret the position of an accused person in a preliminary motion before a Trial Chamber as amounting to an objection based on lack of jurisdiction. If there was such an objection, a dismissal of it would give him a right of appeal. But whether the appeal succeeds depends on whether the Appeals Chamber is satisfied not merely that such an objection was made, but also that it was sound - that is to say, that there was indeed a lack of jurisdiction in the fundamental sense which I believe is contemplated by Rule 72(D). In effect, there is, in my respectful view, a distinction between saying that an objection was based on lack of jurisdiction and saying that there was in fact a lack of jurisdiction as asserted in the objection.
In this case, on 5 February 1999 the Appeals Chamber held that there was a dismissal of "an objection based on lack of jurisdiction", so that an appeal lay as of right. What it now has to determine is whether there was in fact a "lack of jurisdiction". So, did the Trial Chamber lack jurisdiction within the meaning of Rule 72(D) of the Rules by reason of any delay occurring during the pre-transfer period? I do not think so.
I shall try to explain my reasons in relation to the appellant’s complaints concerning the furnishing of reasons for his arrest, non-compliance with the requirements of Rule 40bis of the Rules, the delay in transferring him from Cameroon to the Tribunal’s detention unit in Arusha, and the non-hearing of his habeas corpus motion.
3. The question of non-disclosure of reasons for arrest
As to the appellant’s complaint of non-disclosure of the reasons for his arrest, I agree with the Appeals Chamber’s finding "that the Appellant was informed of the charges on 10 March 1997 when the Cameroon Deputy Prosecutor showed him a copy of the Rule 40bis Order". (Decision, para. 78). What the Appeals Chamber says is that this "was approximately 11 months after he was initially detained pursuant to the first Rule 40 request" (ibid.), and that "the Appellant was detained for a total period of 11 months before he was informed of the general nature of the charges that the Prosecutor was pursuing against him". (Decision, para. 85). It would not be correct to suggest, as these statements by themselves do, that during the whole of the 11-month period the appellant was being held at the instance of the Tribunal. And, indeed, the Appeals Chamber acknowledges "that only 35 days out of the 11-month total are clearly attributable to the Tribunal". (Ibid.). Nevertheless, the larger period seems to have influenced its finding "that the abuse of process doctrine is applicable under the facts of this case", that finding being immediately followed by the statement that the "Appellant was detained for 11 months without being notified of the charges against him" (Decision, para. 86) and being preceded, in paragraph 85 of the Decision, by the statement that at "this juncture, it is irrelevant that only a small portion of that total period of provisional detention is attributable to the Tribunal ...".
The exact period attributable to the Tribunal may be unclear; it was probably 40-46 days. The total consisted of two custodial periods which were initiated by requests from the Prosecutor to Cameroon. The first period began on 17 April 1996 and ended 29 days later on 16 May 1996. The second began nine months later, on 21 February 1997. It ended either 11 days later, on 4 March 1997, when there was filed a transfer order made by Judge Aspegren on 3 March 1997 (hereinafter referred to as Judge Aspegren’s order of 4 March 1997), or, at the latest, on 10 March 1997, when a photocopy of the transfer order was shown to the appellant. During the first and longer of these two periods, and for some time both before and after it, the appellant was in fact being held by Cameroon under legal process not commenced by the Prosecutor. That does not say that the appellant was not also being held pursuant to the Prosecutor’s request, but it is a fact worth noticing.
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Even if the two periods of custody initiated by the Prosecutor (separated by a nine-month gap and totalling 40-46 days) were for any reason legally defective (as to which I express no opinion), I do not see that this circumstance by itself prevented the Trial Chamber from subsequently exercising jurisdiction pursuant to Judge Aspegren’s order of 4 March 1997. Speaking of the period of detention from 17 April 1996 to 16 May 1996, the Appeals Chamber said, "This detention – for 29 days – violated the 20-day limitation in Rule 40." (Decision, para. 52). But the Appeals Chamber did not go on to determine that that holding of invalidity as to that period of detention by itself operated to invalidate any subsequent period of detention. Accordingly, the question of non-disclosure need only be considered with respect to the period of detention covered by Judge Aspegren’s order of 4 March 1997. By comparison, it seems that the Appeals Chamber considered the question of non-disclosure in relation to the 11-month period from 17 April 1996 to 10 March 1997, holding that "the delay in informing the Appellant of the general nature of the charges between the initial Rule 40 request on 17 April 1996 and when he was actually shown a copy of the Rule 40bis Order on 10 March 1997 violated his right to be promptly informed." (Decision, para. 101). In any event, as the Appeals Chamber otherwise recognised, not all of that period could be attributed to the Tribunal. As to Judge Aspegren’s second order made on 23 October 1997 in consideration of Article 19(2) of the Statute and Rules 54 to 61 of the Rules, it is not my impression that a question of non-disclosure of reasons has been raised in connection with this.
The question, then, is whether there was undue delay between the commencement of custody after the making of Judge Aspegren’s order of 4 March 1997 and 10 March 1997 when a photocopy, or facsimile, of the order was shown to the appellant, that is to say, a period of six days. The appellant was at the time being held pursuant to the Prosecutor’s request of 21 February 1997, that request and the consequential detention being explicitly referred to in Judge Aspegren’s order of 4 March 1997. In the light of Rule 40bis(B)(i), the intent of that Rule may be understood to be that an order made under the Rule would replace any existing period of detention effected at the request of the Prosecutor not from the time the order was made but from the time when the order was put into operation: otherwise there could be a gap. Thus, after 4 March 1997 it is difficult to appreciate why there should be any question of the appellant being first held and then only being later shown a copy of the Judge’s order. So far as that order is concerned, it is reasonable to regard the appellant as being held on the date on which he was shown a copy of the order, namely, on 10 March 1997. However, assuming that there was a gap between these events, it seems to me that, in the peculiar circumstances in which the Tribunal is functioning, the jurisprudence of the European Court of Human Rights and the Human Rights Committee on the question of what period of delay is inadmissible does not require me to consider the gap as excessive.
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In parenthesis, it may be added that the appellant’s complaint was that a photocopy of the Rule 40bis order which he was shown on 10 March 1997 was not a certified copy; he was only shown a certified copy on 6 May 1997. If the photocopy was sufficient, he does not seem to be complaining of any delay in showing it to him on 10 March 1997. What would be applicable at that time would be the principle of Article 9(2) of the International Covenant on Civil and Political Rights. However, it is well understood, as I think is recognised in paragraph 82 of the Decision, that that provision (unlike Article 14(3)(a) of the Covenant) does not require communication of detailed charges or formalities; it is sufficient if the authorities give enough information (whether in writing or orally) to the arrested person of the substance of the allegation on the basis of which he was arrested so as to enable him to challenge the legality of the curtailment of his liberty on that basis, apart from also enabling him to begin the preparation of his defence. In this case, what was required was done.
Also, the appellant challenged the validity of Rule 40bis of the Rules as being in excess of the rule-making power conferred on the judges by Article 14 of the Statute. The challenge was correctly dismissed by the Trial Chamber. So too was his argument that, because of Article 19(2) of the Statute, he could only be arrested on the basis of a confirmed indictment. It is useful to mention these issues because they seemed to be connected in the appellant’s mind with his arguments about non-disclosure of reasons.
4. The provisions of Rule 40bis did not apply to pre-transfer detention
The question which the foregoing leaves is whether there were other factors which impaired the legality of what may be regarded as a third custodial period commencing with Judge Aspegren’s order of 4 March 1997 and ending with the transfer of the appellant to the detention unit of the Tribunal on 19 November 1997. The appellant says, and the Appeals Chamber agrees, that there was non-compliance with Rule 40bis of the Rules in relation to his detention in Cameroon at the instance of the Tribunal. I am not persuaded. A preliminary issue is whether the provisions of that Rule apply to pre-transfer custody.
I understand the Appeals Chamber to be taking the view that the appellant was "in the constructive custody of the Tribunal after the Rule 40bis Order was filed on 4 March 1997" (footnote omitted); on this basis, it considers that "the provisions of that Rule would apply" to the pre-transfer detention. (Decision, para. 54). With respect, to hold that "the provisions of that Rule would apply" before the transfer conflicts with the clear meaning of the Rule that the procedural guarantees which it provides begin to operate only as from the time of transfer to the detention unit of the Tribunal. This meaning of the Rule conforms with the holding of the Appeals Chamber that the "initial thirty-day period begins to run from the ‘day after the transfer of the suspect to the detention unit of the Tribunal’". (Ibid., para.50).
The text of Rule 40bis need not be reproduced here; it is set out in the Decision and may be consulted there. It is enough to say that the body of the Rule corresponds to its title, which reads, "Transfer and Provisional Detention of Suspects". The Rule is speaking to the question of the mode of authorising a transfer of a suspect to the detention unit of the Tribunal in Arusha and to the question of the conditions under which he is to be provisionally detained after his transfer to that unit; it is not addressed to the conditions applicable to pre-transfer detention. The references in Rule 40bis(F) and (G) to an extension of time being granted "subsequent to an inter partes hearing" are at least consistent with the view that the protective procedures of Rule 40bis apply only after the transfer of the suspect to Arusha. The Rule assumes that there would always be an interval between arrest in the requested state and transfer to Arusha but that the time stipulated by the Rule would nevertheless begin to run only as from transfer. That assumption is overlooked by an interpretation which says that "the provisions of that Rule would apply" to pre-transfer detention and that accordingly the time stipulated by the Rule is to begin to run from the time of arrest in the requested state and not from the time of transfer to Arusha. If time is to begin to run from the time of arrest in the requested state, it cannot also begin to run from the time of transfer to Arusha. The plain
meaning of the text that the latter should be the case will therefore stand amended by force of judicial decree. That is not possible.
The Appeals Chamber draws attention to the circumstance that "the Prosecutor has acknowledged that between 21 February 1997 and 19 November 1997, ‘there existed what could be described as joined or concurrent personal jurisdiction over the Appellant, the personal jurisdiction being shared between the Tribunal and Cameroon’". (Decision, para. 54). Jurisdiction is not necessarily custody, actual or constructive. The reality of the control exercised by Cameroon over the appellant is evidenced by the circumstance that effect to Judge Aspegren’s transfer order of 4 March 1997 was given by an order made by the President of Cameroon on 21 October 1997, whereby the President authorised the transfer ("est autorisé, le transfert ..."): in effect, without the active participation of Cameroon, there could be no transfer.
The necessity, unremarkable enough, for the active participation of the requested state is not denied by Ntakirutimana v. Attorney-General of the United States (cited in paragraph 59 of the Decision). In that case, the appellate court of the requested state ruled in favour of the transfer of an accused whose surrender had been requested by the Tribunal. There is nothing in the appellate decision which shows that a requested state does not have exclusive custody of the accused person until transfer, or that, at any point of time before that stage, it would tolerate any assertion of authority by the Tribunal over the custody of the accused.
But, even if jurisdiction were necessarily the same as custody, I do not see how that suffices to found the Appeals Chamber’s holding that "the provisions of [Rule 40bis] would apply" to the pre-transfer period of detention. (Decision, para. 54). Whether this is so or not depends on the terms of the Rule. The terms of the Rule limit its safeguards to post-transfer detention.
The maxim ut res magis valeat quam pereat may be thought supportive of the interpretation placed on Rule 40bis by the Appeals Chamber, which invokes it in paragraph 46 and footnote 127 of the Decision. However, it seems to me that the maxim, in the sense of "effective interpretation", is directed to the adoption of an interpretation which would give effect to the substantial purpose of the text; it is not directed to changing the substance of the purpose of the text. The latter is legislation, not interpretation. Here the substantial purpose of the text is to ensure release if no indictment has been filed after a maximum period of provisional detention by the Tribunal following on transfer to the detention unit of the Tribunal in Arusha. That purpose is substantially changed if the procedure prescribed by the text is made to apply also to the materially different matter of pre-transfer detention in the requested state.
Within reasonable limits, the principle of the maxim in question is a good servant, and it has of course been repeatedly used in international law; outside of reasonable limits, it is a bad master, colliding, for example, with statements to the effect that the duty of the court is to interpret and not to revise a treaty or to rewrite it or to reconstruct it. The maxim cannot be applied in a way which overlooks a distinction between the general sentiment inspiring a provision and the actual purpose of the provision. In this case, the general sentiment underlying Rule 40bis was unquestionably a concern with the liberty of a suspect; it does not follow that the specific procedure laid down by the Rule was directed to ensuring his liberty in all circumstances in which his liberty might be in question.
Judge Aspegren, correctly, did not understand Rule 40bis in the way in which the Rule has been interpreted by the Appeals Chamber, namely, that "the provisions of that Rule would apply" to pre-transfer detention. The operative provisions of his order of 4 March 1997 stated as follows:
"Orders the transfer of the suspect Jean Bosco Barayagwiza to the Tribunal’s dominion;
Orders the provisional detention of Jean Bosco Barayagwiza in the Tribunal’s
Detention Facilities for a maximum period of thirty days from the day after his transfer;
Respectfully requests the Cameroonian Government to comply with the Tribunal’s order for transfer, and to keep Jean Bosco Barayagwiza in custody until he is handed over to the Tribunal for transfer and detention under the authority of the Tribunal;
Requests the Prosecutor to submit the indictment against Jean Bosco Barayagwiza before the expiration of the said 30-day limit of the provisional detention;
Requests the Registrar of the Tribunal to notify the Cameroonian Government and to inform the Rwandan Government of this decision"
Judge Aspegren’s order visualised that the transfer would be made to the detention unit of the Tribunal in Arusha; that, pending transfer, Cameroon would hold the suspect in custody; and that, within 30 days of the transfer, the Prosecutor would submit an indictment against him. In the event, Cameroon did not make the requested transfer until 19 November 1997. It is not easy to see how this delay operated to impose a reading on Judge Aspegren’s order of 4 March 1997 so as to require the Prosecutor to submit an indictment within 30 days of the date of the order, instead of 30 days of the date of the transfer as the Judge plainly intended. The indictment was both submitted and confirmed even before the accused was transferred to the Tribunal’s detention unit and therefore even before the 30-day period specified in the Judge’s order had begun to run. By contrast, the Appeals Chamber held that the "delay in indicting the Appellant violated the 90-day rule as set forth in Rule 40bis". (Decision, para. 67). That was so only if the interpretation of the Appeals Chamber as to when time begins to run under that Rule is correct.
If a suspect is held by a requested state under a Rule 40bis order for an unreasonable time, the answer is not to square the circle and to force upon the Rule a meaning which it cannot bear, but to move before the issuing judge or a Trial Chamber for relief as suggested in the second and third of three courses mentioned in section 5 below. These courses need not rest on any theory of constructive custody. Constructive custody or no constructive custody, if the suspect is being made to suffer as a result of process issuing out of the Tribunal, the Tribunal has competence to correct the injustice by terminating the process which leads to that result. But that does not mean that "the provisions of [Rule 40bis] would apply" to pre-transfer detention.
In my view, under Rule 40bis(C) time begins to run only from the transfer of the suspect to the detention unit of the Tribunal. On that basis, the safeguard steps prescribed by the provision were not violated.
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I have considered an alternative interpretation of the Decision of the Appeals Chamber. This is that, while the provisions of Rule 40bis did not themselves apply to the pre-transfer period, the principle of those provisions applied on the basis that the appellant was in the constructive custody of the Tribunal and therefore entitled to the protection of the purpose of the Rule, which was largely to secure the release of an arrested person if a confirmed indictment was not presented against him within a maximum of 90 days. Granted, for the purposes of argument, the applicability of the theory of constructive custody, the suggested interpretation really rests on the idea of abuse of process. However, as will be later argued, that concept assumes the continued existence of jurisdiction, with the result that an entitlement to release by reason of that concept could not be said to rest on lack of jurisdiction within the meaning of Rule 72(D) of the Rules under which the appeal is being entertained. The point, in its more general aspect, is dealt with in section 8 below.
5. The delay in making a transfer from Cameroon to Arusha
The appellant’s main contention lies in his complaint that the Tribunal was responsible for failing to ensure that he was transferred by Cameroon to the Tribunal’s detention unit as speedily as possible in accordance with Judge Aspegren's order of 4 March 1997; the appellant was not transferred until 19 November 1997. The Appeals Chamber takes the view that the Tribunal was responsible on the ground that the appellant was in the constructive custody of the Tribunal while he was held in Cameroon at the Tribunal’s request, a view which, as I understand it, is premised on there being a relationship of agent and principal as between Cameroon and the Tribunal. (See para. 56 of the Decision, where references are made to "agent" as used in United States case-law). With respect, I am not persuaded that that was the relationship or that there was any relationship giving rise to constructive custody.
I favour the submission of the Prosecutor that Cameroon and the Tribunal are not the alter ego of each other. What the Security Council did was to apportion responsibilities to states and to the Tribunal on the basis of there being a legal obligation on the part of states to cooperate with the Tribunal - an obligation deriving immediately from the Statute of the Tribunal and ultimately from the Charter of the United Nations. A state which is cooperating with the Tribunal is discharging its own responsibilities and not those of the Tribunal.
The obligation of a state to cooperate with the Tribunal may be triggered in different ways; however triggered, the obligation remains that of the state. The trigger could be an order of a judge requesting the state to hold the suspect and to transfer him to the detention unit of the Tribunal. The order of the judge of the Tribunal is but the condition precedent to the activation of the obligation of the state under the Statute; it does not create a relationship of agent and principal as between the state and the Tribunal or put the Tribunal in constructive custody of the suspect for the purpose of fixing it with responsibility for the acts or omissions of the state. If, for example, the state were to hold the suspect in unacceptable physical conditions, the responsibility would be that of the state, not of the Tribunal. The state and the Tribunal are each separately responsible for their own acts or omissions.
Arguing for a different view, the Decision of the Appeals Chamber refers to what is substantially United States internal extradition law. Generally valuable as is that respected body of law, I am not confident of the utility of any analogies which it furnishes, in this particular field, on the subject of principal and agent, or on the subject of constructive custody, or on the subject of detainer process. Internal extradition in the United States "is founded on, and controlled by, the Constitution of the United States and effectuating federal statutes"; it is not "governed by the same principles as are applicable to international extradition"; the proceedings are "sui generis". (See 35 Corpus Juris Secundum, p. 381). True, as it was put in a dissenting opinion in a United States case, "The Tribunal is not a sovereign nation". (Ntakirutimana v. Attorney-General of the United States, supra, Judge DeMoss, dissenting). But neither is it a state within a federal-type arrangement. The legislation and jurisprudence of a particular state as to relations between components of the state offer limited guidance on relations between the Tribunal and states which are sovereign on the international plane. These latter relations are regulated by the unique system devised by the Statute of the Tribunal; they are not based on the internal distribution of power among the units of a state, however those units are designated.
But the foregoing does not mean that there is nothing that the Tribunal can or should do. The Tribunal has an obligation to consider the situation if in fact delay is caused by the state. Three possibilities may be considered:
The first possibility arises under Article 28 of the Statute and the corresponding provisions of Rule 7bis of the Rules, relating to the duty of states to cooperate with the Tribunal. Under those provisions, the President of the Tribunal may report the conduct of a non-cooperating state to the Security Council. The remedy thus provided is a powerful one; but it may come too late so far as the suspect is concerned. More pertinently, it does not result from the kind of decision that would ground an appeal.
A second possibility is this. The view can be taken that the power of a judge to issue an order for custody and transfer includes by necessary implication power to rescind the order in proper cases. Whether or not recourse was made to the reporting provisions mentioned above, if, on a report from the Registrar or the Prosecutor or on an application made by or on behalf of the suspect, the judge, after an appropriate hearing, was satisfied that the suspect was kept too long in custody and was consequently suffering unjustly because of the process of the Tribunal, the judge could, in my opinion, competently rescind the order and thus set the suspect at liberty so far as the Tribunal was concerned. He could do so on the footing that any authority given by him to the state to hold the suspect in custody pending transfer incorporated an implicit condition that the authority was to be exercised by the state within a reasonable time (as is implied, in the case of an accused, by Rule 59(B) of the Rules), and that, accordingly, the judge retained competence to consider whether the condition had been breached. No question of constructive custody need be involved.
But a decision of that kind would not be a decision on a preliminary motion within the meaning of Rule 72(D) of the Rules, and there could be no question of an appeal. Even if such a decision were one on a preliminary motion, appellate intervention would really rest on the doctrine of abuse of process, the question being whether the proceedings should be stayed in the light of the delay in giving effect to the process of the Tribunal. As argued below, the
application of this doctrine would not result in a finding of lack of jurisdiction so as to entitle the Appeals Chamber to give a remedy under Rule 72(D) of the Rules.
A third possibility remains. It may be said that the statutory power of the Prosecutor to investigate and to prosecute was impliedly conditioned by a duty of due diligence, which in turn required her to be active on the question of compliance by Cameroon with the judge’s transfer order. I respectfully agree with the Appeals Chamber in considering that that is right; after all, it is the Prosecutor who wanted the suspect to be transferred for purposes of continuing investigations relating to the same suspect. It follows that failure to discharge the duty to monitor the situation could ground a release by the judge. The appellant says that he was simply "forgotten" by the Prosecutor. The evidence does not go all that way, but it goes far enough to recall that there "is as a rule no difficulty encountered by doing nothing or little". The trouble is that doing nothing or little in this case was not allowed.
But, again, a decision of that kind would not be a decision on a preliminary motion. Even if the decision could be regarded as one made on a preliminary motion, appellate intervention would really rest on the doctrine of abuse of process, the question being whether the proceedings should be stayed in the light of the delay produced by the neglect. As argued below, that doctrine would not ground an interlocutory appeal on the basis of lack of jurisdiction.
Thus, in none of the three cases can the Appeals Chamber intervene.
6. The failure to hear the appellant’s habeas corpus motion Now for the question of the appellant’s habeas corpus motion of 29 September 1997 (filed on 2 October 1997). In paragraph 90 of its Decision, the Appeals Chamber found that "the failure to provide the Appellant a hearing on this writ violated his right to challenge the legality of his continued detention in Cameroon during the two periods when he was held at the behest of the Tribunal…". But for the fact that its actual decision rendered the point moot, it is evident that the Appeals Chamber would have ordered a hearing of the habeas corpus motion on the basis that it is "still pending", as asserted by the appellant, in which case the question of release would fall to be decided both in the present proceedings and in the habeas corpus motion.
I am not persuaded that an issue relating to the hearing of the habeas corpus motion is before the Appeals Chamber. This is because none of the twelve prayers addressed to the Trial Chamber in the Appellant’s Urgent Motion of 24 February 1998 referred to the habeas corpus motion, complained of non-hearing of it, or sought a hearing of it. It has to be remembered that the appeal is from the decision of the Trial Chamber on that Urgent Motion.
The Trial Chamber was not asked by the appellant to determine an objection based on lack of jurisdiction arising from the non-hearing of the habeas corpus motion. The Trial Chamber’s summary of the issues presented to it by the defence, as set out in its written decision, shows that it did not consider that it had such an objection before it. That is supported by the transcript of the oral arguments before the Trial Chamber. As is seen below, defence counsel mentioned the habeas corpus motion in the course of his oral arguments before the Trial Chamber, but he did not, in my view, do so on the basis that the motion was still outstanding and should be heard. Interestingly too, none of the twenty-two errors alleged in the appellant’s Memorandum of Appeal of 27 November 1998 (filed on 10 December 1998) complained about the Trial Chamber’s decision in so far as the habeas corpus motion was concerned.
It is not correct to tax the Trial Chamber with not dealing with an issue which it was not asked to determine. Nor, subject to narrow exceptions, can it be right for the Appeals Chamber to pass on an issue which was not argued before the Trial Chamber and on which the latter has not expressed its views, either as to the facts or as to the law. The jurisdiction of the Appeals Chamber is limited to matters which formed part of an objection based on lack of jurisdiction which was dismissed by the Trial Chamber. No such objection was dismissed by the Trial Chamber so far as concerns the non-hearing of the habeas corpus motion. Consequently, the Appeals Chamber is without jurisdiction to deal with the point.
Further, I do not consider that a hearing of the habeas corpus motion by any Chamber is still required. The Appeals Chamber can draw a reasonable inference that, at the time, defence counsel himself took the view that the filing of the indictment made a hearing pointless. In the Trial Chamber, defence counsel said that "these [documents relating to the indictment] were meant [presumably by the Prosecutor] to pre-empt the argument of our application for habeas corpus". (Transcript of oral arguments in the Trial Chamber, 11 September 1998, pp. 84-85). Defence counsel did not say that he himself did not share the view that the filing of the indictment would pre-empt the argument of the application for habeas corpus; I think that at the time he thought that it would.
And why would he think so? Because of the nature of the orders requested in the habeas corpus motion. These, as set out in that motion, were as follows:
"1. An order for Habeas Corpus requiring that the suspect Jean Bosco Barayagwiza be produced before the tribunal.
2. An order requiring the immediate release of Jean Bosco Barayagwiza who is currently in prison custody in Yaounde, Cameroon.
3. An order requiring that in the alternative and if for any lawful reason the suspect, Jean Bosco Barayagwiza cannot be released, he be indicted and transferred to the tribunal’s seat in Arusha within 30 days or such reasonable time as this Honourable Tribunal may set.
4. An order requiring that in the meantime, the suspect Jean Bosco Barayagwiza be accorded medical attention by the tribunal and that the tribunal do provide him with food and other basic needs."
Thus, in the alternative to his immediate release, what the appellant sought was an indictment and transfer to the Tribunal’s seat in Arusha. In these respects, the position later changed in favour of the very position desired by the appellant: an indictment was filed and he was transferred to Arusha. A principal part of the prayers of his motion thereby became sans objet. Further, after the transfer he could no longer ask for medical attention and food - the complaint was directed to the period while he was in Cameroon. What was left was a demand for his release. But since this demand was taken over by his Urgent Motion of 24 February 1998, it cannot credibly be accepted that the original habeas corpus request was regarded by counsel for the appellant as "still pending" so as to result in duplicated applications before the Trial Chamber on the same point. Habeas corpus is of course a great writ; but that does not settle everything. If, in this case, the motion for the writ is not "still pending", it simply cannot be considered, with the result that there is no need to review cases in which, although a matter has become moot, the fundamental importance of the issues involved may justify a pronouncement.
The appellant suggests that the Prosecutor somehow managed to arrange for the removal of the case from its place in the hearing list, on which, so he was informed, it was due to be heard on 31 October 1997. The appellant has no proof of that. What he could say, but what he does not say, is whether he later sought to get the Registrar to put back the case for hearing or in any way to protest to him about the alleged removal of the case from the calendar. There is no evidence that he did.
The appellant did not tell the Trial Chamber which took his initial appearance on 23 February 1998 that his habeas corpus motion was "still pending". The "applications" to which his counsel then referred were, in my opinion, different motions. Counsel mentioned "two motions". (Transcript of the initial appearance proceedings, 23 February 1998, p.16). One was a motion to quash the whole indictment on the basis of alleged defects of form. (Ibid., p.18). The other was a motion "to review and or nullify the arrest and provisional detention of the accused person". (Ibid., p.17). That referred to the Urgent Motion which is the subject of this appeal. This Urgent Motion was dated 19 February 1998 although bearing a filing date of 24 February 1998; somehow, though not yet filed, reference was made to it at the hearing on 23 February 1998. In my understanding, the habeas corpus motion of 29 September 1997 (filed on 2 October 1997) was not referred to in the oral proceedings on 23 February 1998.
The appellant is saying now (29 June 1999) that "the motion is still pending". But he is saying that to the Appeals Chamber in response to the Appeals Chamber’s inquiry of 3 June 1999 as to the "disposition of the writ of Habeas Corpus that the Appellant asserts that he filed on 2nd October 1997". What he is saying now he did not say before. Paragraph 9 of his "Duplique" of 18 December 1998 (filed on 28 December 1998) did say that the habeas corpus motion was never heard; but the appellant said that to the Appeals Chamber and not to the Trial Chamber, and then only by way of stating an alleged consequence of the Prosecutor being precipitated by the filing of the habeas corpus motion into filing the indictment. He did not claim that the habeas corpus "motion is still pending" and demand a speedy hearing. That simple statement was never made in his voluminous previous pleadings. I have given reasons why he did not make it and why he could not make it.
Finally, if, contrary to the foregoing, the habeas corpus motion is "still pending" as is now asserted by the appellant, any delay in hearing it would merely ground action to stay further proceedings on the basis of the doctrine of abuse of process. As argued below, the Appeals Chamber is not competent to grant relief on that basis in an interlocutory appeal. At this stage, the Appeals Chamber must take the view that the matter was one for the relevant Trial Chamber alone.
7. The delay in hearing the Urgent Motion
Among the things which led to its decision, the Appeals Chamber mentions "the delay in hearing the Extremely Urgent Motion" (Decision, para. 109), that is to say, the Urgent Motion which is the subject of this appeal. So the Appeals Chamber is finding that there was such delay and that such delay is a ground of its decision.
The Urgent Motion was filed on 24 February 1998, but determined only on 17 November 1998. The facts show that, except for the first eleven weeks, the time was taken up by the appellant in settling a dispute concerning arrangements for his legal representation. (See annex 10 to Prosecutor’s Response, filed on 22 June 1999, being a letter from defence counsel dated 12 May 1998). For this reason, the focus should be on the first eleven weeks.
The delay of eleven weeks was noticeable, but the material before the Appeals Chamber does not enable any conclusions to be safely drawn as to the reasons. In the case of this appeal - an appeal from the decision of the Trial Chamber on the same motion – forty-seven weeks have already gone by; that there is a good explanation does not efface the fact that much time has passed. From the factual point of view, I do not believe that the Appeals Chamber is in a good position to link its decision to the time taken to hear the Urgent Motion.
From the jurisdictional point of view, there is also a problem. It is evident that any delay in hearing the Urgent Motion could not have formed part of the matters put to the Trial Chamber in the same motion as material to justify an objection based on lack of jurisdiction. Since the appeal is from the decision of the Trial Chamber on the matters which were put to it in support of the Urgent Motion, it follows that the Appeals Chamber has no competence to consider any delay in hearing the Urgent Motion.
8. If there was abuse of process, this did not lead to a lack of jurisdiction on the part of the Tribunal
This section assumes that there was abuse of process in relation to pre-transfer detention but considers whether this led to a "lack of jurisdiction" within the meaning of Rule 72(D) of the Rules so as to enable the Appeals Chamber to act under that provision.
The appellant fell prima facie within the jurisdictional provisions of the Statute. A possible argument is that to prosecute him notwithstanding the alleged breaches of his human rights amounted to an abuse of process, that such abuse of process deprived the Trial Chamber of jurisdiction, and that consequently there was a "lack of jurisdiction" within the meaning of Rule 72(D). Does the doctrine of abuse of process support the proposition? In particular, assuming that there were breaches of the appellant’s human rights so as to attract the application of the doctrine, did the doctrine lead to a lack of jurisdiction?
Cases on the subject of abuse of process assume that the trial court had jurisdiction, or indeed that a fair trial was perfectly possible in exercise of that very jurisdiction, but are directed to the different question whether, in its discretion, the court should have permitted that jurisdiction to be exercised having regard to the public interest in maintaining the integrity of the criminal justice system free of affronts to the public conscience. (R. v. Latif and Shahzad, [1996] 1 WLR 104, HL, at p. 112, Lord Steyn; and see R. v. Mullen, The Times, 15 February 1999 (CA)). In a leading case of 1994, Lord Griffiths made this clear when he said that the question was "whether assuming the court has jurisdiction, it has a discretion to refuse to try the accused". (R. v. Horseferry Road Magistrates’ Court, ex parte Bennett, 95 ILR 398, HL, at p. 390). In the words of Lord Lowry, "it is not jurisdiction which is in issue but the exercise of a discretion to stay proceedings ...". (Ibid., p. 408). Referring to another case, he said, "While that (magistrates’) court had jurisdiction to entertain committal proceedings, the High Court decided that to permit the criminal proceedings against the accused to continue would be an abuse of process of the court (of trial)". (Ibid., p. 411, original italics). In other words, the legal machinery had the capacity to turn, but the particular circumstances made it unjust to allow it to be put in motion.
Other cases, some from different countries, could be cited; but, in my opinion, even with any variations they may show, they do not overthrow the basic position taken in Bennett as to the distinction, in the doctrine of abuse of process, between the existence of jurisdiction and a stay of its exercise. I am reinforced in this view by paragraph 74 of the Decision of the Appeals Chamber, stating:
"It is important to stress that the abuse of process doctrine may be invoked as a matter of discretion. It is a process by which Judges may decline to exercise the court’s jurisdiction in cases where to exercise that jurisdiction in light of serious and egregious violations of the accused’s rights would prove detrimental to the court’s integrity."
I interpret this to mean that the Appeals Chamber recognises that the doctrine of abuse of process goes to discretion, and does not touch jurisdiction. Where I differ is as to the consequences on the appellate process of the Tribunal of this distinction. Abjuring the rigidity of the law but not shunning its rigour, it appears to me that, since the concept of abuse of process assumes the continuing existence of the normal trial jurisdiction and does not remove it, where the concept is applied it cannot logically lead to the conclusion that there was a "lack of jurisdiction."
To come back to the pre-transfer detention in this case, if there were any breaches of human rights this could raise a question whether the jurisdiction of the Tribunal should be exercised; but this would not result in "lack of jurisdiction" within the meaning of Rule 72(D) of the Rules. It is to the actual terms of that Rule that the discussion must turn when considering the application of the doctrine. The reference in the Rule to "jurisdiction" seems to be a reference to "jurisdiction" as prescribed by the Statute. In the case of failure to comply with a fundamental principle, such as that which requires an accused person to be promptly put before the Trial Chamber, the Statute itself can be interpreted to mean that there is loss of personal jurisdiction. However, I would hesitate to give any larger meaning to the reference to "jurisdiction" in Rule 72(D). More particularly, as set out in the Statute, the ingredients of "jurisdiction" do not exclude a case in which there is jurisdiction in fact and in law, but in which it would be an abuse of process for that jurisdiction to be exercised. The existence of jurisdiction has to be separated from its exercise.
In effect, if there were any breaches of the appellant’s human rights in respect of the pre-transfer detention, this did not lead to "lack of jurisdiction" within the meaning of Rule 72(D) of the Rules. It may be that the Appeals Chamber can indeed consider whether there has been an abuse of process, but not in an interlocutory appeal under that Rule.
9. Limits on the competence of the Appeals Chamber
That last remark leads to an observation or two on the scope of the jurisdiction of the Appeals Chamber. The Decision of the Appeals Chamber states that "courts have supervisory powers that may be utilised in the interests of justice, regardless of a specific violation". (Decision, para.76). The Decision makes it clear that these supervisory powers can be exercised as between an appellate court and the court appealed from. The idea is a useful one. But, in applying it in the case of the International Criminal Tribunal for Rwanda, caution is appropriate to the nature and structure of the Tribunal.
Without questioning its validity, it may be observed that the system of interlocutory appeals, as introduced by the Rules, goes somewhat beyond the strict international requirement relating to a right of appeal. This does not relieve the Appeals Chamber of its duty to exercise with vigour any jurisdiction which it has; but it at least serves to emphasise the point that, however robustly the Appeals Chamber does so, it has to confine itself within the framework of the scheme under which it is empowered to act.
To hold that the interlocutory appellate provisions of Rule 72(D) of the Rules cover a case relating to pre-transfer delay involves a stretching of that provision. That stretching can only be justified on the view that the Appeals Chamber may act as if it were endowed with inherent authority to supervise all the activities of an inferior court. I believe that the Appeals Chamber will accept that it does not have that power; that it does not have overall surveillance or general oversight of the workings of a Trial Chamber as if the latter were an inferior court as understood in some systems; that it may not intervene on the basis that it has competence to do so wherever it is disposed to take the view that something wrong was done. For to do so would amount to an impermissible amendment of Article 24 of the Statute of the Tribunal and an unlawful expansion of the province of action thereunder assigned to the Appeals Chamber.
The first instance jurisdiction of the Tribunal has been confided to the Trial Chambers. Save where it can clearly be demonstrated that the Appeals Chamber has power to intervene, the process is to be administered by the Trial Chambers - errors or no errors. They are the judiciary too. Even a final court of appeal makes errors, as witness cases in which it overrules its own previous decisions. The reason, if one were needed, is that it "is common knowledge that courts of law and other tribunals, however praiseworthy their intentions may be, are not infallible". Their fallibility is part of the entire system; it has to be accepted. A system of appeals may provide a remedy; but it is necessarily limited. And the limits must be observed if the system is not to collapse. In one jurisdiction, it was once estimated that about 33 per cent of all appeals succeeded, whether from the lower courts to an intermediate court of appeal or from the latter to the final court of appeal. Thus, there was "no reason for believing that if there was a higher tribunal still the proportion of successful appeals to it would not reach at least that figure".
With that sobering thought in mind, it seems to me that the Appeals Chamber cannot, in an interlocutory appeal, give a remedy simply because it considers that there were breaches of the appellant’s human rights. It can do so only if such breaches deprived the Trial Chamber of jurisdiction. In this case, with the exception of post-transfer delay (which rested on a specific Rule of fundamental importance), they did not.
10. Conclusion
In an opinion which I appended to the decision in Prosecutor v. Kovacevic (ICTY, Appeals Chamber, 2 July 1998) I referred to United States v. Lovasco, 431 U.S. 783(1977). Recalling that opinion, paragraph 94 of the Decision of the Appeals Chamber in this case refers to United States v. Scott (437 U.S. 82 (1978) and states that, in that case, in "a dissent filed by four of the Court’s nine Justices, (including Justice Marshall, the author of the Lovasco decision), the Lovasco holding regarding pre-indictment delay was characterised as a ‘disfavoured doctrine’".
That, no doubt, is a possible interpretation of what the minority in Scott held. It may, however, be of some interest to note that what the minority in Scott actually said was that the decision in Scott itself "may be limited to disfavoured doctrines like pre-accusation delay. See generally United States v. Lovasco, 431 U.S. 783(1977)". That is all that the minority in Scott said on the question of Lovasco. For myself, I understand the minority in Scott to be referring the reader "generally" to Lovasco for information about "disfavoured doctrines like pre-accusation delay", and not to be saying that the specific holding in Lovasco regarding the pre-indictment delay in that case could be characterised as a "disfavoured doctrine".
More particularly, I am inclined to the view that the general if brief remark of the minority in Scott was not intended to cast doubt on the particular Lovasco holding (which was material to the issue in Kovacevic) that "prosecutors are under no duty to file charges as soon as probable cause exists but before they are satisfied that they will be able to establish the suspect's guilt beyond a reasonable doubt". I should not think that the minority in Scott (inclusive of Justice Marshall who authored that statement) intended to question it; the majority did not. The statement looks to me like good law.
On the other hand, I would indeed have a difficulty with Lovasco if it was promoting the idea that any kind of pre-accusation delay, however extravagant, could be disregarded on the ground of prosecutorial discretion. But I doubt that it was really doing so; I note that it recognised that a "tactical" delay would be impermissible. That there should be some limitation on pre-accusation delay makes sense. However, for the reasons given above, I do not consider that it is competent for the Appeals Chamber to consider whether any limitation was breached in the circumstances of this case.
Accordingly, I regret my inability to support the Decision of the Appeals Chamber so far as pre-transfer delay is concerned. I agree with the Decision with respect to the three-month delay between transfer and initial appearance. For the reasons mentioned above, I do not, however, agree with item 4 of the disposition, directing "the Registrar to make the necessary arrangements for the delivery of the Appellant to the Authorities of Cameroon"; the appellant should be simply set at liberty and provided with reasonable facilities to leave Tanzania, if he so wishes. On this basis, and subject to these qualifications, I would also allow the appeal.
Done in both English and French, the English text being authoritative.
________________________
Mohamed Shahabuddeen
Dated this 3rd day of November 1999
At the
Hague
The Netherlands
