THE HAGUE, Netherlands (CN) — The man prosecutors say bankrolled the 1994 Rwandan genocide is too ill to stand trial, but the judges in his case said Wednesday they want to continue with a different type of inquiry.
Rather than terminate the proceedings, judges at a special United Nations tribunal announced they will pursue an “alternative finding procedure” for Félicien Kabuga, who was indicted on genocide charges more than 25 years ago.
“This is the first time in international criminal justice we see such an alternative being proposed,” said Carsten Stahn, professor of international criminal law at the University of Leiden, in an interview with Courthouse News.
Creative approaches
The 90-year-old is suffering from severe dementia and cannot participate in his own defense, says a panel of doctors. The International Criminal Tribunal for Rwanda issued a warrant for the ex-businessman’s arrest in 1997 but he evaded capture for over two decades and was already in frail health when he was arrested in Paris in 2020.
His defense team sees the acknowledgment of his diminished state as a “major victory,” according to Emmanuel Altit, Kabuga’s lead counsel. In an emailed response to questions, Altit also expressed concerns about the proposed alternative.
What judges at the International Residual Mechanism for Criminal Tribunals, which took over when the Rwandan tribunal was wound down in 2016, have proposed is an “alternative finding procedure that resembles a trial as closely as possible," but without the possibility of a sentence.
Prosecutors would be responsible for the same burden of proof to show that Kabuga had committed the six counts of genocide, murder and extermination he is charged with. But since he is unable to participate, there would be no sentence if he is found guilty. “A trial without punishment,” is how Stahn describes it.
Judges at both the Rwanda tribunal and the International Criminal Tribunal for the former Yugoslavia - the U.N. tribunal set up to prosecute crimes during the breakup of Yugoslavia - have the discretion to develop their own procedures and have in the past taken creative approaches to the mandates set before them.
However, Altit says this new idea is beyond the scope of the trial’s mandate.
“The [International Residual Mechanism for Criminal Tribunals] was set up as a criminal tribunal with the mission of conducting fair and impartial trials, not as a truth commission or other type of alternative mechanism,” the defense lawyer said in an email. According to Altit, there is no legal basis for such an institution at the court.
Pressure for justice
In the past, international courts have scrapped trials if a defendant becomes too ill. In 2006, the Yugoslavia tribunal abandoned the prosecution of a former officer in the Yugoslav army, Vladimir Kovacevic, after his psychiatric problems proved too serious for him to stand trial.
Hearings in Kabuga’s case were initially limited to six hours per week to accommodate his health, but even that limited schedule proved to be too much. The trial has been on hiatus since March.
But there has been substantial pressure to pursue Kabuga, who is accused of using his wealth to fund various groups that called for and carried out genocide in the Central African country.
“He has cast a huge shadow,” Lucy Gaynor, a researcher at the Univesity of Amsterdam who has been following the trial closely, told Courthouse News.
In particular, Gaynor said, Kabuga backed Radio Télévision Libre des Mille Collines, which broadcast the names and addresses of ethnic minority Tutsis, calling them cockroaches who needed to be eradicated.
Even more frustrating for victims is that Kabuga could have been apprehended in Switzerland in 1994. Together with his family, he was given a visa to travel to Geneva where he requested asylum. This was prior to the establishment of the Rwanda tribunal, but some say Switzerland had the legal authority under universal jurisdiction to arrest him.
“It was the biggest missed opportunity,” said Philip Grant, executive director of TRIAL International, which advocates for international justice.
Kabuga, however, had allies in the Swiss government who arranged for him to leave the country after the authorities were pressured by the Rwandan diaspora to bring him to justice.
The outrage eventually led to a parliamentary inquiry in Switzerland, and less than a year later prosecutors arrested Fulgence Niyonteze, a former mayor who was eventually convicted of murder and war crimes committed during the genocide. Niyonteze became the first person associated with the Rwandan genocide prosecuted outside of Rwanda or the tribunal.
Finding solutions
Fact-finding trials are not a new concept in justice systems. The U.N. tribunal's three-judge panel cited examples from countries such as England and Wales, New Zealand and Guatemala. Argentina has also held trials without any suspects as part of transitional justice methods.
According to Grant, these trials can be important for the affected communities. “They have a right to the truth,” he said.
The ruling references a decision by the Law Commission of England and Wales to back an alternative to a trial when defendants are unable to participate.
Trials in absentia, where the defendant is not in custody, were banned by both the Yugoslavia and Rwanda tribunals. The International Criminal Court also does not allow them. The only international court to pursue a trial in absentia since the post-World War II Nuremberg trials is the Special Tribunal for Lebanon, which convicted a Hezbollah member for killing the former prime minister of Lebanon in 2020.
Final trial
Kabuga’s trial is the final case for the International Residual Mechanism for Criminal Tribunals. It issued its last ruling from the Yugoslav tribunal last week, extending sentences for a pair of Serbian security officials. The first ad hoc court established by the U.N. captured all 161 indicted suspects, eventually convicting 93.
Six suspects are still on the run from the Rwandan tribunal. A police officer suspected of orchestrating the killing of more than 2,000 people at a church was arrested in South Africa last month. Fulgence Kayishema and the remaining fugitives, if they are apprehended, will face prosecution in Rwanda, however, as part of an agreement with the tribunal.
Wednesday's decision in Kabuga’s case gives no timeline for the proposed alternative and it's unclear how the court will move forward. Kabuga remains in custody in The Hague.
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