Rwanda: Can Félicien Kabuga really stand trial?
After 26 years on the run, the judicial outcome of the arrest of Félicien Kabuga, the alleged financier of the Tutsi genocide, will depend on the ability of international justice to rise above itself.
After the arrest in France of the alleged financier of the Rwandan genocide, Félicien Kabuga, and the confirmation of the death of former Defence Minister Augustin Bizimana, only one major fugitive remains on the roster of the International Criminal Tribunal for Rwanda (ICTR): Major Protais Mpiranya, who was in charge of security for the former President Juvenal Habyarimana.
Rwanda, for its part, inherited the files of five other “small fish” indicted by the ICTR and still at large, after the 21-year existence of the Arusha Tribunal, which has so far tried 73 individuals for their participation in the 1994 Tutsi genocide.
The “last fish” of the ICTR
Following the success of Kabuga’s arrest, Serge Brammertz, a veteran of international tribunals and a serious candidate to succeed Fatou Bensouda at the International Criminal Court, will likely try to push to obtain the arrest of the last of the ICTR’s “big fish” in the wake of Kabuga’s arrest.
The Office of the Prosecutor of the Mechanism assures that it “continues to actively seek” Mpiranya. The man was reported seen a few years ago in Zimbabwe. And on December 11, Brammertz accused South Africa for the second time before the Security Council of failing to execute a “long-standing arrest warrant” for a fugitive, without specifying the identity of the fugitive.
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In the case of Mpiranya, the 60-year-old, as far as restrictions on movement linked to COVID-19 allow, must be thinking of ways not to join Kabuga’s cell, whose transfer to The Hague has been requested by the Mechanism.
This “Mechanism”, which deals with the “residual functions” of the former international tribunals for Rwanda and the former Yugoslavia, has offices in Tanzania and the Netherlands. By requesting his transfer to The Hague, the Prosecutor is trying to obtain an early surrender of Kabuga and to prevent opposition from the former fugitive’s defence to a transfer to Arusha during the COVID-19 pandemic.
Logically, Kabuga should subsequently be tried before the Tanzanian branch of the Mechanism, which has 200 staff members, an annual budget of $40m, and a mandate to search and try ICTR fugitives. However it has not conducted any trials in its new buildings which cost $8.7m.
Symptomatic weaknesses of the Tribunal
After the applause directed to the Mechanism and the French Office for the Fight against Crimes against Humanity, for having put an end to the longest spree of contemporary international justice, there are many justified questions about the protection from which the influential Rwandan leader could have benefited and about the symptomatic weaknesses of the UN tribunal that he defied for a quarter of a century.
But to the latter, an even more essential question surfaces of which no one seems able to answer satisfactorily: Will Kabuga, given his advanced age, be tried and eventually sentenced, by an international justice system that is legendary for its slowness?
Arriving in a wheelchair during his first meeting with French judges on 20 May in Paris, Kabuga indicated that he was 87 years old and not 84, as stated in his arrest warrant. His lawyers invoked his poor health and the conditions under which he will be tried in order to oppose his referral to international justice and ask that he be tried in France. The French procedure, which is only the beginning of a long journey for Kabuga, is already looking very difficult, to say the least.
In terms of trials breaking records at the Arusha court is that of Colonel Théoneste Bagosora, famous for being accused of being a “mastermind” of the genocide. Arrested in March 1996 in Cameroon, he was convicted definitively, on appeal, until almost 15 years later, in December 2011.
In terms of “speedy” trials, let’s look at one the last ones, that of Augustin Ngirabatware, Kabuga’s son-in-law. The former Minister of Planning, arrested in September 2007 in Germany, was sentenced seven years later, on appeal, in a case whose complexity pales in comparison to that of Kabuga – in which the prosecution will have to establish, for the first time in the history of the ICTR, the criminal responsibility of a financier in the commission of the genocide.
His indictment includes no less than seven charges of genocide and crimes against humanity, and his defence, legitimately, will not fail to ask for its own investigations.
Judgment in France unlikely
In addition to the “normal” length of a trial before an international criminal court, the Mechanism also has to restart a UN mechanism that is in the middle of its sleep. The alternative hypothesis of a trial before the French courts, as Kabuga requested, would come up against the complexity of transferring investigations carried out by an ICTR marked by common law procedures, before a French investigating judge.
Here, history does not paint a great picture. In 2007, two cases were transferred from the Arusha Tribunal to the French judiciary as part of the ICTR’s “completion” strategy. One – that of Father Wenceslas Munyeshyaka – was dismissed in 2019. The other – that of former prefect Laurent Bucyibaruta – was sent back to trial, for a trial now expected to take place in 2021.
READ Simbikangwa Trial: Can France try the Rwandan genocidaires?
A reasonably viable, albeit theoretical, hypothesis for a judgment to be pronounced in the Kabuga case before he turns 90 would be for him to enter a guilty plea and make a deal with the prosecutor.
To our knowledge, however, this option is not currently being considered by either side.
Bottom line: The judicial outcome of this extraordinary story will certainly depend on the ability of international justice to surpass itself as much as on the life expectancy of the accused.
And to date, it must simply be said that no one in a position of responsibility is able to guarantee that the most recent judgements of the ICTR – that of Kabuga and Mpiranya – will, for different reasons, actually be handed down.