justice lost

Rwanda genocide: Kabuga’s trial abandoned due to health issues

By Jeanne Le Bihan

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Posted on August 16, 2023 07:34

Felicien Kabuga’s ‘Wanted’ posters as shown during a 2002 press conference by Pierre-Richard Prosper, then US Ambassador-at-large for war crimes issues. (REUTERS/George Mulala)
Felicien Kabuga’s ‘Wanted’ posters as shown during a 2002 press conference by Pierre-Richard Prosper, then US Ambassador-at-large for war crimes issues. (REUTERS/George Mulala)

After evading capture for 23 years, Felicien Kabuga was set to face trial before the International Residual Mechanism for Criminal Tribunals.

However, due to health reasons, the trial of this alleged genocidaire  will not take place.

For the associations representing victims of the 1994 Rwandan genocide, the news has come as a blow. Kabuga’s trial has been indefinitely suspended after he was declared unfit to stand trial by both the trial chamber and appeals chamber.

In 1997, he had been charged with seven counts, including genocide, complicity in genocide, and direct public incitement to commit genocide.

However, since his arrest in May 2020, hopes of seeing him tried by a court had dwindled considerably.

“We feared this decision,” says Alain Gauthier, president of the Collectif des parties civiles pour le Rwanda (CPCR), an organisation that has been tracking down refugees in France suspected of involvement in the genocide since 2001.

Although the association was not taking part in Kabuga’s trial, survivors are bitter about the outcome.

“The delay in finding Kabuga was already devastating for the victims. As far as his release is concerned, it will cost the international community less,” he says.

Can’t participate

The arrest of Antoine Tounga in the Paris suburb of Asnières-sur-Seine on 16 May 2020 marked the end of 23 years on the run. It was here that Kabuga was living, in a flat rented in the name of one of his 11 children, while the last trace of him dated back to 2007, in Germany.

However, soon after his arrest, doubts were raised about his health. Initially slated for trial in Arusha, the seat of the Mechanism, Kabuga was eventually transferred to The Hague due to health concerns.

Described as physically frail, the octogenarian – or nonagenarian, according to the man himself – was subsequently deemed ‘unfit’ for trial by independent experts mandated by the International Residual Mechanism for Criminal Tribunals.

If he does not receive authorisation from a third country, Kabuga’s only option will be to return to Kigali after a 29-year absence

Kabuga is “unable to participate meaningfully in his trial”, the Trial Chamber ruled on 16 June 2023. This decision was upheld on appeal, with the specialised chamber unable to pass judgement on the accused.

For the Defence, the latest development is not surprising. One of Kabuga’s lawyers, Emmanuel Altit, said: “Following our arguments, the appeals chamber upheld the same principles of law.”

The genocidal machinery

Within the framework of the United Nations Mechanism, Kabuga represented one of the three most significant cases inherited from the International Criminal Tribunal for Rwanda (ICTR).

Established by the UN in the aftermath of the genocide, the ICTR was closed in 2015 with mixed results, leaving the Mechanism with eight cases to handle, including three of paramount importance.

After the announcement that the remains of former Rwandan Defence Minister Augustin Bizimana had been authenticated, and that Protais Mpiranya had been dead in Zimbabwe since 2006, the trial of Kabuga was undoubtedly the most eagerly awaited by victims’ families and survivors.

A central figure in the preparation of the 1994 Rwandan Tutsi genocide between April and July, Kabuga is suspected of playing a pivotal role. A close associate of President Juvénal Habyarimana, whose two sons married two of Kabuga’s daughters, he was also a member of the ‘Akazu’, the extremist circles around the first lady Agathe Habyarimana.

Often referred to as the ‘financier of the genocide’, Kabuga was a major creditor of the ruling party, the National Republican Movement for Democracy and Development (MRND).

He was also a founder and shareholder of Radio Télévision Libre des Mille Collines, a media outlet that played a significant role during the genocide by broadcasting daily calls filled with hatred and calling for the extermination of the Tutsi ethnicity.

Accused of funding the import of machetes used in the massacres, Kabuga, a wealthy businessman in 1990s Kigali, allegedly established a National Defence Fund to support the operation and arming of the Interahamwe militias – a crucial component of the genocidal machinery.

Release, but under what conditions?

“I understand the disappointment of the survivors and families of victims of the Tutsi genocide,” Serge Brammertz, prosecutor of the Mechanism for International Criminal Tribunals, tells The Africa Report.

Although Kabuga, held in the United Nations prison in Scheveningen, Netherlands, for three years, is set to be freed, the terms of his release remain uncertain.

“This is the major difference between the genocidaires, who set aside humanity to commit their crimes, and the United Nations, which has a duty to apply international criminal law.”

According to the non bis in idem principle (‘not twice in the same’ in Latin), Kabuga will not be subject to trial in any national or international court.

One question remains: where will Kabuga, accused of crimes against humanity, spend his remaining years?

Even though he held a fake Congolese identity card under the name Antoine Tounga at the time of his arrest, his sole citizenship is Rwandan.

However, returning to Rwanda, which he fled in 1994 during the advance of the Rwandan Patriotic Front (RPF) before spending over two decades on the run – traversing Switzerland, DRC, Kenya, Germany, France – is not the obvious choice.

Kabuga might seek permission to reside in one of the countries where his children are residents: France, Belgium, the United Kingdom, or the Netherlands.

The host country of the International Criminal Court typically denies such requests, considering that the accused are on Dutch territory for a limited period during their trial.

“If he does not receive authorisation from a third country, Kabuga’s only option will be to return to Kigali after a 29-year absence,” says a source closely following the case.

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