Felicien Kabuga – Justice denied as UN appeal court rules ‘no trial’ possible

Felicien Kabuga listens intently to trial proceedings against him – before they were called off as he was judged too ‘unwell’
TRIAL TRANSCRIPTS from proceedings September 22 – February 23 available HERE

UPDATE: 8 August
Yesterday, five judges on the UN appeal court sitting in The Hague threw out a last ditch effort to continue Kabuga’s trial in a watered-down version. Their judgement overruled an earlier 6 June Trial Court verdict (see below) to attempt to continue with an ‘alternative finding (of the facts) procedure’ without Kabuga present. Judging that a trial court had no power to issue such a ruling and that ‘the jurisprudence is clear that the prejudice to an accused resulting from continuing the trial, while he or she is unfit to stand, would amount to a miscarriage of justice.’
The Appeal judges announced that the case would now go back to trial court and it was up to them to expeditiously try and find a state that would take Kabuga and where he can now be free to enjoy a comfortable retirement. With extensive family in France and Belgium it would be expected both countries will be pressed by the UN to offer Kabuga, the last major genocide suspect, a visa to stay. Given France was the chosen place for Kabuga to hide for several years where his family kept him hidden, it would be somewhat ironic if he now returned there free and no longer having to hide from tracking teams.
The appeal court noted that it understood ‘that victims and survivors of the crimes that Kabuga is charged with have waited long to see justice delivered, and that the inability to complete the trial proceedings in this case, due to Kabuga’s lack of fitness to stand trial, must be disappointing.’ This has to be the understatement of the century. The ICTR has failed victims and survivors throughout its highly expensive, remit. This is just another failure – and perhaps sums up the  ICTR and UNIRMCT as highly expensive white elephants of justice. It made millionaires of lawyers and judges, and brought little justice or consolation to survivors. It’s duty of care was always, and will always be as this case showed – to the perpetrators and suspects, not to those who suffered then, and now.
It remains to be seen if Kabuga will ‘jumpt the queue’ with 7 former detainees in Niger and two in Mali all pressurising the UN Mechanism registrar to find them comfortable new homes in France/Belgium or another state that will take them.
‘It is axiomatic that justice must be done and must be seen to be done,’ were the final word of the appeal court. Actually, Judges Carmel Agius, Burton Hall, Liu Daqun, Aminatta Lois Runny N’gum and Jose Ricardo de Prada Soles – there is a very strong feeling you would not know justice if you stumbled on it. You and your UN court have ensured Justice will NOT be done – to argue otherwise is just to play with words. But then that is all the ICTR/UNIRMCT has ever done rather than address the horrific and monstrous crimes the victims of the 1994 genocide against the Tutsi cried out against.

12 June
It’s official. What survivors have feared for 29 years has come to pass – Felicien Kabuga, a man long suspected to be the main stay of Hutu hate Radio RTLM and the financing and arming of the Interahamwe militia will NEVER be found guilty in a court of law. Having been shielded from justice by his huge wealth and large family for nearly three decades, finally it’s his age and alleged dementia that have come to his rescue. On 6 June, the UN Residual Mechanism (UNIRMCT) called off his trial at The Hague having decided he was ‘not fit for trial and is very unlikely to regain fitness in the future’ due to suffering from Vascular dementia and/or a form of Alzheimer’s.
However as a judicial ‘sop’ to victims and survivors, the court determined that there could be a legally unique ‘examination of the facts’ which would mean the trial will proceed, without Kabuga, but any conclusion cannot find him guilty. It is hoped it will achieve a sense that all the evidence is presented – useful to combat future denial which is on the rise – and make clear if Kabuga was indeed responsible for the charges in the indictment, even if he cannot now be found legally ‘guilty.’ It is a way, the court judges argue, also to give the accused the chance to have his name cleared.

What happens now? The trial will remain paused  – probably for some months – as legal argument takes place as to how the trial process will continue. ‘The best way to ensure respect for his [Kabuga’s] rights and to effectuate the goals of the Mechanism is to adopt an alternative finding procedure that resembles a trial as closely as possible, but without the possibility of a conviction. The Prosecution will retain the burden to prove both the actus reus and mens rea of each charge beyond a reasonable doubt. Many of the charges against Mr. Kabuga hinge on his mental state’.

It is interesting that one of the trial judges, the Moroccan Mustapha El Baaj argued that in his opinion this decision was all wrong. First off, the trial should have continued as he felt Kabuga was still fit, and second, if it was called off, no ‘examination of facts’ should take its place. His lengthy dissenting opinion [pages 30 – 56] is affixed to the end of the 6 June judgement.

For an exploration in more depth see the report by longtime ICTR correspondent Thierry Cruvellier on Justiceinfo.net: ‘Kabuga: Heading for a Palliative Trial?

EARLER POSTS AND CASE HISTORY

Currently Kabuga’s trial at The Hague (IRMCT) is suspended pending a decision as to whether the trial can continue – and if so, in what form, given the mental incapacity of the accused due to some form of suspected dementia. Kabuga is charged with six counts including genocide and incitement to commit genocide. The case is the final one that the International Tribunal will hear.

On 25 April the presiding trial judge, Ian Bonomy, noted the joint report of three independent medical experts (Professor Henry Kennedy, Professor Patrick Cras, and Professor Gillian Mezey) who had testified individually during hearings in March that in their view the accused was suffering from dementia. He requested the Prosecutor and Defence teams to submit reports about the future of the trial – and Kabuga – should it be accepted his illness makes a continuation of the car win its current format impossible.

On 9 May the Prosecution submission urged that, ‘If the Chamber concludes that Kabuga is not able to meaningfully participate in the proceedings even with the most extensive possible modifications and adaptations, then the Chamber should continue to hear the remainder of the Prosecution’s evidence and any Defence case by way of an “Examination of Facts” procedure. This would mean no ‘guilty’ or ‘not guilty’ verdict, but instead a ‘judicial determination of either acquittal or non acquittal.’ The former would mean Kabguga could be released, or if the latter was the case the court retained the jurisdiction to keep him in custody. The Prosecution argued that such proceedings were widely used worldwide by a number of countries where the disability of the defendant meant a ‘normal’ trial was not possible. The Prosecution argued that whether fit or unfit, Kabuga must stay in UN custody until proceedings are concluded – i.e. after Kabuga’s death.
Kabuga’s Defence team’s submission of 9 May argued that the trial could not continue due to the health concerns of the accused and that any attempt to instead have an ‘examination of the facts’ would be an abuse of process by the court and would violate fundamental rights of the accused by not allowing his defence to work in the best possible manner. The submission argued the only option for the court was to set Kabuga free immediately. The defence also protested strongly against the length of the Prosecution’s submission.
On 16 May the Prosecution issued a concise update of its views – if the trial cannot continued, proceedings must be ‘stayed’ not terminated and therefore Kabuga must not be released; instead there should be an ‘examination of the facts’ – which would give him the opportunity to be acquitted (nor not).

see:
Justiceinfo: Doctors say the trial should be stopped 4 April 2023
Justiceinfo: For Rwandans ‘the old man is still hiding’ 28 Feb 2023

Kabuga – awaiting justice Photo: UNIRMCT        Kabuga in his Rwanda heyday. c.1988

The trial of 87 year–old Kabuga (or 89 year–old according to the defendant) began in September 2022

 

After a two year wait for the court parties to prepare their cases, the final trial of a key genocide suspect has been very slow, was often held in secret session and has been less than transparent – as was the cases with many trials at the ICTR in Arusha where it was sitting previously. At its start in September 2022, given Kabuga’s age and fragile health, it was decided the court would sit for only three days a week, for three hours a session. However, this court time was later cut further to two days a week for 90 minutes only when the trial resumed after a long break in February 2023. Kabuga himself, having said he would boycott proceedings in protest at not having his chosen defence lawyer represent him, has attended proceedings either in person or by video link. The long wrangle over his choice of defence lawyer – or at least the one his family wish him to have – has been a protracted side-show and was only brought to an end by a court decision two months into the trial.

A major issue of contention during the trial remains the use of ‘protected’ witnesses. Most witnesses so far have their evidence given speaking with voices that have been ‘scrambled’ and with blurred features to stop identification. One step beyond this measure, is that a majority of prosecution witnesses have given evidence either in part or whole ‘in camera’. It means the evidence is unknown outside the court, and no transcript will ever be available. Such a means of holdings proceedings threatens the veracity of what is happening.

Trial information – April 2023:

After it began in late September, the trial chamber took a long break from late December to mid-February 2023; proceedings finally restarted on 14 February after intense legal wrangling over the state of Kabuga’s health, with his defence team arguing he was now too frail to take part and the trial should be aborted. The tribunal decided he was fit enough for the trial to continue though with decreased timings.
In March the trial was suspended again pending the judges hearing three medical experts as to whether Kabgua’s health – and especially alleged dementia was severe enough for the trial to be aborted.

A Live video link (with a 30 minutes delay) was available on the UN Residual Mechanism website. Trial sessions are currently only 90 minutes long, 10:00 CET Wednesday and Thursday) – subject to change. Often proceedings are held totally/ in part ‘in camera’ and cannot be viewed and only a short resume of the witness evidence is given by the prosecutor before questions are asked in closed session.

Opening statements by the Prosecutor and Defence are available on the Irmct youtube channel

Félicien Kabuga: Background

Felicien Kabuga was a highly successful Rwandan businessman and close political ally of the former Rwandan president Juvenal Habyarimana and his wife Agathe. Two of Kabuga’s daughters – Bernadette and Francoise – were married to Habyarimana’s sons Jean-Pierre and Leon respectively. His wealth was built up from the mid 1980s with numerous business interests including petro-chemicals, tea plantations, property, agriculture and transport. He became an important figure in the Rwandan political crisis from 1990-93 as key backer of Habyarimana’s MRND party, at a time when multi-party politics fragmented Rwandan politics and extremist ideology and factions became mainstream.

Kabuga with his wife in Rwanda c.1990

Kabuga remained in Rwanda after the death of the president in a plane crash on 6 April 1994, supporting the new genocidal interim regime of Prime Minister Kambanda and using his financial and personal influence to attempt to keep him in power as the RPF rebels closed in. With the defeat of the Rwandan regime in early July, Kabuga fled to Switzerland, from where he was deported back to Zaire (now DRC), and then set up home with many other high-profile members of the former regime in an exclusive suburb of Nairobi, where they were protected for a period by Kenyan leader Arap Moi who had a close relationship with former president’s wife Agathe Habyarimana. As the ICTR began to arrest leading suspected organisers and planners of the genocide in the late 1990s, Kabuga went underground, using his wealth, high-level political contacts and corrupt officials to evade the warrant for his arrest  which was in place as well as the indictment against him. The following 26 years saw a fruitless hunt for Kabuga, who had a $5 million US bounty on his head.

The ICTR went so far as to hold a special week of ‘deposition proceedings’ in his case in 2011 to evaluate and register evidence of prosecute witnesses so that should he be arrested, in case witnesses had died in the meanwhile, their evidence against him could still be used.

NTV: in the footsteps of Kabuga

On 16 May 2020, during the Covid lockdown, French police, working with assistance from the UN genocide tracking team and national European intelligence agencies, finally arrested Kabuga at a flat in Paris  where it is suspected he had been living for several years, helped by family members  living in Paris, Belgium and the UK.

France24: Who is Félicien Kabuga? Rwandan genocide kingpin arrested in France

Due to his age and infirmity, it was decided Kabuga’s trial before the UN Residual Mechanism for Criminal Tribunals (successor to the International Criminal Tribunal for Rwanda – ICTR) could go ahead but not in Arusha, Tanzania where the ICTR had been based. Kabuga was transferred to The Hague from France, where after two years of preparation, and 28 year the end of the genocide, Kabuga finally appeared to answer six charges contained in an amended indictment  against him. These included: genocide, incitement to commit genocide, extermination and murder. The charges focused substantially on 1. his role as President of Hutu hate radio RTLM that and its ‘broadcasting [that] called for and encouraged killing and harming by identifying locations where large numbers of Tutsi were seeking refuge such as religious buildings, schools and hospitals, which were then attacked by interahamwe and members of the armed forces.’ 2. His criminal responsibility for ‘aiding and abetting crimes committed by the Interahamwe [militia] and others,’ including by giving them space to train in, providing weapons, food and uniforms as well as financial support and encouragement.

Screenshot from a video recording of a meeting between the initiative committee of RTLM (Kabuga is second from left, Ferdinand Nahimana far left) with Rwandan Minister for Information Faustin Rucogoza, 10 February 1994. Rucogoza demanded RTLM cease its incitement to violence and hate. Minister Rucogoza and his wife were murdered within hours of the start of the genocide two months later.

Information about the Kabuga case (also available on UN IRNCT website)

Félicien Kabuga was the President of the Comité d’initiative of Radio Télévision Libre des Mille Collines (“RTLM”) during the time of the crimes pleaded in the indictment and President of the Comité provisoire of the Fonds de défense nationale (“National Defence Fund”) from about 25 April 1994 to July 1994.

Year and place of birth 1935, Muniga secteur, Mukarange commune, Byumba préfecture, Rwanda

Indictment Operative indictment filed on 1 March 2021

Arrest Arrested on 16 May 2020 in Asnières-sur-Seine, France

Mechanism Trial Chamber

Judge Iain Bonomy, Presiding
Judge Elizabeth Ibanda-Nahamya*
Judge Mustapha El Baaj
Judge Margaret deGuzman, Reserve Judge*

* Ugandan Judge Elizabeth Ibanda-Nahamya died on 5 January 2023 and was replaced on the trial bench by reserve Judge Margaret deGuzman.

Status of the Case/Trial

PROCEEDINGS BEFORE THE MECHANISM

According to Security Council resolution 1966 (2010), all States have an obligation to cooperate with the Mechanism in the location, arrest, detention, surrender, and transfer of accused persons still at large. Upon commencing operations on 1 July 2012, the Mechanism assumed jurisdiction over this case from the ICTR.

On 29 April 2013, a Single Judge, Judge Vagn Joensen, issued a warrant of arrest and an order for transfer requesting all Member States of the United Nations to search for, arrest, and transfer Mr. Félicien Kabuga (“Kabuga”) to the custody of the Arusha branch of the Mechanism.

On 16 May 2020, Kabuga was arrested near Paris by French authorities as the result of a joint investigation with the Mechanism Office of the Prosecutor.

On 30 September 2020, the French Cour de cassation rejected Kabuga’s appeal against the lower court’s decision authorising his transfer to the custody of the Mechanism.

On 1 October 2020, then-President Carmel Agius assigned this case to a Trial Chamber composed of Judge Iain Bonomy, Presiding, Judge Graciela Susana Gatti Santana, and Judge Elizabeth Ibanda-Nahamya, effective upon the transfer of Kabuga to the seat of the relevant branch of the Mechanism.

On 21 October 2020, Judge Iain Bonomy amended the warrant of arrest and order for transfer, and ordered that Kabuga be transferred to the Hague branch of the Mechanism based on a request from the Defence, which was supported by the Prosecutor and the Registrar, to allow for further medical assessments to determine whether Kabuga may be safely transferred to the Arusha branch of the Mechanism for trial. Kabuga was transferred to the Mechanism’s custody at the Hague branch on 26 October 2020.

Kabuga’s initial appearance took place on 11 November 2020, during which a plea of not guilty was entered on his behalf with respect to the charges in the indictment.

Since Kabuga’s initial appearance, the Pre-Trial Judge or the Trial Chamber held regular status conferences. In view of Covid-19 restrictions, the first status conference was held by way of written procedure, commencing by an order of the Trial Chamber issued on 9 March 2021 and concluding by an order of the Trial Chamber filed on 6 April 2021. Subsequent in-person status conferences were held on 1 June 2021, 6 October 2021, 3 February 2022, 11 May 2022, and 18 August 2022.

Pursuant to the Trial Chamber’s Decision on Prosecution Motion to Amend the Indictment, issued on 24 February 2021, the Prosecution filed its Second Amended Indictment on 1 March 2021 (“Indictment”). Moreover, the Trial Chamber took judicial notice of 45 adjudicated facts and facts of common knowledge, and it has issued decisions related to the admission of evidence of approximately 70 Prosecution witnesses pursuant to Rules 110, 111, or 112 of the Rules of Procedure and Evidence of the Mechanism.

Since shortly after Kabuga’s transfer to the Hague branch, the Trial Chamber has also been receiving twice-monthly medical reports from the United Nations Detention Unit’s Medical Officer related to Kabuga’s health, in order to determine his fitness to travel to and be detained at the Arusha branch of the Mechanism. In view of a Defence request for the appointment of medical experts to assess Kabuga’s fitness to stand trial, the Trial Chamber appointed three independent medical experts, one Prosecution medical expert, and one Defence medical expert. The Trial Chamber held hearings on 31 May, 1 June, and 7 June 2022 to allow for the examination of three of the medical experts and submissions of the parties on Kabuga’s fitness to stand trial and to be detained in Arusha.

In the Decision on Félicien Kabuga’s Fitness to Stand Trial and to be Transferred to and Detained in Arusha, issued on 13 June 2022, the Trial Chamber found that the Defence had not established that Kabuga is presently unfit for trial. In the same decision, the Trial Chamber, nonetheless, noted that Kabuga suffers from cognitive impairment, is in a vulnerable and fragile state, and requires intensive medical care and monitoring. The Trial Chamber further considered uniform medical expert evidence that transfer to Arusha presents risks of disruption to Kabuga’s familiar surroundings, which may materially and adversely impact the ability to swiftly commence and conclude his trial. In view of Kabuga’s age and fragile health, as well as his fundamental right to fair and expeditious proceedings without undue delay, the Trial Chamber decided that Kabuga shall remain detained at the Hague branch of the Mechanism and that his trial shall commence there until otherwise decided. The Trial Chamber did not foreclose that proceedings might take place in Arusha should Kabuga’s condition improve.

On 20 June 2022, Kabuga filed a motion for certification to appeal the Trial Chamber’s finding in the decision of 13 June 2022 that Kabuga was fit to stand trial. On 23 June 2022, the Trial Chamber certified for appeal the issue of Kabuga’s fitness to stand trial, and informed the parties that proceedings shall continue while the interlocutory appeal was pending. Kabuga filed his appeal on 30 June 2022 and, by order of the same date, the then-President assigned the appeal to a Bench of the Appeals Chamber composed of Judge Carmel Agius, Presiding, Judge Burton Hall, Judge Liu Daqun, Judge Aminatta Lois Runeni N’gum, and Judge José Ricardo de Prada Solaesa. On 12 August 2022, the Appeals Chamber dismissed the appeal in its entirely.

The Pre-Trial Conference was held at the Hague branch of the Mechanism on 18 August 2022.

On 26 August 2022, President Graciela Gatti Santana issued the Order Replacing a Judge and Assigning a Reserve Judge. The President assigned Judge Mustapha El Baaj to replace her on the Bench and Judge Margaret deGuzman to serve as the Reserve Judge in this case.

The Opening Statements were heard on 29 and 30 September 2022. The Prosecution began presenting evidence on 5 October 2022. As a result of Kabuga’s health condition and based on medical advice, the Trial Chamber anticipates holding court sessions three days per week (Tuesday, Wednesday, and Thursday) for two hours per day (10.00 a.m. to 12.00 p.m. Hague time).

CASE BACKGROUND INFORMATION

Indictment

Kabuga is charged with genocide, direct and public incitement to commit genocide, conspiracy to commit genocide, and persecution on political grounds, extermination, and murder as crimes against humanity, committed in Rwanda in 1994.

The Indictment states that between 6 April 1994 and 17 July 1994, genocide against the Tutsi ethnic group occurred in Rwanda, and that, throughout Rwanda, there were widespread and/or systematic attacks against the civilian population based on Tutsi ethnic identification and/or political grounds. According to the Indictment, Kabuga, a founder of the radio station RTLM, operated it with others in a manner that furthered hatred and violence against Tutsi and others and that he and others agreed to disseminate an anti-Tutsi message with the goal to eliminate the Tutsi ethnic group in Rwanda. Specifically, the Indictment alleges that RTLM directly and publicly incited the commission of genocide and persecution through denigrating and threatening broadcasts. These broadcasts expressly identified persons as Tutsi or as “accomplices” or “allies” of the Rwandan Patriotic Front and, in some instances, provided locations and other information that encouraged or facilitated their killing. The Indictment alleges that Kabuga is liable for these crimes based on his participation in a joint criminal enterprise with others involved in RTLM’s operations, as well as aiding and abetting the criminal conduct of RTLM journalists, Interahamwe, and others whose crimes were assisted or instigated by RTLM broadcasts.

Kabuga is further charged with aiding and abetting Interahamwe who killed and harmed Tutsi and others in Kigali-Ville, Gisenyi, and Kibuye prefectures by having provided material, logistical, financial, and moral support to them. As an example, the Indictment alleges that Kabuga supported a core group of Interahamwe in Kimironko, Kigali, known as “Kabuga’s Interahamwe” in numerous ways and that this group participated in attacks, killing and harming Tutsi and others in Kigali-Ville prefecture at roadblocks, places of refuge, and houses. Kabuga is further alleged to have raised funds to purchase weapons and ammunition and to have played a role in importing arms and ammunition which were distributed to Interahamwe in Gisenyi prefecture. The Indictment alleges that these supplies were used for committing crimes in Gisenyi, Kibuye, and Kigali-Ville prefectures.

TRIAL TRANSCRIPTS (PDFs):

FK trial March_01_23
FK trial Feb_28_23
FK trial Feb_23_23
FK trial Feb 22_23
FK trial Feb_15_23
FK trial Feb_14_23
FK trial Dec_22_22
FK trial Dec_21_22
FK trial Dec_20_22
FK trial Dec_15_22
FK trial Dec_14_22
FK trial Dec_13_22
FK trial Dec_8_22
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FK trial Dec_1_22
FK trial Nov_24_22
FK trial Nov_23_22
FK trial Nov_22_22
FK trial Nov_17_22
FK trial Nov_16_22
FK trial Nov_15_22
FK trial Nov_10_22
FK trial Nov_9_22
FK trial Nov_8_22
FK trial Oct_25_22
FK trial Oct_20_22
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FK trial Oct_18_22
FK trial Oct_13_22
FK trial Oct_12_22
FK trial Oct_11_22
FK trial Oct_6_22
FK trial Oct_5_22