By Gustavo Minervini, PhD Candidate and Teaching Assistant in International Law at the University of Naples Federico II.
On 16 May 2020, the French police arrested the 84-year-old Rwandan fugitive Félicien Kabuga in Asnieres-sur-Seine, in the outskirts of Paris, putting an end to an almost thirty-year hunt. Kabuga is a former businessman accused of having played a major role in the 1994 Rwandan genocide, which led to the death of around 800,000 people. Notably, he would allegedly have financed the Interahmwe militia while also running the Radio Télévision Libre des Mille Collines (RTML), the infamous radio station that disseminated hate propaganda and incited people to carry out murders.
As one of the last fugitives wanted by the International Residual Mechanism for Criminal Tribunals (IRMCT), his arrest cannot but be considered as a huge success for international criminal justice. Soon after this accomplishment, however, different voices raised up as to whether he should be tried either before the IRMCT or Rwandan national courts.
This post first argues that, according to the IRMCT Statute, Kabuga should be tried by the Mechanism. In this respect, however, it will then question whether an international trial before the IRMCT does represent the most suitable option in light of the specificities of the case.
The IRMCT Statute
Article 1 of the Statute, which lays down the Competence of the Mechanism, provides how the authority shall exercise its power in prosecuting the persons indicted. According to Article 1(2):
“[t]he Mechanism shall have the power to prosecute […] the persons indicted by the ICTY or the ICTR who are among the most senior leaders suspected of being most responsible for the crimes covered by paragraph 1 of this Article, considering the gravity of the crimes charged and the level of responsibility of the accused”.
Article 1(3), instead, provides that the Mechanism shall have the power to prosecute those who are not among the most senior leaders only to the extent that “it has exhausted all reasonable efforts to refer the case” to national jurisdictions ex Article 6 of the Statute.
Traditionally, Article 1 has been interpreted as limiting the jurisdiction of the IRMCT. The choice of the Prosecutor to exercise his power under either Article 1(2) or 1(3) will, therefore, effect on whether the indicted person can respectively be tried only and exclusively by the Mechanism, or by domestic courts and – as extrema ratio, if the efforts to refer the case fail – by the Mechanism itself. This seems to be confirmed by Article 6 of the Statute which, in establishing the power of the IRMCT to refer cases to national jurisdictions, reads as follows:
“[t]he Mechanism shall have the power, and shall undertake every effort, to refer cases involving persons covered by paragraph 3 [and 4] of Article 1”.
In this sense, while the Statute explicitly provides for the power – and duty – to (try to) refer cases involving persons who are not among the most senior leaders, there is no reference to a possible referral of cases concerning persons covered by Article 1(2). From this perspective, one could argue that the Mechanism lacks the very power of referring cases under Article 1(2) to national jurisdictions.
This brings us to consider whether the prosecution of Kabuga, in light of the crimes he is charged with as well as his level of responsibility, should take place under Article 1(2) or 1(3). In this respect, the answer is quite straightforward: indeed, it is hardly deniable that Kabuga pertains to the ‘most senior leaders’ bearing in mind both the gravity of the crimes charged and, even more, the level of his responsibility in the 1994 genocide. In light of the foregoing, his prosecution before the IRMCT in accordance with Article 1(2) seems to be the most legally grounded option.
An international trial before the IRMCT: the most suitable option?
Even though a trial before the IRMCT may appear as the only viable and legally solid choice, there are still various reasons to question whether, in the case at stake, a domestic trial would rather be the most suitable option. In this respect, this post will look at three of them, which are deemed to be the most relevant.
First, as pointed out by Rashmi Raman in her recent post, one has to consider that the prosecution of Kabuga would represent the first ‘full-fledged’ trial of the Mechanism. Since its establishment, indeed, the IRMCT has mainly dealt with re-trials (e.g. Stanišić and Simatović, MICT-15-96) or appeals (e.g. Karadžić, MICT-13-55 or Mladić, MICT-13-56). Contrariwise, in the case under consideration, the Mechanism would have to deal with an entirely new proceeding. Such a situation must not be underestimated for various reasons. In primis, the prosecution of Kabuga would represent the first – and, arguably, most important – test of the efficiency of the Mechanism, which was established as a “small, temporary and efficient structure” (UNSC Resolution 1966 (2010)). The capability of a such a structure to deal with a new and complex trial is nothing but to be tested. In secundis, there is a concrete chance that Kabuga will have to face a very long trial. While international criminal justice has often be accused of being per se too slow, the plausible difficulties of the Mechanism to deal with its first full-fledged trial could arguably increase the length of the proceedings. From this perspective, the risk that the 84-year-old Kabuga would not survive his trial is self-apparent. Similarly, one may question whether an (even ‘successful’) years-long trial of an elderly person can achieve retributive purposes or – as it was the case of Nuon Chea’s prosecution before the Extraordinary Chambers in the Courts of Cambodia – the very age of the defendant risks to frustrate this legitimate aim. Finally, the very logistics and costs of holding an international trial in Arusha – a third country, instead of the locus commissi delicti – shall be carefully considered. This is particularly important whether one considers that the ICTR, whose legacy has been inherited by the IRMCT, was often accused of being cost-ineffective.
Second, and strictly related to the first point, the charges against Kabuga make his trial a possible ‘one-off event’ in contemporary international criminal justice. Notably, as pointed out above, he would have contributed to the 1994 genocide through its economic wealth by equipping the Interahmwe militia, financing the RTML and establishing the National Defense Fund. In this respect, it is easy to say that there is no comparable case in the jurisprudence of the ICTR/IRMCT (apart from, in some respects, the well-known Media case) and of other international criminal tribunals. Quite the opposite, the case against Kabuga could perhaps only be compared with the International Military Tribunal’s proceedings against private financiers of the crimes committed by the Third Reich. From this point of view, the Mechanism would therefore have to deal with a unique case with scarce, if any, jurisprudence to look at as a footpath.
Last, but not least, an international trial before the Mechanism seems running against the so-called ‘Completion Strategy’ of the UN Security Council. As clearly highlighted by Dr. Palmer in her post on Kabuga, the very establishment of the IRMCT was strictly related to the idea that international criminal proceedings should eventually give way to domestic prosecution. This is confirmed by her analysis of UNSC Resolutions 1503 (2003) and 1534 (2004) which addressed the ICTY and ICTR by “clearly focus[ing] on taking all possible measures to conclude trial activities at the international level”.
This strategy is apparent in the recent speech given by Judge Carmel Agius, the President of the Mechanism, who stressed that:
“the Mechanism expects to conclude all existing cases within the next twelve months [and…] will therefore be in a position to focus primarily on its continuous residual functions after 2020 […]”.
While the trial of Kabuga is surely within the mandate of the Mechanism, its compatibility with the ‘Completion Strategy’ can however be questioned.
The analysis carried out above brings us to consider whether a referral of the case of Kabuga to Rwandan national courts may be a viable and reasonable option. An exhaustive and thorough answer is unfortunately out of the scope of this post. However, it is worth to quickly make some considerations.
In the first place, the very power of the IRMCT to refer only cases under Article 1(3) and (4) could be challenged. This could be done in two different ways. On the one hand, the UNSC could promptly amend the Mechanism Statute in order to remove its exclusive jurisdiction over ‘the most senior leaders’. On the other hand, one could even argue that the lack of an explicit power to refer cases under Article 1(2) does not automatically exclude this possibility. Indeed, the duty to try to refer cases under Article 1(3) was arguably included as a step further towards the ‘Completion Strategy’. To deny this possibility for cases under Article 1(2) would be unjustified. From this point of view, there could be an interpretative way to argue that while Article 1(3) does require to try to refer the case, the Mechanism could nonetheless do it, on its own accord, with regard to cases under Article 1(2).
Moreover, a referral to Rwandan domestic courts could be justified by different reasons. First, the physical proximity of the trial could enhance a sense of justice by allowing Rwandan people to actively follow the proceedings. Contrariwise, as underlined elsewhere, “[i]f the trail takes place in Arusha or in The Hague, the court audience will constitute mainly journalists, researchers and lawyers.” Second, despite the existing concerns about fair trial and efficiency of Rwandan judiciary, this could represent an opportunity for Rwandan government to prove the feasibility of litigating high-profile genocide cases before its domestic courts. Last but not least, the trial of Kabuga before Rwandan courts could arguably represent a very important historical step for a country which, after 26 years, is still on the process of healing.
Whether this will happen is hardly predictable. In light of the current state of affairs, it is more than likely that the trial will take place before the Mechanism. This post, however, suggested that an international trial would not be free of risks and uncertainties. Therefore, a referral to Rwandan national courts should not be excluded as a matter of principle. How to make it possible is arguably a matter of political will.