Kabuga Arrested: Where Should he be Tried?
Nabil M. Orina
The news of the arrest of one of Rwandan genocide most wanted suspects Félicien Kabuga is without doubt the biggest news in the ICL sphere this year. Kabuga is reported to have been arrested in the outskirts of Paris after 26 years on the run. Kabuga was indicted by the United Nations International Criminal Tribunal for Rwanda (UNICTR) in 1997 (amended indictment issued in 2011) on several counts of genocide, complicity in genocide, direct and public incitement to commit genocide, attempt to commit genocide, conspiracy to commit genocide, persecution and extermination in relation to his alleged role in the Rwandan genocide.
Kabuga is alleged to have played a prominent role in the genocide through financing of Radio Télévision Libre des Milles Collines (RTLM) and other media which were actively used in incitement to genocide. He is also alleged to have imported 500,000 machetes which were used by the interahamwe militia in committing genocide.
The arrest of Kabuga has been received with great relief by survivors of the genocide (IBUKA) who, in a statement, have expressed hope that he could be brought before courts in Rwanda to face justice. Indeed, this arrest has evoked discussion on where Mr. Kabuga should face justice with three options being presented. In accordance with the Statute of the UNICTR, the Mechanism has primacy over national courts but it may refer the case to Rwanda under Article 6(1) of the Statute. A third option which may be floated is for Kabuga to be tried in France where he was arrested. These options will be briefly considered below.
A trial before the Mechanism is the most probable for the reason that Mr. Kabuga is considered to be one of the most senior leaders. The Chief Prosecutor of the United Nations International Residual Mechanism for Criminal Tribunals (IRMCT/ the Mechanism), Serge Brammertz, has already made clear the intention of having Kabuga tried at the Mechanism in his statement announcing the arrest. But is a trial before the Mechanism appropriate, in any case? The argument that has been made against a referral to Rwanda is that the Statute precludes such a referral for cases considered to be of “most senior leaders.” Iain Edwards argues that, The IRMCT doesn’t have jurisdiction to refer cases such as Kabuga’s…Art. 6(1) only gives IRMCT the power to refer suspects who come under Art. 1(3), ie. Those “who are not among the most senior leaders.”
The contrary argument to this may be that Art. 6 does not remove discretion from the Mechanism for referring cases which may be considered of “most senior leaders” to Rwandan courts. Whereas Art. 6 gives the Mechanism power to transfer cases of those, “who are not among the most senior leaders,” under Art. 1(3), the provision does not preclude the Mechanism from referring “most senior leaders” under Art. 1(2). This question, however, was implicitly addressed in Bernard Munyagishari v. the Prosecutorwhere the Appeals Chamber noted (Para. 42) that Mr. Munyagishari had not raised his objection on the basis of the MICT Statute which was not applicable to him, in any case. By deduction, the Appeals Chamber would have entertained an objection on the basis of Munyagishari’s status if the MICT Statute was applicable. Mr. Kabuga, by all indications, is among the “most senior leaders” and is unlikely to qualify for referral.
It should be noted, however, that the procedure under Rule 11bis of the ICTR Rules of Procedure and Evidence, under which referrals were previously conducted before the MICT Statute came into effect, did not impose a rank or seniority requirement. This begs the question whether the Security Council intended to eliminate the possibility of high ranking suspects being tried in Rwanda even in the face of the completion strategy. Nicola Palmer argues that the Mechanism ought to give consideration to the completion strategy goals in addressing this matter.
There is a strong argument for conducting the trial in Rwanda in case the IRMCT finds that it has discretion to entertain an application for referral. Rwanda has built capacity over the years and has effectively tried the cases referred so far. Furthermore, concerns of fair trial which were the hallmark of objections to referral were settled in the Uwikindi referral appeal. Besides, the logic behind the former Rule 11bis – as a completion strategy – still exists.
Importantly, for Rwandans and especially victims of the genocide and their families, it would be monumental to have one of the alleged masterminds of the genocide tried on Rwandan soil. Phil Clark aptly notes that this would be an “Eichmann in Jerusalem” moment. Trials closer home do inevitably reduce the distance inherent in international criminal tribunals. This will make it easy for Rwandans to follow the trial.
The last option – a trial in France may be an unnecessary squabble with Rwanda. Even though France has custody of the suspect, it will still be required to go through the process of referral in order to try Kabuga. This may not be in the interests of France which is trying to repair strained relationships with Rwanda.
In conclusion, even though a trial in Rwanda looks ideal, past experience has shown that referral related litigation takes between 2-4 years until final determination which makes it an inconvenient route considering Mr. Kabuga’s advanced age. An ideal situation would be for the IRMCT to invoke Rule 4 of the RPE to conduct part of, or the whole trial in Rwanda. This Rule empowers the President to authorise a Chamber to exercise its functions away from the seat, "in the interests of justice." Alternatively, A Security Council Resolution route may be considered. Nevertheless, Kabuga's trial should commence as soon as possible in the most convenient forum that would balance all the interests at play.
Ibuka, Press Release about the Arrest of Félicien Kabuga, 16 May 2020.
Theodor Meron, The Making of International Criminal Justice: A View From the Bench (Oxford University Press, 2011) 86.