The defence of Rwanda’s genocide suspect Felicien Kabuga has asked the residual Mechanism for the International Criminal Tribunals to halt his trial on condition of his failing health and fitness.
The hearing at The Hague yesterday was about procedural matters concerning a joint report of medical experts which states that Kabuga’s health has declined in so far that he is unable to participate meaningfully in the trial.
After presentation of the 3-page report, the Prosecutor said that the report is very short but there are no explications or substantial reasons to determine with confidence that he will never regain his fitness.”
Prosecution underlined that during the fitness hearings in May and June last year, the trial Chamber had already heard that fitness is a dynamic concept and that the assessment of fitness must be determined not on a bad day or based on a time where his cognitive abilities were diminished due to illness.
Prosecution recalled that Kabuga was ill during the new year with an Influenza virus that was further complicated by a bacterial lung infection.
The medical assessments for the present report were conducted in February when he was still recovering from these illnesses.
Based on this the Prosecution urged that the information is insufficient because it is only based on the February examinations and argued that the experts need to assess a “baseline condition” that is assessed over a longer period of time and takes into account that Kabuga needs to be fully recovered from his wintertime illness.
The prosecution then proposed possible ways forward stating that a temporary suspension of the hearings if judges consider that further assessment is required, a suspension only of the hearing of witnesses that would allow parties to continue to move towards a closing of the prosecution’s case and would allow the defence to open their case or a presentation of evidence such as the one on Kabuga’s RTLM radio broadcasts to propel genocide against Tutsi.
RTLM- Radio Télévision Libre des Mille Collines is accused of playing a significant role in inciting the 1994 genocide against Tutsi that claimed over a million lives.
Prosecution also emphasized the public interest to conclude the proceedings in a case of such significance not only for victims, but also for Rwandans and the whole international community.
The Prosecution also reminded the Court that Kabuga was a fugitive for two decades and that in the past, cases before the mechanism have only been terminated when a person had died, which is “clearly not the case here”.
The presiding Judge Iain Bonomy then turned to Kabuga’s defence counsel led by Maître Emmanuel Altit.
Altit said that the expert report confirms what the defence had been saying for months and months and that the Chamber said that fitness must be assessed, which was done.
He then asked the Court how anyone could imagine that he could be slightly fit and that from time to time people need to face up to reality.
Maitre Altit also emphasized that the experts said that Kabuga is mentally exhausted, disorganized and that he does not understand the world we’re living in and that Kabuga “seems to be affected by dementia”.
To finish, the defence counsel Altit said that for his team, it is clear that there is no arguing about it and that the proceedings should be terminated immediately.
Altit argued that it would be an “extreme violation of Kabuga’s fundamental rights” if the proceedings continued, and it would be a sham trial.
The Judge then inquired where Maitre Altit envisaged Kabuga goes when he is released.
The counsel replied that when he is released, he is presumed innocent so he can theoretically go where he wants, he is a Rwandan national but also has relatives around Europe.
To that, judge Bonomy asked whether the counsel has discussed with his client the possibility that no country would take him and that he will then need to stay in detention and will find himself in a limbo,
The judge also asked whether Maitre Altit could identify a jurisdiction where Kabuga could go and which assures that he returns for a possible further trial.
Kabuga’s counsel answered that in his experience countries would be ready to take people like that and that his team has already done this for clients beforehand.
The judge then adjourned the session and announced that court will decide on the case but no date indicated and whether witness KAB041 will be further interrogated or not.