The suspension of Felicien Kabuga’s trial may be disappointing and frustrating, but it does not take away the significance and importance of his arrest, in pursuing justice for the survivors and victims of the 1994 Genocide Against Tutsi. That is the conviction of the chief prosecutor for the United Nations Residual Mechanism for Criminal Tribunals, Serge Brammertz.
In an interview with Kigali Today, Dr Brammertz emphasised that while he disagreed with the court’s decision, he nonetheless understood and respected it.
Kabuga is alleged to have been an important figure in the genocidal establishment of then President Juvenal Habyarimana. One of Rwanda’s most successful businessmen at the time, he owned the notorious hate radio, RTLM (Radio Television Libre des Mille Collines), which was the voice of planners and perpetrators of the genocide.
After the final defeat of the genocidal forces, by the Rwanda Patriotic Front (RPF), in July 1994, Kabuga, like other planners and perpetrators of the genocide, went on the run. A combination of his wealth and corrupt government officials, willing to conceal his whereabouts in return for money, even issuing him false passports, allowed him to evade international arrest warrants for more than two decades.
Justice, in the form of the International Mechanism for Criminal Tribunals (IRMCT), finally caught up with him in 2020, living on the outskirts of Paris, in Asnieres-Sur-Seine. His twenty-six-year cat and mouse game with international justice was at an end.
If he could not have him tried in Rwanda, Brammertz, who believes that justice is best served in the same jurisdiction the crimes are committed, wanted him tried at least in Arusha, but Kabuga’s defence team were successful in arguing that the 87 year old’s health was too frail for him to travel, and the trial was instead held in the Netherlands, at the Hague.
At first, it was heart problems, but soon his defence argued that he had a form of dementia, which would prevent him to follow the trial. The prosecution did not agree, but medical experts agreed with the defence, and the judges were persuaded to suspend the trial, indefinitely.
For Brammertz, whose team had tracked him down, the judges’ decision was frustrating and disappointing. Following the court’s decision, he embarked on a whistle stop tour, to thank the different institutions in the different countries with which he had worked to bring Kabuga to trial.
The prosecution believed that Kabuga was more than sufficiently able to follow the court’s proceedings, and appealed against the decision to suspend the trial. In Brammertz’s own words, the prosecution wanted the trial to continue, because they were of the view that Kabuga’s “intellectual capabilities were sufficient to follow a trial.” It is a view with which one of the judges concurred.
“I respectfully disagree with the majority opinion that Kabuga is unfit to stand trial. Judge Mustafa El Baaj, said in his statement, “I consider that Kabuga has not demonstrated his unfitness to stand trial and that such unfitness is not supported by the medical evidence on the record.” On the contrary” he concluded, “I am convinced that Kabuga retains a number of capacities which allow him to reach the legal standard set out in our jurisprudence.”
The majority opinion prevailed however, and Kabuga will be a free man, albeit under a number of restrictions, but nonetheless, much to the consternation of the survivors of the grave crimes with which he was charged, and for which he is unlikely ever to be convicted.
The suspension of the Kabuga trial has prompted many to decry international justice, especially as it applies to the Rwanda genocide against the Tutsi. They drawal a parallel with the trial of former Nazis, seventy years after the holocaust against the Jewish people, and conclude that there is at least a degree of double standards, one rule for the West, and another for Africa. Many of the accused former Nazis are in their 90s, the oldest 101, almost all plead ill health, and yet the trials are never abandoned.
It is a suggestion Brammertz rejects. Many of the judges and lawyers of the International Criminal Tribunal for Rwanda (ICTR) were after all Africans, the cases were tried on African soil. It has been, he argues, “African justice delivered by Africans.” The suspension of the trial nonetheless remains a shock to the survivors.
It is as much in consideration of the feelings of the survivors, and deference to the victims, that the prosecution suggested a rarely used legal alternative, which was also rejected, the so called trial of the facts. It is not a process which would have led to a conviction, but there would be a decision that would allow a conclusion to be drawn.
“The advantage” Brammertz explains, “is that the trial would have continued, all the evidence would have been heard by the trial judges and they would have come out with findings, conclusions at the end, having conclusions about the crimes committed, in relation to the victims and survivors, recognising their status as survivors and victims…”
Theoratically, Kabuga’s trial can be continued at some future date, but the likelihood of that happening is virtually non existent, not least because his lawyers would continue to argue incapacity to follow the court’s proceedings. A more likely scenario, is that he will never see a courtroom again.
For Brammertz, frustrating as the suspension of the trial is, it does not take away the importance of Kabuga’s arrest for international justice. The IRMCT now focuses on other cases, in particular that of Fulgence Kayishema, who was recently arrested in South Africa, but also the 100 or so other cases, where the accused are still fugitives.
The arrest of Kabuga involved pains taking hard work, with cooperation from countries not readily forthcoming, and Brammertz pleads for greater support from countries, to continue his work.
“There are more than 1,200 fugitives at large, and the situation with Kabuga really shows, is that is against us. We need more support by more countries to have more fugitives, more genocidaires arrested, because many of them are getting older, and longer it takes the more difficult it will be for justice to be delivered…the fight for justice needs to continue, and we will continue to work with the prosecutor-general in Kigali, and with the other collegues and friends, to make sure that other fugitives are arresed.”
“And the clear message I am giving to all capitals, because we know that out of those 1,200 fugitives, half of them are on the African continent, the others in Europe, US, Canada and Australia, and we are giving very clearly the message, to all countries, to say, you have the moral and legal obligation to extradite those individuals to Rwanda, to have them prosecuted. And if for whatever reason, you are not able or not willing to extradite those individuals, well then you have the obligation to prosecute them before your own jurisdictions.”
“We, as mechanism of the United Nations, as residual mechanism, as former ICTR, we are absolutely willing to support any country to have genocidaires prosecuted, as we have more than one million pages of documents related to the genocide against the Tutsi in Rwanda. So, the fight will go on, there are many procedures to come, and we are ready to help Kigali and other countries to pursue the remaining cases.”
For Kabuga however, the case all but closed. In normal circumstances, he would now be returned to the only country that is legally obliged to receive him, the country of his birth, in this case, Rwanda. That however, is an eventuality against which his lawyers will argue, and is also unlikely to happen. His defence team are now expected to look for a third country that will agree to take him, on humanitarian grounds.
While he shares the disappointment and frustration of the survivors, Brammertz believes nonetheless that the arrest of Kabuga was significant, and the way the trial has ended does not change that. He himself fully agreed with the dissenting judge, and was of the view that the trial could and should have continued. He says of Kabuga, “he was fit enough to be a fugitive for so many years, he was living in a small apartment in Paris, and when he was arrested, of course, I have been since day one of the opinion that his trial can go on and must go on.”
“I read all the medical reports that the judges did, I was personally of the opinion that he was capable enough of the proceedings…especially as he has a very competent legal counsel, a lawyer, who was absolutely in a position to give him the necessary legal advice…so, my personal opinion is very clear on the issue, but once you work as a prosecutor in the court of law, you have to accept legal decisions by judges. That’s the difference between us who are applying humanitarian law, and the genocidaires who are acting outside any legal framework, when they commit their crimes…so, I have to accept the final decision by the appeals judges, and even though I disagree, I can fully understand the reasoning…”
It is an unsatisfactory end to what has been a long, difficult, expensive case, but it is also success of some sort, in that not even someone as well connected, as well protected as Kabuga, was able to evade arrest, and from that the IRMCT can draw encouragement that international justice has been served, albeit not as they would have wished.
You can see Dr Brammertz’s interview with Kigali Today in full here: