After 26 years on the run: What to expect when Kabuga faces justice

Thursday May 28 2020

kabuga

Félicien Kabuga was initially indicted by the Arusha-based United Nations International Criminal Tribunal for Rwanda (ICTR) in 1997. ILLUSTRATION | JOHN NYAGA  

By The EastAfrican

The arrest of Félicien Kabuga on May 16 in the Paris suburb of Asnieres-sur-Seine, France, was greeted with jubilation and surprise in Rwanda and elsewhere in the world. He was the most prominent fugitive accused of playing a central role in the genocide that targeted the Tutsi in Rwanda 26 years ago.

Mr Kabuga, 84, was initially indicted by the Arusha-based United Nations International Criminal Tribunal for Rwanda (ICTR) in 1997. He became, arguably, the highest profile individual targeted by the International Residual Mechanism for Criminal Tribunals (IRMCT) that succeeded the ICTR once it folded up in 2015. Mr Kabuga managed to evade justice using his wealth and networks that allowed him to buy protection and new identities, enabling him to move around the world undetected.

His long journey as a genocide fugitive reportedly took him to several countries across continents including Switzerland, the Democratic Republic of Congo, Kenya and Germany.

In reaction to his arrest, the chief prosecutor of the IRMCT, Serge Brammertz, highlighted the collaborative role played by institutions in France, Rwanda, Belgium, the United Kingdom, Germany, the Netherlands, Austria, Luxembourg, Switzerland, the US, Europol and Interpol.

Kabuga was a key member of President Juvénal Habyarimana’s inner cycle, Akazu, as evidenced by two marriages of his daughters to the president’s sons: Bernadette Uwamariya to Jean-Pierre Habyarimana and Françoise Mukanziza to Léon Habyarimana.

He is widely regarded as a central figure in the genocidal enterprise. He was the president of a committee that took the initiative to establish the infamous Radio Television Libre des Milles Collines (RTLM) that propagated anti-Tutsi hate speech and served as a key tool of incitement to commit genocide once the killings started. He also presided over a National Defence Fund established after the genocide started in support of armed forces and militias responsible for the killings.

Advertisement

PUBLIC INCITEMENT

The IRMCT indicted Kabuga on charges of genocide, complicity in genocide, direct and public incitement to commit genocide, attempt to commit genocide, conspiracy to commit genocide, persecution and extermination. It specifies that he instructed the Interahamwes to transport machetes to Gisenyi where they were distributed to the Interahamwe and used to kill the Tutsi.

Other accounts have documented the fact that Kabuga was top on the list of businessmen who imported more than half a million machetes during the months that preceded the genocide. He was mentioned several times in the ICTR Media Case against Ferdinand Nahimana, Jean-Bosco Barayagwiza and Ngeze Hassan in relation to the creation and operation of the RTLM. The defendants in the Media Case were all found guilty and handed long imprisonment sentences.

Under Article 1 of the Statute of the IRMCT, the institution was given jurisdiction over persons indicted by the ICTY and ICTR who fell under the category of “senior leaders suspected of being most responsible for the crimes”.

Others not fitting this profile should ideally be transferred to national jurisdictions of, among others, countries where the crimes were committed.

Based on this provision, the ICTR withheld jurisdiction over three so-called “big fish” fugitives, namely the former Minister of Defence Augustin Bizimana, former Commander of Presidential Guard Protais Mpiranya and Félicien Kabuga. Several other cases were transferred to national authorities, most of them to Rwandan courts.

It is widely expected that Kabuga will be tried by the IRMCT under procedural details yet to be clarified. The status of this case before the institution has been already updated as “Awaiting Transfer to the Mechanism's Custody”. French authorities have already signalled their willingness to transfer Kabuga to the IRMCT. Legal procedures are in motion in France to formalise the extradition.

The Hague has been mentioned as his immediate future destination. However, it is still unclear whether he will be tried at the headquarters of the Mechanism in the city or if his case will be adjudicated before its Arusha section.

Based on the IRMCT Statute and pragmatic considerations on its limited workload, the likelihood of an extradition of Kabuga to face trial before Rwandan courts remains rather thin.

Whether he is eventually tried in Arusha or The Hague, there is a number of considerations to keep in mind with regards to the anticipated proceedings.

SEVERAL YEARS

First, Kabuga is old and appears to be rather frail. Since international criminal proceedings characteristically take several years, a first logical question is whether he will actually be around long enough to stand a full trial, including a potential appeal. There have been suggestions that he might enter a guilty plea but in light of the continued denial of any genocidal conspiracy by members of the Habyarimana inner cycle, this scenario remains very unlikely.

Second, it is widely acknowledged that the ICTR contributed to the development of international law through a clarification of the definition of the crimes of genocide and the inclusion of rape and sexual violence as an integral part of that definition. If a full trial takes place, a major anticipation would be to see how the Mechanism adjudicates the financial aspects of Kabuga’s role in enabling the commission of the genocide.

Finally, Kabuga was reportedly the wealthiest man in Rwanda at the time of the genocide against the Tutsi. His assets included the most imposing private building in Kigali in 1994, a place still referred to as Kwa Kabuga (at Kabuga’s). He is therefore one of the few suspects who, if found guilty, might potentially be in a position to shoulder reparations to his victims.

However, unlike in proceedings before the International Criminal Court, the IRMCT does not provide victims with an independent standing to participate in the process and seek reparations.

All things considered, the mere fact that Kabuga is behind bars, awaiting trial, arguably performs a reparative function for his victims.

Dr Felix Mukwiza Ndahinda is a Rwandan-born researcher based in the Netherlands. He specialises in international law, victimology and the nexus between identity and conflict.

Advertisement