Who Should Try Félicien Kabuga?

[Nicola Palmer is a Senior Lecturer in criminal law at King’s and the author of Courts in Conflict: Interpreting the Layers of Justice in Post-Genocide Rwanda.]

On Saturday, 16 May 2020 Félicien Kabuga, a former businessman accused of being a major financial backer of Hutu extremism in the build-up to, and during, the Rwandan genocide was arrested in a flat in Asnieres-sur-Seine on the outskirts of Paris. As one of the last remaining fugitives still within the jurisdiction of the International Residual Mechanism for Criminal Tribunals (IRMCT), his arrest is seen as a huge success for international criminal justice and transnational police collaboration.

On the face of it, the IRMCT Prosecutor can now start criminal proceedings against Kabuga based on Art 1 (2) of the Mechanism’s Statute establishing its 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.

The Prosecutor’s choice to exercise his authority under this provision is guided by his consideration of the gravity of the crimes charged and the alleged level of responsibility of the accused. Under Article 1 (2) Kabuga can be tried by the IRMCT and by the IRMCT alone. If, in undertaking the gravity and responsibility assessment, the Prosecutor chooses to exercise his power under Article 1 (3), designated for those deemed ‘not among the most senior leaders’, a very different scenario opens up, in which he will need to have exhausted ‘all reasonable efforts to refer the case’ to a national jurisdiction in line with Article 6 of the Statute, before he can proceed.

In this post I will first explore how we came to Security Council Resolution (SCR) 1966 (2010) establishing the IRMCT’s exclusive jurisdiction over suspects it determines as potentially the most responsible for the gravest crimes committed in Rwanda in 1994. In particular, I argue for Article 1 (2) to be read in light of the wider set of Security Council Resolutions that have underpinned this legal innovation. This reading raises questions about the justifications for the IRMCT’s exclusive jurisdiction and the avenues through which it could be challenged.

Second, I will discuss what is at stake in this trial and to whom it matters where it gets held. This requires an articulation of  the position and objectives of the Security Council, the IRMCT, the Rwandan and French States and the Rwandan citizens, who remain so deeply entangled in post-genocide justice seeking twenty-six years after the violence.

1. Examining the Security Council Resolutions

To understand why the IRMCT exists as an international court it is necessary to start with the Security Council’s enactment of  a ‘Completion Strategy’ for the International Criminal Tribunal for Rwanda (ICTR). This began in 2003 with SCR 1503 (2003) which called on the ICTR ‘to take all possible measures’ to complete all its work by 2010 (para 7).

The preamble of this Resolution, rather than the main text, first introduces the idea that ‘intermediate- and lower-rank accused could be transferred to competent national jurisdictions, as appropriate, including Rwanda’. However, the substantive focus of SCR 1503 (2003) is on taking ‘all possible measures’ to complete the work of the ICTR. Transfers to national courts are seen as a means of realising this and are accompanied by a renewed focus on how ‘strengthening…national judicial systems is crucially important to the rule of law in general’.

The next important resolution is SRC 1534 (2004). This Resolution emphasises the role of Prosecutorial discretion in determining which cases should be proceeded with and which should be transferred. It

‘calls on the ICTY and ICTR Prosecutors to review the case load of the ICTY and ICTR respectively in particular with a view to determining which cases should be proceeded with and which should be transferred to competent national jurisdictions’ (para 4).

Despite the suggestion in Article 6 of the IRMCT Statute, governing referrals, that the test for gravity and responsibility comes from this Resolution, this wording is not used in relation to the referral of cases. It is used to state that any new indictments must ‘concentrate on the most senior leaders suspected of being most responsible for crimes within the jurisdiction of the relevant Tribunal.’ (para 5). Kabuga’s indictment has been in place since 1996. It also reaffirms what was made explicit in the text of SCR 1503 (2003), that the ICTR is called on ‘to take all possible measures’ to complete its work by 2010 (para 3).

Together these Resolutions underpinned the ICTR’s Completion Strategy and prompted the revision of Rule 11bis of the ICTR’s Rules of Procedure and Evidence to govern the referral of indictments to national jurisdictions. For the present purposes it is important to note that this power of referral for the ICTR was not based on a gravity or responsibility threshold of the indictee. There were no restrictions on which indictments could be referred. The criteria focused on whether the potential receiving state had a legal framework criminalizing the alleged conduct, offered appropriate punishment for the offence and had adequate conditions of detention and fair trial guarantees. In my reading, the justification for Article 1 (2) of the IRMCT can’t immediately be found in SCR 1503 (2003) and SRC 1534 (2004), which are the two preceding SCRs that are referred to.

Between 2004 and the creation of the IRMCT, ten SCRs relate to Rwanda, eight of which address ICTR staffing issues, and in doing so reiterate the strategy for completion of the Tribunal’s work by 2010. By 2009, in Resolution 1878 (2009), the Security Council takes note of ‘the assessment by the International Tribunal in its Completion Strategy Report (S/2009/247) that the Tribunal will not be in a position to complete all its work in 2010.’ This then leads to SCR 1966 (2010) creating the IRMCT, setting, for the first time, the threshold of gravity and responsibility that excludes the possibility of transferring those deemed ‘the most responsible’ to national jurisdictions.

In its Preamble, SCR 1966 (2010) recognises two key achievements of the ad hoc tribunals: their ‘considerable contribution…to international criminal justice’ and their role in  ‘the re-establishment of the rule of law in the countries of the former Yugoslavia and in Rwanda’. Yet, at the same time this Resolution, in its drafting of Article 1 (2), privileges the former achievement over the latter.

The Preamble goes on to refer to the statement of the President of the Security Council made on 19 December 2008 (S/PRST/2008/47) which stated that one of the remaining essential functions of the Tribunals is ‘the trial of fugitives who are among the most senior leaders suspected of being most responsible for crimes’. This distinction is then used in the text of the Statute establishing the bifurcated personnel jurisdiction in Article 1 (2) and 1 (3).

However, once again the wording of this Presidential Statement is not as clear as the IRMCT Statute suggests, with the statement noting only that the Tribunal should ‘concentrate their work on the prosecution and trial of the most senior leaders suspected of being most responsible’.

A wider view on the Statute of the IRMCT shows that the earlier decision-making by the Security Council that led up to this Statute supports a view of the Prosecutor having discretion over who gets transferred to national jurisdictions. The establishment of exclusive jurisdiction over ‘the most senior accused’ seems only to emerge in justifying the creation of the IRMCT rather than in supporting the completion of the work of the ICTR, which, from 2003 underpinned all of the Resolutions relating to the ICTR, up until SCR 1966 (2010).

Resolutions SCR 1503 (2003) and SRC 1534 (2004) – so carefully cross-referenced in the IRMCT Statute when establishing the gravity and responsibility threshold – were much more clearly focused on taking ‘all possible measures’ to conclude trial activities at the international level than on securing exclusive jurisdiction over the most senior accused. Starting a new trial in Arusha, Tanzania this year against Félicien Kabuga is certainly not in line with this general direction of travel.

Shifting this direction would either require that the prosecutor exercises his wider discretions under Art 1 (3) justified on Completion Strategy grounds or the Statute be amended through a Security Council Resolution to remove the exclusive jurisdiction of the IRMCT over the ‘most senior leaders’. The latter should not be entirely ruled out as a possibility. As argued above, the over-riding agenda of the Security Council in the last seventeen years has been to complete the work of the ICTR. In addition, there is past practice of amendment of the ICTR Statute through Security Council Resolution; for example, S/RES/1503 (2003) amended the Statute of the ICTR to create two separate prosecutor roles for Rwanda and Yugoslavia. It is possible that Kabuga’s trial could still take place in Rwanda.

• Why does it matter where Kabuga is tried?

Inside Rwanda, among everyday citizens there are strong views on where genocide trials are heard. In the 26 years since the genocide, most Rwandan citizens have had direct experience of post-genocide justice primarily through their mandatory participation in the gacaca courts. My earlier research found that this personal experience profoundly shaped people’s views on the full range of judicial proceedings undertaken in the national, international and indeed transnational spheres. In my interviews, critique of trials at the ICTR did not focus on the clichéd claim that they took too long or cost too much, but rather on the terms set by Rwandan citizens own experience of post-genocide justice. As one gacaca participant said to me:

In Arusha the big fish are there. The victims travel there, but in gacaca, everyone is already here; survivors, perpetrators, judges, they are all here in the community. That is the difference…Those in Arusha haven’t asked for forgiveness yet they have committed many crimes here. They should face us, the Rwandan family, but they avoid us by being there.

Or as a man who had testified before the ICTR and was jailed in Rwanda for 14 years at the time of the interview, said,

The rules are from people from the outside. It is not the same as people going from the inside. The people accused in Arusha ought to be brought here because to have them all the way over there, and the foreigners making up the rules, I do not think that this is a good idea.’

For these Rwandans there is a strong sense that they have had to grapple with domestic accountability for the crimes committed in 1994 and those who led and financed these crimes should have to do the same.

For the Rwandan government, an opportunity to argue for the referral of Kabuga to Rwanda, fits into the much wider activities of the Rwandan Genocide Fugitives Tracking Unit (GFTU), a specialist unit of the National Public Prosecution Authority (NPPA). The GFTU led on the efforts to have cases transferred from the ICTR to Rwanda. These transfers involved drafting and amending bespoke legislation, removing the death penalty and investing in prison infrastructure. The first four applications for the transfer of cases to Rwanda were denied based on fair trial concerns, resulting in further legislative change to boost domestic witness protection measures and ultimately the transfer of three suspects along with five fugitive dossiers to Rwanda.

These cases fit into a much wider picture of transnational litigation that since 2004 has resulted in 19 individuals being deported or extradited to Rwanda to face genocide charges before the Rwandan national courts, 31 individuals have had their extradition to Rwanda denied, 36 have faced domestic criminal trials outside of Rwanda and 29 people have had their refugee protection, residency permits or citizenship revoked or have been prosecuted for immigration offences on the basis of an allegation of their involvement in the genocide.

As I argue in a forthcoming article in the Leiden Journal of International Law, mapping these cases in 20 countries around the world illuminates multiple drivers for this final phase of criminal accountability for the genocide. There is no doubt that for the Rwandan government one of them is the need to keep the experience of the Rwandan genocide alive while signalling the importance of trying those accused of involvement in violence that was undertaken with intent to destroy in whole or in part the Tutsi ethnic group. Rwandan survivor communities and their supporters living in the diaspora have played an important role in the sustained focus on genocide suspects living abroad. It is undeniable that the trial of Kabuga would offer an opportunity to better understand how the genocidal violence was financed and by whom. However, as with most justice initiatives, they can serve multiple purposes. These transnational proceedings are also a key way of ensuring that the Rwandan government maintains influence and signals the reach of its penal authority across borders and into its diaspora communities around the world. The arrest of Kabuga very much fits into this pattern. This is evident in the initial comments from Rwanda’s Justice Minister Johnston Busingye in the wake of Kabuga’s arrest stating, in an interview with JusticeInfo, that ‘It should make the other fugitives understand that they will eventually be arrested’. For the Rwandan government, it is particularly important that this message is communicated in France.

France has the largest number of individual Rwandan genocide-related cases in the dataset that I have been developing to map these proceedings outside of Rwanda. To date there have been five domestic criminal trials of genocide suspects, including the two cases transferred to France from the ICTR. In addition, there have been 20 cases in France concerning the extradition of genocide suspects to Rwanda. All extraditions have been denied initially, largely on the basis of fair trial concerns. Since 2014, the Cour de cassation (Criminal Chamber) has consistently held that there was an insufficiently precise and accessible definition of what constituted genocide and a crime against humanity under Rwandan law, at the time that the incriminating facts were committed. This makes any further extradition request very difficult. However, in French immigration courts, six individuals, including former Rwandan first lady Agathe Kanziga Habyarimana, have had their refugee protection removed or residency permits revoked based on ‘serious reasons for considering’ that these individuals ‘have committed a crime against the peace, a war crime or a crime against humanity’, leaving these individuals in legal limbo. These immigration proceedings offer a far more positive reading of fair trial in Rwanda. As I have argued elsewhere, these cases are as much about the differences in the audiences addressed in immigration and extradition cases as they are about accurately reflecting fair trial rights in Rwanda.

It is still most likely that Kabuga will be tried by the IRMCT in Arusha.  This post, however, has endeavoured to shed light on the legal basis of this exercise of international authority and the varying objectives and interests that are at play. There is a comfortable assumption among international lawyers that once there is a Statute in place, it automatically provides the route through which internationalised courts can act as objective neutral arbiters. However, with the rate of legal change and institutional innovation that characterises international criminal law, we need to move beyond narrow isolated readings of Statues or indeed specific articles within them. This requires looking at the objectives at work in the development and interpretation of the law in one direction or another.

[Update from Opinio Juris: an earlier version erroneously contained a photo that was not of Felicien Kabuga. Once brought to our attention, this was amended and corrected.]