The International Residual Mechanism for Criminal Tribunals Commences Trial of Felicien Kabuga For Alleged Crimes of Genocide and Crimes Against Humanity

03-10-2022

Ryan Haigh

International Justice and Human Rights Researcher

Global Human Rights Defence

On 29 September 2022, the International Residual Mechanism for Criminal Tribunals (MICT) began criminal trial proceedings against Felicien Kabuga. [1] Kabuga is charged with one count of genocide, one count of incitement to commit genocide, one count of conspiracy to commit genocide and three counts of crimes against humanity encompassing persecution, extermination, and murder. [2] Kabuga is alleged to have committed these crimes during the 1994 Rwandan genocide in which Hutu ethnic majority killed more than 800,000 members of the Tutsi minority in 100 days. [3]

Allegations associated with Kabuga’s conduct are unique in that his alleged criminal conduct was committed via indirect means. Kabuga financed the dissemination of hate speech and genocidal propaganda via television and radio broadcasts. [4] Consistent with genocide charges encompassing sex crimes and rape, Hutus were encouraged to “taste” Tutsi women during these broadcasts. [5] Kabuga’s charges also include arming Hutus who used the weapons provided to commit genocide. [6] Based on the foregoing, the Prosecution is utilizing theories of Joint Criminal Enterprise and aiding and abetting to establish culpability. [7]

The prosecution faces challenges with regard to establishing that Kabuga provided material support to the Interahamwe (Hutu militants). The current indictment asserts that he raised funds for arms and assisted in their distribution at various locations.  [8] However, prosecutors were forced to abandon charges of importing machetes to be used in the murder of Tutsis due to evidentiary challenges. [9] As noted by former ICTR chief prosecutor, Stephen Rapp “[w]e had evidence of the massive order of machetes by Kabuga's company… and of their delivery to Rwanda…. [t]he challenge always was in showing that these machetes were distributed to the killers and used in the genocide. There were similarly massive purchases by an unrelated company at the same time, and there was a large need for these 'tools' in the agriculture of Rwanda and Zaire.” [10]  Whether or how the current prosecution can prove this connection is yet to be seen. 

Additional challenges for the prosecution include Kabuga’s age and health. In light of these circumstances, the Tribunal has decided to hold proceedings for only six hours a week. [11] At this rate, the trial will take months or years.  Kabuga evaded arrest on an active warrant for 23 years before finally being caught in France in 2020. [12] Although his date of birth is contested, he is now in his mid to late 80s. [13].  Additionally, Kabuga’s family claims that he is now senile and cannot be relied upon to make reasoned decisions associated with his defence. [13].  

Notes:

[1] MICT Office of the Prosecutor, ‘Office of the Prosecutor Presents Opening Statement in Kabuga Case’ (MICT Office of the Prosecutor, 29 September 2022) <https://www.irmct.org/en/news/office-prosecutor-presents-opening-statement-kabuga-case> accessed 3 October 2022.

[2] Prosecutor v Kabuga (Prosecution’s Second Amended Indictment) MICT-13-38-PT (1 March 2021) (Indictment). 

[3] Ibid.

[4] Ibid.

[5] Stephanie van den Berg, ‘Long-Awaited Rwanda Genocide Trial Starts Despite Suspect’s Boycott’ (Reuters, 29 September 2022) <https://www.reuters.com/world/africa/long-awaited-rwanda-genocide-trial-starts-despite-suspects-boycott-2022-09-29/> accessed 3 October 2022 (Reuters). 

[6] Indictment (n 2)

[7] Ibid. 

[8] Ibid.

[9] Ephram Rugiririza and Emmanuel Sehene Ruvugiro, ‘Why Kabuga is No Longer Accused of Importing Machetes for Genocide’ (JusticeInfo.net, 30 March 2021) <https://www.justiceinfo.net/en/75467-why-kabuga-no-longer-accused-importing-machetes-genocide.html> accessed 3 October 2022. 

[10] Ibid. 

[11] Reuters (n 5). 

[12] Balthazar Nduwayezu, ‘Kabuga Trial to Start Amid Defence Conflict’ (JusticeInfo.net, 26 September 2022) <https://www.justiceinfo.net/en/107003-kabuga-trial-start-defence-conflict.html> accessed 3 October 2022. 

[13] Ibid.