The magistrates responsible for judging Félicien Kabuga have decided. Accused of genocide, conspiracy to commit genocide and crimes against humanity for extermination, the former Rwandan businessman was deemed on Tuesday June 6 “unfit” to stand trial. He has been prosecuted since September 2022 before the UN Mechanism in charge of the last cases of the International Criminal Tribunal for Rwanda (ICTR) for his alleged involvement in the genocide of the Tutsi in Rwanda in 1994.
At least 87 years old – his date of birth remains unknown – the former businessman, who suffers from dementia of cardiovascular origin, will not be released. Even if he “has very little chance of regaining his physical form” estimated the magistrates, Félicien Kabuga will be the subject of an unprecedented special procedure, “which resembles a trial as much as possible”, without being one since the three magistrates will not be able to pronounce a guilty verdict.
As part of this “finding procedure”, the prosecutor will have to continue to present and have his evidence recorded in order to demonstrate the genocidal intention of Félicien Kabuga during the events of 1994, his intention to destroy the Tutsi population. The former businessman will remain under medical supervision, as he has since arriving in The Hague in October 2020. He may, if he wishes, attend future hearings by videoconference from his cell or in person. His lawyers have the ability to appeal.
It took three months, since the suspension of the hearing of the prosecutor’s witnesses in February – only twenty-four came to testify in The Hague – for the judges to make their decision. They finally followed the advice of the experts. During hearings organized in March, in The Hague, the two psychiatrists and the neurologist who examined Félicien Kabuga had made a unanimous diagnosis of dementia of vascular origin.
Arrested in May 2020 in the Paris suburbs
But the previous Pinochet made an impression. Released after an incredible eighteen-month diplomatic-judicial saga, the former president of Chile Augusto Pinochet, who claimed to be unfit, left his wheelchair when he touched the tarmac at Santiago airport. During hearings on Mr. Kabuga’s health, lawyers asked experts if it was possible to fake dementia.
After all, the former businessman accused of having, in 1994, collected funds to supply weapons to the Interahamwe militias who were exterminating the Tutsi on the Rwandan hills, fled justice for twenty-two years. He was finally arrested in May 2020 in Asnières-sur-Seine, in the Paris suburbs, where he had lived with one of his sons for several years. It is in particular his medical file, under a false name, in a hospital in the region which will allow the investigators to trace his track.
As soon as he was arrested, his lawyers had mentioned the health of the old man. While he should have been tried in Arusha, Tanzania, in the brand new premises of the former ICTR, the judges considered that a trip would have been too risky and that he would be better treated in The Hague.
Aware of the exceptional nature of their decision, the magistrates explain that by setting up a special procedure, they hope to contribute “to the maintenance of peace in Rwanda”. They further claim that ending the trial today “would be inappropriate due to the importance of addressing crimes against humanity and charges of genocide brought against the victims and survivors of these crimes.”
Félicien Kabuga should be the last person responsible for the 1994 genocide to be tried before international justice. It is therefore also an “existential” question, according to several jurists. After him, the judges will have to hang up their robes and close the doors of this tribunal. Because one of the last fugitives, the ex-policeman Fulgence Kayishema, arrested at the end of May in South Africa at the request of the ICTR, should be extradited to Rwanda and be tried there. The ICTR relinquished the case ten years ago.