Everything is what it is, and not another thing. Joseph Butler
“I don’t know what you mean by ‘glory.’ Alice said. Humpty Dumpty smiled contemptuously. “Of course you don’t – till I tell you. I meant ‘there’s a nice knock-down argument for you!’” “But glory doesn’t mean ‘a nice knock-down argument,’” Alice objected. “When I use a word,” Humpty Dumpty said, in a rather scornful tone, “it means just what I choose it to mean-neither more nor less.”
Lewis Carroll, Through the Looking Glass
On 6 June 2023, the Trial Chamber of the International Residual Mechanism for Criminal Tribunals (IRMCT), by majority, found Félicien Kabuga “unfit to participate meaningfully in his trial” and “very unlikely to regain fitness in the future.” Nonetheless, the majority decided to “proceed with an alternative finding procedure” resembling “a trial as closely as possible, but without the possibility of a conviction,” with the prosecution “retain[ing] the burden to prove both the actus reus and mens rea of each charge beyond reasonable doubt,” while making Kabuga’s attendance “unnecessary”.
The authority cited to support the legality of this alternative finding procedure neither represents objective widespread and consistent practice of States, nor subjective practice that is observed out of obligation as opposed to respect (opinio juris), nor any statutory provisions from any of the past or existing international(ized) criminal courts and tribunals, nor any of IRMCT’s own jurisprudence. Rather, what is cited are national criminal provisions from England and Wales, Scotland, South Africa, Australia, Guatemala, and the US state of New Mexico – with the latter two jurisdiction highlighted for being outside the Commonwealth, as if this makes a difference. Of course, there are also notable distinctions in the procedures applied by these jurisdictions. In some jurisdictions that engage in alternative procedures upon findings of unfitness, the courts are to focus only on the actus reus (whether the accused committed the acts) and not his or her mens rea, while other jurisdictions’ procedures attempt to resemble trial as closely as possible. Not that this makes a difference when, as argued below, the accused is unable to participate meaningfully in his or her trial through exercising, with full mental capacity, his or her guaranteed fair trial rights.
The dissent is a mixed bag: (1) despite the medical finding of three experts, Kabuga can still meaningfully enjoy his fair trial rights regardless of his mental disabilities (does an accused seriously need to appreciate everything that is happening during a trial and assist in his own defence, so long as he is aware of his surroundings? – to put the dissent’s reasoning crudely); and (2) the applicable statute does not provide for an alternative finding procedure, and as mentioned above, the scant national legal authority provided does not fulfill the two key factors of customary international law. Hence all the more reason for the trial to continue.
Flummoxed on hearing the essence of the decision, I decided to read it. Perhaps all these years I have misunderstood what fair trial rights are and should be disabused of the notion that all accused at the international(ized) criminal courts and tribunals – where the highest international standards are to be applied, including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and more specific to this case, the Convention on the Rights of Persons with Disabilities – enjoy these rights equally. Bluntly, have I got it wrong all these years, have I been ignorant of the malleability of these rights, that circumstances depending (akin to situational ethics), some accused need not be afforded equal rights and equal treatment and need not be mentally fit (to no fault of their own; more on this) to participate meaningfully in trial proceedings?
The 55-page decision (majority and dissent) is well crafted. There is lots of supporting authority in long footnotes, giving it the patina of learnedness, comprehensiveness, and thoughtfulness. To try to unpack it all here in few pages would not do it justice (for an excellent rudimentary breakdown, see Thierry Cruvellier’s fine article in JUSRICE INFO here). Nor is it the focus of this post. Initially I thought of waiting until the appeal decision to blog about this. But considering the novelty of it all, and the stakes involved, i.e., whether an accused can be tried even when s/he cannot participate meaningfully in the proceedings due to mental disabilities, I decided to pipe up now.
Some disclosures.
First, I represented Ieng Sary before the Extraordinary Chambers in the Courts of Cambodia where he was clearly incapable of participating meaningfully during the trial proceedings. Yet the Trial Chamber insisted that his fair trial rights were fully intact (he was mostly asleep due to fatigue and medication, in a cell with a monitor – as if that were enough to justify a claim that he was present). I have thus experienced firsthand the charade some judges are willing to go through in claiming that an obviously unfit accused is getting a fair trial. Call me jaded or biased or unimaginative, but when I see judges engaging in verbal jiujitsu and contorting the fair trial rights principles (letter and spirit) to fit a particular end – in this instance, to give the veneer that Kabuga, despite his undisputable mental handicaps, will not be deprived of any of his fair trial rights, since the proceedings will only be as near to a trial as possible and not a trial – I have a visceral reaction, and, as in this case, I feel less restrained in undiplomatically voicing my opinion.
Second, of the three judges, who, incidentally, have impeccable credentials and are beyond reproach, I am very familiar with and have enormous respect for Presiding Judge Iain Bonomy, with whom I have had the pleasure of exchanging views on international criminal law and procedure. I am also familiar with the work and academic writings of Judge Margaret M. deGuzman, including her excellent book SHOCKING THE CONSCIENCE OF HUMANITY: Gravity and the Legitimacy of International Criminal Law, which I reviewed here. I have never had any contact with, nor did I know of Judge Mustapha El Baaj before reading his dissent; on paper he seems eminently qualified. I neither have an axe to grind with any of the judges nor have a cause to question their integrity, professionalism, or motives; nor should anyone else. So what? To not criticize them in this instance is to give them a pass, an acquiescence, a validation of their (ab)use of judicial discretion founded on flawed reasoning and an inventive interpretation of fundamental fair trial rights principles so as to avoid denying victims their right to justice simply because of an accused’s incapacity to participate meaningfully at trial.
All three judges want the trial to proceed. The dissenting judge does not buy the medical results of three highly qualified experts, and even if Kabuga is mentally challenged to any degree, that is no cause to stop taking evidence and get on with completing the trial. The majority, appreciatively – or begrudgingly, since previous medical reports, reasonably read, questioned Kabuga’s full ability to participate meaningfully, yet a decision was made to hear further evidence – accepted the medical findings, but it too wished for the trial to proceed. But hey, let’s not call it a trial, let’s call it an alternative finding procedure. With respect, this is canard, a subterfuge:
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- Evidence will be taken just as in a trial;
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- The prosecution will need to prove the charges in the indictment beyond reasonable doubt;
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- Kabuga can opt not to be physically present in court (as is his right in any event);
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- The defence will be present and presumably do its bit even if it is unable to advise their client and take instructions at no fault of the client or of their own;
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- At the end of the non-trial trial, the judges will deliberate and make findings of fact and conclusions of law on the guilt of innocence of the accused – except that no formal conviction will be pronounced.
As to whether an appeal is to follow, and/or whether a guilty-found but non-convicted Kabuga will be free to reside outside the UN Detention Unit or some designated State prison (normally the case upon conviction and exhaustion of all appeal proceedings), remains a mystery. Maybe because of Kabuga’s health issues and advanced age, this makes for a no never mind. Let’s see what the Appeals Chamber decides, but I have a feeling that this may be one of those instances when the temptation to legislate from the bench by claiming a lacuna may be too hard to resist. Who knows, it may declare this imaginative and innovative procedure to have emerged as a Grotius moment, establishing customary international law precedence.
Curiously (and tellingly), the majority noted – somewhat as a parenthetical justification – that Kabuga has only himself to blame since his “decision to evade justice for more than two decades resulted in the present situation, making it particularly unfair to privilege his preference for termination or stay of proceedings over the needs of victims and survivors.” Is the majority telling us (obviously not as a holding but as somewhat of a supporting factor within its judicial discretion to consider) that since “[t]here is a strong public interest in the conduct of proceedings against persons accused of serious international crimes,” the fair trial rights of the accused should, when necessary, be circumscribed, even to the point of absurdity, to enable a trial to continue. That may not have been its intended interpretation when gratuitously making this aside, but it certainly lends to a perception this is recompense – Kabuga gets what he deserves for not turning himself in before dementia started setting in.
However you slice and dice it, the alternative finding procedure is a charade – “an act or event that is obviously false, although represented as true” or “an absurd pretense intended to create a pleasant or respectable appearance” – masquerading as something other than a trial to justify (perversely, might I respectfully add) depriving Kabuga of his rights prescribed by the IRMCT Statute of which some, such as the right to participate meaningfully in the trial proceedings, are unqualified. There are other definitions equally fitting. Dressing this alternative finding procedure parody as anything but a trial that supposedly will afford justice to the victims at no expense to Kabuga’s due process and fair trial rights owed to him may be imaginative thinking but an absurdity, nonetheless.
So why? Perhaps a few words on the charges and what is at stake may explain the why of the majority’s decision despite the few mental capacities Kabuga is left with.
According to the indictment, Kabuga is charged with genocide, direct and public incitement to commit genocide, and conspiracy to commit genocide, as well as persecution on political grounds, extermination, and murder as crimes against humanity. The prosecution Trial Brief more explicitly sets out Kabuga’s alleged conduct summarized through what it believes the evidence will show at trial. Kabuga was in fact hiding and on the run for 26 years. But for IRMCT Prosecutor Serge Brammertz (who I have high regard for and thought to be the most qualified to replace ICC Prosecutor Bensouda (see here), Kabuga might not be in the UN Detention Unit today (see here).
So, when we look at the alleged conduct, the magnitude of the atrocities that he is alleged to have caused, the massive number of victims, the immeasurable suffering and devastation for which he is allegedly responsible (along with others), and the fact that he eluded by all sorts of evasive measures all efforts to be brought before the International Criminal Tribunal for Rwanda and IRMCT until he was finally arrested, it is understandable for the prosecution to insist that by any means necessary, Kabuga’s trial must continue to its completion – even if Kabuga is utterly incapable of appreciating anything that is happening in the proceedings. Crass as it sounds, it appears that as long as Kabuga is physically alive, who cares if he is nearly brain dead. Dementia has not totally set in, but reading the medical reports, it is incontrovertible that dementia is rapidly progressing to the point where the loss of Kabuga’s cognitive functioning – thinking, remembering, reasoning – will turn him into an empty vessel.
I get it. The victims deserve justice. They are entitled to insist and expect the case against Kabuga to proceed. They are entitled to feel the way they do, especially having had to wait for the arrest and prosecution of Kabuga, whom they believe – beyond any doubt – is responsible for the pain, suffering, and losses. I also get it that the prosecution would want to proceed, and, indeed, would find the alternative finding procedure a just and proper solution that not only meets the ends of the victims, but also fully respects Kabuga’s fair trial rights – however unsignifying this alternative finding procedure may seem to those of us on the defence who cherish and champion and challenge the rights of suspects and accused, irrespective of the alleged crimes.
In any event, it is not for the prosecution to determine what is fair or not; it is for the Trial Chamber.
If, as in this case, the Trial Chamber claims that an alternative finding procedure guarantees all of Kabuga’s fair trial rights even if Kabuga cannot participate meaningfully in the proceedings, why would it be in the prosecution’s interest to quarrel?
And if perchance, again as in this case, the Trial Chamber holds that even if Kabuga cannot participate meaningfully in the proceedings, this does not necessarily impact his fair trial rights since he will not face a conviction or sentence even if there are findings of fact and conclusions of law that beyond reasonable doubt it is proved that he committed some or all of the crimes charges against him, again, why should the prosecution object?
As much as we like to think that the prosecution is simply out to achieve justice, that is a fairy tale once it has zeroed in on a suspect or accused it believes to be guilty. Achieving a conviction, i.e., is winning, trumps justice since in their mind a conviction is the just result irrespective of how it is achieved within the ethical constraints. So, when the Trial Chamber claims that an alternative finding procedure is inherently embedded in the IRMCT Statute because it achieves certain ends germane to the victims and thus is a perfectly sound and legal procedure, any violations of Kabuga’s fair trial rights rest with the Trial Chamber. And let’s face it, holding that an alternative finding procedure is permissible under the IRMCT Statute and that it is an acceptable means of continuing proceedings essentially legitimizes trials in absentia since being present but non compos mentis is the same as being absent. This too seems like an added bonus for the prosecution.
I appreciate the pressure the judges in this case are under to deliver justice. I also fully appreciate the highly discretionary and elastic notion of the interest of justice. Certainly, a result is in play. But for the majority to claim that Kabuga is to blame for the predicament he has placed them and himself in – as if this is a legal excuse for diluting Kabuga’s rights to equal protection, equal treatment, and equal enjoyment of the fair trial rights afforded to all accused – is as disquieting as it is discriminating. Not to belabor the point, you be the judge as to whether the decision or dissent guarantee Kabuga’s fair trial rights based on their respective interpretation of these rights as available or unavailable they may be in this case based on the opinion of the Trial Chamber’s own medical experts on Kabuga’s metal faculties. Don’t just take my word, read the decision and dissent.
But let’s give a cursory look at what it is that is, borrowing English bishop and theologian Joseph Butler’s phrase, “Everything is what it is, and not another thing”:
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- “Kabuga retains three relevant capacities: to enter a plea, understand the nature of the charges, and understand the consequences of the proceedings” but his “level of cognition related to these capacities is superficial.”
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- Kabuga has a such a “limited ability to communicate” that he is unable “to participate meaningfully in his trial as such participation would require a higher level of cognitive function than he possesses.”
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- “Kabuga is incapable of subtle, consequential reasoning.”
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- Kabuga lacks the capacity to “participat[e] in a complex proceeding, such as the present trial [that] requires, at a minimum, a functioning memory, including the ability to retain information over a period of time, as well as the ability to process and express a view about that information.”
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- Kabuga is “unlikely” to be “malingering” given his illness and medical diagnosis.
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- “Kabuga is not fit for trial and is very unlikely to regain fitness in the future.”
This is just a flavor of what you will find in the decision. The dissenting judge is deeply unmoved by the expert medical reports, even going so far as to render the experts untrustworthy in their methodology and conclusions while, effectively, proffering his own “medical expert opinion”, which, unsurprisingly (when critically dissecting his dissenting reasoning), finds Kabuga adequately fit for trial with no appreciable handicaps in participating meaningfully in his trial.
Seriously, can anyone say with clear conscience and objective reasoning, that based on these findings, Kabuga can get a fair shake, a fair trial – just as any healthy accused would? NO! Of course, in somewhat of a eureka-aha moment, the majority argues that the ordered alternative finding procedure is not a trial – it will just resemble a trial as close as possible, albeit without any input from the accused. Hallelujah! That solves everything.
Or does it? The prosecution retains the burden of proof, the defence can confront the prosecution witnesses, presumably the defence can present a case save for Kabuga exercising his right to testify should he – if of sound mind – could exercise that right – and the judges will assess the evidence, deliberate on it, and make findings of fact and conclusions of law though without passing a formal conviction and sentence should they find that the prosecution has proved any of the charges. Plus the added bonus that Kabuga can stay hidden away while the trial proceedings go on. That way no one will have to face the daily reality of a vacant-eyed, wheelchair bound old man unable to remember, comprehend or respond to the story swirling around him in that courtroom. To rephrase the Old Testament: “Justice, justice you shall pursue…” sort of.1
Not a trial? A rose is still a rose by any other name. Or perhaps of greater accuracy (including olfactorily): “That which looks like a duck, walks like a duck, and quacks like a duck will be treated as a duck even though some would insist upon calling it a chicken.”((Tidelands Marine Service v. Patterson, 719 F.2d 126, 129 n.3 (5th Cir. 1983). )) And this leads me to Humpty Dumpty. I am sure dear reader you know where I am going, having read the quote above from Lewis Carrol’s, Through the Looking Glass. I’ll stop here, for now.
To be continued when the appeal decision is rendered. Stay tuned.
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- Deuteronomy 16:20 [↩]
Many days have passed since the decision to continue in an alternative role and setting: I have not been able to sort my thoughts. What will my former fellow judges do, when the object of the ongoing procedure passes away? Until then: what justifies any kind of deprivation of freedom? Can the interest of justice be equated with the interest of of the victims? Can a criminal court hear de facto a case in civil matters that has only started under criminal proceedings?
Has the case become a mere truth finding mission without legal basis?
Having no answer to these selected questions yet: why not close the file, may be with a summary of the facts found until now. It is to show the sovereignty of judges I.e. to declare that justice demands to not continue over the inability to answer of an accused in criminal matters. Fiat justitia, tertium non datur!
Unfortunate. This remembers me of the German concept “Feindstrafrecht”, literally “enemy criminal law”, used by German scholars to describe the tendency to enact new criminal offenses and procedural rules, as well broader interpretations of existing rules, against persons qualified as enemies of the State(s), such as terrorists. Fair trial and equality of treatment take a hit, but does it matter and to whom…