Kabuga Reexamined: An “alternative finding procedure” that comes as close to a trial as possible is no substitute for a trial

The Appeals Chamber is cognizant that victims and survivors of the crimes that Kabuga is charged with have waited long to see justice delivered, and that the inability to complete the trial proceedings in this case, due to Kabuga’s lack of fitness to stand trial, must be disappointing. However, justice can be delivered only by holding trials that are fair and conducted with full respect for the rights of the accused set out in the Statute. This is a fundamental feature of the legal framework of the Mechanism and its predecessor tribunals, which is vital to the credibility and endurance of their legacy. In arriving at its decision, the Appeals Chamber has been guided by its duty to ensure that decisions are based solely on justice and law. It is axiomatic that justice must be done and must be seen to be done. (para. 78)

In my earlier post – When inventiveness leads to absurdity: the Trial Chamber’s “non-trial” trial solution for non compos mentis Félicien Kabuga – I discussed the Trial Chamber’s decision to carry on with an in absentia non-trial trial of Kabuga who, by Trial Chamber majority, was found to be incompetent to stand trial.

As a reminder, the majority found that “Kabuga retains three relevant capacities: to enter a plea, understand the nature of the charges, and understand the consequences of the proceedings”, but that his “level of cognition related to these capacities is superficial,” considering that he:

      • 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;”
      • “is incapable of subtle, consequential reasoning;”
      • 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;”
      • is “unlikely” to be “malingering” given his illness and medical diagnosis; and
      • “is not fit for trial and is very unlikely to regain fitness in the future.”

Despite this, Judge Mustapha El Baaj, dissenting, had no problem continuing the Kabuga trial.

Parenthetically, as I generally advise my fellow defence counsel, the hallmark of adequate representation is to try a case the same way and with the same skills and the same robustness that they would want from their lawyer were they in the dock.  This requirement of impartiality and equality before the law is illustrated by the familiar figure of Justicia, aka Lady Justice, wearing a blindfold.   Would Judge El Baaj take the same position were someone near and dear to him, or even himself, in the dock, suffering similar disabilities as Kabuga – diagnosed by medical experts appointed by the Trial Chamber? Would he claim such a trial to be fair? Would he embrace the sort of findings and justifications he makes in his dissent in pushing for the continuance of the trial? Nonetheless, he at least deserved kudos for rejecting the majority’s claim that an “alternative finding procedure” was as inherently permitted under the ICTR/IRMCT Statutes as their judicial discretion to impose it.

Some legal authority was cited by the Trial Chamber for an “alternative finding procedure” but nothing consistent with the letter and spirit of the ICTR/IRMCT Statutes. The Trial Chamber elected to proceed with such an “alternative finding procedure,” as close to a trial as possible, where the Prosecution would continue to bear the burden of proving beyond a reasonable doubt Kabuga’s actus reas and mens rea of the alleged crimes in the indictment.  The Trial Chamber was effectively calling for a trial in absentia. Kabuga would be physically present somewhere in or around or near the courtroom, but mentally absent and unable to assist meaningfully in his defence.  And what kind of ludicrous sop was imagined in crafting the plan that the accused would be around here somewhere?  As if mere physical proximity cleansed the plan’s obvious and insurmountable defects.

Absurdly and shamelessly, the Prosecution argued on appeal that the Trial Chamber failed to account for Kabuga’s legal representation, which more than compensated for Kabuga’s mental infirmities. How rich! Since when does the right of an accused to be present (mentally not just physically) at trial and to assist in his or her defence (having mental capacity to do so) become satisfied because s/he is represented by counsel? Whose case is it anyway? Where in the ICCPR or the Convention on the Rights of Persons with Disabilities or the European Convention on Human Rights, or the Statute(s) or the Rules or ICL jurisprudence does it say that defence counsel’s representation can substitute for the accused’s right to be present or right to participate in the proceedings? Nowhere.

The Appeals Chamber made short shrift of the Trial Chamber’s rationale for an “alternative finding procedure” in lieu of a proper trial, and of the Prosecution’s claims of errors by the Trial Chamber, which, but for, the trial could have proceeded despite being in agreement that Kabuga could not participate meaningfully in his trial.  In its Decision on Appeals of Further Decision on Félicien Kabuga’s Fitness to Stand Trial, the Appeals Chamber unanimously put a stop to the silliness of a non-trial trial in absentia charade.  In so doing it preserved the integrity and legitimacy of the IRMCT as an international criminal tribunal adherent to the international standards upon which it was founded.

Lest we forget the context, as the Appeals Chamber noted, the evidence demonstrated that:

Kabuga was no longer able to follow a regular conversation at a normal pace or be engaged in a rational conversation with any substance or coherence, could follow proceedings or understand evidence only at the most superficial level, [] was unable to understand the reasoning behind questions asked in court [and]… the Experts struggled to elicit even very simple pieces of information from him. (para. 28)

In a well-crafted and well-reasoned decision, the Appeals Chamber recognizes that there are limits to legislating from the bench by simply claiming inherent judicial discretion when statutory provisions are absent.

Looking at how the ICTY and ICTR chambers had (perversely, in my view, see here and here) used their inherent authority to claim joint criminal enterprise in all its concocted forms to be inclusive in the Statutes being reflective of customary international law,((Debunked later by one of its founders, Judge Mohamed Shahabuddeen after leaving the bench in his book International Criminal Justice at the Yugoslav TribunalA Judge’s Recollection.)) the Appeals Chamber did not find sufficient legal justification for adopting an “alternative finding procedure” that inexorably fell  short of a fair trial mandated by the founders and founding documents of the ad hoc tribunals purely because the alternative would mean suspending the proceedings and releasing the accused at the expense of the long-suffering victims who rightly seek and deserve justice.

Bluntly, the Appeals Chamber’s message is that the ends do not always justify the means – at least not when it is demonstrably evident that an accused cannot, in all candor and earnestness, be seen as being treated justly.

Unlike the Trial Chamber, the Appeals Chamber avoids cutting corners and skimping on Kabuga’s fair trial rights, simply because of the need of the victims to have justice – at any cost. Unlike the Trial Chamber it avoids emotive murmurs of blame-fixing such as this is what Kabuga gets because he was on the lamb and evading arrest; he cannot be deprived of his fair trial rights or tried in absentia (not permitted under the Statute) because he failed to present himself for trial when compos mentis. And, unlike the Trial Chamber, the Appeals Chamber avoids conferring unto to itself (and judges and Chambers) carte blanche judicial discretionary authority to read into the Statute that which is inapposite to its letter and spirit, and founding principles, and fair trial rights of the accused.

The Appeals Chamber’s decision is a clean sweep for the Defence. Almost. The matter has been remanded to the Trial Chamber, presumably for a reasonably speedy release. For Kabuga this might be somewhat of a poison chalice. At the UN Detention Unit in The Hague, Kabuga has been receiving 5 star medical treatment. If and when he is released, aside from having to fend for himself medical wise, he will need to find a state which would accept him.  For sure the Netherlands will not host him. Since he is only in the Hague because it seemed better for him to be tried there, one possibility is that he is transferred to the detention unit in Arusha, Tanzania. If so, Tanzania might be willing to host him – as it has hosted other accused who were either acquitted or released having served their time. There may be other states that would be willing to accept him; though charged with having committed horrific crimes, including genocide, he has not and never will be convicted for anything.

And what of Rwanda? What if it were to seek Kabuga’s extradition? Would ne bis in idem attach? Rather than speculate in what ifs, lets wait and see.  The final page of this saga remains to be written.

Clearly the victims are hugely disappointed. But, as I have routinely cautioned, if the process is not fair, the results are meaningless. This is reflected in the Appeals Chamber’s decision: a must read for anyone practicing or participating in any of the international(ized) criminal tribunals or courts.

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including pre-trial, trial, and appellate advocacy.

One thought on “Kabuga Reexamined: An “alternative finding procedure” that comes as close to a trial as possible is no substitute for a trial”

  1. To proceed with trial regardless of Kabuga’s incapacity is unfair and meaningless.

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