Category: International Criminal Law

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

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. Continue reading “When inventiveness leads to absurdity: The Trial Chamber’s “non-trial” trial solution for non compos mentis Félicien Kabuga”