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”