{"id":4641,"date":"2023-06-20T03:34:43","date_gmt":"2023-06-20T01:34:43","guid":{"rendered":"https:\/\/michaelgkarnavas.net\/blog\/?p=4641"},"modified":"2023-06-20T03:35:03","modified_gmt":"2023-06-20T01:35:03","slug":"inventiveness-leads-to-absurdity-kabuga","status":"publish","type":"post","link":"https:\/\/michaelgkarnavas.net\/blog\/2023\/06\/20\/inventiveness-leads-to-absurdity-kabuga\/","title":{"rendered":"When inventiveness leads to absurdity: The Trial Chamber’s “non-trial” trial solution for non compos mentis F\u00e9licien Kabuga"},"content":{"rendered":"

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Everything is what it is, and not another thing. \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Joseph Butler<\/em><\/p><\/blockquote><\/p>\n

\u00a0\u201cI don\u2019t know what you mean by \u2018glory.\u2019 Alice said. Humpty Dumpty smiled contemptuously. \u201cOf course you don\u2019t \u2013 till I tell you. I meant \u2018there\u2019s a nice knock-down argument for you!\u2019\u201d \u201cBut glory doesn\u2019t mean \u2018a nice knock-down argument,\u2019\u201d Alice objected. \u201cWhen I use a word,\u201d Humpty Dumpty said, in a rather scornful tone, \u201cit means just what I choose it to mean-neither more nor less.\u201d

\nLewis Carroll,<\/em> Through the Looking Glass \u00a0<\/p><\/blockquote><\/p>\n

On 6 June 2023, the Trial Chamber of the International Residual Mechanism for Criminal Tribunals (IRMCT), by majority, found<\/a> F\u00e9licien Kabuga \u201cunfit to participate meaningfully in his trial\u201d and \u201cvery unlikely to regain fitness in the future.\u201d\u00a0\u00a0Nonetheless, the majority decided to \u201cproceed with an alternative finding procedure\u201d resembling \u201ca trial as closely as possible, but without the possibility of a conviction,\u201d with the prosecution \u201cretain[ing] the burden to prove both the actus reus<\/em> and mens rea<\/em> of each charge beyond reasonable doubt,\u201d while making Kabuga\u2019s attendance \u201cunnecessary\u201d.<\/p>\n

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<\/em>), nor any statutory provisions from any of the past or existing international(ized) criminal courts and tribunals, nor any of IRMCT\u2019s 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 \u2013 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<\/em> (whether the accused committed the acts) and not his or her mens rea<\/em>, 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.<\/p>\n

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?<\/em> \u2013 to put the dissent\u2019s 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.<\/p>\n

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<\/em> accused at the international(ized) criminal courts and tribunals \u2013 where the highest international standards are to be applied, including the Universal Declaration of Human Rights<\/a>, the International Covenant on Civil and Political Rights<\/a>, and more specific to this case, the Convention on the Rights of Persons with Disabilities<\/a> \u2013 enjoy these rights equally<\/em>. 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?<\/p>\n

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\u2019s fine article in JUSRICE INFO here<\/a>). 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<\/em>., 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.<\/p>\n

Some disclosures.<\/p>\n

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 \u2013 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 \u2013 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 \u2013 I have a visceral reaction, and, as in this case, I feel less restrained in undiplomatically voicing my opinion.<\/p>\n

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<\/em>, which I reviewed here<\/a>. 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\u2019s incapacity to participate meaningfully at trial.<\/p>\n

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 \u2013 or begrudgingly, since previous medical reports, reasonably read, questioned Kabuga\u2019s full ability to participate meaningfully, yet a decision was made to hear further evidence \u2013 accepted the medical findings, but it too wished for the trial to proceed. But hey, let\u2019s not call it a trial, let\u2019s call it an alternative finding procedure. <\/em>With respect, this is canard, a subterfuge:<\/p>\n