An unpredictable side-effect of the COVID-19 related lockdown measures in France came in the form of the arrest of high profile fugitive Félicien Kabuga in a home raid outside Paris. The arrest ended twenty six years of Kabuga’s colorful flight across the globe, stopped finally by the COVID-19 pandemic induced restrictions on his movement. Long considered the key financier of the Rwandan genocide, Kabuga was indicted by the United Nations International Criminal Tribunal for Rwanda in 1996. He is now 84 years old and faces the possibility of a criminal trial in Arusha, Tanzania.

This is definitely the biggest breakthrough for international criminal law this year. For the International (Residual) Mechanism for International Criminal Tribunals (Mechanism / IRMCT), this capture and the promise of justice it carries is an important achievement in proving its own relevance in the face of questions about its legitimacy and permanence. If Prosecutor Brammertz decides to open this trial, it will be the IRMCT’s first full fledged trial.

For critical scholarship, this is an opportunity to re-open the conversation about legal institutions born out of the Rwandan genocide and the importance of narrative in transitional justice. The successful co-option of a particular narrative of the Rwandan genocide into mainstream international criminal law has created the Rwandan genocide story most know today. Rwanda, with the most at stake, must also have supported this narrative for the continued public interest in the tribunal to translate into funding for the Mechanism. The complex histories of the 1994 genocide and the peculiarly situated narratives based on geographical, political and ethnic lines created through Uganda, Burundi, and the DRC, of which the Rwanda chapter of the genocide, was arguably only one part, have been revised and ferociously protected by all the institutional powers that are now competent to try Kabuga.

There is something inescapably theatrical about the optics of a trial for Kabuga at the Mechanism – the symbolic irony of pitting the alleged financier of the Rwandan genocide against the “financiers” of the institutions supporting the mainstream account of the Rwandan genocide, that is, the assembly of states funding the international criminal tribunals. 

Martti Koskenniemi’s skepticism about the justice quotient of high profile criminal trials may be well placed here: the optics of finally putting on trial the wealthy businessman who headed important public offices connected to the genocide is a ticket to salvage, reinvigorate and popularise the Mechanism; and conversely, a great defence team could use this opportunity to raise important questions about the narrative of the genocide that the Mechanism and its predecessor the United Nations International Criminal Tribunal for Rwanda are founded on: they could revitalise the dormant questions on institutional legitimacy and shake the foundations of “truth” on which these tribunals are based. Whichever of these two ways it plays out, per Koskenniemi, this will be a show trial at best and a terrible waste of public resources during the ongoing global pandemic at worst.

But the optics of the trial are also its biggest upside.

(or Reinvigorating the IRMCT: Kabuga as a symbol of renewal)

Kabuga’s notoriously enormous private wealth has long been considered a key enabler of the Rwandan genocide. There is no comparable indictee in the rich jurisprudence of the ICTR; this makes Kabuga comparable to financiers of other comparable state sponsored campaigns. The Nazi party’s activities were bankrolled by the leadership of huge German private companies like I. G. Farben, Fritz Thyssen and Gustav Krupp. The Nuremberg Tribunal indicted Farben and Krupp on multiple charges related to the crimes committed by the Nazi party. Other private financiers like Martin Bormann, Flick and Steinbrinck, Hjalmar Schacht were key figures in the Holocaust who held top banking and accounting positions in the inter-war years and were complicit in funnelling massive donations to the party.

Kabuga served as final adviser to President Habyarimana and the two families were also related by marriage. Kabuga was also the main financier and logistical backer of the radicalised extremist militia Interahamwe directly responsible for the massacre of Tutsi, moderate Hutu, and Twa ethnicities during the genocide. He was a member of the Akazu (the “small house” in Kinyarwanda) and Réseau Zéro (network zero), two small circles of influential leadership within the cadres of the extremist Hutu groups masterminding the genocide. As a private entrepreneur, his vast business empire spanned tea and coffee plantations, flour mills and commercial properties. As president of the National Defense Fund during the interim government in Rwanda, Kabuga is accused of financing the training and supply of machetes to the Interahamwe, allegedly importing for distribution to the militia, vast supplies of machetes during the genocide to supplement the firearms that Habyarimana had imported through ancillary channels in the run up to the genocide in April 1994.

Kabuga was president of the board of directors of the Radio Television Libres des Mille Collines (RTLM) which was a widely popular radio network responsible for broadcasting racist hate propaganda against the Tutsi and the moderate Hutu in Rwanda during the period of the genocide. Broadcasts instigating violence against the Tutsi were carried on RTLM and played a crucial role in escalating the pace and frenzy of the genocide. In the famous Media case, the ICTR convicted two other key ideologues of the RTLM, Ferdinand Nahimana and Jean-Bosco Barayagwiza on counts of genocide, conspiracy and crimes against humanity. The ICTR affirmed through the Media case the incendiary power of media to instigate and directly commit crimes related to the genocide. With Kabuga’s arrest the larger question of the RTLM’s corporate criminal liability will find an opportunity to be studied as an extension of the Julius Streicher case at Nuremberg discussing the role of harnessing the power of popular institutions as vehicles of racist genocidal propaganda.

With this case, the IRMCT will perhaps be under scrutiny as an international criminal tribunal for the first time. So far, it has been tasked with trial and appellate functions that had an appreciable measure of continuity from their story at the ICTY and ICTR; but it is only now that the IRMCT is required to begin a trial from nothing more than an indictment. The lean structure of staffing, the judicial roster system and the expectation that the IRMCT which has been more or less fully operational for about five years now can deliver on a full fledged trial are about to be tested.

Specifically, the question of judicial independence that has haunted the Mechanism since the detention of the Turkish judge in the Ngirabatware case will be one of the biggest challenges should the MICT commence trial proceedings in Kabuga. Starting from the logistics and the costs involved in transferring Kabuga from France to Tanzania, a series of high pressure (and time sensitive due to the advanced age of the accused) challenges await the IRMCT. It will now be put under enormous financial and staffing strain to undertake a trial without compromising on the high standards of fairness and representation that its predecessor institutions have established.

Kabuga has evaded arrest for 26 years, escaping the wide net cast in 1997 by Operation Naki through which dozens of accused were caught in East African states and brought to face trial in Arusha. His vast fortunes bought him false identities and passports that enabled him to escape arrests despite intelligence and sightings that span Kenya, Switzerland, Belgium, South East Asia and France over the last 26 years that he has been at large. Under Rule 40 (A) of the ICTR’s Rules of Procedure and Evidence, a former prosecutor of the tribunal successfully requested France to freeze the Kabuga family assets and bank accounts worth $2.5 million in Switzerland, France, Germany and Belgium in the late 1990s. In the jurisprudence of the ad hoc international criminal tribunals this is noteworthy because it is most unusual for the assets of an accused pending trial to be seized or frozen. The US State Department in 2002 expanded its Rewards for Justice programme to include a reward of up to $5 million for Kabuga’s capture.

Cynics may well compare this belaboured delivery of an 84 year old Kabuga to trial with images of frail and old indictees with failing memories at the UNAKRT ECCC in Phnom Penh, but the jubilation in Rwanda appears to discount the long delay in tracking down Kabuga. This arrest will go a long way in reinstating the faith of victims and survivors in the fragile promise to fight impunity enshrined in Security Council Resolution 1966 (2010) that created the Mechanism:

“Reaffirming its determination to combat impunity for those responsible for serious violations of international humanitarian law and the necessity that all persons indicted by the ICTY and ICTR are brought to justice.”

Retributive Justice is better than its Restorative versions

My final premise is based on looking at the retributive mechanisms that have been the hallmark of the completed trials at the permanent court and also at the ad hoc tribunals. During the years leading up to the Rome Statute, there was debate and discussion on the model to be followed at the ICC. In the past, the Court has seen itself as having the potential to create a conversation between the two models – retributive and restorative. This may be imagined by constructing the focus given to victims in the Statute. However, in the practice of the courts, there is a marked emphasis on retribution. Part of the rationale for this thinking by the chambers can be explained by the strong preference that victims in post-conflict societies have for retribution – and the optics that a prison sentence give to the political legitimacy of conventional courts. However, and this is at the heart of this premise, the ICC is NOT a conventional court. For it to pander to the political vagaries of states parties by not attempting to create a more restorative model of justice in its jurisprudence is not helping the legitimacy project either.

The restorative model is largely rooted in transitional justice and necessitates a deeper study of the post-conflict situation – it brings together a vital toolkit aimed at long-term stability for the affected states / communities and a way for them to overcome the violence of the conflict period through mechanisms such as a public apology. These tools from the transitional justice repertoire match and perhaps outshine the optics I mentioned earlier. But more importantly, they provide a possible alternative way to interpret victim participation at the ICC. Thus far, the court has devised its own meaning to the term – giving the victims standing, privacy and an opportunity to strengthen the narrative made by the OTP in their own cause. While this is largely based on the EU victim participation model and does serve an important role at the ICC, it also weakens the restorative justice possibilities that are to be found in the Rome Statute. An expansive reading of victim participation and the role of witnesses would allow the court to reach out to the communities involved in a trial by including elements of restorative justice (thus enriching and revitalising its legitimacy?).

International Courts are better than Domestic Options

The second part of my observations on the fallacies of international criminal justice is on the premium placed on “international” and “court” in the international criminal justice system. As an independent observer of the Bangladesh War Crimes Tribunals in Dhaka and through my associations with international tribunals such as the ICTR in Arusha and the ECCC in Phnom Penh, I have wondered whether this systemic preference for institutionalized and international solutions to local conflicts is not at odds with the ultimate end of the justice project – comity among states, the end of a culture of impunity, accountability for individual crimes in a system that aims to foster peace through co-operation.

That institutionalizing this broad vision is a perilous task was already revealed through the Tokyo and Nuremberg Tribunals that loom large in our history – showing the weakness of a political bias for institutionalization that does not enjoy the support and co-operation of states that are made to participate in the exercise. But the lasting impression of the role of courts that was born out of these historical trials was one of a post facto institution – created to clean up after political events and individual actors had run their course. This is the role that the permanent court is designed to replace – it is not post facto and by saying that it becomes a symbol of endurance and resilience. However, plenty of creative ways can be thought of to make the work of the international court more meaningful to and accessible to the countries and ‘situations’ it works with. The first of these would be localize the court’s presence by creating forms of vertical interactions with existing institutions in the state in question. When this is made impossible by political conditions, a regional version of such vertical interactions may be imagined. Part of the democratic deficit and deep mistrust in the institution is born out of the fractured optics of each trial – with its seat in The Hague and its international judges and lawyers, the court is seen as an outsider to the justice process. Having witnessed the hostility with which the Legacy Project of the UN ICTR is viewed in Rwanda, I think it is important for efforts at international justice to pay close attention to Transitional Justice. A period of conflict, no matter how horrendous, belongs in the history of that state. There is a sense of ownership of stories of human suffering and identity politics born out of terrible crises in human rights – when courts take over the narrative of trying those most responsible for these acts, the effort, no matter how laudable, needs to be related back to those whose lives it has directly impacted. A growing urgency is palpable in the many instances where states refuse to co-operate or honour their treaty commitments under the Rome Statute because the political leadership there is afraid of an international institution co-opting their sovereign right to their own history. Internalizing the elements of transitional justice like memorializing, narrative history, truth telling and embracing creative, customized approaches to each trial could be one way to harmonize the international with the local. Examples like the success of the post-genocidal Gacaca exercise in Rwanda, the TRC in post-apartheid South Africa, the much-maligned purely domestic Bangladeshi War Crimes Tribunal, and failed examples of replicating these tools in Nepal, Myanmar also contain important caveats against placing complete reliance on the local. With hybrid institutions like the ECCC/UNAKRT, SCSL too, there are important lessons in “internationalizing” a fundamentally domestic exercise. What has not yet been truly attempted is “localizing” the international.

PERMANENT IS BETTER THAN TEMPORARY

In the wake of the latest chaos at the International Criminal Court over the Laurent Gbagbo decision by the Trial Chamber, it seems a good time to revisit the old debate on the efficacy of the permanent international justice system created by the ICC. Several excellent posts have appeared in the last few days that indicate that the ICC is in crisis. But really, has there ever been a point in the Court’s history that it has NOT been in crisis?

Starting from a crippling democratic deficit, the ICC now has a robust membership – granted; but the meaning of this membership is deeply complex. Cases like Ruto in the Trial Chamber and the Appeal by Jordan in the case regarding the arrest of Omar Al Bashir are only two in a large list of instances where being a State party to the Rome Statute has apparently no meaning – since the member states in question – Kenya and the Hashemite Kingdom of Jordan refused to co-operate with the Court.

Contrast this with the clear co-operation and membership mandates of the ad hoc tribunals, now a source of legacy and jurisprudence in international criminal law. They had a clear mandate to co-operate that was the basis of founding the jurisdiction of the tribunal. With the way clear for the concerned states to forge a consensus on the jurisdiction of the tribunal, very little time and effort was expended on requesting co-operation in the framework of the ad hocs. Of course, the hybrid tribunals such as the UNAKRT / ECCC are a separate story of foiled attempts at co-operation despite a consensus. While co-operation of member states is the hallmark of a permanent institution, the ICC has not had much success with its current set of members.

The track record of the two ad hocs remains in impressive contrast with that of the ICC – during its active life from 1995 to 2017, the ICTY indicted 161 individuals of whom 99 were sentenced, 19 acquitted and 13 referred to domestic courts.  The ICTR, during its period of activity, indicted 96 individuals of whom 62 were sentenced, 14 acquitted and 10 referred to domestic courts.  Both of these are now succeeded by the UN MICT, in a complex passage of institutional history – that has inherited important pending trials at both tribunals and is also responsible for the fugitives yet to be apprehended by the prosecutorial and investigative mechanism of both tribunals.  In contrast, since its entry into force in July 2002, the ICC has had 28 cases, with 34 warrants of arrest issued, 24 acquittals, 8 cases closed, and 4 convictions pending final decisions. In addition the ICC has 11 situations under ongoing investigation. These numbers speak volumes about the co-operation of states parties to the UN and to the ICC. The co-operation of member states used to translate into consensus in the establishment of ad hocs with a clear mandate and an uncontentious founding basis of their jurisdiction – trials moved rapidly to admissibility. Whereas, in this permanent institution, we find stalemate after stalemate – showing that political co-operation cannot be counted on when the institution created by the member states turns around and requests their co-operation in investigations and indictments that might destabilize their own political capital.

The question remains open – is permanent better than ad hoc, really?

My arguments for Fallacies Two and Three follow…