The arrest of Félicien Kabuga in the morning of 16 May 2020 in the Paris suburb of Asnieres-sur-Seine in France was greeted in Rwanda and across the world with statements and headlines of jubilation and surprise. He was the most prominent fugitive accused of playing a central role in the genocide that targeted the Tutsi of Rwanda more than 26 years ago. Initially indicted by the Arusha-based United Nations International Criminal Tribunal for Rwanda (ICTR) in 1997 and often mentioned as one of the most high profile targets of the International Residual Mechanism for International Tribunals (IRMCT) that succeeded the ICTR once it closed the doors in end 2015, Kabuga had managed to evade justice using his wealth and networks that allowed him to buy protection and new identities enabling him to move around. His long journey of a genocide fugitive reportedly took him to several countries across continents, including Switzerland, the DRC, Kenya, Germany. IN view of many previous failed attempts to arrest him, few still believed that he would ever face justice. In reaction to his arrest, the Chief Prosecutor of the IRMCT Serge Brammertz highlighted the collaborative role played institutions in France, Rwanda, Belgium, the United Kingdom, Germany, the Netherlands, Austria, Luxembourg, Switzerland, the United States, EUROPOL and INTERPOL.
Kabuga was a key member of President Habyarimana’s inner cycle, Akazu, as evidenced by not one but two marriages of his daughters to the president’s sons: Bernadette Uwamariya to Jean-Pierre Habyarimana and Françoise Mukanziza to Léon Habyarimana. He is widely regarded as a central figure in the genocidal enterprise as he was the president of a committee that took the initiative to establish the infamous Radio Television Libre des Milles Collines (RTLM) that propagated anti-Tutsi hate speech and served a key tool of incitement once the killings started. He also presided over a National Defence Fund established a the height of the genocide in support of armed forces and militias responsible the killings. The IRMCT indictment charges Kabuga of genocide, complicity in genocide, direct and public incitement to commit genocide, attempt to commit genocide, conspiracy to commit genocide, persecution and extermination. It specifies that he instructed the Interahamwes to transport machetes to Gisenyi where they were distributed to the Interahamwe and used to kill the Tutsi. Other accounts have been documented the fact that Kabuga was top on the list of businessmen who imported more than half a million of machetes during the months that preceded the genocide. His name was invoked many times in the ICTR Media Case against Ferdinand Nahimana, Jean-Bosco Barayagwiza and Ngeze Hassan in relation to the creation and operation of the RTLM and the use of machetes as a widely used weapon in the killing of the Tutsi. The defendants were all found guilty and handed to long imprisonment sentences.
Some reactions to Kabuga’s arrest, including from genocide survivors, have expressed the wish to see Kabuga extradited to Rwanda to face trial. The executive secretary of IBUKA, the umbrella organization for genocide survivors, was quoted saying that the wish of survivors was to see him extradited to and tried in Rwanda. Under Article 1 of the Statute of the IRMCT, the institution was given jurisdiction over persons indicted by the ICTY and ICTR who fell under the category of “senior leaders suspected of being most responsible for the crimes”. Others not fitting this profile should be, as much as doable, transferred to national authorities of, among others, countries where the crimes were committed. Based on this provision, the ICTR withheld jurisdiction over three so-called “big fish” fugitives, namely the former Minister of Defence Augustin Bizimana, former Commander of Presidential Guard Protais Mpiranya and Félicien Kabuga. Several other cases were transferred to national authorities, most of them to Rwanda. After an initial transfer of Jean Uwinkindi and Bernard Munyagishari both under custody, the ICTR transferred nine cases concerning indicted individuals still at large at the time of closure of activities December 2015. Cases against Charles Sikubwabo, Aloys Ndimbati, Fulgence Kayishema, Charles Ryandikayo, Phénéas Munyarugarama and Ladislas Ntaganzwa were transferred to Rwanda where they would face trial, if arrested. Only one of these fugitives, Ladislas Ntaganzwa, has so far been apprehended. He was arrested in the DRC in December 2016 and transferred to Rwanda months later where he is standing trail.
It is therefore widely expected that Kabuga will be tried by the IRMCT under procedural details yet to be clarified. The status of his case before the institution has been updated as “Awaiting Transfer to the Mechanism’s Custody. French authorities have already signalled their willingness to transfer Kabuga to the IRMCT. Legal procedures are in motion in France to formalize the extradition. The Hague has been mentioned as his immediate future destination. However, it is still unclear whether he will be tried at the headquarters of the Mechanism in the city or if is his cases will be adjudicated before its Arusha section. Based on the letter of the IRMCT Statute and pragmatic considerations on the current rather limited workload of the mechanism, the likelihood of an extradition of Kabuga to face trial before Rwandan courts remains rather thin. Whether he is eventually tried in Arusha or the Hague, there is a number of consideration to keep in mind with regards to the anticipated proceedings.
First, Kabuga is currently 84 years old and appears to be rather frail. Since international criminal proceedings characteristically take several years, a first logical question is whether we will actually be around long enough to stand a full trial, including a potential appeal. There have been suggestions that he might enter a guilty plea but in light of the continued denial of any genocidal conspiracy by members of the Habyarimana inner cycle, this scenario remains very unlikely. Second, it is widely acknowledged that the ICTR contributed to the development of international law through a clarification of the definition of the crimes of genocide and the inclusion of rape and sexual violence as integral part of that definition. If a full trial takes place, a major anticipation would be to see how the Mechanisms
ICTR/IRMCT – genocide definition – rape/sexual violence as constitutive of genocide – now the finances in connection to the genocide….
Charles Sikubwabo, a former mayor of Gishyita in the Kibuye Prefecture, Aloys Ndimbati, a former mayor of Gisovu commune, Kibuye Prefecture, Fulgence Kayishema, a former Judicial Police Inspector of Kivumu Commune in Kibuye Prefecture, Charles Ryandikayo, a businessman in Mubuga secteur and member of the MDR extremist (power) faction and, Phénéas Munyarugarama, a Lieutenant Colonel in Rwandan Armed Forces (FAR).
This article was written by Dr. Felix Ndahinda. He is a Rwandan-born researcher based in the Netherlands. He specialises in international law,
victimology and the nexus between identity and conflict.