Upholding the Right to Fair Trial: The Appeals Chamber’s Impactful Decision on the Alternative Findings Procedure at the IRMCT

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The recent decision handed down by the Appeals Chamber of the International Residual Mechanism for Criminal Tribunals (IRMCT) in the Kabuga case, which overturned the Trial Chamber’s precedent-setting decision to introduce an “alternative findings procedure” for the trial of unfit individuals, may potentially mark a positive shift towards safeguarding the rights of defendants within the realm of international justice.

Kabuga has been accused of committing genocide and inciting genocide in Rwanda. He was indicted for these crimes by the ICTR in 1998 and he lived as a fugitive until his eventual arrestin 2020. As his trial at the IRMCT commenced, it quickly became apparent that Kabuga’s health was compromised. Consequentially, several measures were taken by the Trial Chamber to accommodate him and ensure his full participationin the proceedings, including holding shorter sessions. However, after being diagnosed with a progressive form of dementia consistent with Alzheimer’s disease by three psychiatrists, the court ruled that Kabuga was unfit for trial, as his cognitive decline entailed that he could not meaningfully exercise his fair trial rights, even with the assistance of counsel.

With the determination of unfitness, it seemed quite straightforward that the court would order an indefinite stay of proceedings. This would have aligned with precedents set in previous cases before the International Criminal Tribunal for the former Yugoslavia (ICTY)/ For instance, in Hadzic, where the defendant developed a progressive and degenerative brain tumor that left him with less than a year to live and unable toeffectively communicate with his lawyers, the ICTY declared him unfit and ordered an indefinite stay of proceedings. Likewise, in the case of IENG Thirith before the Extraordinary Chambers in the Courts of Cambodia (ECC), a similar scenario unfolded. Here, the defendant’s diagnosis of a progressive form of Alzheimer’s prompted the court to declare her unfit and subsequently order an indefinite stay of proceedings.

Instead of following these non-binding precedents, the Kabuga Trial Chamber decided to take a different approach, as it believed that a stay of proceedings could not sufficiently satisfy the need for justice. The Chamber contended that Kabuga boresome responsibility for the present circumstances, having evaded arrest for an extended period exceeding two decades. Therefore, according precedence to his interest in a stay of proceedings over the longstanding quest for justice by victims would be contrary to the public interest. The Chamber also points out that Kabuga deserved a chance at exoneration and to secure unconditional release. Accordingly, the Trial Chamber decided to invent an alternative finding procedure, modelled after a finding of fact hearing currently existing in some countries.

The Alternative Findings Procedure- an affront on the right to fair hearing

In this proposed procedure which would have resembled a trial as closely as possible, the Trial Chamber felt that several fair trial rights of Kabuga could be discarded, as the procedure willnot lead to a conviction. Kabuga could be present for the hearings, but his presence was not necessary. His inability to instruct counsel would not matter. His inability to understand, recall or rebut the evidence against him would not matter. However, at the end of this procedure where Kabuga and his counsel would have been completely ineffectual at putting up a defense, the Trial Chamber would determine whether or not Kabuga was complicit in crimes committed in Rwanda. To its credit, the Trial Chamber stipulated that the Prosecutor will still be required to prove the mens rea and actus reus of the alleged offences beyond reasonable doubt.

The Trial Chamber did not state any legal basis for adopting this procedure other than pointing to its practice in a handful of states, and the need for justice for the victims. And the Chamber is in fact right. To some extent, the alternative finding procedure may satisfy the victim’s right to truth. They will be able to tell their story and the court could reach a determination. However, a fundamental query arises: Can the truth genuinely be ascertained within a framework where a defendant’s fair trial rights are readily set aside by the court? A scenario where the defendant is neither physically present nor capable of comprehending the ongoing proceedings. Imposing an unjust trial upon Kabuga solely because he eluded justice since 1998 starkly clashes with the foundational purpose of the IRMCT and the broader principles of international justice.

Further, we must determine how far we are willing to go in pursuit of the victims’ right to truth. Given its modalities and the readily discarded rights of the defendant, the alternative finding procedure could conceivably be applied in cases where the defendant has not been arrested or even after a defendant is dead. If the presence of an accused person is not required, nor is the accused person required to be able to understand or contribute to the proceedings or to instruct counsel, there is no reason why such a system cannot be deployed to try defendants in absentia. Such an application fundamentally contradicts the established notions of a fair trial and the profound implications it carries for international justice.

The timely intervention of the Appeal’s Chamber

Fortunately, the Appeals Chamber’s decision effectively shut down the proposed implementation of the alternative finding procedure and instead directed the Trial Chamber to order a stay of proceeding in line with existing precedents. The Appeals Chamber’s rationale was rooted in the absence of any legal basis within the IRMCT statute or rules that would authorize the Trial Chamber to create such a procedure. Emphasizing the importance of the right to be tried in one’s presence, in para. 64 of its decision, the Appeals Chamber underscored this right as an “indispensable cornerstone of justice”. The Chamber further noted in para. 65 that “to continue a trial against an unfit accused is to deny him or her the statutory guarantee to be tried in his or her presence.”

The Appeals Chamber also observed that the alternative finding procedure would likely violate other rights ordinarily exercisable by a defendant. For instance, Kabuga would not be protected by non bis in idem rule which only protects persons who have undergone a comprehensive trial by the mechanism. Also, Kabuga will be denied the right to appeal any finding of culpability, given that a defendant’s right to appeal only arises if convicted, and an alternative finding procedure will fall short of that.

Further, the Appeals Chamber found that conducting a trial where a defendant would not be convicted even after determination of culpability for offences, is inconsistent with the mechanism’s rules and its objectives. Finally, the Appeals Chamber asserts that the statute only authorizes the mechanism to conduct trial, appellate, and review proceedings. In para. 74 of the decision, the Appeals Chamber held that an indefinite stay of proceedings is “consistent with prior practice and strikes the appropriate balance between upholding the statutory guarantees afforded to all accused before the Mechanism and ensuring that an accused, who is allegedly responsible for some of the most egregious crimes and who has evaded justice for over two decades, remains under the Mechanism’s jurisdiction”

This decision by the Appeals Chamber is certainly the correct one as it reemphasizes and prioritizes the defendant’s right to a fair trial. In its well-articulated concluding remarks, the Appeals Chamber empathized with victims and survivors who have long awaited justice, only to have the trial truncated by Kabuga’s lack of fitness. However, the Chamber correctly identifies the need to protect Kabuga’s fundament rights in any proceedings before it. In a powerful concluding dictum, the Appeals Chamber notes in para. 78 that “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…. It is axiomatic that justice must be done and must be seen to be done.”

What next for Kabuga?

The immediate next step would be for the Trial Chamber to stay proceedings, order provisional release of Kabuga and institute a monitoring and reporting regime to keep track of his health.

However, releasing Kabuga would not be a straightforward issue for the Mechanism. The Mechanism, as well as its predecessorthe ICTR, has historically, found it extremely difficult to effectuate the release of persons who have been tried for their involvement in the Rwandan genocide. Most of the former defendants before the ICTR (both the acquitted and persons released on completion of their sentence) cannot return to Rwanda for fear that they may face re-prosecution or other violations of their human rights. As a resolution to the problem of relocating and resettling some acquitted and released persons, the Mechanism entered into a relocation agreement with Niger for the transfer of eight men previously in its custody to Niger. However, Niger promptly breached the terms of the agreement and have held the men under house arrest since their relocation to the country in December of 2021. The men have since lived under deteriorating conditions where they are forced to ration food and water. One of the men Tharcisse Muvunyi, who had completed the sentence imposed by the ICTR but was still held under house arrest in Niger, recently died in custody without ever regaining his freedom.

This is quite possibly the fate that awaits Kabuga. Unless a State steps up to cooperate with the IRMCT, it is quite likely that Kabuga will remain in custody even if the Trial Chamber orders his provisional release. The IRMCT has been notably hesitant to order states to cooperate on issues of releasing defendants. One must wonder why a mechanism capable of inventing brand new procedures for the purpose of finding defendants culpable of criminal acts, chooses to remain completely docile when it comes to protecting the rights of defendant in cases of release. However, I do not want to predict what could happen in Kabuga’s case, as I am quite optimistic that the Appeals Chamber decision will usher in a new era of protecting the rights of defendants.

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Matthias Zechariah says

August 20, 2023

What a beautiful submission! However, I wish you had suggested possible amendments to the procedural rules of the Mechanism that can take care of the identified lacuna. The essence of such an amendment will be to strike a balance between the defendant's fair trial rights on the one hand, and, on the other, the victim's demand for justice and entitlement to compensation in appropriate cases.