Evaluating Medico-Legal Jurisprudence of Félicien Kabuga’s Unfitness to Stand Trial for the Rwandan Genocide: A Socio-Historical Context
ARTICLE
Evaluating Medico-Legal Jurisprudence of Félicien Kabuga’s Unfitness to Stand Trial for the Rwandan Genocide: A Socio-Historical Context
Author: Charles A Khamala
ISSN: 2521-2621
Affiliations: Dean & Senior Lecturer, Faculty of Law, The Catholic University of Eastern Africa; Advocate of the High Court of Kenya
Source: African Yearbook on International Humanitarian Law, 2024, p. 1 – 42
https://doi.org/10.47348/AYIH/2024/a1
Abstract
For turning fugitive from international criminal justice for over two decades, Félicien Kabuga’s tainted reputation as ‘the financier of the Rwandan genocide’ lingers in popular discourse and public memory. This paper analyses the International Criminal Tribunal for Rwanda’s (ICTR) failure in bringing him to justice by not holding him responsible for atrocity crimes. In 2023, the United Nations Residual Mechanism for Criminal Tribunals terminated Kabuga’s case. Paradoxically, not only was he denied an opportunity to clear his name, but also the victims remained frustrated. This paper places the case in a historical context through the ‘machete thesis’, which alleges that Kabuga’s company imported half a million machetes through Kenya for use in the planned genocide. Curiously, after two decades, the prosecution dropped that thesis in favour of direct eyewitness testimony alleging that he trained the Interahamwe militia inside his compound. However, midway through the trial, Kabuga suffered dementia. Hence, this paper explores the politics of recognition and Judge El-Baaj’s insistence on the ‘support-based approach’ that emerges from the Convention on the Rights of Persons with Disabilities. The paper’s methodology involves interpreting conflicting judicial decisions in Kabuga’s case to understand how medico-legal jurisprudence determined his unfitness to stand trial. Finally, an examination is made of alternative trial procedures and possible substantive corporate responsibility. Societal consequences are reminiscent of the National Military Tribunal’s infamous acquittal of Alfried Krupp following World War II, despite his financing of Hitler’s Nazi Party. Arguably, the IRMCT’s legacy constitutes two failings. First, it violated Kabuga’s fundamental rights. Second, it contributed to ‘soft-core genocide denial’, resulting from inflicting further suffering on the Tutsi and moderate Hutu victims. They were not only denied symbolic justice, but also received no compensation from Kabuga’s frozen assets.
