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On May 16, Félicien Kabuga was arrested on the outskirts of Paris, where he had been living for more than 10 years under a false identity. One of the last alleged leaders of the Rwandan genocide, still at large, has been wanted for more than 20 years.
The charges against him include the most serious charges of genocide. These were committed during Kabuga’s time as director of Radiotélévision Libre des Mille collines since 1993, and as president of the National Defense Fund since its creation in April 1994.
This arrest marks the beginning of a long legal process in which the prosecution faces numerous challenges. The first of them is to unravel the mystery of 26 years past hidden.
The second challenge is whether the requested evidence has been preserved. An earlier request to trace the money to establish blame among ousted Rwandan officials was stopped for fear of implicating current officials. What will happen when prosecution investigators look for such evidence in the future, not just in Rwanda, but also in Belgium, Switzerland, France, and elsewhere?
Finally there is the question of the credibility of the witnesses. With the disappearance of many witnesses over time and the likely destruction of crucial records, the credibility of the witnesses is one of the key issues in the Kabuga trial, along with the strength of the evidence presented to the judges.
Depending on who you ask, the trial could take place in Arusha, Tanzania, in The Hague in the Netherlands, or in Kigali, Rwanda. However, these challenges, coupled with the fierce dispute between Rwanda’s leadership and the Mechanism for International Criminal Tribunals (MICT), which succeeded the International Criminal Tribunal for Rwanda (ICTR), will soon be manifested for the world to see.
Allegations and evidence
Kabuga’s recent arrest raised the same allegations as those made in 1999, when his indictment was first published. He is described as the “richest man in the country”, one who imported machetes to arm genocidal murderers. It is said that he had close family ties with the presidential couple. More significantly, he is said to have been responsible for financing and organizing militias and vigilante groups.
As early as 1995, the prosecutor of the International Criminal Tribunal for Rwanda promised to establish Kabuga’s guilt, the Minister of Finance, E. Ndindabahizi, and the Minister of Planning, A. Ngirabatware (Kabuga’s father-in-law). But the court was soon frustrated by the lack of tangible evidence. The records kept by the ministries did not allow them to establish links with the genocide and the “hypothesis of the machetes” was very uncertain.
In 1999, the prosecutor used the accounting and personnel management records of public and private companies. These helped reveal the funding mechanisms and networks that enabled the creation of the ruling party’s youth groups, the Interahamwe , and those of other parts. When the war broke out, these groups were transformed into youth militias serving the politicians who financed them, housed them (as Kabuga did in Kigali) or armed them.
Investigations made significant progress in 2001, with access to the bank accounts of individuals and organizations suspected of looting parastatal companies and the budgets of large government ministries. The atmosphere of impunity had been so great that most of the transfers were sent directly to the dignitaries’ personal accounts.
In May 2001, the Prosecutor’s Office tried to extend its search to the highest levels of power. A work program was sent to the Ministry of Justice, with a list of names and institutions. The requests included operations carried out after the war with the accounts and assets of figures of the old regime, either dead, processed or “recycled” by the new authorities.
But on the day the application was submitted, a wave of panic washed over the banking world, particularly in Belgium. The banks expressed their total opposition to the highest levels of the State of Rwanda. The investigations were denied on the grounds that they could harm “national reconciliation” and “reconstruction of the country”, as they raised concerns from economic organizations now shielded from scrutiny.
Can we hope that this evidence has been preserved?
Rwanda’s agenda
As relations between the International Criminal Tribunal for Rwanda and Kigali have been plagued by a series of crises, and because the credibility of international justice is often questioned in Africa, the MICT faces a significant challenge.
For those who want to know what happened in Rwanda, it would be unimaginable to give up investigations of large sectors of the decision-making, organization and operation of war and genocide.
For Rwanda, the goal is to obtain formal recognition of his claim, which places “the planning of the genocide against the Tutsis several years in advance.” The International Criminal Tribunal for Rwanda was never able to establish this. The “genocidal conspiracy” theory put forward by the initial prosecutors of the International Criminal Tribunal for Rwanda was quickly abandoned for lack of sufficient evidence.
This ruling was upheld by the judges at Colonel Bagosora’s trial, and again when Protais Zigiranyirazo was acquitted after his appeal. Because the main suspect, Agathe Kanziga, the widow of President Juvenal Habyarimana, was never prosecuted by the International Criminal Tribunal for Rwanda, Kabuga became the prosecutor’s number one target in 2001.
Whatever the outcome, the Kabuga trial will allow Kigali to once again campaign for Kanziga, who still resides in France, to stand trial in Rwanda. This would be a key trial, representing a final and outstanding political and judicial victory for the Rwandan authorities.
With these final trials, the main objective of the Rwandan government remains the same: to consolidate its rewritten version of the tragedy, which is now the official history of war and genocide and, as such, is protected by laws against denialism and revisionism.
However, attempts to test Kanziga in Rwanda would run into a familiar roadblock. It is true that Kanziga was never prosecuted by the International Criminal Tribunal for Rwanda. But how were prosecutors going to prosecute Juvénal Habyarimana’s widow, when they refused to investigate the attack and gave the RPF total impunity by stopping investigations of her crimes?
It is one thing to orchestrate the moral defamation of the presidential family, and quite another to ask for a proper trial. That trial would result in conflicting hearings on the April 6 attack, international complicity, and the war crimes and crimes against humanity that accompanied the victory of the Rwanda Patriotic Front.
The Arusha question
On May 28, MICT Judge Sekule recommended waiting until pandemic restrictions were lifted before making travel arrangements to Arusha, but added that “an appropriate alternative could be sought.”
In fact, a transfer to Arusha raises certain questions, about the physical condition of the defendant, the availability of Covid treatment centers, the hiring of personnel, among other issues.
There are hundreds of Rwandan witnesses to the crimes Kabuga is accused of. Therefore, the Kigali authorities may well request that the MICT hand over the case to them, after confirmation of its transfer from the French justice system to the Mechanism.
On April 20, the Assembly of UN Member States voted to approve the resolution that
“Calls on all states to cooperate with the Rwandan Government to investigate, arrest, prosecute or extradite all remaining fugitives.”
Then, Rwanda could be considered as a “suitable alternative”, since a higher court has been established there for this purpose. The country has been recognized internationally for its rigorous management of the Covid crisis, and the EU has restored direct flights to and from Kigali.
However, another surprising possibility would be a guilty plea. It could only be accepted by the judges after a comprehensive and detailed hearing of the accused, in which he would be forced to tell the truth on the basis of proven facts. If this option were accepted by the prosecutor Serge Brammertz, it could lead to greatly simplified procedures.
You can download a long version of this article in French and a version in Kinyarwanda here.
Translated from French by Alice Heathwood for Fast ForWord
Expert witness in the Office of the Prosecutor of the International Criminal Tribunal for Rwanda (1996-2010) and other national courts
By André Guichaoua, University Professor, University Paris 1 Panthéon-Sorbonne
