By Simeon Sungi

Professor Simeon Sungi, an Associate Professor of Criminal Justice in the Department of Sociology and Criminal Justice participated in the Second Judicial Colloquium of the IRMCT held in Arusha, the United Republic of Tanzania on February 28-29. The President of the IRMCT, Judge Graciela Gatti Santana invited him to participate as a presenter in the colloquium. The colloquium carried the theme ‘The new face of atrocity crime proceedings: Internationalization of Standards, Regional Dialogues on Procedural and Cooperation Matters, and Use of New Technologies’.

Prof. Sungi’s panel included Judge Aminatta N’gum, Judge of the IRMCT, Judge Iain Bonomy, Judge of the IRMCT, and Ms. Kate Gibson, Counsel before the IRMCT. Mr. Iain Edwards, Counsel before the IRMCT and Kosovo Specialist Chambers moderated the session whose theme related to ‘Safeguarding Human Rights in Criminal Proceedings for Atrocity Crimes: Fitness to Stand Trial and Counsel’s Representation’.

The panel examined the rights of an accused person, with a particular focus on two threshold issues that a court must often satisfy itself before proceedings can commence: fitness to stand trial and the availability of adequate legal assistance. Due to the time that can elapse before alleged perpetrators are arrested, it is not uncommon for courts adjudicating atrocity crimes to also find themselves addressing matters arising out of the advanced age of the accused. In this regard, increased attention is being paid to fitness to stand trial as an issue that national, regional, and international courts and tribunals must properly resolve in the face of sometimes complex medical situations while adhering to applicable human rights protections. Another essential aspect of fair trial proceedings is the right to be represented by qualified Counsel, along with the practical implications of ensuring this right can be duly exercised. Panelists highlighted the recent jurisprudence rendered concerning these topics before the IRMCT and other international tribunals and discussed their implications for atrocity crimes proceedings generally.

Prof. Sungi's presentation focused on the right to fair trial and disability discrimination. The case being analyzed was the recent IRMCT case Prosecutor v. Félicien Kabuga, MICT-13-38 (2021). Félicien Kabuga was the President of the Comité d’initiative of Radio Télévision Libre des Mille Collines (“RTLM”) during the time of the crimes pleaded in the indictment and President of the Comité provisoire of the Fonds de défense nationale (“National Defense Fund”) from about April 25, 1994 to July 1994. Kabuga was indicted by the former International Criminal Tribunal for Rwanda (ICTR) for genocide, crimes against humanity, and other serious violations of international humanitarian law. Kabuga is alleged to be the main financier and backer of the political and militia groups that committed the Rwandan genocide. He had been at large until May 16, 2020, when he was arrested near Paris by French authorities.

After the arrest in France, Kabuga’s transferred to the IRMCT Hague branch. The Trial Chamber received twice-monthly medical reports from the United Nations Detention Unit’s Medical Officer related to Kabuga’s health, to determine his fitness to travel to and be detained at the IRMCT Arusha branch. Given a Defense request for medical experts to assess Kabuga’s fitness to stand trial, the Trial Chamber appointed three independent medical experts, one Prosecution medical expert, and one Defense medical expert. The Trial Chamber held hearings on May 31, June 1, and June 7, 2022 to allow for the examination of three of the medical experts and submissions of the parties on Kabuga’s fitness to stand trial and to be detained in Arusha.

In the Decision on Félicien Kabuga’s Fitness to Stand Trial and to be transferred to and detained in Arusha, issued on June 13, 2022, the Trial Chamber found that the Defense had not established that Kabuga is presently unfit for trial. In the same decision, the Trial Chamber, nonetheless, noted that Kabuga suffers from cognitive impairment, is in a vulnerable and fragile state, and requires intensive medical care and monitoring. The Trial subsequently held that Kabuga was unfit to stand trial because of his disability. The Prosecutor applied the Trial Chamber’s decision that declared Kabuga unfit to stand trial, but the Appeal Chamber agreed with the Trial Chamber’s decision and ordered the Trial Chamber to permanently stay Kabuga’s case.

Prof. Sungi's presentation affirmed that the fitness to stand trial is a fundamental principle of justice, ensuring that individuals understand the charges against them and can participate meaningfully in their defense. However, individuals with disabilities may face unique challenges in meeting the criteria for fitness to stand trial, and they may also encounter discrimination within the legal process. He cited international instruments that protect this right, for example, the Convention on the Rights of Persons with Disabilities (CRPD): The CRPD, in Article 13, recognizes the right of persons with disabilities to access justice on an equal basis with others, including through effective accommodations to ensure their effective participation in legal proceedings. Article 13 (1) stipulates that state parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations.

Prof. Sungi, however, faulted both the IRMCT Trial Chambers and the Appeal Chamber’s decisions that declared Kabuga unfit to stand trial because he deliberately evaded justice for almost three decades, using his wealth and political influence. His disability is a result of advanced age, Kabuga is 89 years old now. The IRMCT decisions send a bad message to victims of mass atrocity crimes and the public at large that one can commit serious crimes, wait until he or she is advanced in age and courts will declare them unfit to stand trial. The criminal justice system should have found a process that upholds Kabuga’s rights as an accused person to hold him accountable for the crimes he is alleged to have committed during the 1994 genocide against the Tutsi and moderate Hutus.
The new Master of Arts (M.A.) in Criminal and Transitional Justice program in the Department of Sociology and Criminal Justice trains students on issues relating to mass atrocity crimes (international crimes) and means of responding to such crimes to create safe communities and building peace, stability, and reconciliation in the aftermath of mass atrocity crimes. The M.A. program admits students in the fall (September) semester every academic year.

For more about Mr. Kabuga’s case see https://www.irmct.org/en/cases/mict-13-38