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Source: US Global Legal Monitor

(Nov. 16, 2020) On May 16, 2020, Félicien Kabuga, an 84-year-old Hutu businessman accused of financing the militias that carried out the massacres in Rwanda in 1994 and of founding and funding the Radio Télévision Libre des Mille Collines (RTLM), which actively encouraged people to search out and kill anyone who was from the Tutsi ethnic group, was arrested in a suburb of Paris.

Kabuga has been charged with genocide, complicity in genocide, direct and public incitement to commit genocide, attempt to commit genocide, and conspiracy to commit genocide. These charges mirror article II (a)–(e) of the Genocide Convention. Kabuga is also accused of extermination and persecution as crimes against humanity. Kabuga has now been transferred to the United Nations Detention Unit at The Hague (Netherlands) to face trial by the International Residual Mechanism for Criminal Tribunals (IRMCT).

Kabuga reportedly fled Rwanda and initially attempted to apply for asylum in Switzerland, then moved around the Democratic Republic of the Congo (then-Zaire), Kenya, and Germany before most recently settling in the Parisian suburb of Asnières-sur-Seine.

Crimes Against Humanity and Genocide

Under international law, a distinction is generally made between crimes against humanity and genocide. Genocide requires the intent to destroy, in whole or in part, a national, ethnic, racial, or religious group. Crimes against humanity, in contrast, are acts intentionally causing great suffering or serious bodily or mental injury as part of a widespread or systematic attack knowingly directed against any civilian population. (See here for further exploration of the history and import of international criminal law distinctions.)

It is also worth noting that, with regard to genocide, the Genocide Convention has been signed by 152 states parties, while there is currently no international convention on crimes against humanity. The United Nations International Law Commission has been working on draft articles for a proposed International Convention for the Prevention and Punishment of Crimes Against Humanity since 2014. (See here for an opinion regarding the prospects of a convention.)

The International Criminal Tribunal for Rwanda and the IRMCT

The IRMCT was established in 2010 by UN Security Council Resolution 1966 to complete the remaining work of two specialized criminal tribunals, the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY). The ICTR’s mandate expired at the end of 2015 after the ICTR had indicted 93 individuals for genocide and other serious violations of international humanitarian law. The ICTR was the first international tribunal to interpret the definition of genocide as provided in the Genocide Convention.

The United Nations also notes that the ICTR was the first international tribunal to hold members of the media responsible for broadcasts intended to inflame the public to commit acts of genocide (the Media Case). This may be especially pertinent precedent in the Kabuga case, as he is accused of using broadcasts on Radio-Television Libre des Mille Collines to incite people to murder and to announce where to buy machetes to be distributed to genocidal groups.

An African Solution to African Problems

The significant case law of the ICTR and the ongoing work of the IRMCT should be considered in the context of Rwandan community-based gacaca courts in response to the 1994 genocide. Human Rights Watch reports that from 2005 to 2012, over 10,000 of these courts were established, trying approximately 1.2 million cases. The gacaca courts, as a form of transitional justice, have received mixed reviews with regard to their ability to achieve truth, justice, and reconciliation among Rwandans. While the courts were considered a unique experiment in collaborative justice, human rights organizations have stressed that they did not meet international standards for a fair trial, which require legal representation for the accused, the impartiality of judges, and witness protection. Given the mixed response from the international community, the United Nations Office of the High Commissioner for Human Rights (OHCHR) has been actively providing guidance and developing standards and tools to improve the ability of various forms of transitional justice to conform with international legal standards.

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