The death of Genocide suspect Félicien Kabuga before standing a trial has exposed what the judge at a UN tribunal described as a "systemic gap” in international criminal justice.

During a hearing on May 20 at the International Residual Mechanism for Criminal Tribunals (IRMCT) in The Hague, judges formally terminated proceedings in the case against Kabuga, following his death on May 16 at the age of 91.

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Presiding Judge Iain Bonomy said the court regretted that the trial could not reach a conclusion on the merits of the allegations against Kabuga, who was accused of a playing a leading role in the 1994 Genocide against the Tutsi.

Kabuga, a businessman and the alleged key financier of the Genocide, was arrested in May 2020 in France after over two decades on the run. He was transferred to The Hague in October 2020. The UN tribunal later ruled that he was unfit to stand trial due to his medical reasons, hence suspending the proceedings indefinitely. The man who co-founded 'hate radio' RTLM died in the UN Detention Unit.

"We regret Kabuga’s passing and also regret the fact that this trial was unable, as the law currently stands, to reach a conclusion on the matter,” Judge Bonomy said.

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"The manner in which this case is ending prevents a full accounting of what role, if any, Kabuga played in the serious crimes for which he stood accused.”

He added that the absence of a final judgement was frustrating for Genocide survivors, and all parties involved.

"The lack of a final determination is understandably frustrating for many, as it has deprived not only him but indeed victims, survivors, and all other interested parties of a judgment upon the allegations in the indictment,” he said.

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The court said the case revealed important shortcomings in international criminal procedure.

"Reflecting on the last six years, it seems to us that this case has highlighted a systemic gap in international criminal procedure that the Trial Chamber hopes the international community will continue to examine,” Bonomy stated.

"Namely, how to achieve justice for an accused and for victims of alleged crimes following a determination that an accused is permanently unfit to stand trial.”

The judge added that Kabuga’s death in custody underscored "an urgent need for increased international cooperation” in cases where accused persons cannot return to their countries due to humanitarian reasons.

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The Trial Chamber announced the death of Kabuga on May 16, saying he had been receiving treatment at the prison hospital in The Hague.

The President of the IRMCT appointed Judge Alphonse Orie to conduct an inquiry into the circumstances surrounding Kabuga’s death, in accordance with Rule 53 of the Rules of Detention.

"That inquiry is separate from the trial proceedings, and Judge Orie will report his findings to the President,” Bonomy said.

During the proceedings, the chamber heard testimonies from 24 prosecution witnesses and handled more than 500 exhibits, including written evidence from over 90 witnesses.

However, in June 2023, the chamber ruled by majority that Kabuga was unfit to stand trial due to his medical condition. Although judges initially proposed an alternative procedure that could have allowed the case to continue in a limited form, the Appeals Chamber later ruled that the court’s legal framework did not permit such a process.

"On 7 August 2023, the Appeals Chamber affirmed Kabuga’s unfitness, but concluded that the Mechanism’s legal framework did not allow for an alternative finding procedure,” Bonomy explained.

The Appeals Chamber subsequently ordered an indefinite stay of proceedings and instructed the Trial Chamber to urgently address the issue of Kabuga’s release.

Efforts were made to find a country willing to receive him on humanitarian grounds. While Rwanda expressed willingness to accept him, medical experts determined that he was too ill to travel.

Meanwhile, prior to his death, the chamber had been exploring options for Kabuga’s provisional release on humanitarian grounds after determining that he was not fit to travel to Rwanda due to his deteriorating health condition.

Kabuga was born in 1935 in Muniga sector, Mukarange commune, in the former Byumba préfecture.