Arrest of Félicien Kabuga signifies imprescriptibility of international crimes

Felicien Kabuga was arrested in France on 16 May 2020, after evading justice for 26 years. He is charged with genocide, complicity in genocide, direct and public incitement to commit genocide, attempt to commit genocide, conspiracy to commit genocide and crimes against humanity (persecution and extermination).

Generally, Kabuga is accused of bankrolling and arming the ethnic Hutu militias that waged the 100-day killing spree against the Tutsi in 1994. In fact, he was the most wanted fugitive.

 

Kabuga is accused of being one of the main funders of the genocide, paying for the militias that carried out the genocide. He also founded and funded the notorious Radio Télévision Libre des Mille Collines (RTLM), a Rwandan broadcaster that actively encouraged people to search out and kill the Tutsi. His broadcast messages were inflammatory to the genocide against the Tutsi.

 

Interestingly, the United States had placed a US $5m reward on his head. Kabuga has been the run in several countries with multiple identities.

 

As regards imprescriptibility of international crimes, also known as the core international crimes, such as crimes against humanity, war crimes and genocide, are imprescriptible, no time bars apply for their prosecution. Ever since the atrocities of the Second World War, the notion of the imprescriptible has become synonymous with the law’s dealing with the most heinous criminal acts.

The especially shocking nature of international crimes is usually regarded as the justification for the exception to the statute of time limitations.

In order to ensure efficient legal instruments to protect human rights and fundamental freedoms and, alternatively, to prevent genocide, crimes against humanity and war crimes, United Nations established in international law, “the Convention the non-applicability of statutory limitations to war crimes and crimes against humanity”. This Convention came into force in November 1970.

Back then, the principle of non-applicability of statutory limitations (imprescriptibility) was adopted in the Charter of the International Military Tribunal, commonly known as “the Nuremberg trials”. These trials were most notable for the prosecution of prominent members of the political, military, judicial, and economic leadership of Nazi Germany, who planned, carried out, or otherwise participated in the Holocaust and other war crimes. Ever since, the principle has consistently been used especially in condemning crimes against humanity the violation of the economic and political rights of the indigenous population on the one hand and the policies of apartheid on the other.

The principle of no statutory time limitation should not be applied to crimes against the peace and security of mankind. International crimes are regarded as unimaginable atrocities that deeply shock the conscience of humanity.

The imprescriptible provision of international crimes is equally contained in Article 29 of the Rome Statute of the International Criminal Court (ICC), which asserts that ‘the crimes within the jurisdiction of the Court shall not be subject to any statute of limitations’. This means that no limitation statute may be applied to the crimes within the jurisdiction of the Court and that such crimes are ‘imprescriptible’.

Limitation statutes relate to the question of the time dimension in the prosecution of serious crimes: they provide a formal time limit for such prosecutions to be brought after the commission of the crime. The Statute excludes such limitations for the crimes, such as the crime of genocide, crimes against humanity, war crimes, and the crime of aggression.

The imprescriptible nature can be inferred from the conviction of the former Chadian leader, Hissene Habre, held in May 2016, for the crimes against humanity (such as rape, sexual slavery and ordering killings during his rule from 1982 to 1990) and sentenced to life in jail in a landmark trial in Senegal.

Another similar case is that of Adolf Eichmann, a German, who was one of the major organizers of the Holocaust, referred to as the “Final Solution to the Jewish Question” in Nazi terminology. He actively facilitated and managed the logistics involved in the mass deportation of Jews to ghettos and extermination camps in Nazi-occupied Eastern Europe during World War II. Shortly after the World War, he fled to Argentina, as a place of sanctuary. Eichmann had multiple identities but was captured by the Israelis intelligence agency on 11 May 1960 and subsequently found guilty of war crimes in a widely publicised trial in Jerusalem, where he was executed by hanging in 1962.

Turning to Kabuga’s case, he’s likely to be transferred by French authorities to the International Residual Mechanism for Criminal Tribunals (“Mechanism”) to be tried there. This Mechanism is mandated to perform a number of essential functions previously carried out by the International Criminal Tribunal for Rwanda (“ICTR”) and the International Criminal Tribunal for the former Yugoslavia (“ICTY”).  Under Article 5, paragraph 2, of the Statute of the International Residual Mechanism for Criminal Tribunals states “The Mechanism shall have primacy over national courts in accordance with the present Statute. At any stage of the procedure involving a person covered by Article 1 paragraph 2 of this Statute, the Mechanism may formally request national courts to defer to its competence in accordance with the present Statute and the Rules of Procedure and Evidence of the Mechanism.”

The writer is a law expert.

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