The prosecutor wanted to explore Félicien Kabuga's brain. To prove that he had this particular "intention" which makes the singularity of the crime of genocide: that of wanting to exterminate a group, like that of the Tutsi, targeted for the simple fact of their existence.
Since March 8, every inch of the brain of the former Rwandan businessman, accused of "genocide", "crimes against humanity for extermination", "persecution" and "assassination", is verbally auscultated. No longer to know his past intentions, but to organize the rest of the trial. In a confidential report delivered on March 3 to the judges of the United Nations Mechanism in charge of conducting the last trials of the International Criminal Tribunal for Rwanda (ICTR), two psychiatrists and a neurologist concluded that Félicien Kabuga suffers from "dementia" of vascular origin and would not be fit to stand trial. At least 87 years old, the old man also suffers from diabetes and has just gone through the winter with pneumonia.
Since last week, the experts have been invited to the bar of the Mechanism which sits in The Hague and their hearing is scheduled to continue until March 30. On that day, lawyers and prosecutors will plead before the judges retire to deliberate. At stake: the trial of the man who for twenty-six years was one of the most wanted fugitives from international justice.
If the judges seem to want to bring this trial to a conclusion at all costs, "it will not be possible to stop or reverse the changes that we have been able to observe in Mr. Kabuga's brain", declared the psychiatrist Gillian Mezey, during of the March 23 hearing. Does Félicien Kabuga understand the charges against him? "When I asked him what genocide was, he said, 'It's the extermination of people,' explains Professor Mezey. And when I told him that he could, for example, end his life in prison, he said that people [witnesses] are lying and that the court will not believe them. »
« Incapable »
As often, the accused is not present in court, but he follows the proceedings by videoconference from the prison hospital. The screens arranged in the courtroom crush the perspective, sometimes giving the ironic impression that he wears the laurel wreath which appears on the logo of the Mechanism, displayed behind him. His lawyer, Me Emmanuel Altit, asks: "Is it possible to have a reasoned exchange today with Mr. Kabuga (...) about, for example, a witness or a piece of evidence? "If you talk about the weather or what he did in the day, it will be possible," replies the psychiatrist.
But for more complex questions? "I am clear he is unable to do so given his current cognitive abilities. “Since the opening of the trial at the end of September 2022, only six hours a week have been devoted to hearings, due to the health of the octogenarian, and so far only 24 witnesses have been heard.
"When we asked him why he had a beard and why he no longer had the watch he was so proud of, he couldn't tell us," Professor Henry Kennedy also explained last week. The following day, Félicien Kabuga appeared on screen in his wheelchair, clean-shaven except for a mustache, and wearing a watch on his wrist.
As soon as he was arrested in May 2020, in Asnières-sur-Seine, Félicien Kabuga refused to be tried. Is the businessman faking illness to escape sentencing? The question is in everyone's mind. Everyone remembers the images of Augusto Pinochet leaving his wheelchair on arriving in Santiago on March 3, 2000, after London refused to extradite him to Spain, where he had been prosecuted for the crimes of the dictatorship.
Hoping to evacuate the question, Dov Jacobs, one of Mr. Kabuga's lawyers, asks Professor Kennedy: "In your opinion, could a person with dementia be able to deceive so many people for so long? White beard and thin glasses, the psychiatrist, who examined the defendant three times during the past year, kicks a little in touch, explaining that, "like any psychiatrist, what is important for me is to keep in mind that you can be fooled. In the present case, based on the findings, we can make a diagnosis of dementia."
The presiding judge, the Briton Iain Bonomy, is looking for solutions so as not to close this file without a verdict. In England, if a defendant is "unfit to plead", judges can hold a "trial of the facts". The judge would like to be inspired by it. In this case, the accused would not need to be present, only his defense team. But, since his transfer to the Netherlands in October 2020, Félicien Kabuga has been calling for new lawyers.