16^th May 2020, Paris: The arrest of Félician Kabuga marked an important development in the pursuit of economic actors accused of playing a role in the Rwandan genocide. 

Rwandan businessman, founder and former chairman of the Radio Télévision Libre des Milles Collines (RTLM), Kabuga had been on the run for well over 20 years. His arrest gave renewed hope for the capture of other fugitives, even if justice was seen to be a slow process.

He was accused of participating in the genocide against the Tutsi ethnic group in Rwanda in 1994.   There was no suggestion that he had engaged directly in physical violence.  Instead, the indictment provided for the involvement in widespread and/or systemic attacks against the civilian population based on Tutsi ethnic identification and/or on political grounds.  More specifically, it was alleged that Kabuga had been complicit through the dissemination of vicious anti-Tutsi commentary on RTLM, the importation and distribution of arms to the Interehamwe militia (a Hutu paramilitary organisation).

Kabuga sought to distance himself from those charges, in effect, by hiding behind the corporate veil.  The radio was a corporate entity, and one for which (he said) he was not the editor or otherwise responsible for editorial content.  His aim had apparently been a legitimate one: the radio was an entrepreneurial venture and his focus had been on making profit. 

A not-guilty plea was entered on his behalf and the matter was fixed for trial.

The International Residual Mechanism for Criminal Tribunals or “IRMCT” (otherwise known as the “Mechanism”) had jurisdiction.[1]

The process that followed raised important questions about the effectiveness of international criminal justice and its capacity to hold business leaders to account.

Trial commenced in September 2022.  By the end of that year the Court had heard witness accounts about, among other things, the incitement of the Interehamwe to kill Tutsis and the use of a vehicle owned by Kabuga to transport and distribute weapons.

Progress was, however, halted on 10^th March 2023 when the hearing was temporarily adjourned.  Medical evidence had placed Kabuga’s health in issue.  In a split decision, the Court determined that he would not be able meaningfully to participate in the trial.  The Court proposed an alternative procedure: a trial-like without Kabuga’s presence in a process that excluded the possibility of a conviction.  

Both Parties appealed that first instance decision: the Prosecution on the basis that there had not been unanimity as to Kabuga’s fitness to stand trial and the prospect that he may regain fitness in the future; the Defence on the basis that there was no legal foundation for the alternate route. It sought to bring all proceedings, including the trial of the facts, to a close.

On 7^th August 2023, the Appeal Chamber dismissed the Prosecution’s appeal on the basis that there had been no error of law.  It also found that there was no statutory or jurisprudential basis on which to allow an alternative procedure.  The trial of facts was quashed, leaving the matter of Kabuga’s release to be determined.

As the primary enforcer of international law, the ICC’s jurisdiction is restricted to the prosecution of “natural persons”.  There is presently no power to pursue corporations as collective entities; and past trials of individual executives have not dealt fully with the link between the finance and structure of business and criminal activity.

The landmark trial involving two corporate executives of the Swedish company Lundin Energy (formerly Lundin Petroleum and Lundin Oil) may signal an important change for corporate accountability at domestic level.  It is alleged that both were involved in the aiding and abetting of war crimes in South Sudan from 1997 to 2002, where the company allegedly entered into a contract with the Sudanese government for exploration and control rights of oil-rich territory in southern Sudan.   The trial commenced in 2023, and is likely to take around 2 years.

Whilst Kabuga’s arrest may have been a key development in the pursuit of corporate actors at international level, the decision to terminate the process was heavily criticised by the Ibuka association that represented survivors of the genocide, having waited so long for justice to be served.  The end-result served simply to illustrate the obvious practical difficulties that apply to the task.  

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[1] Established by the UN Security Council in 2010, the IRMCT was the successor to the International Criminal Tribunal for former Yugoslavia and the International Criminal Tribunal for Rwanda.