The Chief Prosecutor of the UN's International Residual Mechanism for Criminal Tribunals (IRMCT), Serge Brammertz was in Rwanda last week to meet with survivors of the 1994 Genocide against the Tutsi, and a number of local justice sector officials. Top on his agenda was the conversation he had with the survivors regarding the prosecution of Fulgence Kayishema, a key Genocide fugitive who was arrested this year. ALSO READ: UN prosecutor visits Nyange massacre grounds, interacts with Genocide survivors Before he flew out of the country, Brammertz sat down with The New Times and talked about key topics including the appeal case filed by the prosecutors against the UN Court’s decision to change the format of Kabuga’s trial. Read the excerpts: In June, the IRMCT decided to change the format of Kabuga’s trial. The prosecutors appealed against the decision. Tell us about the details of the appeal and the reason for it. We are expecting a decision by the appeal chamber in the coming weeks. So, I don't know what the outcome will be. Since the arrest of Kabuga, the health issue has been an important factor. That is why we reduced the indictment and the number of witnesses just to make sure that we would only need minimum time to present the case. As you know, we were only sitting a few hours per week, based on medical advice. Now, over the last two years, we have received a number of medical reports. These reports were expressing different opinions where some experts were of the opinion that he was fit enough to stand trial, while others thought he was not. Recently there was a joint expert report by the three experts. They all expressed concerns in relation to his fitness for trial. The three experts were even heard for several days by the judges and were asked a lot of questions by the judges in relation to his health. There were always nuances of what Kabuga is still capable of doing and understanding, or the limitations in his understanding and capability to give instructions to his defence council etcetera. At the end, the judges agreed that he was not fit for trial. They decided about an alternative procedure – the so-called trial of facts, which would allow a continuation and a presentation of evidence and findings at the end, but not the possibility of a conviction. It is a system which exists in some national jurisdictions, which has never been used at the international level. There are a lot of arguments in its favour, and there are arguments against. ALSO READ: UN Court decision on Kabuga trial disappointing - activists The main argument in favour obviously is that it would still lead to the truth and findings and allow victims to be recognized. Also it would allow the judges to make findings about the existence of crimes which could have been committed in relation to Interahamwe and Radio Milles Collines. We are of the opinion that if it is in relation to individual criminal responsibility, the accused is in the center of the debate. But it is of course much larger, because we have to think about the victims, and that they also want justice to be done. And you have to also think about the larger administration of justice where the personal situation of the accused is one aspect, but other aspects need to be taken into consideration. So, this was the decision by the majority of judges to say we continue but with a trial of facts and not with a full criminal trial. One of the judges expressed a dissenting opinion. He was very critical in relation to this procedure. And he was of the opinion that the trial should go on and that he was still fit enough to stand trial. ALSO READ: Dissenting judge: Kabuga failed to demonstrate unfitness to stand trial Now, we appealed as the defence did. The defence of course wants the proceedings to end, full stop. We recognize that there are a number of medical issues, but we have always been of the opinion that he still has enough intellectual faculties to know what is going on and that he has, for more complex issues anyway, the support of his lawyer. You know in complex cases, even people who are absolutely fine follow the advice of their lawyers who are much more expert in international criminal law. So, we think that there are reasons to believe that the trial can go on. Alternatively, we are also of the opinion that if the appeal chamber would not decide about continuation of the trial, we also think that Plan B – this trial of facts, could be an alternative. But again, everything I am saying now is pure speculation. The judges can decide in whatever direction: ending the trial, stay in the proceedings, continuing the trial, or have a trial of facts. Those are the four options. We understand that the prosecutors have asked for more detailed findings on Kabuga’s health. Tell us more about this. As lawyers, we have to accept that we have limitations when it is about medical findings. So, we need to trust what medical experts find, because they are much more in a position to express an opinion on someone's fitness for trial. Now, while accepting absolutely the competence of the experts, we were of the opinion that the last three reports were very short, with very short findings where we would have hoped to get a little bit more details about what the accused is capable of doing and what he is not capable of doing. And then it would then be up to the judges to decide if someone is fit for trial or not. So we had expected more from the experts in terms of details, making it easier for the judges to come up with the decision, and obviously the fact that not all three judges are of the same opinion also means that there are still some issues also in relation to the medical situation which are unclear. Let us talk about Kayishema. Working together with Rwandan prosecutors, how far are you with preparing his case? It was a case which was investigated many years ago and its file was transferred together with other cases to the Prosecutor General's office. Now, we have to distinguish two aspects. One of them is the procedure for him to come to Rwanda. I am leaving from here to South Africa on Sunday (July 30) where I will have meetings with the investigators who were very instrumental in getting him arrested in Cape Town. I will also have meetings with government officials in Pretoria, including the Director of Public Prosecution, the Minister of Foreign Affairs, and the Minister of Justice. ALSO READ: Rwanda welcomes arrest of Genocide suspect Kayishema We will obviously discuss the procedure. Currently, there are several procedures ongoing in South Africa. One is the domestic procedures. He is currently under a domestic arrest warrant because of the use of those fake passports from different countries. He has quite a long indictment under domestic law for all the violations of the immigration law using forged documents, et cetera. So there are more than 50 counts of violation of domestic law which are put against him. Second element, the prosecutors are now in the process of making a filing to request his transfer to Arusha. As you know, there is this international arrest warrant coming from the mechanism. This warrant, we think, will be executed by the South African authorities and based on this the prosecution will ask the judges to order his transfer to Arusha. I understand that the defense has already or intends to ask for a political asylum procedure for him in South Africa. I always understand that defense has to explore all possibilities to help their client, but I think it's going a bit far, to say the least. Being an alleged genocidaire hiding under fake identities in South Africa, having lied to immigration services, having held refugee status in Eswatini and South Africa at the same time, based on a totally invented story, but then somehow have the arrogance to ask for political asylum – to be protected by the state whose laws he has violated for the last 10 years. Those are the three proceedings which are ongoing. I am confident that sooner or later he will be in Arusha and then we will make sure that he is very quickly transferred to Kigali. We are already in the trial preparation for the trial. On our side, we are already reviewing all our databases. As you know, there have already been several other international trials in relation to the Nyange Church. The priest has been convicted, the mayor has been convicted, so a lot of the evidence which will be used now in the Kayishema trial has already been used and tested in other proceedings. So we are cautiously optimistic that the evidence will be very clear. On Thursday, July 27, I went to Nyange with my two colleagues who were present when he was arrested. We met a number of survivors and persons who were on the crime scene when the crimes were committed, and know Kayishema very well. So it is obvious that a number of witnesses are still alive and are willing to testify. So, we are working on this together. It is really our joint effort to make sure that he will arrive here in Kigali and that the trial can take place under the best possible circumstances, with the strongest evidence possible. Won’t the 54 counts on which Kayishema is being charged in South Africa delay his extradition process? I think it made perfect sense that they started with domestic procedures, because if you need to arrest someone, it is easier to start with violations of domestic law, before looking into the international aspects. ALSO READ: Genocide suspect Kayishema now faces 54 charges in South Africa That is a question you need to ask to the authorities in South Africa, but personally I don't think that the existence of domestic procedures would be an obstacle for his transfer to the UN Tribunal. All countries, members of the United Nations, have an obligation to cooperate with our Tribunal. So, there is this legal basis because we are working based on the mandate given by the United Nations Security Council. And under this mandate and the statute of the mechanism, all countries are obliged to cooperate with us. So this is a sufficient legal basis for South Africa to send him to us. But I think it makes perfect sense that they are also investigating what really happened at the domestic level, not only to have grounds to keep him arrested, but also to see what perhaps went wrong in their own system that an individual could so easily get refugee status under a different name.
