Prosecutors and defense lawyers involved in Felicien Kabuga's case are appealing a decision made by the International Residual Mechanism for Criminal Tribunals (IRMCT) to change the format of the trial for the genocide suspect.
In a split decision issued in June, the IRMCT trial chamber determined that Kabuga is unfit to meaningfully participate in his trial and is unlikely to regain fitness in the future.
Consequently, the UN court decided that the best way to uphold his rights and fulfill the goals of the mechanism is to adopt an alternative procedure that closely resembles a trial but does not allow for a conviction.
The decision was primarily based on medical examinations conducted on Kabuga by three independent experts. These experts informed the court that Kabuga is afflicted with several significant physical illnesses and has vascular damage to his brain.
While the experts agreed on many factors, there was disagreement between two of them, Professors Henry Kennedy and Gillian Mezey, regarding the extent of Kabuga's cognitive impairment and his capacity to understand the proceedings and evidence details.
Kennedy believed that Kabuga's cognitive decline was limited and that he did not exhibit signs of dementia. He maintained that Kabuga could meaningfully participate in the trial with appropriate assistance.
On the other hand, Mezey concluded that Kabuga suffered from moderate to severe dementia, which is progressive in nature. She deemed him unfit for trial and anticipated further cognitive decline.
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Following the IRMCT's decision to adopt an alternative procedure resembling a trial without the possibility of a conviction, both the prosecutors and defense lawyers filed appeals.
The prosecutors' appeal is mainly based on their assertion that the trial chamber lacked unanimity regarding Kabuga's unfitness to stand trial and his unlikely chance of regaining fitness in the future.
The lack of unanimity is exemplified by the dissenting opinion of Judge Mustapha El Baaj, who disagreed with the majority's determination that Kabuga is unfit to stand trial.
"I respectfully disagree with the majority's finding that Kabuga is unfit to stand trial. I believe that Kabuga has not demonstrated his unfitness to stand trial, and the medical evidence on the record does not support such a claim. On the contrary, I am convinced that Kabuga possesses several capacities that meet the legal standard set out in our jurisprudence," wrote Judge El Baaj.
The defense lawyers have also filed an appeal, contending that their client's trial should be permanently terminated since there is no legal basis for the alternative procedure ordered by the trial chamber. They argue that proceeding with the trial in such a manner would violate Kabuga's fundamental rights.
The IRMCT's appeal chamber has not yet scheduled the dates for the appeal hearing.
