International Criminal Justice

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In May, French authorities arrested Felicien Kabuga after a 26-year manhunt for his alleged role in the Rwandan genocide.  Kabuga was indicted before the International Criminal Tribunal for Rwanda on seven counts of genocide, conspiracy, and related crimes for importing and supplying thousands of machetes to the militias that led the killing spree, as well as for broadcasting propaganda urging mass slaughter.  A quarter-century later, what will prosecutors be trying to show the court?  What difficulties are they likely to encounter introducing evidence that old?  What is it like to hunt for a fugitive for decades, and what does Kabuga's capture tell us in retrospect about how he was able to run for so long?  Please join the Honorable Hassan Jallow, Eli Rosenbaum, and Arthur Traldi for an engaging conversation about the apprehension of one of the world's most wanted fugitives, and the case against him.  The discussion will be moderated by Adam Pearlman. 

Featuring: 

The Honorable Hassan Bubacar Jallow, Chief Justice of The Gambia, former Chief Prosecutor of the International Criminal Tribunal for Rwanda (ICTR)

Eli Rosenbaum, Director, Human Rights Enforcement Policy and Strategy, Human Rights and Special Prosecutions Section, U.S. Department of Justice

Arthur Traldi, former war crimes prosecutor for the International Criminal Tribunal for the Former Yugoslavia and ICTR

Moderator: Adam R. Pearlman, Managing Director, Lexpat Global Services

 

 

This call is open to the public - please dial 888-752-3232 to access the call.

 

Event Transcript

[Music]

 

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Greg Walsh:  Welcome to The Federalist Society's Teleforum conference call. This afternoon's topic is titled "International Criminal Justice." My name is Greg Walsh, and I am Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today's call.

 

      Today we are fortunate to have with us the Honorable Hassan Bubacar Jallow, the Chief Justice of the Republic of The Gambia and former Chief Prosecutor of the International Criminal Tribunal for Rwanda (ICTR).

 

      We also have Eli Rosenbaum, the Director of the Human Rights Enforcement Policy and Strategy in the Human Rights and Special Prosecutions Section of the U.S. Department of Justice, as well as Arthur Traldi, a former war crimes prosecutor for the former Yugoslavia and ICTR. Moderating today is Mr. Adam R. Pearlman, the Managing Director of Lexpat Global Services.

 

      After our speakers give their opening remarks, we will go to audience Q&A.

 

      Thank you all for sharing with us today. Adam, the floor is yours.

 

Adam R. Pearlman:  Thank you, Greg. And to everyone on the call, we hope that you're safe and healthy. Good afternoon. Thanks for joining what promises to be an intriguing conversation with three distinguished practitioners in international criminal law and human rights related to issues surrounding the arrest and future prosecution of one of the world's most wanted fugitives, Félicien Kabuga.

 

      To echo Greg, I should say at the outset that any views I might express during the course of this call are my own and do not necessarily reflect the policy or position of any government agency or other organization I have worked for over the course of my career.

 

      But as I mentioned a moment ago, we will be talking today about the case against Félicien Kabuga and lessons learned from decades of pursuing and bringing to justice many of the world's most notorious war criminals, human rights violators, and genociders.

 

      Kabuga was arrested in May outside of Paris after a 26-year-long manhunt. He has been indicted before the ICTR on seven counts of genocide, conspiracy, and related crimes for his role in perpetrating the Rwandan genocide of 1994.

 

Kabuga was an influential businessman and political activist who amassed much of his wealth from owning tea farms and other ventures. Prosecutors say that Kaguba's actions include importing and supplying many thousands of machetes to the militias that were leading the killing spree as well as using the radio station he founded, RTLM, to incite the violence by broadcasting propaganda that urged mass slaughter.

 

      As the tide turned in Rwanda in June 1994, Kabuga fled, and the manhunt began, which at one point included the U.S. offering a $5 million reward for information leading to his arrest. Public reports suggest that at least one person who tried to help bring Kabuga to justice was murdered.

 

Rumors includes of his movements throughout Africa and Europe followed him as a sophisticated and well-resourced network of powerful friends worked to keep him hidden over two and a half decades. Then, the coronavirus pandemic took hold, borders closed, and he had nowhere to go before his arrest on May 16.

 

Today we will talk about the charges, the manhunt, and what challenges prosecutors are going to face as they present the case against Kabuga. We are truly honored today to be joined by three people whose expertise on these and other issues related to the case are among the best in the world.

 

First, the Honorable Hassan Jallow's career has been marked by distinguished service in his home country, The Gambia, and in international tribunals. In The Gambia, his positions have included solicitor general, attorney general, minister of justice, justice of the supreme court, and now he serves as the chief justice. Between his seats on the court, he spent 13 years as a prosecutor for the International Criminal Tribunal for Rwanda and its successor, Residual Mechanism for Criminal Tribunals, having a deep involvement in crafting the current charges against Kabuga and the international search for him.

 

Eli Rosenbaum has been Director of Human Rights Enforcement Policy and Strategy in the U.S. Department of Justice's Human Rights and Special Prosecutions Section for the last decade. For more than 20 years before that, he was director of DOJ's Office of Special Investigations where he earned accolades as the world's most successful Nazi hunter. Eli has spent his career tracking gross human rights violators, certainly those from World War II, but also from more modern atrocity pointed conflicts and removing them from the United States if and when they are found here. He has worked the coldest of cold cases and introduced into courts some of the oldest evidence of criminal activity the judges have ever considered.

 

Arthur Traldi is a noted international criminal litigator who served for seven years as a prosecutor for the ICTY, and before that, served in the chambers of the ICTR. He's a sought-after expert by governments and NGOs in need of training or assistance with international criminal, human rights, and rule of law matters. He is, among other things, a member of the International Association of Prosecutors, and a co-chair of the International Criminal Law Committee of the ABA section of international law.

 

Each speaker will take about ten minutes to discuss certain aspects of the Kabuga case, either that case specifically or international criminal cases in general. I will then ask them a few questions before opening the floor to audience Q&A.

 

With that, Chief Justice Jallow, thank you again for joining us. Please tell us a bit about the ICTR's case against Kabuga and the search for him while you were there.

 

Hon. Hassan Bubacar Jallow:  Thank you very much, Adam. I'm very happy to be on this panel today, and I'm very pleased that Kabuga has finally been arrested and is going to be brought to justice. It's a big, big blow for justice for the victims of the genocide of Rwanda. I congratulate the current prosecutor and his tracking team for this major achievement.

 

I first got to know about Kabuga when I joined the ICTR in 2003 as the chief prosecutor. Again, the background of the Security Council [inaudible 00:06:41] which now gave the Tribunal a deadline for finishing, the end of 2012, for finishing and closing down. As a prosecutor at that time, my immediate task was then to now develop a list of cases that we were convinced we could do, we could prosecute within that timeframe, and at the same time develop a list of cases we desired prosecution but which we couldn't handle and which we thought could then be fought elsewhere by other jurisdictions.

 

Kabuga's name, of course, came up in the first list as one of the big, big targets. In developing that list, we were guided by a number of considerations: the status of the person, the seriousness of the offense, and so on and so forth, and the kind of offenses involved. Kabuga really fitted all the criteria in the sense that he was a big businessman. He was founder and president of the RTLM radio which played a very, very prominent role in the genocide in inciting public [inaudible 00:07:51] directing people to where [inaudible 00:07:57] where in order for them to be killed.

 

He was very much involved in the management of the radio station and its programming as well. He used his wealth also, his resources, his properties, his transportation system, his money in order to support and fund the Interahamwe—that is the militia of the ruling party—which had a lot of responsibilities for the killings of the Tutsis.

 

Then, he was also involved in, from the evidence we have in the court system, in distribution of weapons and cutlass machete which eventually supplied to the Interahamwe and to the military. We have instances where he was also personally involved and tied to people committing crimes of genocide.

 

So he fitted the bill and he was one of our major, main indictees. So I actually signed his indictment on the 17th of March 2011. That's the last indictment we had. There had been previous ones, but we refined them and had them amended and confirmed by the Chamber. So the last one was the indictment of 17th of March 2011.

 

I think Kabuga's case had two major problems with international justice. One is the tracking and apprehension of fugitives. In the case of Rwanda, all the fugitives whom we had listed for prosecution had actually left Rwanda. They were not in Rwanda, so we had to track them and find them and bring them back. This was a major challenge.

 

The second is that because of the length of time it took to arrest people like Kabuga and others, and because the evidence of the ICTR was largely witness testimony as opposed to documented evidence, there was already a difficult risk, and not just a risk, but, often, also the actual loss of evidence. Witnesses died, witnesses relocated, witnesses could not be reached. They may decide not to testify anymore. So you have the challenge of preserving the evidence in order to make sure it is available, eventually, when the fugitive is arrested after a very long time, as in the case of Kabuga, half a century after the commission of the crimes.

 

We had major challenges in the tracking of Kabuga. We had clear evidence, documentary evidence, actually, that after the genocide, he fled to Kenya, and he settled there and he got into business there. We had actually little or no cooperation from the Kenyan authorities at the time in trying to locate him in Kenya and secure his arrest. There were reports—we had credible ones too—of him being protected by very high levels within Kenya.

 

Kabuga's was the only case where the failure to cooperate by a steep number of known associates that we had to report it to the Security Council. We reported Kenya officially to the Security Council for failing to cooperate in the search and the arrest for Kabuga in Kenya.

 

His case was symptomatic of the challenges in tracking, the problem of securing state cooperation, etc. Eventually, there was evidence that he had left the country. He had left Kenya. We couldn't get any evidence as to where he had gone, but we kept on searching. And up to the time I left in 2012, we had indications he could be somewhere in Africa; he could be in Europe. We kept on looking, and I'm glad that eventually he has been arrested and brought to justice.

 

Evidence preservation – we tried to deal with it through a rule chain. As I said, when it comes to [inaudible 00:12:26] prosecuting the Nazi war criminals, it's perhaps a relatively easy exercise in the sense that there's a lot of documented evidence. When it comes to prosecuting genociders from Rwanda half a century later, you are likely to run into a situation where many of your eye witnesses may not be alive anymore, or if they are alive, they may be reluctant to testify or they may be sick or aged.

 

We tried to get around to preserve evidence in 2012 by changing the rules by prosecutor, where an arrest could not be effected within a reasonable time to call for the prosecutor to call all his witnesses before the judge in the Tribunal, have them testify on oath, and their testimony is subject to cross-examination. It is certified, so that in the event that the accused is arrested several years down the line and the witness is not available, the trial judges now have the discretion to rely on that preserved testimony.

 

When Kabuga goes on trial now -- that will be the case of Kabuga. Before I left in 2012, we had actually called all our witnesses before the judge and certified the evidence. If Kabuga is being tried now, we expect that if witnesses are not available, some of our key witnesses are not available, the evidence would have been preserved and the trial judges would be able to rely on it.

 

So we're looking forward very much to his trial. As I said, his case was handed over by the ICTR to the Mechanism, I believe around 2012, together with two other cases. Those three cases are the only ones with [inaudible 00:14:22] in the world, official high-level targets where their cases will be filed in the Mechanism, which is a [inaudible 00:14:30] of the ICTR in order to prosecute them whenever they are arrested.

 

So we're looking forward to that day when he is transferred to [inaudible 00:14:39] and made to account, in due process of course, for all that he's alleged to have done. Adam, thank you.

 

Adam R. Pearlman:  Thank you, Mr. Chief Justice. It's really, really interesting background and somewhat heartbreaking about possible Kenyan complicity. I have so many questions for you, but I'll roll through the other speakers first and then I'll ask a couple of follow-up questions that everybody can weigh in on.

 

      With that, Eli, you, sir, are the longest-serving prosecutor of war criminals and human rights violators in history, and you have seen the coldest of the cold, like I said. Could you please provide some insights on the issues with getting such old evidence into court, how judges tend to view it, and the legal issues that you've seen with genociders or issues of people accused of violations of crimes against humanity or war crimes?

 

Eli Rosenbaum:  Sure. Many thanks. It's great to be with you. Adam, a very valued former DOJ colleague, despite your comparatively young age, you've already had a storied career in and out of federal service. It's also a special privilege to be a panelist alongside two heroes in the global quest for justice on behalf of the victims of human rights crimes: Justice Jallow, whom I had the great good fortune to meet years ago at a conference sponsored by the Robert H. Jackson Center, and Arthur Traldi, whom I am "meeting" on this call for the first time but whose reputation certainly precedes him.

 

      Having worked on U.S. cases involving crimes committed in Rwanda and the former Yugoslavia, and working in an office headed by Teresa McHenry, who served, for a time, as a prosecutor at the ICTY, I have a particularly deep appreciation for the challenges that both of my fellow panelists have faced, and surmounted, in these enormously important cases.

 

      If I can be permitted to send one other shout out to my friend and former DOJ boss, John Malcolm, who has participated in many of these Federalist Society telefora—is that the plural?—and who is perhaps on this call but who, in any event, is surely known to most of you. John is one of the unsung heroes of the World War II Nazi cases during the years that, as a criminal division deputy assistant attorney general, he supervised the office that I then headed, the Office of Special Investigations, OSI.

 

Today he wears multiple hats, but his home base is as director of the Meese Center at The Heritage Foundation. I will always be hugely grateful for the strong support and unfailingly wise guidance he gave us as we at OSI raced the clock in the Nazi cases trying to secure a measure of justice before the so-called biological solution to those cases might render continued prosecution impossible.

 

      The arrest in May of longtime ICTR fugitive Félicien Kabuga is an appropriate impetus for this forum. Since his case is an ongoing prosecution, I can't comment on it in any detail, but I do want to note that the ICTR Mechanism, like the ICTY, has been one that the U.S. government fully supported, and also that the State Department had a longstanding monetary reward outstanding for information leading to Kabuga's apprehension.

 

      Although the ICTR was created in the very year in which the Rwandan genocide was perpetrated, it has now been, as Adam said, as Justice Jallow said, more than a quarter of a century since that ghastly crime was committed.

 

      Most of the human rights cases that my office, the Human Rights and Special Prosecution Section, prosecutes similarly involved a conduct that occurred many years ago. So my colleagues and I, alas, are well familiar with the challenges of working often ultra-cold cases. Emblematic of those cases are such prosecutions by HRSP as these three:  Mladen Mitrovic was convicted in Georgia in 2016 of naturalization fraud for concealing his involvement in the ethnic cleansing of Bosnia in the early 1990s while serving as a brutal guard of prisoners held by the Bosnian Serb Army.

 

Gilberto Jordan was convicted in Florida in 2010 of an older crime concealing his participation in the mass murder of nearly all of the inhabitants of Dos Erres, Guatemala in 1982.

 

To go back in time still further in terms of the underlying activity, Friedrich Karl Berger, a former Nazi concentration camp guard; we won a removal order against him in U.S. immigration court in Tennessee just this past February after a two-day evidentiary hearing.

 

      The passage of so much time between the commission of a crime and the commencement of a trial almost invariably complicates the process of proving a case. As Justice Jallow indicated, witnesses may have died, they may suffer memory loss, surviving witnesses can change their mind about testifying, evidence can go astray. Because of the extreme lateness of the date—it's 2020 after all—the Berger case was the first Nazi concentration camp guard case we have ever tried in which there were no survivors available to testify. So we proved our case with documents, admissions, expert testimony, and the like.

 

      My office has responsibility for prosecuting criminal cases under the Title 18 genocide, war crimes, torture, child soldiers, female genital mutilation, and immigration and naturalization fraud statutes. We can also bring civil denaturalization cases, and as to participants in World War II acts of Nazi-sponsored persecution, we can bring, as in the Berger case, removal cases as well.

 

      In our enforcement work, which we like to think is part of a worldwide effort that arguably began at Nuremburg in 1945 to rid the world of the scourge of human rights crime we face, in addition to the cold-case type proof challenges I mentioned, other challenges that are common around the world in that effort.

 

      For example, time and again, access to key evidence, including the crime scene, is impossible because the regime that perpetrated the crimes is still in power or, for other reasons, the government at the scene of the crimes refuses to cooperate. I suppose Arthur can give his own examples.

 

      An example in our work was the former Soviet Union which declined to allow western investigators or researchers into its archives—archives that collectively housed the world's largest number of surviving captured Nazi documents, essential evidence in almost all Nazi cases. I vividly recall questioning a major Nazi criminal, Aleksandras Lileikis, in Norwood, Massachusetts, in the early 1980s. He admitted serving as wartime head of the Lithuanian counterpart of the gestapo, the gestapo for Vilnius Provence during World War II, but he denied any involvement in crimes.

 

      We turned to the Soviet Union, which occupied Lithuania at the time, and they told us, "Nope, we can't find any documents that he signed proving his wartime activities." It took almost a decade before we could get our own staff historian investigator into the archives in newly free Lithuania, but it took the collapse of the USSR to make that access possible. In those archives, we found proof that enabled us to establish in federal court that Lileikis shared responsibility for some 50,000 murders of Jews.

 

      Another challenge we faced that isn't outside the experience of other prosecutors is that our statutory tool chest doesn't always provide what we need. For example, if a person participated abroad in the persecution off others on the basis of race, religion, national origin, political opinion, they are statutorily ineligible under federal law for asylum or refugee status. And if they conceal that participation and gain entry, we can prosecute. But if they entered by obtaining a regular U.S. immigrant visa, they haven't necessarily violated any statute; their entrance may have been lawful.

 

      For example, someone who persecuted Coptic Christians in Egypt or Uyghur Muslims in China can't come in as a refugee or asylee, but they are eligible for a regular U.S. immigrant visa. Some in Congress tried to close that loophole more than four decades ago, but all they were able to enact was a bill narrowly targeted at individuals whose persecutory conduct was committed on behalf of the former Nazi Government of Germany and its allies.

 

      Similarly, our tool chest lacks one statute that nearly every comparable legal system has long had and the ICTR and ICTY both had: a crimes against humanity criminal statute. So many of the worst crimes, including the archetypal constitutive offense of extermination, aren't genocide but rather crimes against humanity. The case of the Cambodian dictator, Pol Pot, is perhaps the most notorious example. He had the blood of a million or more people on his hands, but those crimes, on the whole, were crimes against humanity not genocide.

 

I might add that the United States, ironically perhaps, engineered the world courtroom debut, so to speak, of crimes against humanity when we tried the principal surviving leaders at Nuremburg fully 75 years ago and Holocaust crimes, so to speak, the extermination of the Jews, was tried as a crime against humanity. And those crimes continue to be committed.

 

Secretary of State Pompeo has spoken powerfully and movingly about crimes against humanity being perpetrated by Syria's Assad regime. As all of us who read the news know, Syria is but one example. One of my favorite books is the 2011 human rights memoir of my former congressman, Frank Wolf. Prisoner of Conscience is the name. In the book, he recounts the herculean efforts that he, his chief congressional partner across the aisle, Holocaust survivor Tom Lantos, and others, the efforts they made to draw attention to such crimes and inspire, when they could, meaningful U.S. government action to stop them.

 

It's depressing but essential and inspiring reading. One thing we know from post-war history is that the United States, is the most generous nation the world has ever seen for accepting immigrants—my late parents among them, by the way—will continue to experience the entry of participants in such horrific crimes despite the best efforts that our government makes to identify and exclude them. They shouldn't gain perpetual safe haven in this great country, and in particular, surviving victims of those crimes who've made new homes here should not continue to run the risk of encountering their former tormentors here in their newly adopted homeland. And that's actually happened, including in the well-known case of a torturer who was living in Georgia.

 

I'll close by saying that my office has a staff of about 40 professionals—attorneys, historians, paralegals, and support personnel—all of whom work indefatigably on these cases and also on cases in our two other portfolios, so to speak, alien smuggling and international violent crime. There's a lot of overlap there. We receive great support from the criminal division and DOJ leadership above the level of the division, and also from our many domestic and foreign law enforcement partners and from NGOs and members of the public who assist us.

 

In our human rights work, we're especially grateful for the cooperation of surviving victims here and abroad; men and women, and sometimes children, who courageously testify about the degradations that have been perpetrated against them, their families, their ethnic and racial communities, and so often their co-religionists.

 

Thank you again to the Society and to Adam for the invitation to participate here today.

 

Adam R. Pearlman:  Eli, thank you so much for your decades of service to the country and to that endeavor of bringing to justice some of the worst among us across the globe. We're all in our debt for the work that you and your colleagues do, and I'm proud that I was affiliated with you at some point for just a moment in time.

 

      Arthur, from your experience in chambers in ICTR and then as a prosecutor in ICTY, how would prosecutors typically proceed in a cold case at an international tribunal like what we're about to see with Kabuga?

 

Arthur Traldi:  Thanks, Adam. It's just an incredible honor to be part of this panel with Justice Jallow and with Eli, and with you as well. I wanted to specifically note something I heard Eli say a phrase: "depressing but essential and inspiring," and I think he was talking about a book, but it's such a brilliant articulation, all of those things at once, of the nature of working in this field that I wanted to acknowledge it and remember it for myself to plagiarize probably in the future. It's a beautiful expression of the type of work that the prosecutors on this case are faced with.

 

      I think the first thing to remember is what's at stake here. We talk about propaganda in this case and about financing the purchases of weapons. Of course, these are all things that prosecutors and courts can do some damage on if they define them too broadly. So I think it's worth remembering what we are talking about here just from looking at the indictment and the open source material that's available.

 

The indictment that Justice Jallow signed cites example after example that aren't euphemisms that are direct calls for murder and murder on an industrial scale. We're talking about almost a million people over the course of 100 days.

 

      I think, at first, as a reminder of the type of circumstances we're talking about, but also to frame one of the strategic challenges that prosecutors in a cold mass atrocity case are faced with. And that's, without doing a 50-year trial against a gentleman in his 80s, how many of those close to a million deaths are you going to attempt to prove and with what evidence?

 

Because Kabuga's a senior figure. What we typically expect in a case [inaudible 00:31:08] tribunals is validation on the part of the prosecution. And here it's expressed through four separate and interweaving with conspiracy in this indictment. But you expect the assertion that he and some other leaders of the country, together, used forces and institutions under their control to carry out this crime that is massive in scale, incredibly grave in implementation, and carried out through all of these individual crimes that you have to think about how to prove.

 

      As Justice Jallow said, it's heavily witness driven in the Rwanda cases, so all of that takes court time and you have less opportunity than you might in one of the Yugoslavia cases or in a Nazi case to do it through documentary evidence. Eli was talking about having proved out the case against a camp guard last year solely through documentary evidence.

 

      I think one of the things that the prosecutors will be thinking about is how do we balance the need to prove enough of that criminality, first to ensure we're giving the victims a voice, and second, to ensure that the judges have the right understanding as they evaluate the evidence of the nature of the campaign that was being waged here. That there was no chance, based on what was happening between April 9 and 23 or so of 1994, that there was no chance that Kabuga would've thought if he provided weapons in late April that he was providing them to something that was simply a war. And balancing the need for efficiency with the need to provide enough detail to get that information into the record.

 

      And so they'll be making an enormous amount of high stakes and fairly fine decisions just about which specific pieces to use to assemble that case. And what you typically expect to hear from them is a picture of what's happening in different parts of the country to help show that whole campaign and where the different parts of it fit in.

 

      Examples of here's your broadcast on X date saying, "Kill the people in this mosque." Here's your crime-based evidence about what happened the next day in that mosque, who did the killing, in an attempt to make clear the linkages between those individual crimes and the specific person who is on trial here, which is Kabuga, and the actions of him, his radio station, and his broadcasters.

 

      For all the reasons that I and Justice Jallow set out, that's, I think, an enormous challenge to do in a way that is efficient, reliable, and meets your burden in a trial like this. But it's, as Eli again said, it's depressing, essential, and inspiring, and it'll be really interesting to see the choices they make and how they proceed as we get closer to the beginning of trial.

 

Adam R. Pearlman:  Thanks, Arthur. And, again, thank you all for, I think, what can only be described as a tutorial in how international criminal justice works for something like this.

 

Arthur, you hinted at it, and I think everybody realizes, Kabuga's now 84 years old. On the one hand, Eli's old office, OSI, and now the HRSP, the Human Rights and Special Prosecution Section, have brought removal actions against Nazis well into their 90s. But on the other hand, Arthur, you implied the international tribunals have a reputation for moving very slowly. Perhaps the best example of that being Milosevic dying in ICTY custody before the end of trial, and that trial had gone on for four years, and he was only 64.

 

      For any of you, how might Kabuga's age be a factor in this? Arthur had said we want this to be efficient but also being able to really link these episodes to Kabuga's actions. Are there any other ways in which the Tribunal really has to take into account his age and moving forward expeditiously but within the bounds of the rule of law?

 

Hon. Hassan Bubacar Jallow:  If I may comment at that, yeah?

 

Adam R. Pearlman:  Yeah, yes, sir.

 

Hon. Hassan Bubacar Jallow:  Yeah, that story is quite aged now and while I do wish him good health and long life so that we can see justice taking place for the victims of Rwanda.

 

      Let me just get back to one point that I think, in addition to the measures taken to preserve evidence which might help the prosecution in this particular case, it is also the fact that there are certain things which the prosecution does not need to prove anymore in any trial relating to genocide in Rwanda.

 

For many years, until I think 2012, the prosecution had to keep on proving the occurrence of the genocide. But the court has taken judicial notice of that fact now, so it's not something that requires proof anymore in any trial in the ICTR or in the Mechanism [inaudible 0:37:37]. And so, the prosecution will be focusing basically on the linkage, the connection, between the accused and the events which have been established as having occurred.

 

      It could be that that could help in shortening the trial itself. The preservation of the evidence could help also in plugging any gaps where witnesses are for some reason unavailable. Other than that, well, we've had our own [inaudible 00:38:10] at the ICTR. We lost Joseph Nzirorera in the course of trial. He was one of the leaders of the ruling party at the time. So in a way, the victims were robbed of justice because of the long process of the trial and his death as well. We do hope Kabuga survives the trial so that, at the end of the day, we can see justice done.

 

Adam R. Pearlman:  Certainly. We've mentioned a couple of times the rule changes from 2012 and, sir, you specifically had mentioned the efforts to preserve testimony. We certainly have similar mechanisms in the sense of using deposition testimony domestically in the event that witnesses are unavailable.

 

But in the international context, in a case like this, and anybody can answer, how can we assure effective cross-examination during the course of taking that testimony? You had mentioned that witnesses are cross-examined, but can you talk a little bit more about how that was done to defeat the challenges that are sure to come that Kabuga himself have an opportunity to confront the witnesses against him?

 

Hon. Hassan Bubacar Jallow:  You're absolutely right. I mean, there's an issue there about the cross-examination. The counsel who will represent the accused to assist the court in this case are selected by the court itself. This is mainly because the accused is at large; he's a fugitive. The counsel for the defense are not getting instructions from him as to the nature of the difference that he is putting up and so the questions to put to the prosecution witnesses.

 

But in all the cases where we have done these evidence preservation proceedings, there have been some very active, vigorous cross-examination of the witnesses led by the prosecution, cross-examination by defense counsel, and quite extensive, I must say. Perhaps [inaudible 00:40:34] of any specific instruction from the accused.

 

      On the other hand, it's absolutely necessary to preserve the evidence. If the accused person decides to be absent by their own volition, they should not use that as a reason to forestall any evidence preservation proceeding. The evidence is preserved in the interest of justice as well.

 

Adam R. Pearlman:  Thank you, sir. Arthur, Eli, do you have anything else on that?

 

Eli Rosenbaum:  Eli Rosenbaum here. I would just mention that when dealing with elderly defendants, one finds that sometimes their attorneys will claim that they're suffering from some mental disability now that makes it unfair for them to be prosecuted, and occasionally that's true. And then, a responsible prosecutor doesn't continue.

 

      But I will say it's not uncommon, especially in human rights cases, for older defendants to feign mental health issues, and I think of some cases where we've seen that, and also civil rights cases where that's occurred in the United States.

 

I recall particularly some 20 years ago the case of Bobby Frank Cherry in Alabama who was charged, belatedly, with complicity in the 1963 bombing of the 16th Street Baptist Church in Birmingham which killed four African-American girls and grievously wounded another. Perhaps the most atrocious crime of the civil rights era. Cherry was examined by a court-appointed physician who concluded that he was suffering from dementia and there, it appeared, the case would end.

 

We read about that in the newspaper up here, and I had my deputy reach out to the state prosecutor—my deputy was from Alabama herself—and explained what our experiences had been with medical specialists who can determine whether a claim like that is correct or whether, instead, as the doctors say, the defendant is malingering, meaning feigning, mental health challenges. And in the case of Bobby Frank Cherry, they did proceed ahead, with a little bit of help from us, very little bit, and proved that he was in fact feigning illness, and the case went forward, and he was convicted.

 

Adam R. Pearlman:  Arthur?

 

Arthur Traldi:  Yeah, I think the thing I would think about on those two points. First, on the cross-examination issue that you mentioned, is that one of the tools that you'll try to use as a prosecutor to find those efficiencies is looking for corroboration wherever you can, evidence is preserved [inaudible 00:43:52]. That's very important.

 

As you say, there may be some instances where that preserved evidence can't be rechallenged. And what you'll want to do as a prosecutor is look through your record and have truth detectors to point to the judges and their lawyers to say, "Look, even if that cross-examination wasn't fully under instructions, you can tell this witness is telling the truth for these reasons." But that requires a robust record and detailed attention to your corroborations.

 

      And then, I think I agree with Eli on the second point, naturally, about the health issues. And say it's something that I'm sure the prosecutors and the rest of the folks in the law office at the Mechanism are working with the intel, the French authorities, to make sure that they have good records and the ability to properly litigate any health issues that come up just to ensure that the process is fair to everybody—not just to Kabuga, but to the many victims of the crimes who have an interest in seeing a fair and rigorous trial.

 

Adam R. Pearlman:  Thank you, all. I'm going to ask one more question. I'm going to ask the uncomfortable question before we open it up to audience Q&A. Arthur, in your comments, you had reminded us that we're talking about 1 million people over 100 days. And for those of us lawyers who are terrible at math, that's 10,000 murders a day. Given the gravity of these crimes -- we know that Rwanda is a Francophone country. Kabuga spoke French, but the uncomfortable question, of course, is whether any of you care to opine on why he may have ended up in France and how he could've lived there undetected?

 

Hon. Hassan Bubacar Jallow:  Hello, Adam?

 

Adam R. Pearlman:  Yes, sir?

 

Hon. Hassan Bubacar Jallow:  It's a little bit faint. I don't hear that well.

 

Adam R. Pearlman: I asked if you could comment on why Kabuga may have ended up in France and how he might have been able to live there undetected.

 

Hon. Hassan Bubacar Jallow:  Well, as I said, the firm evidence we had was that he had entered Kenya, and he had lived there and invested in businesses. Then, at some point, we could no longer find him in the country, and we were told he had left. How he had left and to which destination we never had any evidence to indicate that, but we had a lot of reports about him being somewhere in Europe, Belgium, France, etc., and we kept on looking for him.

 

      But of course, there are many challenges with regard to tracking because fugitives don't go by their original names. They change their I.D.s. After many years, they begin to also know how to hide better. In France, Belgium, and other countries the hunt was very hard. They work very hard. But understandably, of course, not all countries can focus on our cases all the time because they also have other indictment to [inaudible 00:47:19] enforcement and they have to turn their attention to those.

 

      We had help from them, Europe and countries, and from Interpol as well. It's just a very difficult business tracking fugitives who are hiding, especially if there's a network of family and friends which is supporting them in their hiding.

 

Greg Walsh:  Adam, do you want to go to audience questions?

 

Adam R. Pearlman:  Unless Eli or Arthur, if you want to comment on this? Otherwise, we can go to the floor.

 

Arthur Traldi:  I’ll defer to --

 

[CROSSTALK]

 

Eli Rosenbaum:  Thank you.

 

Greg Walsh:  Okay, let's go to our first caller.

 

Ed Heimlich:  Yes, this is Ed Heimlich in Texas, United States. This is a question for Eli Rosenbaum. I realize that your department is understaffed and very, very busy with many things that are probably much bigger issues than what I have, but I think a phone call from you or someone in your division can probably cure refusal of the State of Texas to comply with a provision of the international law, the covenant on civil and political rights, that was ratified by our -- actually, it was written by the United States and eventually ratified by our Senate in 1992. And so, I would like to know if you would be willing to assist me with that, if I could contact you later?

 

Eli Rosenbaum:  Please do contact me. I'm not entirely sure what violation of the ICCPRs you're referring to, but I'm happy to look at it and see if it's within our wheelhouse, and if not, perhaps it's the Civil Rights Division or some other component of the Department. Please do contact me.

 

Greg Walsh:  Let's now go to the next caller.

 

Caller 2:  Yes, I'm curious about the value of a judgment in absentia where you can't reach an individual to punish that individual. Is there any value in a judgement in absentia against a government, say the Assad regime or the Chinese Communist Party, once that judgment is entered even though we can't imprison anybody?

 

Greg Walsh:  I'm sorry, caller. To whom was that question directed?

 

Caller 2:  I'm sorry. To anybody. You're all experts and [inaudible 00:50:06].

 

Greg Walsh:  Mr. Chief Justice, I think there's some audio quality [inaudible 00:50:15] so I'm going to mute you for the time being. Arthur, Eli, Adam, do you any of you want to respond to that?

 

Adam R. Pearlman:  Well, I'll just comment that certainly the United States does not try defendants in absentia. Certain other countries do, but also, would try individual cases in controversies and not prosecute governments. I think that's just a general comment that I can make without having more context as far as exactly what [inaudible 00:50:59].

 

Arthur Traldi:  For me, I think the thing I would say is that we'll have an interesting test of it next month in international criminal justice because we will get the trial judgment in his Balad trial in The Hague for the assassination of Lebanese Prime Minister Hariri about 15 years ago. It is an in absentia trial because Lebanese law permits in absentia trials. If you're interested in how much credibility judgments like that can have, then I think watching how people react to that case is the rigorous way to find an answer to the question.

 

Eli Rosenbaum:  A good point. I would add that there have been other trials in absentia in international human rights cases, perhaps most famously that of Martin Bormann at Nuremberg. The Italian government, in World War II cases in the last 20 years, has actually prosecuted quite a few people in absentia for the reason that Germany does not extradite its own nationals.

 

It's obviously far from an ideal way to proceed. We actually do that—at least at the state level; I don't know about federal—where an individual is charged and then flees and doesn't show up for trial. At least in some states, the trial can go forward. Again, far from ideal.

 

This actually goes to the question that, Adam, I thought you were going to ask when you were referencing a million victims. And I thought the question was going to be can you ever really get justice? What does justice mean when you have a death toll of that magnitude and you've got one person in the dock? And I was going to say, so perhaps you'll forgive me if I try to answer that now, justice in some sense is not possible in a situation like that. I would submit that it's not possible for a single murder, really.

 

So you do this to get the truth determined. You get this to give some closure to the families of the victims and surviving victims, if there are any. You do this to, most of all, to deter future perpetrators, would-be perpetrators of war crimes, crimes against humanity, and other serious international crimes.

 

I guess I would summarize that by sharing my professional fantasy, which is I like to imagine that somewhere, sometime—maybe it's already happened or will happen—that an individual is faced with the choice: Do I follow -- do I obey a criminal order? Or do I find a way to get out of this? And I would like to imagine that that person says to himself or herself, "Wow, I remember seeing this old guy, a Nazi or something like that, being hauled to court. He was white-haired, and that could be me. If I do this thing, if I can get away for a few months, a few years, I'd like to think that I'm home free, but in these kinds of cases it seems that the world goes after you forever, even into old age. So I better find a way out of this." This may tell you more than you need to know about my fantasy life, but there it is.

 

Greg Walsh:  I'd like to give the Chief Justice a chance to respond even with the audio issue, so I'll unmute you, sir, real quick. If there's still an audio issue, Arthur, Eli, Adam, feel free to conclude with any of your thoughts as there are no other callers in the queue.

 

Hon. Hassan Bubacar Jallow:  Yes, thank you --

 

Greg Walsh:  Okay. The Chief Justice just dropped off. If he calls back in, I'll definitely cede the floor, but in the meantime, Arthur, Eli, do you have anything to conclude on?

 

Adam R. Pearlman:  I'm going to jump in with noting that, Eli, it is a wonderful professional fantasy and your comments just hinted at what could be all other phone calls in terms of the philosophical and practical differences between, for example, prosecuting a genocide case versus a crimes against humanity case.

 

In terms of the gray hair, having to look over their shoulder for the rest of their lives, I'll note that this is an area where practicing human rights law and counterterrorism law are increasingly having a bunch of overlap.

 

In the national security and counterterrorism realm, there is a lot of efforts right now to be better about collecting battlefield evidence, which is critical in a lot of these war crimes and genocide cases, and preserving what investigators find so that the perpetrators of these crimes that, for very good reason, have no statute of limitations will always have to be looking over their shoulders. I hope with the highest hope that that will maybe be a deterrent for some in the future, or at least a better way for us to have confidence that we can find these people and hold them accountable for what they've done to their fellow citizens and others.

 

Eli Rosenbaum:  That's a more eloquent and moving close than anything that I could provide, so I will gladly associate myself, Adam, with those remarks, and thank you, again.

 

Arthur Traldi:  I'll do the same, and thank Adam as well, and Eli and Justice Jallow as well as The Federalist Society for the opportunity to join all of you today.

 

Adam R. Pearlman:  Thank you all. Greg, please do the honors. You can close it out if there are no other questions.

 

Greg Walsh:  Perfect. On behalf of The Federalist Society, I want to thank our speakers for the benefit of their valuable time and expertise today. We welcome listener feedback by email at info@fedsoc.org. Thank you all for joining us. We are adjourned.

 

[Music]

 

Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.