The 2023 case of Félicien Kabuga before the UN’s International Residual Mechanism for Criminal Tribunals (IRMCT) has sparked considerable debate about how to balance the need for justice and the accused’s right to a fair trial if they have serious health problems.

Kabuga, charged with genocide and incitement to genocide, has been diagnosed with Alzheimer’s disease. The IRMCT Trial Chamber proposed an ‘Alternative Findings Procedure’ which is a procedure closely resembling a trial, but without a conviction. This would satisfy the need for justice while respecting Kabuga’s right to exonerate himself. However, the proposal was rejected by the Appeals Chamber. It held that there was no legal basis in the IRMCT framework that would allow putting the defendant in a limbo, where he could neither be convicted nor acquitted. Instead, the Appeals Chamber ordered an indefinite stay of proceedings.

A similar situation could arise at the International Criminal Court (ICC), given the average age of the defendants currently on trial. It is therefore becoming more pressing to determine what precedential value the Kabuga case would have at the ICC.

A gap in the procedure

Currently, a procedural gap exists at the ICC with regard to the accused’s ‘fitness to stand trial’. Rule 135 of the ICC Rules of Procedure and Evidence allows the Trial Chamber to review the accused’s fitness to be tried every 120 days. However, it does not expressly permit termination of proceedings due to the accused’s unfitness to stand trial.

According to Article 85(3) of the Rome Statute, termination of proceedings is limited to ‘exceptional circumstances’, where there is a ‘grave and manifest miscarriage of justice’. The latter was interpreted in the Banda case as referring to the doctrine of ‘abuse of process’. Regarding the ‘abuse of process’, the Appeals Chamber in Lubanga has previously stressed that the threshold for its applicability is exceptionally high: it must be ‘impossible to piece together the constituent element of a fair trial.’

The constituent element of a fair trial?

The ICC previously dealt with the issue of fitness to stand trial in Al Hassan. In that case, Trial Chamber X held that the accused must have several relevant capacities for them to be considered capable of meaningfully exercising their procedural rights. These include the ability to understand the charges, as well as the purpose and potential consequences of the proceedings. If several of these essential elements cannot be established, it follows that the accused is unfit to stand trial. This would allow the ICC to terminate the proceedings.

Moreover, the ICC’s Rule 135(4) also seems to imply that a Trial Chamber may decide not to re-examine a case when there are ‘reasons to do otherwise’. Medical conditions such as an untreatable brain injury could be one such reason. However, it remains unclear whether the decision not to review the case would amount to a stay or termination of the proceedings.

Stay of proceedings, termination or adjournment?

Other international criminal tribunals have adopted a stepwise approach: adjournment and definite stay if recovery is possible, and indefinite stay of proceedings only when it is not.

In Kabuga, the IRMCT Appeals Chamber ordered an indefinite stay of proceedings. This has also been the approach taken by, among others, the International Criminal Tribunal for the former Yugoslavia (ICTY) in Goran Hadzic and the Extraordinary Chambers in the Courts of Cambodia (ECCC) in Ieng Thirith. In the latter case, the Supreme Court Chamber stressed that when the health condition was potentially reversible, in the interest of justice the court should opt for a revocable decision (a definite stay of the proceedings). Accordingly, an indefinite stay of proceedings should only be ordered when the health condition is deemed irreversible. The ICC Appeals Chamber in Lubanga followed the same approach and stressed that a conditional stay of proceedings would not preclude the re-opening of the trial.

Moreover, Rule 135(4) states that in order to evaluate the accused’s health and fitness, one or more expert(s) shall be appointed. Based on medical reports, it is for the judges to assess the likelihood of the accused overcoming such conditions in the future. While not mandatory, it is common practice that a fitness hearing is held to clarify medical findings and determine whether the condition is permanent. In Gbagbo, for example, the ICC had used such a hearing to resolve conflicting expert opinions before reaching its decision.

Time to formalise the fitness hearing?

We argue that the ICC should codify and institutionalise the ‘fitness hearing’ procedures. A fitness hearing would guarantee that judges have the opportunity to make careful evaluations of the medical expert’s report while also permitting adversarial testing. Both of these are crucial when it comes to balancing the rights of the parties and the proper administration of justice.

Furthermore, unlike constant review of a case or an indefinite stay in the proceedings, a fitness hearing can guarantee the application of international human rights standards and the rights to a fair trial, as it can reduce the likelihood of prolonged proceedings for those unlikely to regain good health. Finally, a fitness hearing might be interesting from a judicial economic view as it will allow the ICC to terminate proceedings against permanently unfit defendants and devote human and financial resources to other ongoing cases.