War crimes in congo: rwandan hutu militia splits court

International Criminal Court drops charges against FDLR leader Callixte Mbarushimana for lack of evidence. The presiding judge disagrees.

Calliste Mbarushimana during the hearing at the Hague court. Image: reuters

The International Criminal Court (ICC) in The Hague has issued a controversial decision in one of its most explosive cases. Judges of the 1st Pre-Trial Chamber decided Friday evening to release Rwandan militia leader Callixte Mbarushimana and drop the charges against him.

Mbarushimana, executive secretary of Rwanda’s Hutu militia FDLR (Democratic Forces for the Liberation of Rwanda) had been in detention since 2010 awaiting trial on charges of war crimes and crimes against humanity in the Democratic Republic of Congo.

The decision was made with two votes against one. The dissenting vote came from, of all people, the presiding judge of the chamber, Sanji Mmasenono Monageng. In a minority opinion, she leveled serious accusations against her two associate judges, Sylvia Steiner and Cuno Tarfusser. They had reached their conclusions "without appreciating substantial evidence," the Botswana judge said.

Mbarushimana, who lives in Paris, was arrested in 2010 on similar charges as FDLR President Ignace Murwanashyaka and his deputy Straton Musoni in Germany the year before. The two have been on trial since May 2011 before the Stuttgart Higher Regional Court for crimes committed by the FDLR in Congo.

Attacks on civilians in Congo in 2009.

Mbarushimana was transferred to the ICC. The Hague Prosecutor’s Office charged him with joint responsibility with Murwanashyaka and Musoni for brutal militia attacks on civilians in Congo in 2009. Numerous testimonies from Congo were called in pretrial proceedings detailing how brutally the Rwandan militia devastated eastern Congolese villages in response to a Congolese-Rwandan militia offensive against them in early 2009.

For example, Witness 694 described how, during the FDLR’s destruction of the village of Busurungi on the night of May 10, 2009, five Hutu fighters raped a woman. They then "pierced her eyes and throat with the bayonet of their rifles and cut open her pregnant belly so that the moving fetus fell out." In Busurungi that night, at least 96 civilians were killed by the FDLR and the town was razed to the ground.

The Chamber does not dispute the truth of this and similar testimony, nor does it dispute that these incidents were war crimes. But it denies that Mbarushimana had anything to do with them or knew about them. And she says the acts were not crimes against humanity. Thus, her ruling is of overriding importance. The prosecution, the chamber says, did not sufficiently prove that the FDLR committed these acts as part of a "systematic and widespread" attack against the civilian population.

"The harvest was good"

According to the indictment, FDLR military leader Sylvestre Mudacumura in Congo issued an order to his troops to inflict a "humanitarian disaster." But the evidence for this is "indirect at best," the chamber says in response. It said it was "not substantially convinced that the FDLR had a policy of attacking civilians." Even the attack on Busurungi "cannot be considered part of a larger organized campaign."

Such findings arouse the incomprehension of presiding judge Monageng, who does not see why the many witness statements should not be brought up in a regular main hearing. In her opinion, the judge quotes at length telephone conversations between Mbarushimana and Murwanshyaka, who was still operating freely in Germany at the time. "The harvest was good," Mbarushimana is said to have said about the Busurungi massacre. This does not appear in the Chamber’s decision.

However, the Chamber’s exoneration of Mbarushimana is accompanied by a burden on Murwanashyaka, who is now on trial in Stuttgart. He knew much more because the FDLR military leadership on the ground was accountable to him, it is said. ICC Chief Prosecutor Luis Moreno-Ocampo immediately filed a request for appeal, asking that Mbarushimana’s release be set aside. He reminded the chamber of its own rejection of a release request in August.

It said "that if released, Callixte Mbarushimana has means to disrupt investigations, commit crimes and abscond, with the financial support of the FDLR international network." This, observers agree, remains true today. The FDLR’s war in Congo continues.