The Prosecutor v. Callixte Mbarushimana

Court	International Criminal Court (PTC I), The Netherlands
Case number	ICC-01/04-01/10
Decision title	Decision on the confirmation of charges
Decision date	16 December 2011
Parties	The Prosecutor Callixte Mbarushimana
Categories	Crimes against humanity, War crimes
Keywords	civilian population, crimes against humanity, destruction of property, Murder, mutilation, Non-international armed conflict, other inhumane acts, persecution, pillage, rape, torture, war crimes
Links	Decision on the confirmation of charges
Other countries involved	Congo

Summary

Following the 1994 genocide in Rwanda and the success of the Rwandan Patriotic Front in gaining control of the country, members of the former Rwandan Armed Forces (FAR) and the Interahamwe militia who were widely considered to be responsible for the genocide, fled to the Kivu provinces in the Democratic Republic of the Congo. These exiled forces organised themselves into political and military groups designed to oppose the new Rwandan government.

One of these groups was the Forces Démocratiques pour la Liberation du Rwanda (FDLR) led by Ignace Murwanashyaka. The FDLR, composed of a military and a political wing, was coordinated by its Steering Committee of which the Suspect, Callixte Mbarushimana, was a member. The Office of the Prosecutor at the International Criminal Court (ICC) alleges that Mbarushimana was responsible for the FDLR’s perpetration of attacks against the civilian populations in the Kivu provinces throughout 2009. The objective of these attacks, which included murder, rape, torture, mutilation and pillage, was to create a humanitarian catastrophe that would place pressure on the international community and draw attention to the FDLR’s political demands.

Pre-Trial Chamber I of the ICC declined to confirm the charges of war crimes and crimes against humanity against Mbarushimana thereby refusing to allow the case to continue to trial on the grounds that the Prosecution had not proved a number of key elements including the existence of a policy to attack the civilian population, and the existence of a group of persons acting with the common purpose of perpetrating crimes. Mbarushimana was subsequently released from the custody of the ICC and returned to France where he had been living since fleeing Rwanda.

Procedural history

On 20 August 2010, the Prosecution applied for a warrant of arrest in respect of Callixte Mbarushimana alleging that he was responsible for war crimes and crimes against humanity committed by the Forces Démocratiques pour la Liberation du Rwanda (FDLR) armed group in the Democratic Republic of the Congo (DRC) since January 2009.

On 28 September 2010, the Chamber granted the Prosecution’s request and issued a warrant of arrest.

On 11 October 2010, Mbarushimana was arrested in Paris by the French authorities. On 3 November 2010, his extradition to the ICC was approved by the Paris Court of Appeals and validated by the Cour de cassation on 3 January 2011. Mbarushimana was transferred to the ICC Detention Centre on 25 January 2011.

On 28 January 2011, Mbarushimana made his first appearance before the Chamber at which time he was informed of the crimes charged and his rights under the Rome Statute and the Rules of Procedure and Evidence.

Related developments

On 23 December 2011, Mbarushimana was released onto French territory (see ICC, 'Callixte Mbarushimana is released from ICC custody', ICC Press Release, 23 December 2011). The Prosecution subsequently appealed the decision declining to confirm the charges against Mbarushimana.

On 30 May 2012, the Appeals Chamber rejected the appeal and confirmed the decision of the Pre-Trial Chamber.

Legally relevant facts

Throughout 2009, the Forces Démocratiques pour la Liberation du Rwanda (FDLR) was an armed group which operated in the Democratic Republic of the Congo. It was composed of a political wing led by Ignace Murwanashyaka and a military wing led by General Mudacumura, stationed in the eastern DRC. The two branches were coordinated by a Steering Committee (para. 104). The Prosecution alleges that Callixte Mbarushimana was a member of the Steering Committee, rising to the position of de facto leader in 2010 following the arrest of its President and Vice President in November 2009 (para. 5).

From 20 January 2009 until at least 31 December 2009, a non-international armed conflict occurred on the territory of the North and South Kivu provinces in the DRC between, on the one hand, DRC government forces supported by the Rwandese or UN forces, and on the other hands, at least the FDLR (para. 107).

The Prosecution alleges that in January 2009, the FDLR hierarchy launched a campaign to attack the civilian population and create a humanitarian catastrophe in Kivu in order to draw the world’s attention to the FDLR’s political demands (par. 6). This included the murder, torture, rape and assault of civilians in the course of attacks throughout 2009 on Busurungi (paras. 123-129), Manje (para. 182), Malembe (paras. 197-200), Mianga (paras. 212-214), Kipop (paras. 227-229), Luofo and Kasiki (paras. 234-235).

Mbarushimana is alleged to have issued several press releases on behalf of the organisation systematically denying any responsibility and at the same time engaged in international peace talks and negotiations in order to portray the FDLR as an actor seeking peace and stability in Kivu (para. 8).

Core legal questions

Under what circumstances would civilians lose their protection and become military targets, thereby precluding liability for the war crime of attacking civilians?
What is the level of contribution required to establish liability of an Accused for having “contributed to the commission of a crime by a group of persons acting with a common purpose” pursuant to Article 25(3)(d) of the Rome Statute?

Specific legal rules and provisions

Articles 7(1)(a), (e), (f), (g), (k), 8(2)(e)(i) and 25(3)(d) of the Rome Statute of the International Criminal Court.
Article 50 of Additional Protocol I to the 1949 Geneva Conventions.

Court's holding and analysis

The war crime of attacking civilians may be perpetrated either if (i) when individual civilians not taking direct part in the hostilities or the civilian population are the sole target of the attack, or (ii) when the attack is launched with the simultaneous aim of targeting a military objective and the civilian population or civilians not taking direct part in hostilities (par. 142). A civilian only loses protection where s/he uses weapons or other means to commit violence against human or material enemy forces, not in self-defence. The mere provision of food or shelter to one belligerent party is insufficient to deny civilians protection against attack (para. 148).

The Chamber believes that it would be inappropriate for liability to be incurred under Article 25(3)(d) through any contribution to a group crime (para. 275). Considering that Article 25(3) arranges the modes of liability in accordance with a value oriented hierarchy of participation the contribution under Article 25(3)(d) must be less than that required for liability under Articles 25(3)(a) to (c). Considering that Article 25(3)(a) has been interpreted to require an essential contribution, and Articles 25(3)(b) to (c) as requiring a substantial contribution, the Chamber concludes that liability under Article 25(3)(d) requires only a significant contribution (paras. 279-283).

The Majority of the Chamber declined to confirm the charges against Mbarushimana on the grounds that the policy requirement for crimes against humanity had not been established (paras. 263, 266-267) and liability under Article 25(3)(d) for the cases of confirmed war crimes could not be established in light of the absence of an identifiable group of individuals acting with a common purpose (para. 291) and Mbarushimana’s contributions did not meet the required threshold (para. 292).