Defence Challenge Case Against Mbarushimana

Lawyers for Callixte Mbarushimana this week insisted that atrocities committed in eastern Democratic Republic of Congo, DRC, in 2009 were “collateral damage in legitimate warfare”.

Mbarushimana’s defence team in his trial at the International Criminal Court, ICC, in The Hague, said it questioned “each and every incident” cited by prosecutors, and argued that atrocities that occurred could not be linked to the suspect.

As a senior leader of the Democratic Forces for the Liberation of Rwanda, FDLR, Mbarushimana stands accused of playing a pivotal role in a campaign of murder, rape and plunder in eastern DRC, between January and September 2009.

The FDLR is a rebel group made up of ethnic Hutus originally from neighbouring Rwanda.

Prosecutors say the suspect implemented a clear strategy to bring about a dire humanitarian situation in the region. The campaign was intended to give the FLDR greater political leverage in dealing with the government of Rwanda, they said.

A four-day hearing was held in The Hague between September 16 and 21 to determine whether there was enough evidence for the case to proceed to trial.

According to the prosecution, Mbarushimana was not only privy to the FDLR’s criminal strategy, but facilitated it by issuing press statements denying or downplaying the group’s involvement in atrocities.

“The FDLR’s goal was to find a way to regain political power, and to do so it embarked on a plan that was inherently complex,” Anton Steynberg, for the prosecution, told judges. “They had to create a bargaining chip, they had to create the suffering, and on the other hand they had to spread [the message] that people were suffering.”

Mbarushimana was arrested in Paris on October 11, 2010, less than three weeks after the court had issued a sealed warrant for his arrest. He is charged with six counts of war crimes and five counts of crimes against humanity, including murder, rape, torture and other inhumane acts committed in the North and South Kivu regions of DRC.

According to witness testimony presented by prosecutors, FDLR soldiers committed atrocities against Congolese civilians in the Kivus, including the removal of organs, decapitation, genital mutilation, amputation of limbs and the removal of foetuses.

“Death was accompanied by atrocious suffering,” Ghislain Mabanga, a legal representative of victims in the case, told judges this week.

According to the prosecution, from his base in Paris, Mbarushimana was the “linchpin” between the FDLR’s military activities and its political ambitions. It alleges that he presented a peaceful face for the FDLR by denying its involvement in crimes in the region, while simultaneously using the conflict to boost its political position.

Prosecutors argued that Mbarushimana’s “immediate and systematic” reaction – denying or diminishing FDLR involvement – allowed the crimes to continue.

Responding to these accusations, defence lawyers argued this week that there was no concerted campaign of terror in the region. They also sought to cast doubt on Mbarushimana’s role in events in eastern DRC, particularly in relation to press statements that he issued.

Defence lawyer Nicholas Kaufman described the prosecution’s case as “criminalising free speech”.

“Managing a deceitful media campaign… is not illegal,” Kaufman said, although he did not say Mbarushimana had deliberately made misleading media statements.

A large part of the proceedings in this, the third case from eastern DRC currently before the ICC, focused on determining what Mbarushimana’s official role was within the FDLR.

The prosecution alleges that Mbarushimana was the FDLR’s fourth-highest official.

It did not allege that Mbarushimana knew of or ordered specific attacks, but instead argued that phone and email conversations he had with FDLR leaders Ignace Murwanashyaka and Sylvestre Mudacumura showed he wielded a lot of influence within the organisation, and that he had direct knowledge of a plan to create a humanitarian crisis.

Murwanashyaka is head of the FDLR, and Mudacumura is in overall command of the FDLR’s military wing. Murwanashyaka is currently on trial in a German court, and faces 26 counts of crimes against humanity and 39 counts of war crimes allegedly committed by FDLR soldiers under his command during 2008 and 2009.

According to the prosecution, Mbarushimana’s legal responsibility for a plan to create a humanitarian crisis by attacking civilians does not rest on him knowing about each individual attack. His knowledge of the overall plan and his press statements dismissing FDLR involvement make him liable for criminal acts committed by rebel combatants, they say.

“[Mbarushimana] was intimately involved in the crimes of the FDLR,” Steynberg said. “Would the FDLR have entrusted such a critical role to someone left in the dark?”

The defence challenged the prosecution’s legal reasoning. Kai Ambos, a German professor of international law who is advising the defence, stressed that the ICC does not apply case law used in other international courts covering joint criminal enterprise. Ambos said the ICC can only determine criminal liability on the basis of individual, rather than collective, responsibility.

“The prosecution is starting from a flawed legal interpretation,” Ambos said.

He argued that Mbarushimana was not a conspirator in the FDLR’s alleged plan to create a humanitarian crisis.

“This statute [underlying ICC trials] is against individuals and not international organisations,” Ambos said. “This court focuses on personal, individual responsibility and not collective responsibility.”

Ambos further highlighted the difference between this case and those tried at the Rwanda tribunal in Tanzania, where the court addressed the use of propaganda to incite genocide in 1995.

In Rwanda, radio broadcasts were used to inform militant Hutus about the location of ethnic Tutsis and incite them to attack them. Ambos argued that in the case of Mbarushimana, statements containing incorrect and contradictory information were not used to instruct FDLR soldiers to commit atrocities.

This week’s proceedings also included discussion about whether the FDLR deliberately created a humanitarian crisis in the Kivus in 2009.

The prosecution cited witness testimony from incidents involving civilian deaths, such as attacks at Malembe and Busurungi in North Kivu in May 2009.

Prosecutor Julieta Solano cited a former FDLR fighter who said his orders at Malembe were to “destroy everything” and “to attack and kill everything that moves. Everything that moves or breathes needs to be destroyed and killed”.

Another former FDLR fighter told the prosecution that his orders at Busurungi were that “everything that has breath shouldn’t be there”.

Solano added that witnesses said that homes in Busurungi “were burned after FARDC, [DRC army] had run away”.

Solano concluded that direct attacks on civilians in incidents like those in Busurungi and Malembe and the manner in which they were carried out were indicative of an aim of creating a humanitarian crisis, not of winning military victories.

“Such orders, framed so broadly, can’t be considered a military strategy,” Solano told judges.

The defence accepted that the FDLR committed atrocities at Busurungi, but argued that they were the work of a rogue commander and not part of a greater strategy to create a humanitarian crisis.

“The death of civilians at Busurungi surprised Ignace Murwanashyaka,” said Kaufman, quoting a former FDLR soldier. “Mudacumura was not pleased with the events that took place at Busurungi.”

Citing further witness testimony, Kaufman said not all attacks in the region should be attributed to the FDLR, and argued that the DRC armed forces and also the Rwandan army were both operating there and shared some of the responsibility.

The defence also contended that other FDLR attacks that resulted in civilian casualties, such as incidents at Kipopo and Pinga, were not examples of a strategy of targeting civilians, but represented “collateral damage in legitimate warfare”.

The defence challenged the inference that because the FDLR is largely composed of Rwanda Hutus who speak Kinyarwandan, any rebel combatants speaking this language belonged to that armed group.

Lawyers cited an expert report by Dr Phil Clark of the School of Oriental and African Studies in London which says language and ethnicity should not be used as the main way of identifying rebel forces in DRC.

They used Clark’s research and statements from witnesses who interacted with Kinyarwandan speakers in the DRC and Rwandan armies in the region as evidence that the FDLR could not be blamed for all attacks by Kinyarwandan-speaking combatants.

Following the submission of written arguments by the parties, judges now will decide within 60 days whether the case should go to trial.

Barrett Holmes Pitner is an IWPR reporter.