The Prosecutor v. Callixte Mbarushimana

Court	International Criminal Court (Appeals Chamber), The Netherlands
Case number	ICC-01/04-01/10
Decision title	Judgment on the appeal of the Prosecutor against the decision of Pre-Trial Chamber I of 16 December 2011 entitled “Decision on the confirmation of charges”
Decision date	30 May 2012
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	Judgment on the appeal of the Prosecutor against the decision of Pre-Trial Chamber I of 16 December 2011 entitled “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.

By a decision of 16 December 2011, 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. This decision was upheld on appeal by the Appeals Chamber of the ICC in its judgment of 30 May 2012.

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.

On 16 December 2011, Pre-Trial Chamber I declined to confirm the charges against Mbarushimana. On 23 December 2011, Mbarushimana was released onto French territory (see also 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.

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, Confirmation of Charges decision).

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, Confirmation of Charges decision).

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 (para. 6). This included the murder, torture, rape and assault of civilians in the course of attacks throughout 2009 on Busurungi (paras. 123-129), Manje (par 182), Malembe (paras. 197-200), Mianga (paras. 212-214), Kipop (par. 227-229), Luofo and Kasiki (par. 234-235, Confirmation of Charges decision).

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, Confirmation of Charges decision).

Core legal questions

What is the required level of ‘contribution’ necessary to establish liability under Article 25(3)(d) of the Rome Statute? Did Pre-Trial Chamber I err in law when it required the level of contribution to be significant?

Specific legal rules and provisions

Article 25(3)(d) of the Rome Statute of the International Criminal Court.

Court's holding and analysis

Pre-Trial Chamber I in its Decision on the Confirmation of Charges held that a person must make a significant contribution to the crimes committed or attempted in order to establish responsibility under Article 25(3)(d) of the Rome Statute (para. 54). On the evidence before it, the Chamber concluded that the Mbarushimana did not provide any contribution to the commission of the crimes by the FDLR, not even a significant contribution (para. 56).

The Prosecution submits that the Pre-Trial Chamber erred in law by imposing a too high threshold for ‘contribution’ since it results from the plain reading of the Statute that “any” contribution to the crime committed by the group of persons, in this case the FDLR, would suffice (para. 60).

The Appeals Chamber declined to address this ground of appeal as it found that the Pre-Trial Chamber had only reached this finding for the sake of a hypothetical argument since the Pre-Trial Chamber had found that the first element of liability under Article 25(3)(d), the requirement that there exists a group of persons acting with a common purpose, was not met. Accordingly, if the Appeals Chamber were to enter any findings in this respect it would not affect the outcome of the Decision on the Confirmation of Charges since liability under Article 25(3)(d) fails on other grounds (paras. 65-69). Judge Fernandez appended a separate opinion in which she addressed the merit of the argument, concluding that there should be no threshold for the contribution required, thereby agreeing with the Prosecution’s submissions (paras. 8-15, Separate Opinion of Judge Fernandez).

The appeal was dismissed (para. 70).

Further analysis

M.G. Kearney, '‘Any Other Contribution’: Ascribing Liability for Cover-Ups of International Crimes', 2013;
Z. Sanikidze, 'The Level of ‘Contribution’ Required under Article 25(3)(d) of the Rome Statute of the International Criminal Court', Revue International de Droit Penal, 2012, Vol. 83, pp. 221 et seq.;
R. Rastan, 'The Jurisdictional Scope of Situations before the International Criminal Court', Criminal Law Forum, 2012, Vol. 23, No. 1;
V. Nerlich, 'The International Criminal Court 2002-2010: A View from the Inside', Criminal Law Forum, 2011, Vol. 22, pp. 199-214;
R. Frolich, 'Current Developments at the International Criminal Court', Journal of International Criminal Justice, 2011, Vol. 9, pp. 931-946;
D. Jacobs, 'A Shifting Scale of Power: Who is in Charge of the Charges at the International Criminal Court and the Uses of Regulation', Grotius Centre Working Paper 2013/004-ICL;
V. Oosterveld, 'Atrocity Crimes Litigation Year-in-Review (2010): A Gender Perspective', Northwestern Journal of International Human Rights, 2011, Vol. 9, pp. 239-266.

Instruments cited

Rome Statute of the International Criminal Court, United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, 17 July 1998.

Related cases

ICC, Pre-Trial Chamber I, Prosecution v. Callixte Mbarushimana, Case No. ICC-01/04-01/10, Decision on the Confirmation of Charges, 16 December 2011.