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By Robert Mugabe and Agencies
Pro- ICC Civil society organisations have expressed fear of impunity and continued violence in Eastern Congo. This was after Judges at the International Criminal Court [ICC] on 16 December 2011 ordered the release of Callixte Mbarushimana from custody after completion of the necessary modalities. The pre trail chamber ruled that there was insufficient evidence to try the former secretary general of Congo based Rwandan Hutu militia group FDLR.
In a statement sent to Great Lakes Voice by the Coalition for the International Criminal Court, a global network of civil society organizations in 150 countries working in partnership to strengthen international cooperation with the ICC expressed disappointment as the decision will undoubtedly accentuate their suffering and concerns about their security saying the arrest of Mbarushimana and his subsequent hearings before the ICC had brought great hope to victims and affected communities in the region that justice would be delivered.
The Coordinator of the DRC Coalition for the ICC Andre Kito said that “It is a reality that FDLR forces continue to be very active in the east of DRC, and the grave crimes they are committing against the civilian population have gone unpunished for many years, … it must be also underlined that there are many other FDLR leaders who should also be the subject of ICC investigations, given the ever-increasing number of crimes committed by them against civilians.”
Pre-Trial Chamber I of the ICC declined to confirm charges of alleged crimes against humanity and war crimes against Callixte Mbarushimana in the Kivu provinces of the Democratic Republic of the Congo (DRC) hence refusing to move his case forward to trial at this stage.
The ICC prosecutor had argued that there was sufficient evidence to try Mbarushimana—a Rwandan citizen and the first senior leader brought before the ICC for alleged crimes committed in the DRC Kivus provinces—for crimes against humanity (murder, torture, rape, persecution and inhumane acts) and war crimes (attacks against the civilian population, destruction of property, murder, torture, rape and inhumane treatment) allegedly committed between January and September 2009 in the DRC. Judges of ICC Pre-Trial Chamber I established that it lacked sufficient evidence to try Mbarushimana for these crimes. The decision was taken by majority, the Presiding Judge Sanji M. Monageng dissenting.
However, the ICC prosecutor has the right to appeal the decision and request the Chamber to grant suspension effect to the appeal, meaning that the suspect would not be released until the appeal’s decision is made.
“It is vital that the Court continues to ensure the protection of victims and witnesses that have stepped forward in this case. It is equally essential for the Court to undertake comprehensive communications activities to explain this decision to victims and affected communities in the Kivu provinces who will feel extremely disappointed and have security concerns as a result,” said William Pace, Convener of the Coalition for the International Criminal Court.
“Nonetheless, the decision declining to confirm charges against Mbarushimana shows the independence of ICC judges and serious examination of the evidence before them,” Pace added.
At a later stage, the prosecution could again request the chamber to confirm the charges against Mbarushimana if supported by additional evidence.
On 25 January 2011, Mbarushimana was transferred to the ICC detention center in The Hague, the Netherlands, following his arrest on 11 October 2010 by French authorities pursuant to an ICC arrest warrant issued under seal on 28 September 2010.
The pre- trial hearing held from 16-21 September 2011 by ICC Pre-Trial Chamber I to determine whether the charges against Mbarushimana should be confirmed or not. At the hearing, the prosecutor was required to submit evidence in support of the charges, which the defense could dispute. Pre-Trial Chamber I is composed of Presiding Judge Judge Sanji Mmasenono Monageng, Judge Sylvia Steiner and Judge Cuno Tarfusser.
Five arrest warrants have been issued in the DRC situation, and two trials are ongoing, the first for Thomas Lubanga Dyilo, and the second for Germain Katanga and Matthieu Ngudjolo Chui. An ICC arrest warrant for Bosco Ntaganda was issued on 29 April 2008, and remains outstanding.
The ICC is the world’s first permanent international court to prosecute war crimes, crimes against humanity, and genocide.
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