ICC prosecutor’s office to present new evidences against FDLR boss Mbarushimana

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By Robert Mugabe


International Criminal Court today rejected the case of prosecution against Calixte Mbarushimana, the jury citing “lack of evidence” though the prosecution say they are planning to present new evidences.

“The OTP takes note of today’s decision by the Appeals Chamber. We are evaluating the decision to see whether it is possible to present a new case against Mr Mbarushimana presenting additional evidence, in accordance with the Judges’ ruling,” the office said.

Judge Erkki Kourula, presiding judge in this appeal, delivered a summary of the judgment in open session. He explained that the Appeals Chamber rejected the first two grounds of appeal, related to the Pre-Trial Chamber’s power to evaluate the evidence at the confirmation of the charges stage. The Appeals Chamber found that in determining whether to confirm charges under article 61 of the Rome Statute, the Pre-Trial Chamber may evaluate ambiguities, inconsistencies, contradictions or credibility doubts in the evidence.

Judge Kourula stressed that “the confirmation of charges hearing exists to ensure that cases and charges go to trial only when justified by sufficient evidence” and that article 61(7) of the Rome Statute requires the Pre-Trial Chamber to evaluate whether the evidence is sufficient to establish substantial grounds to believe the person committed each of the crimes charged.

The Appeals Chamber also rejected the third and last ground of appeal, related to whether, under article 25(3)(d) of the Rome Statute, the contribution of the person must be “significant”, because the alleged error did not materially affect the decision of the Pre-Trial Chamber.

Judge Silvia Fernández de Gurmendi appended a separate opinion under this ground of appeal, as she would have found it necessary to hold that the Pre-Trial Chamber erred in finding that the contribution to the crimes must be significant under article 25(3)(d) of the Rome Statute.

Judge Kourula highlighted that the Appeals Chamber’s judgment relates only to the issues submitted in appeal and should therefore not be seen as endorsing the Pre-Trial Chamber’s factual findings.

On 16 December 2011, Pre-Trial Chamber I decided by Majority to decline to confirm the charges in the case The Prosecutor v. Callixte Mbarushimana and ordered that the warrant of arrest issued against him cease to have effect. Mr Mbarushimana was released from the ICC’s custody on 23 December 2011, upon the completion of the necessary arrangements, as ordered by Pre-Trial Chamber I.

Callixte Mbarushimana was surrendered to the custody of the ICC by the French authorities on 25 January 2011, in accordance with the warrant of arrest delivered against him on 28 September 2010 by Pre-Trial Chamber I.

In the document containing the charges, the Prosecutor charged Mr Mbarushimana with five counts of crimes against humanity (murder, inhumane acts, rape, torture and persecution) and eight counts of war crimes (attacking civilians, murder, mutilation, cruel treatment, rape, torture, destruction of property and pillaging).

The Confirmation of Charges hearing was held from 16 to 21 September 2011. The Majority of the Chamber, comprising Judge Sylvia Steiner and Judge Cuno Tarfusser, found that there was not sufficient evidence to establish substantial grounds to believe that Callixte Mbarushimana could be held criminally responsible, under article 25(3)(d) of the Rome Statute, for these counts.

Judge Sanji Mmasenono Monageng, presiding judge, filed a dissenting opinion. The Prosecutor is not precluded from subsequently requesting the confirmation of charges on the basis of additional evidence.

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