By Christoph Sperfeldt, Centre for International Governance and Justice, RegNet, ANU
On 28 September 2015, a four-year landmark universal jurisdiction trial came to an end: The Higher Regional Court in Stuttgart, Germany, convicted Ignace Murwanashyaka and Straton Musoni, the President and Vice-President of the Forces Démocratiques pour la Libération du Rwanda (FDLR), and sentenced them to 13 and 8 years in prison, respectively. UN Secretary-General Ban Ki-moon hailed the judgment as an excellent example of how national criminal courts and the United Nations can work together to end impunity for serious international crimes.
The FDLR is a predominantly Rwandan Hutu rebel group operating mainly in the Kivu provinces in the Eastern Democratic Republic of Congo (DRC). Some of its members are believed to have participated in the 1994 genocide in neighbouring Rwanda. In the verdict, Murwanashyaka was found guilty of war crimes in relation to a number of FDLR attacks on communities in the Eastern DRC in 2008/2009 and of leading a terrorist organisation. Musoni was found guilty of leading a terrorist organisation, but acquitted of war crimes and crimes against humanity. Murwanashyaka and Musoni had both been living in Germany for many years when they were arrested in November 2009 – at that time the two Rwandan nationals were among the most senior leaders of the FDLR.
The case was one of the first to be tried under the German Code of Crimes Against International Law (Völkerstrafgesetzbuch, CCAIL), which was introduced in 2002 to bring German criminal law in line with the provisions in the Rome Statute of the International Criminal Court (ICC). The Code allows German courts to investigate and prosecute war crimes, crimes against humanity, and genocide irrespective of where they are committed.
While German judicial officials were reluctant in the past to conduct the necessary complex investigations abroad, the situation began to change when the German federal police (Bundeskriminalamt) established, in 2009, the “Central Unit for the Fight Against War Crimes and Further Offenses Pursuant to the CCAIL”. The Unit cooperates closely with the Federal Prosecutor’s office and focuses exclusively on investigating war crimes, crimes against humanity and genocide. This Unit was involved in preparing the Murwanashyaka and Musoni case, including several investigative missions to the Great Lakes region.
However, investigating and prosecuting complex international crimes that took place in another state thousands of kilometres away and with ongoing civil war posed significant challenges to the ordinary German criminal justice system. The trial began in May 2011 and subsequently encountered numerous procedural and logistical problems, such as ensuring special measures for the protection of witnesses, especially for insider witnesses and victims of sexual violence, and a lack of quality interpretation from Kinyarwanda and local Congolese languages. Several charges of war crimes and crimes against humanity, initially listed in the prosecutor’s indictment, had to be dropped, including recruitment of child soldiers, rape, and other systematic attacks against civilians.
After 320 days of trial, the judgment and sentences fell short of the prosecutor’s demands, including for Murwanashyaka to be jailed for life. In fact, Musoni qualified for conditional release as he had already been in pre-trial detention for almost six years. Appeals may follow. No Congolese victims participated in the trial as civil parties (Nebenklage), and with no outreach being conducted in the DRC local populations affected by these crimes know little about the trial and its verdict.
Does this mean that the task of prosecuting diaspora members who organise or support the commission of international crimes is better left to international tribunals? Another FDLR case indicates that the answer to this question is not an easy one. In 2010, French authorities arrested Callixte Mbarushimana following an arrest warrant issued by the ICC. Mbarushimana was the FDLR’s alleged Executive Secretary. In December 2011, however, the ICC Pre-Trial Chamber I declined to confirm the charges against Mbarushimana due to a lack of evidence and ordered his release from ICC custody. In 2012, the ICC’s Appeals Chamber rejected the prosecutor’s appeal, emphasising again the shortcomings of the evidence presented by the prosecutor. Comparing the two cases, Phil Clark of SOAS in London suggested that “individual states such as Germany may be more effective in investigating and prosecuting foreign crimes than the ICC”.
The ICC has always been described as a court of last resort. While an effective complementarity regime under the Rome Statute framework is still in its infancy, the FDLR case in Germany highlights the many challenges domestic courts will encounter when they take the complementarity idea seriously. That said, an increasing number of states have established specialised war crimes units in their domestic jurisdictions, similar to the one in Germany. International cooperation between those units and with various international tribunals is improving, as illustrated by the European Union Genocide Network. Australia, although a party to the ICC Rome Statute, has not yet chosen to establish similar specialised domestic capacities.
Despite international efforts to minimise the capacity of the FDLR’s diaspora leadership network, violence in the Eastern DRC continues. The government of the DRC has so far been unable, and at times unwilling, to end this violence, and the new UN-mandated Intervention Brigade assigned to the UN peace operation there (MONUSCO) still needs to show that it is up to the task of protecting civilian populations. In this context, it remains to be seen whether attempts to ensure accountability for serious international crimes under principles of complementarity or universal jurisdiction can serve as another building block in a more comprehensive international response to mass atrocities.