Appeals judges at the ICC have rejected a petition to stop the relase of Rwandan rebel leader Callixte Mbarushimana. Prosecutors had sought to overturn a lower chamber ruling that there is not enough evidence to keep him in detention and proceed to trial. He is expected back in France shortly.

By Lauren Comiteau

Court officials had gone so far as to pre-book Mbarushimana on a flight to Paris Tuesday. But after being told by French authorities that they needed to obtain an exemption to the travel ban the UN Security Council had in place on Mbarushimana, his return has been postponed.

“It’s a very surprising and unwelcome development,” said Nick Kaufman, a defense lawyer who represented Mbarushimana before the ICC. “It’s quite unfair. Mr. Mbarushimana has refugee status... He is entitled to go back to France.”

Immediate release

Prosecutors had charged Mbarushimana with war crimes and crimes against humanity allegedly committed in the Democratic Republic of Congo, but judges in The Hague ruled Friday that "there was not sufficient evidence to establish substantial grounds to believe that Callixte Mbarushimana could be held criminally responsible for eight counts of war crimes and five counts of crimes against humanity." Following their ruling, judges ordered his immediate release.

But prosecutors filed an urgent appeal Monday night, asking judges to suspend Mbarushimana’s release until the issue is legally resolved. They cited “irreparable prejudice to the Prosecution” if he was let go.

Pre-trial judges dismissed those arguments Monday. In its decision, the chamber said “irreparable prejudice to the prosecution” is not a condition recognized in the court’s statute. Further, it ruled: “There is likewise no legal basis for confining the release of Mr Mbarushimana to the territory of The Netherlands,” something prosecutors had also requested.

Appeals judges haven’t yet made public their reasons for dismissing the prosecution’s appeal on all grounds, but they appear to be in agreement with the lower chamber. In a two-page decision issued Tuesday afternoon, they rejected the prosecution’s attempts to stay the release and ruled the appeal against the confirmation of charges hearing “inadmissible”.

Identified as the executive secretary of the Democratic Forces of the Liberation of Rwanda (FDLR) rebel group, Mbarushimana faced 13 counts of war crimes and crimes against humanity allegedly committed in DR Congo's Kivu provinces in 2009.

Although the ICC found there were grounds to believe that FDLR troops committed war crimes, the majority of judges found "Mbarushimana did not provide any contribution to the commission of the alleged crimes, even less a 'significant' one."

The 48-year-old Mbarushimana, a former UN computer technician, was arrested in Paris in October last year and was transferred to the ICC's detention unit in The Hague in January.

Travel ban

It was not only France, but the UN Security Council that told the court Monday that Mbarushimana could not go back to Paris until he was granted an exemption to the travel ban by the Security Council’s sanctions committee. “Sanctions are based on rumour and gossip of interested parties, in this case, probably Rwanda or Congo,” said lawyer Kaufman. “Mr. Mbarushimana has satisfied the court, which has a higher burden of proof. Now for the French to go back and say he can’t go back contradicts their policy to date.”

The return of Mbarushimana marks a precedent for the ICC. The only other time the court declined to charge a suspect was in the case of Sudanese rebel leader Abu Garda in February 2010, but he wasn’t in the court’s custody. And in the case of former Congolese rebel leader Thomas Lubanga Dyilo, who was already on trial, appeals judges quickly overturned a lower chamber’s decision to release him.

As for Mbarushimana, it seems he’ll be a free man in Paris in the coming days.