Mbarushimana before French courts

A French court on October 27th refused to release Callixte Mbarushimana, raising expectations that he will soon be transferred to the International Criminal Court (ICC). The ICC wants him for war crimes and crimes against humanity allegedly committed in the eastern Democratic Republic of Congo.

By Juergen Schurr, London

Mbarushimana’s arrest in Paris on an ICC arrest warrant has been hailed as an important step against impunity for serious human rights abuses in eastern DRC. But victims groups are wondering whether allegations that he also participated in the 1994 genocide in Rwanda will ever be followed up.

Mbarushimana, a Rwandan, is the Secretary General of the FDLR, a Hutu rebel group active in eastern DRC. He had been living in France, which recognised his refugee status, since 2003.

Survivors of the genocide in Rwanda allege that Mbarushimana was involved in the killing of at least 32 people in Kigali in 1994. They further claim that as an employee of the United Nations Development Programme (UNDP), he used the infrastructure of the UN to assist in organising and executing the genocide. In June 2005, the UN Secretary General’s office requested France to initiate proceedings against him but no steps appear to have been taken. Instead, in 2005, he was elected deputy Secretary General of the FDLR, and in 2008 he became its Secretary General, continuing to use his Paris base to defend the FDLR’s activities.

On February 5th, 2008, the French based Collectif des Parties Civiles pour le Rwanda filed a criminal complaint against Mbarushimana with the Paris prosecutor, detailing individual acts of genocide he allegedly committed. But it was not until September 29th, 2010, that the Paris prosecutor announced he had opened an investigation. This was one day after the ICC issued a sealed arrest warrant against Mbarushimana, and only days before France complied with the ICC’s request to arrest him.

No French indictment has so far been issued against Mbarushimana. The Paris prosecutor may decide to issue one in the future, based on evidence provided by the International Criminal Tribunal for Rwanda (ICTR) and other sources. The ICTR investigated genocide allegations against Mbarushimana in 2001 but never filed an indictment. In addition, the International Federation for Human Rights (FIDH) and the Collectif constituted themselves civil parties in the case on October 19th, 2010, and could request the investigating judge to proceed with an indictment. A decision as to whether a French indictment will be issued is expected before the end of this year.

While the delayed response of French authorities allowed Mbarushimana to rise within the ranks of the FDLR, the case also highlights that France has an impunity problem when it comes to genocide suspects living freely on its territory. There are currently 16 other cases of genocide suspects before French courts, some of which have been pending for the past 15 years. France has already been condemned by the European Court of Human Rights for its delays in affording a remedy to victims in one of these cases.

Accountability of these suspects has not ranked high so far on the agenda of the French Ministry of Justice, and the limited resources available to the few investigating judges within Paris’ Tribunal de Grande Instance - where cases concerning Rwanda are centralised - seriously hampers progress. When investigating judges returned from a mission to Rwanda in November 2009, they requested to be discharged of their other obligations to concentrate fully on the Rwanda files, but that request was denied.

Calls from survivors and human rights NGOs for the establishment of specialised war crimes units within the French police and prosecution services, which could support the investigative judges’ work, have so far been stymied. This stands in contrast to neighbouring Belgium, Germany and the Netherlands, where the establishment of such units has already proven to be an effective tool to address impunity and ensure that perpetrators do not find safe havens.