Ignace Murwanashyaka is the President of the FDLR and currently on trial in Stuttgart

Last week I wrote a post on the role of universal jurisdiction in dealing with atrocities committed during armed conflicts or dictatorships. The idea of universal jurisdiction is grounded in the notion that there are some norms in public international law which are important enough to bind everyone (jus cogens) and the violation of which is considered a crime against everyone. These so called erga omnes norms include, for example, genocide, slavery, torture and racial discrimination. Last week’s post focused on the attempts to try Chad’s former dictator Hissene Habré who is currently biding his time in Senegalese exile. This week I would like to take a look at the trial of an alleged leader of the Democratic Forces for the Liberation of Rwanda (FDLR, based on the French name) that started on 4^th of May 2011 at the Oberlandesgericht (Higher Regional Court) Stuttgart in southern Germany.

The accused is Ignace Murwanashyaka, a Rwandan Hutu who received political asylum in Germany in 2000. He had previously studied Economics at the German University of Bonn and completed his PhD in Mannheim. He is married to a German with whom he had two children. The German Federal Prosecutor’s Office is accusing him of having travelled to the Democratic Republic of Congo several times between 2001 and 2006. He was allegedly using a Ugandan and a German passport under a false name and underwent two month of military training. A 2006 investigation on allegations of being involved in crimes against humanity was dropped due to a lack of evidence. Meanwhile, Murwanashyaka was wanted by Interpol, after Rwanda filed an extradition request that Germany has not answered to date.

In cooperation with the Office of the Prosecutor (OTP) of the International Criminal Court, the German Federal Prosecutor’s Office started to look into the case again within the scope of the ICC’s DRC investigations. Moreno-Ocampo has repeatedly commended Germany and France for their cooperation in the DRC investigations. This phase of the investigations led on one hand to the arrest of Callixte Mbarushimana by France in October 2010 and his subsequent extradition to the ICC in January 2011, and to the indictment of FDLR President Murwanashyaka and his deputy Straton Musoni for war crimes and crimes against humanity by the German Federal Prosecutor’s Office on the other. Germany had implemented the Rome Statute by legislating an international criminal code in June 2002, and thus decided to prosecute Murwanashyaka and Musoni at the national level based on this law.

An FDLR militiaman in Chinda, DRC (AP Photo/Riccardo Gangale)

Murwanashyaka himself has stated on German state television on 3^rd November 2008 that he is in control of the FDLR militia in DRC. The homepage of the FDLR was also hosted in Germany for a long time. The FDLR was formed in September 2000 by Hutu rebels, including many genocidaires fleeing from Rwanda to the DRC after Paul Kagame’s Tutsi rebels took power in Kigali. It was engaged in fighting during the Second Congo War and has been blamed for attacks in Congo’s Kivu provinces in 2009 and 2010. During these attacks the FDLR often indiscriminately targeted and killed civilians and allegedly committed several war crimes and crimes against humanity.

The procedures have helped shed some light on how militia groups in war theatres are connected to the political diaspora from countries in Europe. It has rung an alarm bell that Europe has made it too easy for political supporters or even leaders of militias to enjoy a safe haven in Western countries. According to information revealed during the court proceedings Murwanashyaka communicated with the FDLR military commander Mudacumura by calling a liaison officer in DRC on his mobile phone who then relayed the information via radio to Mudacumura. On some occasions Murwanashyaka and Mudacumura apparently also spoke directly via satellite phone. Additionally, Murwanashyaka apparently exchanged texts with several FDLR field commanders.

The Higher Regional Court in Stuttgart (DPA)

But the case has also again shown the limitations of trials being carried out far away from the crime scene and in a completely different cultural context. The court in Stuttgart has no direct access to most of the victims of the FDLR or the rank and file of the militia that could help to clarify Murwanashyaka’s role in the FDLR chain of command. Instead the court questions the witnesses it has access to while the defense keeps on criticizing and doubting the interpretation between German and Kinyarwanda during the proceedings and questionings.

Both the cases against Callixte Mbarushimana and Ignace Murwanashyaka suffer from procedural setbacks and problems encountered when trying war criminals far away from the crime scenes. The Pre-Trial Chamber I of the ICC has dismissed the charges against Callixte Mbarushimana due to a lack of evidence and has ordered his release on December 16, 2011. The OTP will appeal the decision, so the outcome is still unclear. In the Murwanashyaka case it is not yet clear if the German prosecution will be able to prove that orders leading to the commission of war crimes and crimes against humanity came from Murwanashyaka himself.

Despite these open questions the arrests have sent a clear message to European diaspora members who are supporting or leading militias in armed conflicts: If they decide to condone or even order the commission of war crimes and crimes against humanity committed by these militias, they risk being brought to book for their part of responsibility in the commission of these crimes. The fact that they are not directly implicated in the commission of these crimes and that they have received political asylum in Europe does not mean that they can act with impunity.