The judges ordered the release of Callixte Mbarushimana, saying there is not enough evidence to support the charges against him.
Prosecutors had accused Mbarushimana of being a senior member of the Democratic Forces for the Liberation of Rwanda, known by its French acronym the FDLR. The group is accused of unleashing savage attacks on civilians in the North and South Kivu provinces of Congo as a “bargaining tool” to win power.
If he is freed, Mbarushimana would be the first suspect released from ICC custody since the court’s inception in 2002.
In February 2010, judges refused to confirm charges against a Darfur rebel accused of attacking African Union peacekeepers, but unlike Mbarushimana the rebel, Bahar Idriss Abu Garda, was never taken into custody.
In an unusual case at the court, prosecutors accused Mbarushimana of contributing to crimes from a Paris apartment “by orchestrating an international campaign of propaganda and extortion” to force Rwanda to accept the return of the rebels who had fled the country after its 1994 genocide.
In a majority decision, a three judge panel said evidence presented at a preliminary hearing in September was not strong enough to merit sending the case to trial.
The evidence was “not sufficient to establish substantial grounds to believe that the Suspect encouraged the troops’ morale through his press releases and radio messages, and, therefore, he could have not provided ... a significant contribution to the commission of crimes,” two judges wrote in their decision. The presiding judge at the September hearing, disagreed, saying Mbarushimana should have been sent to trial.
Nick Kaufman, the lawyer who represented Mbarushimana at the preliminary hearing, praised the decision.
“We welcome this brave decision which is a moment of truth and vindication for Callixte Mbarushimana,” Kaufman told The Associated Press in an email.
Mbarushimana was arrested in Paris in October, 2010, and transferred to the court in The Hague.
He faced 11 charges of war crimes and crimes against humanity but always maintained his innocence.
The FDLR was established by former guerrillas accused of genocide in Rwanda’s 1994 ethnic slaughter. After moving to Congo, the FDLR launched attacks on Rwanda aimed at ousting the government in Kigali.
Knowing they could not win a conventional military campaign, the rebels retreated to the dense forests of eastern Congo and from there went on a yearlong killing spree that left hundreds dead and forced thousands from their homes.
FDLR fighters “killed, raped and tortured civilians in this region. They carried out pillaging and burned down entire villages,” deputy prosecutor Fatou Bensouda told judges in September. Women were raped, often repeatedly and by several attackers in turn, she added.
After the Rwanda genocide, Mbarushimana went to work as a software programmer for the United Nations in Angola and then Kosovo.
He was arrested in Kosovo at the request of Rwanda but released in 2001 because Rwanda failed to properly prepare his indictment. He was later indicted by the Rwanda war crimes tribunal, set up by the U.N. in Tanzania. But his case was dropped.
Gregory Alex, a senior U.N. official who has worked in Rwanda and Congo and has long wanted to see Mbarushimana face trial, told the AP he was disappointed by the decision.
“He should be arrested and tried for his crimes. There should be loud criticism of this,” he said.
Alex said the order to release Mbarushimana comes at a time when authorities have been making headway in efforts to dismantle the FDLR.
“We’ve been making good progress,” he said, adding that 169 FDLR fighters surrendered in November.
Associated Press writer Rukmini Callimachi contributed to this report from Washington, D.C.
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