Following the 1994 Rwandan Genocide, Rwandan Hutus fled the country and many settled in neighboring Democratic Republic of the Congo (DRC). The rebel group Democratic Forces for the Liberation of Rwanda (FDLR) formed from this displaced population. Human Rights Watch reports that since 2000, the group has targeted civilians and is responsible for ethnic massacres, summary executions, abductions, mass rapes, and forced recruitment of children.
The Armed Forces of the Democratic Republic of the Congo (FARDC), in conjunction with the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO), launched a joint military mission against the FDLR in 2009. Since then, the FDLR has progressively lost control of many eastern DRC villages, according to the Secretary General of the United Nations. As membership has decreased, the rebel group has migrated out of villages and into more remote areas. Yet nearly 2000 fighters remain active, and HRW reports that FDLR fighters continue to commit human rights abuses. On November 9, 2015, the UN Security Council called for resumption of joint military efforts, voicing concern about the FDLR’s “persistently high levels of violence and human rights abuses.”
As the Congolese government and MONUSCO have worked together to eliminate the FDLR threat through military action, the International Criminal Court (ICC) has separately sought to hold FDLR leaders accountable for war crimes through the Court. The ICC’s Office of the Prosecutor (OTP) opened an investigation into the situation in the DRC in June of 2004 after the Government of the DRC referred the situation to the Court pursuant to its rights and responsibilities under the Rome Statute, which the DRC ratified in 2002. Since the initial investigation, OTP has brought six DRC cases before the ICC, two of which involved FDLR members. Although other groups have assumed prominence recently in the ongoing violent conflicts in the country, officials still consider the FDLR “one of the most important hindrances of peace in eastern DRC.”
The international community may be hopeful that the judicial process will effectively prosecute FDLR leaders, but the ICC continues to face challenges in its attempt to hold these leaders accountable for their actions in the DRC. In September 2010, the ICC issued an arrest warrant for FDLR Executive Secretary Callixte Mbarushimana, the first issued by the ICC for an FDLR leader. French authorities arrested Mbarushimana a month later and transferred him to The Hague. But, in December 2011, the Pre-Trial Chamber of the ICC decided not to confirm the charges. The Prosecutor’s case failed in large part for lack of direct evidence and questionable interview techniques. The Pre-Trial Chamber found the case’s investigator did not conduct interviews with impartiality and instead asked leading questions and expressed disappointment and impatience with witnesses when their answers did not conform to his hypothesis. Some international commentators have gone so far as to allege the OTP’s evidence was an “almost wholesale copying of Human Rights Watch’s work and other international organizations’ field reports.” The OTP’s second warrant for an FDLR leader, Supreme Commander Sylvestre Mudacumura, faced similar setbacks when the Court initially rejected the application because the allegations were too vague. After amending the request, the Court issued a warrant for Mudacumura’s arrest in July of 2012. Mudacumura is sought for nine counts of war crimes but remains at large.
International support for holding FDLR leaders accountable for war crimes appears strong and unified. The DRC, UN, ICC, HRW, and countries such as the United States and Germany, have all demonstrated a commitment to the effort. While the ICC has not fared well in its attempt to hold FDLR leaders accountable for war crimes, other nations have had more success. On September 28, 2015, a German court sentenced the President and Vice President of the FDLR to thirteen and eight years in a German prison, respectively.
Yet, much work remains, and the arrest of Mudacumura is a top priority. HRW and other commentators have criticized the DRC and MONUSCO for their failure to arrest and turn over Mudacumura to the ICC, who is said to be hiding in a remote area of the DRC. One human rights organization believes the most imperative and immediate need is improved dialogue between the DRC and the ICC stating “[O]nly together can they facilitate the difficult process of bringing the indicted to light.” From there, Human Rights Watch asserts, “the ICC prosecutor has a key role to play in ending this impunity and making sure the cases proceed efficiently.” The OTP will need to build a strong case against him and avoid the evidentiary and investigative mistakes of the Mbarushimana case.