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Seth Engel

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Releasing Callixte: the Best Decision the ICC Has Ever Made

Posted: 12/21/11 02:44 PM ET

There has finally been a decision for which I would applaud the International Criminal Court (ICC). Last week the Pre-Trial Chamber I (PTC-I) ordered the release of Callixte Mbarushimana, the former Executive Secretary of the Forces Démocratiques pour la Libération du Rwanda (FDLR) in the Democratic Republic of Congo (DRC). (Whew, that's a lot of acronyms.)

NGOs and the ICC Prosecution would have blithely sentenced Mbarushimana before the trial even began -- ICC Prosecutor Luis Moreno-Ocampo got in the act by publicly declaring that Mbarushimana had "personally and intentionally contributed to a common plan of conducting attacks against the civilian population" with the aim of creating a "humanitarian catastrophe."

Last week's dismissal of the charges were the best thing that could possibly happen for the ICC, the DRC, and international justice in general. Let me explain why.

Most criminal law systems begin a criminal process with an indictment which will lead to trial, unless there is a plea bargain disposition to the case (a uniquely Anglo-American phenomenon). In the ICC, however, there is an additional step -- the confirmation of charges.

Brace yourself here for a bit of legal jargon. What is commonly referred to as an "indictment" at the ICC is actually the issuance of an arrest warrant or a "summons to appear" for the suspects by a Pre-Trial Chamber (PTC), which under Article 15 of the Rome Statute requires sufficient evidence to provide a "reasonable basis" to believe that the crimes were committed. Once a suspect has been arrested or has voluntarily appeared in response to a summons, however, the charge still must be "confirmed" -- that is, the PTC must find sufficient evidence to find "substantial grounds" that the crimes were committed. In this way, Article 61(7) of the Statute sets up an even higher hurdle for the prosecution to clear in order for the case to be propelled to trial. If he fails to do so, the suspect must be dismissed. This had not yet happened in the history of the Court -- until last week.

Callixte Mbarushimana was arrested at his home in Paris in 2010 by French authorities in order to fulfill an arrest warrant issued by the Court in September 2010. After months of hearings, the PTC-I decided not to confirm the charges, and the Prosecutor's appeal was rejected. This would have required Mbarushimana's immediate release from custody was he not still subject to a UN travel ban. But wait a second -- it looks like a man who is at the least affiliated with a genocidal militia has been set free. How is this a good thing?

Firstly, last week's dismissal shows the world that the ICC will indeed dismiss charges when they are unfounded and/or poorly delineated. In fact, the PTC-I criticized the Prosecutor for its ambiguous and vague charging document in paragraphs 82 through 85 of the December 16 decision. This allays the fears of non-state parties, such as the USA, that the Prosecutor is dangerously unaccountable and potentially a political actor. It also serves to undermine arguments of defiant African member states that have been bucking ICC rulings in protest of its alleged anti-African bias.

Secondly, and on a(n even) more nerdy note, the decision distinguished between two forms of individual criminal liability, filling what was previously a huge gap in ICC case law. After the breakup of Yugoslavia, the UN's International Criminal Tribunal for Yugoslavia (ICTY) created a form of extended liability known as joint criminal enterprise, or JCE, which essentially holds all members of a group equally liable for a common criminal plan and purpose, as long as each member made a "significant" contribution to the plan. JCE expanded liability to encompass the unique circumstances of modern war crimes and crimes against humanity, as exemplified by radical Serbian armed groups. So-called JCE III, however, went even further in holding all members of a group liable for one member's actions, even if they went beyond the original plan or purpose. For example, if a group of Serbian soldiers planned on pillaging a Bosnian town but one especially sadistic soldier decided to gun down the entire village, the entire squad could be held liable for the murders.

In the December 16 decision, the PTC-I stated that the Rome Statute requires "significant" contributions to a common plan, not just "substantial" contributions as required by ICTY JCE jurisprudence. The PTC-I found that Mbarushimana's press releases regarding FDLR actions, written from Paris and apparently unread by soldiers on the ground in the DRC, did not constitute "any contribution to the commission of such crimes, even less a 'significant' one." This decision therefore definitively distanced the ICC from the over-extension of criminal liability imposed by the ICTY JCE decisions.

It's easy to say that dictators, tyrants, terrorists, or people involved with allegedly criminal organizations are guilty and deserve to be shot. My Facebook news feed seethes with these comments every time a Gaddafi or Kim Jon Il dies ("Burn in hell!" said one informed observer from *cough* Long Island). It is important to remember, however, that we no longer live in an age where we can summarily execute those who are responsible for the gravest of atrocities. Even Gaddafi deserved a trial, and the fact that he was executed by rebel forces is a tragedy (not to mention a war crime). Only in this way will those who would otherwise commit genocide, mass rape, or torture see that impunity for dictators has vanished, and that even the most powerful are subject to the bounds of law and humanity. Last week's decision by the PTC-I judges furthers this cause more than any conviction ever could have. And for that, I applaud them.