Phil Clark on the prosecution of FDLR members in Germany

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Phil Clark
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Last week, a German court found Ignace Murwanashyaka and Straton Musoni from the Democratic Forces for the Liberation of Rwanda (FDLR) guilty of war crimes. We asked Dr Phil Clark, Reader in Comparative and International Politics at SOAS University of London for more details.

1. Why was the case being tried in Germany?

The Murwanashyaka and Musoni case was tried in Germany because the two men have been living there since the 1990s. A recently passed German law allows for the prosecution of foreign nationals accused of committing serious crimes abroad. In this case, Murwanashyaka and Musoni were accused of orchestrating FDLR attacks in eastern DRC from their homes and offices in Germany. The German authorities were clearly concerned that that their territory was being used as headquarters for massacres and rapes thousands of miles away, which explains their acute interest in this case.

2. What is the siginficance of this case in the broader field of international justice?

The case is significant in international justice terms for two main reasons. First, this shows the importance of universal jurisdiction or the ability of states to prosecute foreign nationals for serious crimes committed abroad, including genocide, war crimes and crimes against humanity. This substantially limits the ability of suspects to seek safe haven overseas.

Second, this is the first successful international prosecution of FDLR crimes. The International Criminal Court case in 2011 against alleged FDLR leader, Callixte Mbarushimana (who had been living in France and was extradited to The Hague), collapsed before it came to trial because the Prosecution evidence was so weak. The ICC Prosecutor relied on evidence gathered mainly by third parties – including the almost wholesale copying of Human Rights Watch’s work  and other international organisations’ field reports – which the ICC judges quickly rejected. The judges lambasted the Prosecution for cutting corners in its investigations in Congo, which has become common practice as a faraway Court, with stretched resources, struggles to come to terms with complex conflicts across Africa. Following the failure of the ICC case, the German judgement is seen as a major legal blow to the FDLR. It also highlights that individual states such as Germany may be more effective in investigating and prosecuting foreign crimes than the ICC.

3. With proceedings happening so far from the DRC, do you think that people affected by the violence will feel that justice has been done?

There has been substantial interest among Congolese citizens in the Murwanashyaka and Musoni case and regular reports on the trial in the Congolese media. Everyday Rwandans have also shown great interest in the trial because both men are accused of playing a senior role in the 1994 genocide in Rwanda, after which they helped establish the FDLR in eastern Congo. My interviews with Congolese victims of FDLR crimes over the last few years suggest that they will be heartened by the conviction of Murwanashyaka and Musoni but deeply concerned by continuing FDLR atrocities, especially in North Kivu. Recent negotiations between Rwandan and Congolese defence chiefs give some hope of a systematic military campaign against the FDLR. However, to date the DRC has shown little willingness to tackle the FDLR, which has been its close ally at different stages over the last decade. The same can be said for the UN Intervention Brigade in eastern Congo which is mandated to target the FDLR but has so far failed to do so in any meaningful sense. Meanwhile, there are reports of  increased FDLR recruitment and attacks in the Kivus, which shows how pressing a coordinated regional solution is.

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