The German Federal Court of Justice (Bundesgerichtshof, BGH) in Karlsruhe recently announced in a press release its much-anticipated decision in a Congo War Crimes case. The BGH, Germany’s court of last resort in all matters of criminal and private law, partly overturned a 13-year prison sentence imposed on Ignace Murwanashyaka by the Stuttgart Higher Regional Court (Oberlandesgericht, OLG) in 2015. Murwanashyaka was the president of the Democratic Forces for the Liberation of Rwanda (Forces démocratiques de libération du Rwanda, FDLR), a Hutu rebel group active in eastern Democratic Republic of Congo (DRC) since 2000 that has committed heinous crimes against civilians in its quest to topple the current government in Kigali, Rwanda.
The lower OLG had found Murwanashyaka, as well as his vice-president, Straton Musoni, both of whom reside in and conducted activities from southern Germany, guilty of leadership of a terrorist group pursuant to §§ 129a and 129b of the German Criminal Code. The OLG had also found Murwanashyaka guilty of aiding four war crimes committed by the FDLR; these charges proceeded under the German Code of Crimes against International Law (Völkerstrafgesetzbuch, VStGB), a criminal statute that prohibits international crimes and allows for prosecutions on the basis of universal jurisdiction. Since both defendants had been in custody since 2009, Musoni has already served his 8-year sentence, while Murwanashyaka remains in detention. Upon review of the OLG’s decision, the higher BGH diverged from the lower court’s opinion on Dec. 20, 2018, and affirmed that the FDLR did not just commit war crimes, but also crimes against humanity. Nevertheless, with respect to the specific defendants’ liability, it upheld the convictions based on leadership of a terrorist group, but overturned Murwanashyaka’s conviction for complicity in war crimes. In doing so, the Court delivered a blow to VStGB international crimes litigation in Germany.
The FDLR case was the first VStGB case ever heard by Germany’s highest court. Germany adopted the VStGB in 2002 pursuant to its obligations under the Rome Statute of the International Criminal Court in order to make international crimes justiciable at the domestic level. Not a single trial took place under the new law during its first five years, leading some critics to label it “a law without application.” Though § 1 of the statute allows for “pure” universal jurisdiction, which is to say prosecutions of crimes with no tangible link to Germany, universal jurisdiction complaints that were filed, including by human rights groups, were not investigated or were ultimately dismissed. This is due to the wide discretion that the Federal Prosecutor enjoys when it comes to extraterritorial VStGB cases (cf. the prosecutor’s discretion in non-extraterritorial cases, § 153f of the German Code of Criminal Procedure).
This inaction began to change in 2008 with the creation of a war crimes unit within the Federal Prosecutor’s Office and the subsequent investigations into the FDLR’s leadership and a former Rwandan mayor residing in Germany. With the punishable acts having been committed in southern Germany, the Federal Prosecutor was obliged to initiate investigations according to the official principle (Offizialprinzip, § 152 of the German Code of Criminal Procedure), which obliges the Prosecutor “to take action in relation to all prosecutable criminal offences, provided there are sufficient factual indications.” It was these factors that led to the trial against Murwanashyaka and Musoni before the OLG Stuttgart, which lasted from May 2011 until September 2015.
The War Crimes Counts
In vacating Murwanashyaka’s conviction under the VStGB, the BGH determined that prosecutors had not adequately proven that the defendant aided and abetted war crimes. In 2015, the lower OLG court had found that Murwanashyaka was knowingly complicit in the FDLR’s raiding and pillaging of four villages, which resulted in the deaths of at least 181 people. Specifically, the OLG held that he physically facilitated the war crimes by providing satellite and mobile phones, and that he encouraged the troops to commit the crimes by producing propaganda that knowingly disclaimed, trivialized, and denied the perpetration of war crimes.
The BGH found that the OLG’s findings concerning the link between the supporting acts by the defendant and the actual crimes were insufficient to carry a conviction for aiding and abetting. Specifically, the BGH found that it was unable to appreciate the extent to which Murwanashyaka’s supportive acts in Germany, e.g. his provision of satellite and mobile phones, furthered the specific war crimes and crimes against humanity committed by FDLR troops on the ground in the DRC. In this regard, the Court characterized some of the lower court’s findings as “unclear” and “not without inconsistencies,” an exceptionally blunt expression of criticism for a German court. Though the BGH largely upheld the findings of fact on FDLR’s crimes and structure, and even diverged from the lower court in finding that the FDLR committed crimes against humanity, the BGH vacated the findings of fact on the role of the accused in these crimes and structures and the pertinent legal reasoning.
It remains to be seen if the BGH’s full written judgment, which will be released in early 2019, will opine on the requirements to establish complicity in international crimes in more detail. Also outstanding is whether the trial court will convict Murwanashyaka for aiding and abetting in a rehearing that will likely include new evidence. Notably, the Federal Prosecutor had also appealed the trial court’s decision, arguing for a conviction on the basis of Murwanashyaka’s command responsibility per § 4 of the VStGB. The BGH ruled that Murwanashyaka lacked the necessary “effective control” over the troops in the DRC in order to apply the § 4 provision.
The question of command responsibility is now on the table again with the prospect of new evidence. It is difficult to imagine how the prosecutor can secure a conviction on the basis of command responsibility, however, given the BGH’s ruling on aiding and abetting. Though the BGH FDLR decision was admittedly the product of a cumbersome and lengthy process, the Court’s overturning of Murwanashyaka’s war crimes conviction was overall a disappointment for advocates of international criminal law in Germany.
Other Impediments in the Case
While this aiding and abetting issue is the most recent troublesome development in the FDLR proceedings, it has not been the only one plaguing this unique international crimes case. For example, despite the prevalence of wartime gender-based violence in the region (see the work of the 2018 Nobel Laureate Denis Mukwege), the Court dropped all FDLR sexual violence charges over the course of the proceedings due to corroboration issues. Specifically, the Court expressed doubts as to whether the evidence gathered, which was mainly anonymous victim testimony, was sufficient to buttress a conviction. This raises the question of whether a more meticulous investigation might have led to a court judgment on instances of sexual violence.
Moreover, even though under German criminal procedure law, victims of certain crimes can join the proceedings as a “private accessory prosecutor” (Nebenklage) and gain participatory rights in the trial, no victim availed him- or herself of this mechanism in the case. While victims’ security and pecuniary concerns might have impacted the use of the mechanism, it is also unclear whether German officials informed victims of their full rights, including to legal representation, during the pre-trial investigation. Furthermore, though universal jurisdiction prioritizes deterrence and redress, German authorities failed to develop a robust communication strategy toward victim communities that would bolster these goals. In fact, the Stuttgart court’s press office published updates exclusively in German, suggesting that authorities did not prioritize a victim-centered approach.
The Use of Universal Jurisdiction in Other Situations
As much as the FDLR case was a learning experience for the German Federal Prosecutor’s Office, it is to be hoped that the case’s shortcomings do not reverberate beyond the FDLR proceedings. Germany continues to pursue cases under universal jurisdiction in the Syrian context, particularly through “structural investigations” devoted to Syria and Iraq, i.e. broad investigations, without specific suspects, aimed at gathering evidence available in Germany to facilitate future criminal proceedings before German or other courts. There are currently 80 ongoing investigations with specific suspects, about half of them concerning Syria and Iraq. The Prosecutor has also secured war crimes convictions against Syrian non-state actors on the basis on the VStGB.
Armed with the VStGB, a modern code of international crimes, and, since October 2018, a second war crimes unit within Federal Criminal Police, Germany is playing a leading role in the investigation and adjudication of international crimes. Indeed, German civil society, including the European Center for Constitutional and Human Rights (ECCHR), is pushing for the German Federal Prosecutor to continue pursuing other mass atrocity cases characterized by state impunity. Such appeals have been particularly successful in the context of the Syrian War, where various criminal complaints lodged by ECCHR on behalf of Syrian victims have yielded an international arrest warrant for Jamil Hassan, head of the Syrian Air Force Intelligence Services and perpetrator of, inter alia, torture, crimes against humanity, and war crimes.
It is also to be hoped that the lessons from this first trial under the VStGB are appreciated beyond the borders of Germany. Indeed, like German authorities, prosecutors in other European countries have begun to look into allegations of international crimes in Syria pursuant to universal jurisdiction and other related statutes. In November 2018, a French judge issued arrest warrants against Ali Mamlouk, head of Syria’s National Security Bureau, and Jamil Hassan for their roles in torture, enforced disappearances, crimes against humanity, and war crimes. Austrian authorities have also initiated investigations into the Syrian Intelligence Services’ role in systematic torture following a criminal complaint submitted by 16 Syrian women and men to the Public Prosecutor in Vienna in May 2018. Probes against Syrian non-state actors have, too, led to investigations, charges, and, in some cases, convictions in places such as Sweden, Norway, the Netherlands, Switzerland, and Finland.
The FDLR decision, while only binding in Germany, may have persuasive influence in these and future international crime proceedings, whether with respect to modes of liability or otherwise. Indeed, it is one very important piece of the international justice movement crystallizing in Europe and beyond.
The FDLR case represents an important step by German authorities in recognizing a lesson from Nuremberg: when it comes to international crimes, national borders are secondary to impunity. The very fact that a trial took place is remarkable given that international crimes proceedings were unfathomable in most national jurisdictions even just 20 years ago. The BGH even vindicated the role of international criminal law by diverging from the lower court’s opinion and affirming that the FDLR did indeed commit crimes against humanity, not just war crimes.
Despite these successes, the BGH’s decision highlights that the FDLR proceedings leave much to be desired. Whether in the Court’s treatment of modes of liability or sexual violence, or in German authorities’ questionable victim interaction, there is room for improvement. The proceedings also served as a reminder of the inherent difficulties in transnational litigation, particularly as it relates to the collection of evidence overseas and the mutual legal assistance of territorial states (in this case Rwanda and the DRC), both of which were costly, bureaucratic, and time-consuming.
As international crimes proceedings become more commonplace in Germany and Europe, including on the basis of universal jurisdiction, international justice advocates are hoping that the FDLR proceedings will serve a positive role in the creation of good practices. With the rehearing of Murwanashyaka’s war crimes conviction before the lower court in Stuttgart coming up, it will be seen whether the Court pays heed. After 4 ½ years and 320 trial days for the OLG’s decision of first instance, it is the least the Court can do now for those who have and may continue to suffer as collateral damage of the Congolese Civil War.