Two leaders of the Democratic Forces for the Liberation of Rwanda (FDLR), Ignace Murwanashyaka and his aide Straton Musoni, were arrested in Germany last Tuesday. While the arrests were praised by human rights groups and the international community, many questions still remain regarding the timing, motivation, jurisdiction and even the charges being brought against the suspected war criminals.

The FDLR is a Hutu militia group whose leadership is comprised largely of escaped Rwandan genocidaires and operates in the eastern Democratic Republic on the Congo. The FDLR began operations in the DRC in 1994 and continue to commit atrocities there to this day. Murwanashyaka and Musoni have lived in Germay for years and have directed FDLR operations in the DRC from there with impunity, until now. Germany had dismissed calls for their arrests in the past from the Rwandan government, the United Nations Organization Mission in the Democratic Republic of the Congo (MONUC), Interpol and the U.N. Security Council.

Several factors could have played a role in Germany’s decision last week. Tensions between the Kabila government in the DRC and MONUC have flared recently. MONUC has been accused of both aiding the FDLR who they are charged with disarming and also participating in war crimes committed by DRC national forces. On top of that, Kabila’s legitimacy as the first democratically elected leader of the DRC in decades continues to suffer under the presence of the large foreign force in the east. This has led DRC officials to talk openly of a MONUC exit strategy and setting benchmarks for a troop draw down. Germany currently has no troops serving in the 20,000+ MONUC forces, but the arrests could help assuage criticism on Germany’s part and either precede a drawdown of UN troops or serve as consolation for an extended MONUC presence.

Another driving force could have been last month’s EU Council meeting where it was resolved that members would become fully compliant with two U.N.S.C. Resolutions imposing restrictive measures on fugitive leaders of the FDLR including “financial and travel sanctions”.

Lastly, the German Justice department recently changed heads with Sabine Leutheusser-Schnarrenberger, a Free Democrat, taking over from Brigitte Zypries, a Democratic Socialist, at the end of October. Leutheusser-Schnarrenberger served a previous term as the Federal Minister for Justice, from 1992-1996, which happened to coincide with the Rwandan genocide.

It is still not clear exactly what charges are being brought against Murwanashayaka and Musoni . It has been reported that they are being charged with terrorism, war crimes and crimes against humanity for crimes committed in the DRC. But there has been no word as to whether they will be tried under German, Congolese or International Law. Meanwhile, Rwanda is asking for jurisdiction to try them for crimes committed during the 1994 Genocide.

Radovan Karadzic stopped boycotting his prosecution for war crimes at The Hague this week adding legitimacy to the trial seen as “seen as key to … closure” for the survivors and victims’ families of the Balkans genocide of the 1990s.  Karadzic also asked this week for time to prepare his defense.  The U.K.’s Channel 4 released several videos this week dealing with the events in the Balkans including a 1993 interview with Karadzic.  You can watch them here. The New York Times calls it a preview of his upcoming defense.  His trial has been postponed until next March.  Below is a transcript of the Channel 4 interview:

Snow:  Now joining us from Belgrade is Dr. Radovan Karadzic the leader of the Bosnian Serbs who has been watching our report in Belgrade.  Dr. Karadzic, this is still more evidence that Serbs are raping Bosnian women.

Karadzic:  Well, as a matter of fact in this war there happened many terrible things on all three sides and committed by all three sides but it is out of question that it was part of any strategy and it is out of question that this was done by knowledge of army officers or civilian authorities.

Snow:  Dr. Karadzic let me stop you there.  There were two testaments there from men in uniform, Serbian men in uniform, who gave the names - the first names - of people who told them to rape these women.  Those are orders.

Karadzic:  Well we will have to make real investigation on that.  I know that some criminals are testifying in Muslim prisons against Serbs and that’s really something that is not true.  This is something that is framed, being staged by Muslim forces.  I know that there was some rapes on civilian side too but never with knowledge of army officers and we are investigating all of allegations.  You know that in the peace you have sexual derelicts and psychopaths who do rapes even in Great Britain - rape people and kill people.

Snow:  Dr Karadzic, this is so widespread.  It is detailed by the E.C.  It is detailed by Amnesty International.  We have detailed it.  I have a list here of 43 camps - places where women are being raped - places as widespread as Visegrad, Doboj, Kitaj Gorod, Sanski Most, Banja Luka, Teslic;  that is all over Bosnia that this is happening and you say ‘well, these are isolated civilian incidents, nobody’s doing this under orders, I’ll look into it’.  It’s not good enough, is it Dr. Karadzic?

Karadzic:  That’s out of question that those campuses exist at all.  We had some open refugee campuses but in prisons for war prisoners there was no civilians let alone women.  So 43 campuses, this is out of question.  All of our prisons are open for the entire media, so Channel 4 send, first send cameras in our prisons.

Snow:  But these women that we have spoken to were civilians.  We’ve seen them.  You’ve seen them on the tape.  They are ordinary Bosnian women.

Karadzic:  But they haven’t been in any prison, they have been in refugee campuses.

Snow:  Well, the differenc between camp or detention or whatever… there are people who stay in camps because they are frightened to go out, that’s the same in a sense as being in a prison.

Karadzic:  But they are not detained by force they are detained by events.  And there may be some abuses and there may be some cases that should be investigated and punished but this is out of question to say that this was a sort of system or sort of strategy.

Snow:  But you see the outgoing Secretary of State in the United States, Lawrence Eagleburger, who is going to stay on in the State Department for the next six weeks, at least, who speaks fluent Serbo-Croatian, he testifies that things are so bad that you personally are going to have to answer as a war criminal at the end of all this.

Karadzic:  I would like you to bring some Serbian woman that have suffered in Muslim prisons and even in whorehouses for Muslim soldiers.  And this is quite unbalanced approach

Snow:  We will of course look into that Dr. Karadzic, there’s no question and Amnesty have also mentioned that that is true.  But what they say is the vast weight of evidence is that the main proportion of victims are Muslim women at the hands of your people.

Karadzic:  No, that’s not the truth and this is not investigated and this is not compared.  And how one can say that since there was no investigation there is any comparison?

Snow:  And your position then on the view that Lawrence Eagleburger testified to, that you should be included on a list of those who should be examined for war crimes at the end of all this?

Karadzic:  This is quite private opinion of Mr. Eagleburger, who also should be trialed for what’s happened to Yugoslavia because he is responsible for what’s happened to Yugoslavia.  But all of my activities (are) quite public and if you knew our generals how they are very strong about morality you would never say that it was with knowledge of army officers or civilian authorities.

The following is an interview with Professor M. Cherif Bassiouni.  Professor Bassiouni has held many positions with the United Nations including Chairman of the Drafting Committee for the Establishment of an International Criminal Court, and Chairman of the Security Council’s Commission to Investigate Violations of International Humanitarian Law in the Former Yugoslavia.  He is currently a Distinguished Research Professor of Law and President of the International Human Rights Law Institute at DePaul University College of Law.  The interview was conducted at his office in Chicago.

In an article in Opinio Juris recently Mark Osiel discussed the context requirements of I.C.C. crimes.  War Crimes have to be committed within the nexus of an armed conflict; Crimes Against Humanity have to be widespread and systematic and reflecting of a State or organizational policy; Aggression must me linked to State policy;  for Genocide as Osiel put it, “the contextual element would be the defendant’s knowledge of, and/or contribution to similar acts of genocide in the relevant political environment.” - What is the purpose of the context requirement?

What is meant by the text in the Rome Statute is the delineation of substantive and jurisdictional criteria for the crimes committed.  For instance a traffic violation on a highway may fall under a local jurisdiction but at the same time may also fall under State level jurisdiction.  A crime may fit the requirements of a lesser State crime, but once it fulfills the requirements of a Rome Statute law it also falls under international jurisdiction if the relevant States are signatories and are unable or unwilling to hold the perpetrators accountable.  Also, there is no War Crime if it is only a lone killer releasing poison gas on the subway with only the motivation to kill; it has to be a part of a political conflict, otherwise there are generally other appropriate state level mechanisms to prosecute the crime.  This is not to say that the philosophical discussion engaged by Mr. Osiel is of no value – it  is useful to examine our foundational motivations in the prosecution of war crimes.  However, it has no real bearing to the purpose the contextual requirements serve in the Rome Statute.

Recently ICC Prosecutor Luis Moreno Ocampo announced preliminary investigations into situations into countries where the context is perhaps pushing the boundary of what the Court has previously considered.  Let me ask you your opinion on a couple of these situations.

Afghanistan and Colombia - You have a unique perspective here as former U.N. Human Rights Commission’s independent expert on human rights in Afghanistan - Are civilian Afghan casualties caused by the U.S. on a grave enough scale to be considered by the I.C.C.?  And are FARC activities systematic and widespread enough to qualify as Crimes Against Humanity?

Well, there are two things I would point out.  The first is that I don’t consider the scale of the offense to be an issue.  If an American commander called for the bombing of a single Afghan wedding party we need to find out if that was done based on bad intelligence, which would be terrible but not a War Crime, or if it was a result of purposive action which would make it a War Crime.  Then again even if it is based on bad intelligence but it happens over and over again, then it becomes systematic and would then possibly fall under the definition of War Crimes.

The second is that it is also important to acknowledge that there is no legal justification to expand the jurisdiction of the ICC for Crimes Against Humanity to cases that don’t fit the definitions in the Rome Statute.  As such, many investigations currently considered by the ICC Prosecution would not fall under the jurisdiction set out by the Rome Statute.  So, the ICC has no technical jurisdiction over the F.A.R.C.’s crimes in Colombia.  That is not to say that they haven’t committed crimes that are worthy of prosecution before the ICC from a gravity standpoint.  It is just to say that the current language of the law does not allow for it.  Now, we can twist the language and pretend that it does, but that would be disingenuous.  Some people point to the phrase concerning Crimes Against Humanity: any “attack directed against any civilian population means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack” to mean that organizational policy could subsume an organization other than a State.  As the person that suggested that text for the treaty I can say that I had meant it only in the context of sub-national organizations that were under government control but had a degree of autonomy.  The text of the Rome Statute simply does not support the notion that the scope of War Crimes can be expanded.  However, that is a gap in International Law that should be addressed.

How can it be addressed?

The Rome Statute could be amended, which is almost impossible (requiring 7/8 of signatories’ approval), or prosecutors could skirt the actual definition of ICC crimes as has been increasingly the case.  I will not denigrate this practice; many terrible offenses that probably should be considered War Crimes are committed outside of the purview of the ICC and if the only recourse is to bend the definition of War Crimes then we should look at the situation very carefully before we admit or dismiss such a case before the ICC.

You recently discussed a dichotomy in legitimacy outcomes for State and non-State actors when they violate International Humanitarian Law in internal conflicts.  The dichotomy is that as a State actor that violates IHL becomes less legitimate in the eyes of the public, non-State IHL violators’ - so-called terrorists - legitimacy is (perceived to have) increased by engaging in such acts.  This dichotomy is an important reason why weaker, non-State actors engage in ‘asymmetrical’ warfare.  To force them to comply with IHL would condemn them to defeat at the hands of more powerful State actors.   At some point these IHL violations become War Crimes and Crimes Against Humanity.  How do we reconcile the humanitarian values behind prosecuting IHL violations, War Crimes, and Crimes Against Humanity;  and the effective condemnation of some (this is not to say the majority or even many) marginalized groups that have legitimate political grievances and that are oppressed and unable to redress their grievances through the political process and cannot attain a successful conventional military outcome?

In the current environment we can’t.  In the future when we consider issues like this it will be necessary to consider incentives for non-State actors to comply with humanitarian regulations.  If we don’t then we are indeed further marginalizing groups that don’t have the resources to fight their own marginalization.  Even though Crimes Against Humanity are set up to prevent and prosecute perpetrators of severe injustice, they also functionally serve the interests of the strong over the weak.  It will take a concerted effort to work toward a more equitable system of law.