Mbarushimana, arrested by the French authorities in 2010 and transferred to The Hague in 2011, was charged with five counts of crimes against humanity and eight counts of war crimes for his alleged role as the Executive Secretary of the Forces Démocratiques pour la Libération du Rwanda ("FDLR"). The Prosecution alleged that, in 2009, the FDLR attacked civilians and created a "humanitarian catastrophe" in the Kivu provinces of the Democratic Republic of Congo ("DRC") in order to bring attention to the group's political demands. These attacks, the Prosecution argued, resulted in the commission of several war crimes and crimes against humanity. Furthermore, according to the Prosecution, "a significant part of the strategy of attacking the civilian population consisted in publicly denying any responsibility of the FDLR for the losses entailed by those attacks, in some instances blaming other armed parties to the conflict." The systematic denial was meant to "prevent the FDLR's leaders from being labeled as mass murderers, on the one hand, and at exploiting the international attention on the FDLR and its political agenda triggered by the attacks, on the other." Mbarushimana was personally responsible, the Prosecution argued, because his public denials of the alleged crimes "intentionally contributed . . . to the commission of the war crimes and crimes against humanity."
Mbarushimana claimed that the evidence provided by the Prosecution did not support its claims that the attacks were carried out by the FDLR. Furthermore, if civilians were killed during the attacks, these casualties were "the 'collateral damage' of operations aimed at engaging the stronghold of the FARDC (DRC governmental Forces Armées de la République Démocratique du Congo), who located their troops among the civilian population." Finally, civilian deaths caused by FDLR soldiers "were not authorised by the FDLR leadership, namely by President Murwanashyaka and Commander Mudacumura."
Before addressing the merits of the request to confirm the charges, the Chamber criticized both parties' conduct throughout the proceedings, which, the Chamber noted, resulted in unnecessary delays. The Chamber reminded the parties that the "Court is meant to become a beacon for litigation in international criminal law. For these reasons, it invites both parties to critically assess their conduct throughout these proceedings, with the hope that such critical assessment will allow them to learn important lessons for their future engagements before this Court."
The Chamber then went on to discuss the merits of the case. Referring to Article 61(7) of the ICC Statute, the Chamber noted that its task at this stage of the proceedings was to "determine whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged." This test, the Chamber added, is meant to ensure that only those individuals "against whom sufficiently compelling charges going beyond mere theory or suspicion have been brought" are prosecuted, thus protecting innocent persons from being wrongfully tried, while also ensuring judicial economy by eliminating unsubstantiated trials.
At the outset of its determination, the Chamber openly criticized the Prosecution for its presentation of evidence, which the Chamber found incoherent and unreliable. In fact, the Chamber observed that it was unable to "properly assess, let alone satisfy itself to the required threshold, whether any of the war crimes charged by the Prosecution were committed by the FDLR in . . . several villages." Where the evidence was sufficient to warrant review, the Chamber nonetheless found that the Prosecution failed to reach the evidentiary threshold required by the ICC Statute. The same determination was made with respect to the alleged crimes against humanity committed by Mbarushimana.
Presiding Judge Sanji Mmasenono Monageng dissented with the majority's decision. She concluded that sufficient evidence existed "to establish to the required threshold" that the FDLR leadership issued the order to create a humanitarian catastrophe. According to Judge Monageng, the majority's finding was based on an "incorrect application of the standard of 'substantial grounds to believe."