International Criminal Court judges refused Monday to block the release of a Rwandan rebel prosecutors accuse of involvement in deadly attacks by a Hutu militia on villages in Congo in 2009.
The pre-trial judges ordered the release of Callixte Mbarushimana on Friday after dismissing all charges against him for lack of evidence. If he is freed, Mbarushimana would be the first suspect released from ICC custody since the court's inception in 2002.
Prosecutors had said they would appeal the ruling and asked the court to delay Mbarushimana's release pending the outcome of the appeal. But in Monday's written decision, judges ruled that Mbarushimana can no longer be detained because the 11 charges against him have been dismissed.
"A warrant of arrest previously issued ceases to have effect with respect to any charges not confirmed by the Pre-Trial Chamber," the judges wrote.
In a final bid to prevent Mbarushimana's release, prosecutors took their case to the court's appeals chamber, urging that panel not to free him until a final decision on the appeal and warning that, "if released, (he) has the means to interfere with the investigation, to commit crimes, and to abscond."
Mbarushimana has asked to be released to France, where he lived before his arrest in October 2010.
"We need to contact French authorities and see if they accept him," said court spokesman Fadi El Abdallah.
In a written filing, Mbarushimana's lawyer Arthur Vercken said he considered his client's ongoing detention to be "arbitrary" and urged his immediate release to France, "a country which has granted him the status of political refugee, and where he has had a valid residence permit since 2003."
Prosecutors accused Mbarushimana of being a senior member of the Democratic Forces for the Liberation of Rwanda, known by its French acronym the FDLR. The group is accused of unleashing savage attacks on civilians in the North and South Kivu provinces of Congo as a "bargaining tool" to win power.
The case against Mbarushimana was unusual as it alleged his role in the attacks was to orchestrate "an international campaign of propaganda and extortion" to force Rwanda to accept the return of the rebels who had fled the country after its 1994 genocide.
In a majority decision last week, a three-judge panel that heard a summary of evidence at a hearing in September ruled that it was "not sufficient to establish substantial grounds to believe that the Suspect encouraged the troops' morale through his press releases and radio messages."
Had the panel ruled otherwise, Mbarushimana would have gone on trial in front of a different set of judges.
He faced 11 charges of war crimes and crimes against humanity including murder, rape and persecution but always maintained his innocence.
The FDLR was established by former guerrillas accused of genocide in Rwanda's 1994 ethnic slaughter. After moving to Congo, the FDLR launched attacks on Rwanda aimed at ousting the government in Kigali.
Knowing they could not win a conventional military campaign, they went on a yearlong killing spree in Congo that left hundreds dead and forced thousands from their homes.