International Justice Monitor

A project of the Open Society Justice Initiative

Ngudjolo Acquitted by ICC

Today the judges of Trial Chamber II acquitted Mathieu Ngudjolo Chui of all charges in the International Criminal Court’s second judgment.

“If an allegation has not been proven beyond all reasonable doubt this does not necessarily mean that the alleged act did not occur. Declaring a person not guilty does not mean the Chamber is convinced of the person’s innocence; just that they are not convinced of the person’s guilt as charged,” Presiding Judge Bruno Cotte noted.

The judges concluded that the prosecution had failed to prove beyond a reasonable doubt that Ngudjolo was the commander of a group of Lendu combatants (also called the Front des Nationalistes et Intégrationnistes (FNI, National Integration Front)) from the Ituri region of the Democratic Republic of the Congo (DRC). The Judges based all of their findings today on Ngudjolo’s authority over the FNI. It did not make any findings about the crimes themselves.

Ngudjolo was charged with seven counts of war crimes (using children under the age of fifteen to take active part in hostilities; directing an attack against civilians; willful killing; destruction of property; pillaging; sexual slavery; and rape) and three counts of crimes against humanity (murder, rape and sexual slavery) allegedly committed during an attack on the village of Bogoro on February 24, 2003.

For all of the crimes except those related to child soldiers, he is accused of having committed the crimes through “indirect co-perpetration,” where the accused used a hierarchical organization (the FNI) to carry out the crimes. This means that Ngudjolo allegedly controlled the combatants who physically committed the crimes. The prosecution alleged that Ngudjolo was directly liable for the crime involving child soldiers. The prosecution also claimed that Ngudjolo and Germain Katanga had a common plan to “wipe out” Bogoro and its Hema inhabitants.

Ngudjolo pleaded not guilty to all charges. He did not deny that atrocities were committed in Bogoro. However, he denied that he commanded the FNI during the attack. He claimed he was not in Bogoro on the day of the attack and that he did not meet Katanga until after the attack had already taken place. The Ngudjolo defense argued that the prosecution had failed to prove a link between Ngudjolo and the crimes. Rather, the Ngudjolo defense placed the blame for the attack squarely on DRC President Joseph Kabila. Kabila himself planned the Bogoro attack, the Ngudjolo defense contended, because Kabila wanted to regain control over Ituri.

The judges largely followed this line of defense. They found that there was insufficient evidence to conclude beyond a reasonable doubt that Ngudjolo was the commander of the Lendu militia based in the Bedu-Ezekere groupment. The chamber considered that just because Ngudjolo became a leader of the group in March 2003 did not mean he was a leader at the time of the attack on Bogoro. The judges did not note any findings on who might have been responsible for the attack.

Ngudjolo’s Authority Over the FNI

The judges had to determine whether Ngudjolo committed the alleged crimes through his alleged control over Lendu combatants from Bedu-Ezekere.

The prosecution argued that Ngudjolo commanded the FNI and was in Bogoro on the day of the attack. This was confirmed by video evidence, the prosecution submitted.

Ngudjolo testified that he had been a nurse and healthcare worker during most of the conflict, and was unassociated with the FNI until after the Bogoro attack. On the day of the attack Ngudjolo said he was in Zumbe helping a woman give birth. He claimed that he did not learn of the FNI until March 18, 2003, when he met with Floribert Njabu, President of the FNI. Ngudjolo said that Njabu asked him to get involved with the organization. On March 22, 2003, he said, he was appointed as Deputy Chief in charge of FNI operations. However, the group was quickly integrated into the national army. Therefore, he testified, he did not carry out any military operations.

The testimony of a key defense witness, Emmanuel Ngabu Mandro, a.k.a. “Chief Manu”, the Chief of Zumbe, supported Ngudjolo’s claims. Chief Manu testified that Ngudjolo was not the commander of the FNI at the time of the Bogoro attack. The witness said that Ngudjolo was a nurse at the Zumbe health center, and therefore not in a position to give orders. Chief Manu said that Ngudjolo did not become the leader of the FNI until after March 18, 2003, about a month after the attack on Bogoro. At that time, he “reached an agreement” with the FNI, and stayed in Bunia as its leader.

The judges found that the prosecution had not proven beyond a reasonable doubt that Ngudjolo was the commander of the Lendu militia at the time of the attack on Bogoro. This was based on the lack of credible evidence provided by the prosecution. The judges also found that the testimony of three key prosecution witnesses, P250, P279 and P280, was too contradictory and imprecise to form the basis of a conviction. The Chamber also found that testimony from other prosecution witnesses lacked sufficient credibility to prove that Ngudjolo was the commander of the combatants from Bedu-Ezekere.  On the other hand, the chamber found that the testimony of a key Ngudjolo witness, Chief Manu, was credible, although it treated his testimony about Ngudjolo’s responsibility with caution.

With respect to the charge of using children under the age of 15 to actively participate in hostilities, Ngudjolo was charged directly with this crime. The prosecution alleged that Ngudjolo had himself used child soldiers as bodyguards and had ordered that they receive military training. However, the chamber concluded that although the combatants used child soldiers in the Bogoro attack, there was insufficient evidence to link Ngudjolo to these crimes.

The Attack on Bogoro

The prosecution focused its case on the February 24, 2003 attack on Bogoro, a village in the Eastern DRC region of Ituri. The attack began in the early hours of the morning, the prosecution claims. Lendu and Ngiti soldiers—some of them allegedly children—descended on the village while most villagers were still sleeping. They proceeded to kill, rape, burn, loot, and pillage, the prosecution alleges. Women who survived the attack were purportedly then taken as sexual slaves, used by FNI and FRPI soldiers.

The chamber noted that even though it had found that Ngudjolo was not personally responsible for the atrocities committed in Bogoro, this “does not in any manner mean the Chamber is of the opinion that no crimes were committed in Bogoro. This does not in any way put in question what befell the people in question on that day,” Presiding Judge Cotte said.

Impact of the Judgment

This judgment is another reminder that cases before the International Criminal Court will face the highest evidentiary standards and that the accused are truly believed innocent until proven guilty beyond a reasonable doubt. It also reflects ongoing challenges faced by the Office of the Prosecutor. Trial Chamber I in the trial of Thomas Lubanga, the first ICC judgment, harshly criticized the prosecution for the quality of its evidence and its charging strategy. Although the judges in this case did not make any overt criticisms of the prosecution, this decision is a blow to the legacy of the first ten years of the ICC’s Office of the Prosecutor (OTP). It suggests that the new prosecutor, Fatou Bensouda, will need to make significant changes to the OTP’s prosecution and investigation procedures in order to preserve the integrity of the court.

The judgment will also have an impact in Ituri, where the work by the ICC has been questioned by some. The acquittal of a Lendu leader just after the conviction of a Hema leader could also exacerbate ethnic tensions in the Ituri region of the DRC. While reactions on the ground before the judgment were reserved, this judgment could be interpreted along ethnic lines and reinforce related narratives about the Ituri conflict. Moreover, at least until the Katanga judgment is rendered, it leaves victims without answers about who is responsible for the crimes committed during the Bogoro attack.

Release of Ngudjolo Pending Appeal

The chamber ordered the registry to make preparations for the immediate release of Ngudjolo. The prosecution made an application to appeal this decision, arguing that Ngudjolo should remain in detention pending an appeal of the judgment. A hearing on the matter will be held this afternoon and a determination made before the end of the day.

The Severance of the Ngudjolo and Katanga Cases

On November 21, 2012, a majority of Trial Chamber II, Judge Christine Van Den Wyngaert dissenting, informed the parties that it was considering a re-characterization of the facts of the case concerning the mode of liability applicable to Germain Katanga. The Majority recognized that these changes would prolong the trial of Germain Katanga and decided that it was unnecessary to delay the judgment in the case of Mathieu Ngudjolo. Therefore, in order to avoid potential violations of Ngudjolo’s right to a trial without undue delay, the Majority severed the charges. The Katanga defense has indicated that it will appeal this decision.

 

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