Dear readers – please find below a commentary written by Olivia Bueno at the International Refugee Rights Initiative (IRRI) in consultation with Congolese activists. The views and opinions expressed here do not necessarily reflect the views and opinions of the International Refugee Rights Initiative or of the Open Society Justice Initiative.
On December 18, 2012, local radio stations, France 24 television (see IRRI’s press review) and the International Criminal Court’s (ICC’s) own outreach section announced the ICC’s second verdict to the population of Ituri: Mathieu Ngudjolo Chui had been acquitted of crimes against humanity and war crimes. As reported on www.katangatrial.org, the decision turned on the failure of the prosecution to prove Ngudjolo’s effective control over the Lendu and Ngiti militias that actually carried out an attack in the village of Bogoro, which was the subject of the charges (read more here). As might have been expected, the reactions to the Ngudjolo verdict were split. In the Lendu and Ngiti communities, there was reportedly satisfaction – even celebration. In the Hema community, there was disappointment, frustration, and anger. For victims, most of whom are Hema, there was disappointment about the failure to hold Ngudjolo accountable.
There are also questions about what this verdict means for the legacy of the ICC in Ituri. Will the verdict further tarnish the court’s already problematic reputation? Will it contribute to heightened tensions between the Hema and Lendu communities?
Satisfaction for the Lendu/Ngiti Community
Activists on the ground described the reaction to the decision in the southern neighborhoods of Bunia town, which have a primarily Lendu population, as joyful. A government employee said that Ngudjolo’s community was “at ease…in brief, they came out victorious before the ICC.” A leader of the Lendu community said, “I am happy and joyous…for me the gentleman remains innocent to this day. Thank God that the ICC and international justice have proven that innocence.” Another respected Lendu man speaking on a local radio station in the days following the decision expressed satisfaction with the vindication of the militia leader, saying that Ngudjolo would have remained working a nurse in Zumbe if not for the urgent need to defend his community.
Disappointment for the Hema
The mood in the Mudzipela neighborhood of Bunia—known as a primarily Hema area— was, however, one of disappointment, anger, and indignation. There were few public statements, but privately they were critical. Some accused the Office of the Prosecutor of treating the Ituri cases lightly and with notorious incompetence. Others saw unfairness: “One cannot condemn people with no blood on their hands such as Thomas Lubanga and leave someone like Ngudjolo at liberty, when he has killed many people with his own hands.” Another Hema leader said, “My community is angry because we were not respected. I am not against the verdict… but no one can ignore what happened in Ituri. People were massacred, but today you want to contend the opposite? I think that sometimes it is necessary to show a sense of responsibility.”
Some questioned the decision of the prosecution in focusing so narrowly on Bogoro. A noted member of the Hema community said, “Everyone saw Mathieu Ngudjolo direct the operations in Bunia on 6-12 May 2003, in the course of which more than 200 civilians were killed and many Hema homes were pillaged and burned…why did the prosecutor refuse to prosecute on the basis of all these facts that are so evident?”
The Reactions of Victims
The trial chamber in the Ngudjolo decision did make efforts to show sensitivity to the victims, underlining in their judgment that the acquittal was not due to any doubt that the population of Bogoro had suffered but rather due to uncertainty about Ngudjolo’s role. Victims with whom the human rights organization Justice Plus works, however, appeared to have lost hope. Many expressed fear of seeing Ngudjolo return in triumph to Ituri. Another human rights NGO, the Ligue pour la Paix, les Droits de l’Homme et la Justice (LIPADHOJ) noted that the community of victims were “seriously disappointed” and that there was a danger that expressions of “joy” on the part of the Lendu community might be seen as “a provocation or as a mark of injustice, which is not favorable to the reconciliation of communities.” A Hema lawyer warned that the verdict might “reinforce the frustration” of victims and encourage the community take matters into their own hands. Not all victims were despondent. One victim interviewed by Justice Plus expressed hope for a conviction in the Katanga case.
A Good Process with a Bad Result?
For some, the court’s decision is appropriate – if disappointing. In the words of one lawyer in Bunia, “This decision is just, but it advances impunity.” For some there was appreciation of the due process protections extended to Ngudjolo. A leader of the Zande community said, “As I understand it, the court has done its work and shown that it cannot take things lightly and that seriousness must always be placed above all else.” An independent journalist and youth representative in Bunia also called the decision “justified,” saying that it “demonstrates the independence of the judges of the ICC vis-à-vis the prosecutor, and shows that the court neutral and credible. In short, it was a good process.” The Zande leader cited above speculated that the impact of the verdict would not be significant because “a lot of time has already passed.”
For others, however, the decision reflected the existence of a real confusion in relation to command responsibility among the militias at that time that would have been difficult to dismiss. One lawyer commented that the court’s decision was made in good conscience because “no one can ignore the fact that at the time the Lendu combatants were not well organized hierarchically with responsible and organized command structure.” This notion was reinforced by the NGOs Justice Plus and Action citoyenne contre l’impunité (ACCI), who recalled that the command structure of the Lendu militias were not well established before the creation of the Ituri Pacification Commission in April 2003. What indiscipline was punished at the time, according to one activist, was pursued under the moral or mystic-spiritual authority of Kakado, a witch doctor.
For its part, the government refused to pass any judgment on the verdict. Its spokesman Lambert Mende told Radio Okapi that “we are not in the habit of passing judgment on the value of decision of jurisdictions, especially those in which we participate through the Rome Statute.”
Concerns about the Process
While some expressed faith in the process others suspected political influence. A gentleman working for the Catholic Church in Ituri asked whether there were other motivations behind the acquittal: “Isn’t it because in history he worked in collusion with President Kabila?”
Others blamed a lack of professionalism in the investigations section of the court. One journalist indicated that he felt that the failure to convict was one which former prosecutor Luis Moreno-Ocampo, not Chambers, should be asked to justify. One Hema intellectual said, “It is high time that the leaders of the court should resign before continuing with the other cases. That way, they would save human lives and avoid the worst.” A human rights defender reflected, “The court is failing in its primary mission in Ituri as a result of the incompetence of the prosecutor, who didn’t want to listen to people when they wanted to speak to him.” A man who was interviewed for this piece said, “The investigations were not well done. Instead of tacking all the violations committed…the ICC chose to consider only the massacre of a single day in Bogoro…the verdict is the worst.” Justice Plus asserted that the decision sent a bad signal for the fight against impunity, and LIPADHOJ said that the prosecution’s failure to prove this case “raises a certain disquiet about other cases before the court.” They pointed out that the case, involving just one massacre on a single day is relatively simple compared to other issues before the ICC and hoped that “the work of the Office of the Prosecutor cannot be reproached for the same levity in the future.”
Rising Tensions Between Communities?
A number of those interviewed expressed concern that the verdict might aggravate tensions between the Hema and Lendu/Ngiti communities. One human rights activist said, “Instead of reconciliation, the court risks making us relive the war here with its decisions.” The DRC Coalition for the ICC expressed fear “that the verdict might be manipulated and endanger peace in Ituri; we therefore call on the ICC prosecutor to further investigate facts and evidence in order to restore trust in the Court’s efficiency in fighting impunity for international crimes.” A youth activist from the region of Aru said the decision’s “impact in society is negative and provokes division, hate, and tribal war…The verdict is bad …no one can ignore the fact that Thomas Lubanga, Mathieu Ngudjolo, and Germain Katanga were all warlords who caused many deaths.” A human rights activist warned that “the Hema community received this acquittal very badly… may the government and the international community be on maximum alert so that the worst does not happen following this acquittal.” Sensitivity to increasing ethnic tensions is evidenced in the reluctance of some of the groups to speak out. Those conducting interviews for this blog, for example, reported that 90 percent of Lendu community leaders refused to answer questions at all. In addition, there was no official statement from the Hema community or the political party associated with Thomas Lubanga.
The Way Forward?
Some of those interviewed emphasized the need the need to find those that are accountable for the crimes that were committed in Ituri. Indeed, some suggested that convictions needed to precede the acquittal. A political scientist said, “We have noted a certain lack of wisdom on the part of the ICC…the court should have begun by condemning the authors of the crimes [at Bogoro] before releasing those that are innocent.” A youth activist from the region of Aru, agreed, “It [the ICC] should have arrested the real authors who committed the crimes against the population in Bogoro before releasing Mathieu Ngudjolo.” The political scientist challenged the ICC to do more: “If Ngudjolo is not the author of the massacres at Bogoro, then who is responsible? If the ICC cannot identify for us those that are responsible, they risk…the loss of the credibility of the court in the eyes of Iturians…[or] the reinforcement of the frustrations of the victims.”
Others argued that additional prosecutions could address tensions. A government employee said, “The ICC should do all that they can to arrest the others that are still active on the ground whose presence might regenerate insecurity at any moment.” A particular concern among those calling for additional prosecutions was for an exploration of government accountability. A primary school teacher said, “I think that the liberation of Ngudjolo is a good thing because he is innocent. It is Kabila who armed those people, it is him that gave weapons to those people. It is not necessary to look further, if condemnation is needed, Kabila must be condemned because it is him that is directly responsible for this massacre.” A local human rights activist noted that additional justice efforts should “begin by arresting all the big fish to block the route to impunity.”
Some looked not to the ICC, but to the Congolese government to take on future prosecutions. ACCI, in a statement made public on December 18, 2012, invited the Congolese authorities to activate complementary mechanisms to prosecute crimes committed by Ngudjolo at the national level. In particular, they drew attention to the massacre committed in May 2003 in Bunia. LIPADHOJ called on the government to pass a law implementing the Rome Statute at the national level to assist other investigations. It is worth noting, however, that the government may face its own difficulties. According to one activist, Ngudjolo was arrested and tried in 2003 by the Tribunal de Grande Instance in Bunia for the kidnapping and murder of a Hema, who was a cadre in the Union of Congolese Patriots (UPC), Thomas Lubanga’s political party, and was acquitted.
Another question looking forward is what will happen to Ngudjolo himself. He is currently in the Netherlands following his release from ICC custody waiting for a UN travel ban to be lifted to allow him to travel back to the DRC. A Hema lawyer expressed concern about the prospect: “My wish is that they would send him to another country or at least another province. Asked about the prospect of Ngudjolo’s return, the government spokesman Mende said that all Congolese “have the right to the protection of the Congolese government. Why would special measures be necessary?”