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Prosecution appeals Trial Chamber II's judgement acquitting Ngudjolo

Dear Readers,

The following commentary first ran in the third Special Issue of Legal Eye on the ICC, a regular eLetter produced by the Women’s Initiatives for Gender Justice, an international women’s human rights organization that advocates for gender justice through the International Criminal Court (ICC) and works with women most affected by the conflict situations under investigation by the ICC. The views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative. To read the full version of the Special Issue of the Legal Eye eLetter, including an article on Ngudjolo’s release from Schipol immigration detention center on May 4, 2013, click here. To read the previous Special Issues, click here.  

On December 18, 2012, in the ICC’s second trial judgement, Trial Chamber II[i] acquitted Mathieu Ngudjolo Chui (Ngudjolo) of all crimes charged by the Prosecution in the case The Prosecutor v. Mathieu Ngudjolo Chui.[ii] Ngudjolo was tried jointly with Germain Katanga (Katanga). It was the first case in which crimes of sexual violence had been charged,[iii] and the second case, after the Lubanga case, arising from the DRC Situation. The case centred on an attack on the village of Bogoro in the Ituri region by the Front des nationalistes et intégrationnistes (FNI) and the Force de résistance patriotique en Ituri (FRPI) on February 24, 2003. Katanga and Ngudjolo were the alleged commanders of the FRPI and FNI, respectively. On November 21, 2012, Trial Chamber II by Majority severed Ngudjolo case from the Katanga case.[iv]

Ngudjolo was charged under Article 25(3)(a) of the Statute with seven counts of war crimes: rape, sexual slavery, wilful killings, directing attack against a civilian population, using children under the age of 15 to take active part in the hostilities, destruction of property, and pillaging.[v] He was also charged with three counts of crimes against humanity: rape, sexual slavery and murder.[vi]

As described in greater detail in the first Special Issue of Legal Eye on the ICC on the Ngudjolo trial judgement, the trial judgment principally consisted of the Trial Chamber’s factual conclusions related to the organization and structure of the Lendu combatants from Bedu-Ezekere within the relevant period, including Ngudjolo’s alleged role and function in that militia. While the Chamber affirmed that the events as alleged, including the crimes, had taken place,[vii] it concluded that, in the absence of sufficient evidence, it could not find beyond a reasonable doubt that Ngudjolo was the supreme commander of the Lendu combatants from Bedu-Ezekere at the time of the Bogoro attack, as charged by the Prosecution. The Trial Chamber thus acquitted Ngudjolo of all charges, due to the absence of sufficient evidence to prove his criminal responsibility.

Specifically, the Trial Chamber found that the Prosecution’s three key witnesses, Witnesses 250, 279 and 280, were not credible and thus could not be relied upon for the purpose of this case. The Prosecution had relied almost entirely on the testimony of these three witnesses to demonstrate Ngudjolo’s authority as supreme commander of the Lendu militia.[viii] The Chamber also found that several of the witnesses who testified on this issue had based their knowledge on hearsay. It thus accorded this testimony little probative value. The Chamber reasoned that it could not exclude the possibility that these witnesses had associated Ngudjolo’s status at the end of March 2003 to the position he had occupied at the time of the attack in February of that year.[ix] The Trial Chamber further declined to infer from the Prosecution evidence of Ngudjolo’s participation in high-level activities in March 2003 that he was effectively the lead commander of the Lendu combatants from Bedu-Ezekere at the time of the Bogoro attack in February.[x] For a more detailed analysis of the Chamber’s findings acquitting Ngudjolo, see the first Special Issue  of Legal Eye on the ICC of February 2013.

The Prosecution filed its notice of appeal two days after the issuance of the trial judgement, on December 20, 2012.[xi] On March 19, 2013, the Prosecution submitted a confidential, ex parte document in support of the appeal, asserting three grounds of appeal. On March 22, 2013, the Prosecution filed a confidential, redacted version of its document in support of the appeal with the third ground of appeal entirely redacted.[xii]On April 3, the Prosecution filed a public, redacted version of its document in support of the appeal.[xiii] The arguments supporting the third ground of appeal remained fully redacted.[xiv]

On March 6, 2013, the Appeals Chamber granted a joint request[xv] by the Legal Representatives of Victims to participate in the appeal, reiterating their right to access confidential documents, but not those classified as ex parte.[xvi]  On May 16, the Appeals Chamber granted a second joint request by the Victims’ Legal Representatives[xvii] to reclassify the third ground of the Prosecution appeal. It ordered the Registry to reclassify it as confidential, in order to enable the Legal Representatives of Victims to submit observations relating to it.[xviii]

In its first ground of appeal, the Prosecution argued that the Trial Chamber had ‘misapplied’ the standard of proof, ‘beyond reasonable doubt’. The second ground of appeal asserted that the Chamber had erred in failing to consider the totality of the evidence in its assessment of witness credibility, the facts of the case, and Ngudjolo’s guilt. According to the Prosecution’s brief, the redacted third ground claimed that the ‘Trial Chamber infringed the Prosecution’s right to a fair trial under Article 64(2)’ due to a procedural error.[xix] Based on these grounds, the Prosecution sought a reversal of the trial judgement, a factual finding by the Appeals Chamber concerning Ngudjolo’s position of authority, and a full or partial retrial.  The Prosecution’s arguments under the first and second grounds of appeal are summarised below.

At the time of writing, the Appeals Chamber has not yet issued a decision on the appeal.

First ground of appeal: The Trial Chamber misapplied the ‘beyond reasonable doubt’ standard

Under its first ground of appeal, the Prosecution argued that by engaging in ‘a hypothetical alternative reading of the evidence’, Trial Chamber II effectively required a higher standard of proof, ‘beyond any doubt’.[xx] The Prosecution underscored the jurisprudence of the ad hoc tribunals and diverse national jurisdictions to assert that the application of the ‘beyond reasonable doubt’ standard must be based on logic, reason and common sense, as well as the evidence, or lack thereof, that was adduced at trial.[xxi] It argued that the Trial Chamber had engaged in a pattern of concluding that the Prosecution had not established facts beyond a reasonable doubt ‘based on a possible alternative or competing inference or other grounds’ that was neither logical, nor based on the trial record.[xxii]

In support of its argument, the Prosecution referred to the testimony of Witness 317, an investigator in the United Nations Mission in the Democratic Republic of the Congo (MONUC) human rights section charged with investigating the Bogoro attack. Witness 317 testified that Ngudjolo had admitted to her that he had organized the Bogoro attack on February 24, 2003, as well as a subsequent attack on Mandro.[xxiii] The Prosecution noted that the Trial Chamber found Witness 317[xxiv] to be credible but refused to rely on her testimony to establish Ngudjolo’s authority, reasoning that it could not be excluded that Ngudjolo had lied to enhance his career.[xxv] The Trial Chamber had stated, ‘it cannot be ruled out that Mathieu Ngudjolo […] had wanted to claim responsibility for an attack so that he would be given a higher rank if integrated into the regular Congolese army’.[xxvi] In their appeals brief, the Prosecution underscored that Ngudjolo had never offered such an explanation for his alleged admission to Witness 317, but rather had denied that he had ever met her or made such a statement.[xxvii] It further noted that at the time of his meeting with Witness 317, Ngudjolo was already a high-ranking official. It argued that ‘this wholly speculative and factually unsupported finding – contrary even to the testimony of Ngudjolo himself  ‐‐ illustrates the Chamber’s flawed approach to the evidence that, ultimately, led it to acquit Ngudjolo’.[xxviii]

The Prosecution also referred to the testimony of Defense Witness D02-176, a captain and company commander of the Union des patriotes congolais in Bogoro who was present during the attack and who the Prosecution asserted ‘unequivocally recognized Ngudjolo as one of the Lendu commanders at Bogoro’ on the day of the attack.[xxix] It noted that the Chamber ‘declined to credit’ his testimony because it could not exclude the possibility that he had confused Ngudjolo’s later status with his actual position prior to the attack. It stated, ‘again, the Trial Chamber’s competing inference is not based on any evidence in the record’.[xxx] The Prosecution further asserted that the language used by the Trial Chamber revealed an incorrect application of the burden of proof. For example, it recalled that the Chamber had stated that one could not ‘necessarily and totally exclude’ that Ngudjolo had imposed himself as an ‘indispensible interlocutor after the battle of Bogoro and after that only’.[xxxi] The Prosecution argued that the standard of proof of ‘beyond a reasonable doubt’ did not require such necessary and total exclusion.

Second ground of appeal: The Trial Chamber failed to consider the totality of the evidence

In the second ground of appeal, the Prosecution argued that the Trial Chamber had failed to consider the totality of the evidence as required by Article 74(2) at what the Prosecution cited as the three stages of the decision-making process: assessing the credibility of the evidence, making factual findings, and reaching a final decision on Ngudjolo’s guilt.[xxxii] Noting that the Chamber could rely on circumstantial evidence, and that hearsay evidence was admissible, the Prosecution asserted that the Chamber had failed to consider relevant corroborating evidence when it assessed specific facts.[xxxiii]

Specifically, the Prosecution asserted that the Trial Chamber had failed to consider credible aspects of testimony from witnesses that it had determined unreliable, despite the fact that there was corroborating evidence concerning portions of their testimony that were credible. For example, it observed that the Chamber had dismissed the testimony of Witness 250 in its entirety, which provided a detailed account of the Bedu-Ezekere militia and the Bogoro attack, despite the existence of corroborating evidence on these issues.[xxxiv] In the trial judgement, the Chamber had found that while Witness 250’s testimony demonstrated sincerity and precise knowledge of the militia’s disciplinary regime, it was not as precise, and was even contradictory, regarding Ngudjolo’s authority.[xxxv] It had further found that Witness 250 was not a member of the militia in Zumbe, as he had claimed, but rather a student in Kagaba, during the relevant period.[xxxvi] It concluded that Witness 250’s testimony had very weak probative value and could not be relied upon for the purposes of this case.[xxxvii] In its appeals brief, the Prosecution detailed other witness testimony and documentary evidence supporting Witness 250’s claims concerning Ngudjolo’s responsibility, and stated: ‘The Chamber thus rejected his key evidence, along with other corroborative evidence, that together established Ngudjolo’s authority in Bedu-Ezekere’.[xxxviii]

The Prosecution also referred to the Trial Chamber’s decision not to give weight to the testimony of Witness 317, whom the Chamber had found credible, arguing that this decision as demonstrated the Chamber’s failure to properly assess the probative value of the evidence.[xxxix] As noted above, the Trial Chamber had found Ngudjolo’s admission to Witness 317 that he organised the Bogoro and Mandro attacks to be too general, and to be inconsistent with his admission to a Congolese public prosecutor that he only orchestrated the attack on Bunia.[xl] The Prosecution argued that Ngudjolo only admitted to his involvement in the attacks on Bogoro and Mandro to Witness 317 because that was the scope of her investigation as a UN human rights investigator.[xli] It further argued that Ngudjolo’s admission to the Congolese public prosecutor that he ‘only led the 6 March 2003 operation on Bunia’ was an attempted denial in order to avoid responsibility for war crimes.[xlii] The Prosecution argued that the Trial Chamber failed to consider evidence corroborating Witness 317’s testimony, including the relevant hearsay evidence of six witnesses.[xliii] It submitted that ‘no reasonable trier of fact could have found that the evidence together with the factual findings entered by the Trial Chamber falls short of establishing beyond a reasonable doubt’ Ngudjolo’s role in leading the Lendu combatants in the attack on Bogoro.[xliv]

Read the Trial Chamber’s judgment acquitting Ngudjolo of all charges

Read the Prosecution’s public redacted document in support of the appeal

Read the Registry’s report update on the situation in relation to Mathieu Ngudjolo Chui

Read the Statement of the Women’s Initiatives for Gender Justice on the Ngudjolo acquittal

For more background about the case against Ngudjolo see Gender Reports Card 2012, 2010, 2009, 2008

Read the first and second  Special Issue of the Legal Eye on the ICC eLetter on Trial Chamber II’s acquittal of Ngudjolo and his subsequent detention at Schiphol



[i] Trial Chamber II was composed of Presiding Judge Bruno Cotte (France), Judge Fatoumata Dembele Diarra (Mali) and Judge Christine Van den Wyngaert (Belgium).

[ii] ICC-01/04-02/12-3.

[iii] As indicated below, both Katanga and Ngudjolo were charged with rape and sexual slavery.

[iv] ICC-01/04-01/07-3319. The Majority decision, Judge Van den Wyngaert dissenting, notified the parties and participants that the Trial Chamber planned to invoke Regulation 55 concerning a possible legal recharacterisation of the facts as applied to Katanga’s mode of liability.  The Majority stated that , ‘As this step does not concern the Accused Mathieu Ngudjolo, the decision also severs the charges against him.’  ICC-01/04-01/07-3319, para 9.  The cases were joined on 10 March 2008. ICC-01/04-01/07-257. Prior to his transfer into ICC custody on 18 October 2007, Katanga had been held in detention at the central prison in Makala in the DRC since 9 March 2007. Ngudjolo was arrested in the DRC and transferred into the custody of the Court in February 2008.

[v] Articles 8(2)(b)(xxii); 8(2)(a)(i); 8(2)(b)(i); 8(2)(b)(xxvi); 8(2)(b)(xii); and 8(2)(b)(xvi).

[vi] Articles 7(1)(g) and 7(1)(a).

[vii] Specifically concerning the sexual violence charges, the Chamber had found, as a factual matter, that there was extensive evidence attesting to the commission of rape and sexual enslavement. ICC-01/04-02/12-3, para 338.

[viii] ICC-01/04-02/12-3, paras 342-344. The Chamber had further suggested that the Prosecution should have engaged in a more ‘attentive’ analysis of the civil status and educational history of its witnesses. It had noted that it was the Defense teams that had provided a large number of civil status documents and educational records, and that the Prosecution had never challenged the authenticity of such documents, which had carried significant weight in the Chamber’s assessment of the credibility of the Prosecution witnesses’ testimony. ICC-01/04-02/12-3, para 121.

[ix] ICC-01/04-02/12-3, paras 432-439, 496.

[x] ICC-01/04-02/12-3, paras 499, 501, 503.

[xi] ICC-01/04-02/12-10.

[xii] ICC-01/04-02/12-45.

[xiii] ICC-01/04-02/12-39.

[xiv] The Victims’ Legal Representatives have subsequently requested a partial lifting of the confidential classification of the third ground of appeal. ICC-01/04-02/12-76-Conf, cited in ICC-01/04-02/12-77. The Appeals Chamber has not yet ruled on their request.

[xv] ICC-01/04-02/12-23.

[xvi] ICC-01/04-02/12-30.

[xvii] ICC-01/04-02/12-49-Conf.

[xviii] ICC-01/04-02/12-71. The Victims’ Legal Representatives have subsequently requested a partial lifting of the confidential classification of the third ground of appeal. ICC-01/04-02/12-76-Conf, cited in ICC-01/04-02/12-77. The Appeals Chamber has not yet ruled on their request.

[xix] ICC-01/04-02/12-39-Red2, para 31 and p 76.

[xx] ICC-01/04-02/12-39-Red2, paras 38, 53. (Emphasis in original).

[xxi] ICC-01/04-02/12-39-Red2, paras 42-50.

[xxii] ICC-01/04-02/12-39-Red2, para 38.

[xxiii] ICC-01/04-02/12-3, paras 288, 434. Witness 317, who was identified as Sonia Bakar, testified for three days in December 2010 about her involvement in investigations at Bogoro for the special investigation unit of the MONUC human rights section. See the transcripts of her testimony: ICC-01/04-01/07-228-ENG; ICC-01/04-01/07-229-ENG; ICC-01/04-01/07-230-ENG.

[xxiv] The Prosecution argued that the Chamber had also erroneously assessed the testimony of Defense Witness 176. ICC-01/04-02/12-39-Red2, paras 59, 60.

[xxv] ICC-01/04-02/12-39-Red2, para 55, citing ICC-01/04-02/12-3, para 434. The Trial Chamber had also declined to rely on Ngudjolo’s admission to Witness 317 as it was too general and because he had only admitted to organising the subsequent attack on Bunia to a Congolese public prosecutor. ICC-01/04-02/12-39-Red2, para 58, citing ICC-01/04-02/12-3, paras 434, 456.

[xxvi] ICC-01/04-02/12-3, para 434.

[xxvii] ICC-01/04-02/12-39-Red2, para 16.

[xxviii] ICC-01/04-02/12-39-Red2, para 1.

[xxix] ICC-01/04-02/12-39-Red2, para 59.

[xxx] ICC-01/04-02/12-39-Red2, para 60.

[xxxi] ICC-01/04-02/12-39-Red2, para 66, citing ICC-01/04-02/12-3, paras 164, 199, 500. (Emphasis in original).

[xxxii] ICC-01/04-02/12-39-Red2, paras 72, 74.

[xxxiii] ICC-01/04-02/12-39-Red2, paras 72, 83, 85.

[xxxiv] ICC-01/04-02/12-39-Red2, paras 104-109. Witness 250, a former FNI soldier, testified in January-February 2010.

[xxxv] ICC-01/04-02/12-3, paras 137-138.

[xxxvi] ICC-01/04-02/12-3, paras 157-159, 374.

[xxxvii]  ICC-01/04-02/12-3, paras 155, 157-159.  In addition to changing his story on cross-examination, the Chamber stated that it ‘could not refrain’ from remarking on Witness 250’s strange behavior during the hearings, including threatening to interrupt his testimony, and on one day refusing to testify. ICC-01/04-02/12-3, para 141, citing T 104, p 1-2, T 105 p 59-61.

[xxxviii] ICC-01/04-02/12-39-Red2, para 103.

[xxxix] ICC-01/04-02/12-39-Red2, para 123.

[xl] ICC-01/04-02/12-3, paras 434, 456.

[xli] ICC-01/04-02/12-39-Red2, para 124.

[xlii] ICC-01/04-02/12-39-Red2, paras 125, 126, emphasis in original, internal quotations omitted.

[xliii] ICC-01/04-02/12-39-Red2, paras 130-132.

[xliv] ICC-01/04-02/12-39-Red2, para 73.