Mathieu Ngudjolo Chui: reflections on the ICC’s first acquittal

[Jelia Sane is studying for the English Bar at City University, London. She holds an LLM in Public International Law from University College London and has previously interned at the ICC, the Centre for Justice and International Law, and the Extraordinary Chambers in the Courts of Cambodia.]

The unanimous acquittal and subsequent release of Mathieu Ngudjolo Chui by Trial Chamber II of the International Criminal Court (ICC) on 18 December 2012 was a shock and disappointment to those following the work of the Court and development of international criminal justice. The Open Society Justice Initiative (OSJI) said the judgment sends a “worrying signal about the quality of ICC prosecutions,” and Human Rights Watch emphasized that the acquittal leaves the victims of the Bogoro massacre without justice. While it is disappointing that the Office of the Prosecutor (OTP) failed to present a solid case, the acquittal of Ngudjolo demonstrates that the judges of the ICC are independent, impartial, and will not convict the accused on the basis of weak evidence, showcasing their willingness and ability to uphold the law.

The Ngudjolo judgement is only the second judgment issued by the ICC (the Court’s first judgment, convicting Thomas Lubanga, was issued in March 2012). His case was expected to be an important milestone, as it was the first time that crimes against humanity and sexual violence offences had been charged at the ICC. The ruling represents a missed opportunity in this regard, as the judges based their acquittal on the assessment of Ngudjolo’s lack of authority, making no findings on the crimes themselves.

Background

The Prosecution alleged that Ngudjolo was the former leader of the Front des Nationalistes et Integristes (FNI), an armed rebel group in the Ituri region of the Democratic Republic of Congo (DRC) largely made up of combatants from the Lendu ethnic group. Relying on Article 25(3)(a) Rome Statute, the Prosecution argued that he was criminally responsible for the commission, jointly with Germain Katanga, the leader of another armed militia (the Force de Résistance Patriotique en Ituri, FRPI), of an FNI/FRPI attack against Bogoro village on 24 February 2003, during which 200 civilians were killed. They also alleged that he was directly responsible for the crime of using child soldiers, and that he and Katanga had a common plan to “wipe out” Bogoro. Ngudjolo was accused of three counts of crimes against humanity (murder, sexual slavery, and rape) and seven counts of war crimes (willful killing, directing an attack against civilians, pillage, the destruction of property, the use of child soldiers, rape, and sexual slavery).

Findings

Trial Chamber II held that it had not been proven beyond reasonable doubt that Ngudjolo was the commander of the Lendu combatants from Bedu-Ezekere at the time of the 2003 attack in Bogoro and, consequently, that he could not be proven to be responsible for the crimes charged. Given this finding, the judges declined to examine whether he had taken part in a common plan together with Germain Katanga to conduct the attack. The judges did emphasise however that this did not mean “that crimes were not committed in Bogoro on 24 February 2003 nor does it question what the people of this community have suffered on that day.”

In addition, the Chamber found that, at the material time, the use of child soldiers was a widespread phenomenon in the Ituri region, and that child soldiers were present during the Bogoro attack. However, it ruled that there was insufficient evidence to prove beyond reasonable doubt that the accused had used child soldiers before, during, or after the 2003 attack, or that there was any link between the presence of child soldiers in Bogoro and the accused.

The Trial Chamber’s Approach

The ICC’s first acquittal will undoubtedly be much discussed and debated. The OTP has indicated its intention to appeal the judgment which means that more developments will follow in the coming weeks and months. Nonetheless, a cursory reading of the judgment gives rise to the following two observations on the Chamber’s approach in reaching its decision.

The first relates to the adequacy of the Prosecution’s investigation, a point which was raised by the Chamber in its judgment. The Chamber noted that the earliest investigatory documents submitted by the Prosecution in relation to the attack were prepared in 2006, three years after the attack. The Chamber highlighted the importance of conducting on-site investigations as quickly as possible in order to gather witness testimony and crucial forensic evidence, in the absence of which it had been forced to rely to an extent on reports prepared by MONUC and NGOs.

The Chamber also took the view that it would have been preferable, before the opening of the trial, for the Prosecution to visit the Bogoro region and to familiarise itself with the location of the different camps referred to by their witnesses as this would have allowed a more effective examination of its witnesses. The Chamber also named a number of FNI commanders who played a key role prior, during, and after the attack, whose testimony would have been particularly useful. While the Chamber has the power to summon witnesses, it felt that the Prosecution ought to have taken the initiative and called these witnesses in support of their case.

These shortcomings in the Prosecution’s investigation are indeed considerable. It is however, worth noting that the ICC, unlike other ad hoc international criminal tribunals, undertakes its investigations and prosecutions in the context of on-going armed conflicts, in situations where atrocities are still being perpetrated. In such contexts, investigations face particular challenges. Seeking out insider or ‘nexus’ witnesses that can connect the perpetrator to the crime is difficult in an inherently coercive environment. The desire for justice often conflicts with the imperative for peace. The existing power dynamics may make it impossible for witnesses to come forward. And those that do testify against the accused may face reprisals or threats. In such circumstances, the Court has a finite number of options under its limited witness protection program.

The judges of the Trial Chamber were not blind to the challenges faced by the prosecution in investigating crimes in the context of an on-going armed conflict. The Chamber noted (paras. 49-51) that “due to the overall context of the case and the specific situation of each witness” the judges were cognizant of the fact that the testimony of certain witnesses could contain some “inaccuracies, inconsistencies or improbabilities” given the amount of time elapsed since the events in question, the effect of this on their memory, the fact that some witnesses were children during the events and the effects of trauma, all of which may result in witnesses being unable to relay facts consistently. The judges emphasized that they took a holistic approach to assessing the credibility of witness testimony. Isolated inconsistencies did not compromise the entire testimony of a witness – the Chamber accepted some aspects of a testimony while rejecting others, and always considered what impact rejecting certain parts of the testimony would have on the reliability of the rest of the evidence.
The second, and related, observation goes to the crux of this case: the quality of the Prosecution’s oral evidence.While 24 witnesses, including two experts, testified for the Prosecution, the Trial Chamber noted that the case was “essentially founded on the testimony of a few witnesses” (‘the key witnesses’): P-250, P-279 and P-280).

These three key witnesses all claimed to be former militia members. Witness P-250 gave evidence that he accompanied, on the accused’s orders, an FNI delegation to another village. He claimed that during the course of this visit, members of this delegation allegedly met with Katanga and decided to attack Bogoro. He also testified that at the time of the attack the civilian population had already left Bogoro and that immediately after the attack both Ngudjolo and Katanga received reports from their military commanders. Witness P-279 testified that he was born in 1990 (which would have made him 12 years old at the time of the 2003 attack) and that he was abducted by an FNI soldier and taken to a training camp where he was forced to undertake military training. He stated that Ngudjolo was the commander of three FNI camps that Katanga came to one of these camps to discuss the Bogoro attack with Ngudjolo, and that Ngudjolo ordered the attack. He testified to seeing both men in the village after the attack.  Witness P-280 also declared that he was born in 1990 and that he had been abducted by an FNI commander. He claimed that he was subsequently taken to an FNI camp where he was forced to undergo military training, and that Ngudjolo was the leader of this camp.

Despite adopting the holistic approach referred to above when evaluating the testimony of these three key witnesses, the Chamber concluded that it could only attach limited weight to their evidence as there remained insurmountable doubts surrounding their credibility. Witness P-250’s claim that he was part of the militia at the time of the events was contradicted by documentary evidence and oral evidence from four Defence witnesses indicating that he was in fact studying elsewhere at the time. The Trial Chamber also noted that none of the other Prosecution witnesses who claimed to be part of the same militia could confirm P-250’s presence. As for P-279, the Trial Chamber noted some inconsistencies in relation to the timing of his alleged abduction, and that his testimony that he was a militia member at the time of the attack was “too imprecise and contradictory”. His refusal to acknowledge his real age when presented with documents indicating that he was older then he claimed, coupled with his claims that he did not know another witness despite their being oral evidence to the contrary, “affected the general credibility of his testimony”. P-280’s testimony was discounted for similar reasons and the Trial Chamber remained unconvinced that he was in fact in Bogoro at the time of the attack.

In addition, the Trial Chamber assessed at length the credibility of two other Prosecution witnesses:  P-28, and P-317.  Witness P-28, a former child soldier, testified that FRPI soldiers abducted him and took him to an FRPI camp where he was forced to undergo military training.  He stated that he later became Katanga’s personal bodyguard, that he witnessed the preparation of the Bogoro attack, and that he saw Ngodjulo immediately after the attack. The Chamber found that his evidence on how he became a bodyguard was contradictory, that his description of the attack was too vague, and was persuaded by the testimony of a number of Defence witnesses who claimed that while he had arrived in the area in 2002, he was elsewhere at the time of the attack. Witness P-317 was an investigator from the United Nations Mission in the Democratic Republic of Congo (MONUC), who visited Bogoro in late March 2003. She claimed that she met Ngudjolo during the course of her visit and that he admitted to her that he planned the Bogoro attack. While the Chamber found her to be particularly credible and her testimony persuasive, there was conflicting documentary evidence from Congolese officials indicating that Ngudjolo had only admitted to planning another attack (in Bunia in March 2003). The fact that no reference to this was made during her testimony and that the Congolese document made no reference to the Bogoro attack meant that only limited weight could be attached to Ngudjolo’s alleged revelations to P-317.

In summarising the Prosecution’s evidence, the Trial Chamber noted that some witnesses had indeed confirmed that Ngudjolo was the leader of the Bendu-Ezekere militia prior to the Bogoro attack. Ultimately however, with the exception of P-28, who lacked credibility, and P-317, all of this evidence was hearsay as the judges remained unconvinced that any of these witnesses were part of the militia at the material time. In the Chamber’s view such hearsay evidence had to be (para.496)

treated with the greatest caution, particularly when, it relates to an issue that is of essential importance to the Prosecution’s case. The witnesses….provided no details on the authority that they claim that [the accused] possessed at the time, nor on the manner in which this authority was exercised. [The Chamber] cannot [ignore] that certain witnesses may have associated [the accused’s] status within the FNI at the end of March 2003, with the position that he in fact occupied before the Bogoro attack. For all of these reasons, the Chamber can only attach very limited probative weight to their testimony.

The Chamber’s conclusions raise a number of issues. Primarily, and most startling, is the fact that the Prosecution’s case pivoted on the testimony of three witnesses, whose presence in Bogoro at the material time was ultimately not established to the satisfaction of the Court. Using a limited number of witnesses is firmly in line with the Prosecutorial Policy that “as few witnesses as possible are called to testify,” which, along with the policy to select a limited number of incidents, “allows the Office to carry out short investigations and propose expeditious trials while aiming to represent the full range of criminality.” (See para. 16, OTP Prosecutorial Strategy 2009-2012).

The acquittal of Ngudjolo is a glaring indictment of this strategy. The “beyond reasonable doubt” standard of proof required for conviction sets a considerable threshold for the strength of evidence. However,under  the  ICC’s Rules of Procedure there is no  requirement that witness testimony be corroborated, which means that the Prosecution is under no obligation to call as many witnesses as possible to testify to the same elements of the offences charged. But where a limited number of witnesses are called, it is imperative that their testimony be well founded and credible.  As the actual event, in this case, the attack on Bogoro, was not disputed, the prosecution had to prove the responsibility of the accused for the mode of liability charged, in this case, the indirect and joint commission of the crimes. This requires nexus and insider witnesses who are able to present convincing evidence as to the particular role of the accused. And this is where the prosecution’s case faltered. Indeed, Judge Cotte emphasized that “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.”

This brings us to the issue of what the OTP can do. On one hand, the difficulties inherent in investigating and prosecuting mass atrocities in the context of an on-going conflict will be ever present. These will have repercussions on the quality of the OTP’s evidence and may result in the certain decisions being guided by necessity rather than choice.  On the other, the creation of the Court was driven by the international community’s desire “to put an end to impunity… and thus contribute to the prevention of [international] crimes.” In order to ensure the ICC’s credibility as a deterrent to future perpetrators the OTP must therefore secure convictions. Several commentators on international criminal justice have argued that the evidentiary foundations of international criminal trials are weak. In her seminal Fact-Finding Without Facts, Nancy Combs argues that judges at hybrid and international criminal tribunals have taken a “cavalier attitude toward testimonial deficiencies” (at 189). But the Ngudjolo judgment may be evidence to the contrary, as the ICC’s judges have demonstrated their refusal to rubber-stamp prosecutions based on contradictory, hearsay, or otherwise weak testimony. The fact of the matter is that in the face of the acquittal of Mathieu Ngudjolo Chui, accusations that the ICC is a tool of Western interests lose their relevance. The International Criminal Court is not a court for – or against – Africa, it is just a court.

The current Prosecutorial Strategy was set out for 2009-2012. With the year coming to an end, Fatou Bensouda and her new Special Advisor on International Criminal Law Prosecutorial Strategies, Patricia Viseur Sellers, have an opportunity to reassess the prosecutorial strategy. Bensouda has emphasized the lasting harm suffered by the victims of the Bogoro attack, particularly the victims of sexual violence who suffered from stigmatization and rejection by their families and communities following their rape and sexual enslavement. The Office of the Prosecutor has defined its charge under the Rome Statute to act within the interests of justice as guided by the interests of victims. It is in the interests of victims that the Prosecutor presents strong cases on solid evidentiary foundations.