IBA says Ngudjolo decision is consistent with the principles of due process and the rule of law

Mathieu Ngudjolo Chui  © ICC-CPIMichael

The decision of the judges of Trial Chamber II of the International Criminal Court (ICC) to acquit Mathieu Ngudjolo Chui, a Congolese national, based on insufficient

 evidence to establish his guilt, is consistent with the well-established principles of due process and the rule of law, the International Bar Association (IBA) said today.  

The three judges of ICC Trial Chamber II unanimously found that the prosecution failed to prove beyond reasonable doubt that Mr Ngudjolo was criminally responsible for the war crimes and crimes against humanity committed during the 24 February 2003 attack on the village of Bogoro, in the Ituri District of the Democratic Republic of the Congo (DRC). While the judges acknowledged the factual incidence of the crime and the suffering of victims, the evidence presented by the prosecution failed to convince them of the guilt of the accused.

The ICC’s second trial has enjoyed little public attention in comparison to its first case against Thomas Lubanga Dyilo, who was convicted by the Court earlier in 2012. While this case may now be remembered as the Court’s first acquittal, the trial itself was notable for its procedural efficiency. The case is the only one to date in which judges conducted a site visit to obtain a better understanding of the facts. However, the judges’ decision not to convict, owing to insufficient credible evidence to convince them of the accused’s guilt, raises concerning questions over the quality of investigations by the prosecution.

Justice Richard Goldstone, Honorary President of the International Bar Association’s Human Rights Institute, comments, ‘The fairness of a criminal justice system is measured not by convictions but rather by acquittals. The integrity of the entire criminal justice process, whether at the national or international level, rests on an important tenet: that the prosecution bears the burden to produce sufficient credible evidence to establish the guilt of the accused. If this criterion is not met then the accused must be acquitted.’ He continued, ‘The obligation therefore rests on the prosecution to ensure that cases are thoroughly investigated before proceedings are initiated.’

The judges stressed that their finding about Mr Ngudjolo's responsibility 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.’ IBA Executive Director Mark Ellis said, ‘The decision in this case should not be seen as a denial of justice. On the contrary, the trial has brought attention to the atrocities committed in the village of Bogoro and the terrible suffering of its many victims. The Court must now actively and aggressively engage with the victims and the affected community at large to fully explain the decision and to provide clarity where questions remain.’

The prosecution has indicated that they will appeal the verdict. However, the judges decided to release Mr Ngudjolo pending an appeal, as they were not convinced by the prosecution’s submissions that he was a flight risk or that witnesses would be threatened. It remains unclear where Mr Ngudjolo will go when released if he is unable to return to the DRC. His acquittal is a stark reminder that to date the ICC has been unable to conclude any agreements with states willing to accept persons acquitted by the Court. 

The case against Mr Ngudjolo, who was previously charged jointly with Germain Katanga, is the second ICC case arising from the situation in the DRC. On 21 November 2012, the majority of judges decided to separate the case against both accused and to legally re-characterise the charges against Mr Katanga from ‘indirect co-perpetration’ pursuant to article 25(3)(a) of the Rome Statute to a different mode of responsibility, namely that he contributed to the commission of a crime by a group acting with a common purpose (under article 25(3)(d) of the Statute).

Ironically, the recent decision of the Chamber to sever both cases and legally re-characterise the charges against Germain Katanga, has raised troubling fairness questions. As noted by Judge van den Wyngaert in her dissenting opinion, the 21 November decision creates the impression that the Chamber may try to avoid acquitting Mr Katanga by charging him under a different mode of liability one year after the close of the presentation of evidence and six months after the closing statements by the defence. Mr Katanga’s defence has indicated it will seek to appeal this decision, which could delay the verdict against him for several months.

Notes for the Editor

Background to the case

The case against Germain Katanga and Mathieu Ngudjolo Chui is the second case to be heard by the Court, arising from the Prosecutor’s investigation into the situation in the Democratic Republic of the Congo (DRC). The accused were both charged with committing or ordering war crimes and crimes against humanity (this was the first case in which the Prosecutor brought charges of crimes against humanity). The Prosecutor argued that the two accused were each top commanders in militia groups whose combined forces allegedly carried out an attack on Bogoro village in the Ituri region of the DRC in February 2003, in which over 200 civilians were killed.

Mr Ngudjolo was alleged to be the former leader of the Front des Nationalistes et Intégrationistes (FNI), a militia formed primarily of members of the Lendu ethnicity operating in the Ituri region of the DRC. He was arrested in the DRC in February 2008 and transferred immediately to the ICC. Mr Katanga is alleged to have been the former leader of the Forces de Résistance Patriotique d’Ituri (FRPI), a political party and militia formed primarily of members of the Ngiti ethnicity based in Ituri. The group was reportedly formed in November 2002 to oppose Hema militias and their exploitation of non-Hema civilians. Following the deaths of nine UN peacekeepers in March 2005 he was arrested and detained in the DRC and was transferred into ICC custody in October 2007.

The warrant of arrest for Mr Katanga was granted by the Pre-Trial Chamber on 2 July 2007. He was surrendered to the ICC on 17 October and made his initial appearance on 22 October 2007. The warrant of arrest for Mr Ngudjolo was granted on 6 July 2007. He was transferred to the ICC on 6 February and made his initial appearance on 11 February 2008. The cases were joined on 10 March 2008.

The confirmation of charges hearing was held from 27 June to 16 July 2008, after being postponed twice to give the two parties more time to prepare. 57 victims participated in the hearing. The Pre-Trial Chamber confirmed that the case was within the ICC’s jurisdiction and was admissible. The Chamber confirmed ten charges against the suspects, which included seven charges of war crimes and three charges of crimes against humanity.

The two accused were tried together in the ICC’s first joint trial. The trial commenced on 24 November 2009 before Trial Chamber II, which was composed of Judges Bruno Cotte (Presiding), Fatoumata Dembele Diarra and Christine Van den Wyngaert. 365 individuals were granted victim status and authorised to participate in the proceedings. On 21 November 2012, one year after the evidence was received and six months after the closing statements concluded, the majority of the Trial Chamber decided to sever the cases against the two accused.

The verdict acquitting Mr Ngudjolo was pronounced on 18 December 2012. With regard to Mr Katanga, the Trial Chamber, Judge van den Wyngaert dissenting, informed the parties and participants to the case that the mode of liability with which the accused is charged may be subject to a legal modification pursuant to Regulation 55 of the Regulations of the Court, namely from indirect co-perpetration under Article 25(3)(a) of the Statute to contribution to the commission of crimes by a group of persons under a common purpose according to Article 25 (3)(d) of the Statute. Judgment has not yet been rendered in the case against Mr Katanga.

The decision may be accessed here:

About the International Bar Association’s International Criminal Court Programme

The International Bar Association (IBA) maintains an office in The Hague which manages the IBA’s International Criminal Court (ICC) Programme through funding provided by the IBA Human Rights Institute Trust. This office follows the work and proceedings of the ICC, focusing primarily on the fair trial rights of the accused and the manner in which the Rome Statute and other legal documents of the Court are implemented and encourages the legal community to engage with the work of the Court.

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