On December 18, 2012, Trial Chamber II of the ICC acquitted Ngudjolo of all charges relating to crimes against humanity and war crimes committed during an attack on Bogoro, a village in the eastern region of the Democratic Republic of the Congo (DRC). The court ordered his immediate release. The prosecution appealed this order, requesting the court to keep Ngudjolo in custody while they appeal the acquittal. The Appeals Chamber rejected this request and Ngudjolo was released from the ICC Detention Center on December 21, 2012.

After his release, he was taken into custody by Dutch officials, allegedly on an immigration infraction. He claimed asylum in the Netherlands and is currently being held in a detention center at Schiphol Airport, near Amsterdam.

In a submission to the Appeals Chamber, Ngudjolo complained that his current detention by Dutch immigration officials make it difficult for him to adequately prepare for his appeals case. Specifically, he argued, the distance, costs, and conditions of his detention prevent his defense team from working with him in a way that would protect his fair trial rights. He argued that his right to adequate time and facilities to prepare his defense, protected by the Rome Statute and the European Convention on Human Rights, is threatened by his detention.

He specifically complained that it was difficult for his defense team to meet with him confidentially and freely. His defense team could not communicate directly with him, Ngudjolo argued. He submitted that he could only telephone his defense team, which he claimed is very expensive. Ngudjolo also argued that in addition to the fact that his counsel does not have easy access to him, he cannot access his entire case file like he could at the ICC detention center. Moreover, Ngudjolo submitted, he has insufficient privacy to read case materials or speak to his counsel from the telephone in his cell because his cellmate is also from the DRC and speaks Lingala and French. Ngudjolo also argued that his health and well-being were at risk because his cellmate keeps him awake during the night.

Ngudjolo asked the Appeals Chamber to provide instructions on how his defense team should proceed with the appeal under these circumstances and to make any orders it should deem necessary to protect his rights.

The Appeals Chamber noted that Ngudjolo is under the jurisdiction of the Dutch authorities because he has been detained in connection with his request for asylum in the Netherlands. Therefore, the Appeals Chamber said, it was not the correct judicial body to review the conditions of his detention. The only thing the Appeals Chamber could rule on, it found, was whether the conditions of detention infringed on Ngudjolo’s fair trial rights before the ICC.

The Appeals Chamber observed that according to Dutch law governing Ngudjolo’s detention, he is allowed visits from his legal assistant on work days between working hours, and, if it is in the interests of justice, outside those hours. These visits can take place confidentially in a minimally supervised visiting room, the Chamber noted. Ngudjolo’s counsel is providing him with hard copies of his case file, the Chamber stated, therefore meeting his need to access his case file to prepare for his defense. Furthermore, Ngudjolo has access to a telephone from his cell and a weekly telephone credit so that he can make calls. It is Ngudjolo’s responsibility to make arrangements with his co-detainee in order to speak confidentially with his lawyers, the Chamber considered. Other complaints about his well-being and health should be directed to the Dutch authorities, the Chamber found.

Based on these observations, the Appeals Chamber found that Ngudjolo’s conditions of detention do not infringe upon his fair trial rights at the ICC. The Appeals Chamber also recalled that it had previously granted an extension to Ngudjolo’s time limits for his appeals submissions so that he could have adequate time to prepare his defense. Therefore, the Appeals Chamber found, is it not necessary to issue any instructions or orders on how Ngudjolo should prepare for his defense in light of his detention.

The prosecutor of the ICC originally charged Katanga and Mathieu Ngudjolo with three crimes against humanity and seven war crimes allegedly committed during an attack on Bogoro, a village in eastern Democratic Republic of the Congo (DRC). They were accused under Article 25(3)(a) of the Rome Statute of committing the crimes through “indirect co-perpetration,” where Katanga and Ngudjolo used hierarchical organizations (the Ituri Patriotic Resistance Force (FRPI) and the Nationalist and Integrationist Front (FNI), respectively) to carry out the crimes.

Acting under Regulation 55 of the Regulations of the Court, the majority of the trial chamber notified the parties that it might change Katanga’s mode of liability to Article 25(3)(d)(ii), also called “common purpose” liability. The new mode of liability would apply to all crimes except for those relating to the use of child soldiers.

Due to this development in the case against Katanga, the judges severed the two cases and acquitted Ngudjolo on December 18, 2012. The prosecution has appealed his acquittal.

The Katanga defense submitted that the timing and nature of the change would violate Katanga’s fair trial rights. The defense also argued that, even if the judges go ahead with the change, there is insufficient evidence to convict Katanga under Article 25(3)(d). These submissions are discussed briefly below; additional details can be found by consulting the defense submissions.

Insufficient Facts

The defense began by stating that it did not have sufficient knowledge of the facts the chamber intends to rely on if the charges are changed. The defense noted that originally, Katanga and Ngudjolo were charged with jointly planning to “wipe out” Bogoro and commit the alleged crimes. Both accused allegedly used militias to carry out the attack and commit the crimes. The defense contended that the defendants were charged as inter-dependent co-perpetrators. Since the trial chamber acquitted Ngudjolo, cutting out one of the two partners in the alleged agreement, then Katanga must also be found innocent, the defense claimed.

If the chamber does change the mode of liability, the prosecution will have to prove that a group, which shared a common criminal purpose, committed the alleged crimes. The defense complained that there was no detail of who exactly belonged to such a group, except to say that they were “Ngiti combatants and commanders.” This characterization is too imprecise, the defense argued. If the charges are changed, the identity of the members of the group is significant, the defense submitted—otherwise, any Ngiti fighter could be considered part of the group.

The defense also argued that there was no indication about what the new “common purpose” of this group would be if the charges were changed. The confirmation of charges decision specifically linked the common purpose to “wipe out Bogoro” to Katanga and Ngudjolo. Given that they are no longer allegedly part of the group that shared the common plan, the defense contended, then there needs to be additional evidence about the new alleged plan, including who formulated and orchestrated that plan, and how they did so.

The defense claimed that not having these facts made it difficult for it to properly respond to the potential changes. It could only speculate about what the trial chamber has in mind, the defense submitted.

The defense further noted that the vagueness of the proposed re-characterization was a contentious issue before the Appeals Chamber. In its decision, the Appeals Chamber majority indicated that it did not know the precise nature of the change or what evidence the Trial Chamber would rely on, especially related to the nature of the “group” acting with a common purpose. A dissenting opinion from the Appeals Chamber argued that this lack of clarity should have led to a reversal of the decision. Judge Tarfusser’s dissent argued that a decision giving notice of a possible re-characterization must be as specific and precise as possible, in particular to allow the defense to make meaningful submissions.

The Change was Unforeseeable

Katanga’s defense team argued that it could not have foreseen this potential mode of liability while it was conducting its case. The two modes of liability are mutually exclusive, the defense argued. Under the original mode of liability, Katanga was allegedly a “principle,” or directly responsible for the crime. Under the proposed change, he would be charged as an “accessory,” which means he allegedly assisted the crime but did not commit it himself.

According to the defense, an accused cannot be charged as a principle and as an accessory on the same set of facts. Therefore, it could not reasonably have anticipated this mode of liability when it investigated the case, questioned witnesses, or made its submissions.

Allowing the defense to have additional time to recall witnesses, call new witnesses, or investigate the case further would not remedy the considerable prejudice it would face if the charges were changed, the defense argued. However, the defense did request additional time to conduct further investigations and present additional evidence if the mode of liability is changed so that it can present a full defense to the potential new charges.

In addition to the opacity of the facts and nature of the potential new charges, the defense argued that the novelty and uncertainty of this mode of liability created significant obstacles to Katanga’s trial. The defense argued that neither a trial chamber nor the Appeals Chamber has ruled on this mode of liability, creating debate and controversy about how it can be proven. According to the defense, the proposed mode of liability is a “catch all” that appears to criminalize “other” contributions to crimes committed by a group of persons acting with a common purpose that do not fit into concepts such as ordering, soliciting, inducing, aiding, abetting, or assisting found elsewhere in Article 25.

Violation of Fair Trial Rights

Without further clarity, the re-characterization would violate Katanga’s fair trial rights, the defense argued. It would violate his right to timely, clear, and consistent information detailing the factual basis of the charges against him, the defense argued. According to the defense, the change also risks a violation of his fair trial rights not to be compelled to admit guilt. The defense submitted that much of the evidence the chamber would rely on arises out of the judges’ questioning of Katanga when he gave evidence. If Germain Katanga had not testified, or had simply denied everything, he would have been acquitted, the defense argued. Instead, the defense noted, Katanga decided to testify and provide a better understanding of the conflict and the context in which the crimes were allegedly committed. Because of this, the change in the mode of liability is especially prejudicial, the defense argued, and contradicts jurisprudence from the European Court of Human Rights.

Changing the charges would risk the legitimacy of the ICC and would lead to a distortion in the balance between “closing the impunity gap” and protecting the fair trial rights of accused, the defense submitted. Moreover, the defense contended, it would also risk the chambers improperly taking on a prosecutorial function.

The defense also argued that there is a risk that using this mode of liability will lead to “guilt by association.” This was explicitly rejected in drafting the Rome Statute, the defense noted, and would contravene the principles of “gravity” and prosecuting “those who bear the greatest responsibility,” pillars of the ICC.

Katanga Should be Acquitted

However, even if the mode of liability were to be changed, the defense submitted, the trial chamber should acquit Katanga. The defense contended that to convict Katanga under Article 25(3)(d), the prosecution would need to prove that Katanga made a “substantial” contribution that made or was capable of making a tangible difference to the successful commission of crimes. The prosecution submitted, however, that Katanga’s contribution needed to be “significant” and merely linked to the commission of a crime by the group. This distinction is critical and unsettled in the ICC jurisprudence, the defense argued.

However, according to the defense, there is not enough evidence to establish that Katanga made either a substantial or a significant contribution to the crimes.

According to the prosecution, the Ngiti combatants attacked Bogoro in a planned and coordinated manner, leading to the commission of war crimes and crimes against humanity. The prosecution contended that the evidence demonstrates that Katanga contributed to crimes committed in Bogoro by:

1. Organizing and participating in discussions with other Ngiti commanders that led to the plan to attack the village; and
2. Obtaining and distributing weapons and ammunition to the Ngiti combatants that committed the crimes in Bogoro.

However, the defense argued that Katanga made a contribution to a plan formulated and carried out by the DRC government (vis-à-vis the Integrated Operational Head Command (EMOI)), the Congolese People’s Army (APC), and the Congolese Rally for Democracy (RCD-KML) to regain control of eastern DRC.  The defense submitted that this group that does not appear in the charges against Katanga, either confirmed or proposed. The majority’s notice decision refers to the group as “Ngiti combatants and commanders,” the defense noted.

According to the defense, the EMOI/APC/RCD-KML group had a legitimate, non-criminal purpose to regain territories that had fallen to foreign states and their agents, including Thomas Lubanga’s Union of Congolese Patriots (UPC). If this purpose ever became criminal, the defense argued, Katanga was unaware. He believed the attack on Bogoro was against soldiers, not civilians, the defense submitted.

Katanga’s role as “coordinator” did not imply any military rank or official role, the defense argued. Rather, the defense said it was a title Katanga chose for himself that referred to his mediating role between the different local commanders and groups of combatants. The defense argued that Katanga was not in a position to make decisions about the EMOI/APC/RCD-KML plan to attack Bogoro and retake parts of eastern DRC. As a coordinator, his role was merely to negotiate, the defense claimed.

Moreover, he was not a leader of the Ngiti combatants at the time of the attack, the defense contended, and later became their leader in name only, but not in reality. According to the defense, it was only in 2004 that Katanga officially became President of the FRPI and had increased control over the group.

The defense also asserted that Katanga did not make a contribution to the commission of the crimes in Bogoro. The defense argued that according to the law, the contribution needed to be made to the commission of the crimes, not merely to members of the group. This type of contribution is not substantiated by the evidence, the defense argued. Any arms that were supplied or delivered to combatants that attacked Bogoro were provided by the DRC government and distributed by the APC, the defense asserted. There is no evidence the weapons distributed by Katanga were used in the attack on Bogoro, nor that Katanga was in Bogoro or controlled the attackers, the defense claimed.

Based on these and other legal arguments, the defense argued that the chamber should not change the charges against Katanga and that even if it did, Katanga should be acquitted. The judges will now consider the submissions made by the parties and issue a decision on this critical issue.

The following commentary first ran in a Special Issue of the Legal Eye on the ICC, a regular eLetter produced by the Women’s Initiatives for Gender Justice, an international women’s human rights organisation 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. This Special Issue is the second in a series of two Special Issues reporting on the second trial Judgment handed down by Trial Chamber II in the case against Mathieu Ngudjolo Chui (Ngudjolo) on December 18, 2012. 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 second Special Issue Legal Eye eLetter, click here.

In its final judgment, Trial Chamber II based the acquittal of Ngudjolo on its factual findings concerning his role and functions within the Lendu militia from Bedu-Ezekere, and declined to enter into any legal analysis of Ngudjolo’s criminal responsibility. The Trial Chamber concluded that the Prosecution had not demonstrated beyond a reasonable doubt that Ngudjolo had committed the alleged crimes pursuant to Article 25(3)(a)[i] with respect to his role within the Bedu-Ezekere militia.[ii] Significantly, it stated, ‘an examination of the evidence does not permit retaining, nor even envisaging, the form of indirect perpetration adopted by the Pre-Trial Chamber, whatever its interpretation of Article 25(3)(a) of the Statute’.[iii] Consequently, the Chamber did not find it necessary to analyse the objective elements of co-perpetration retained by the Pre-Trial Chamber, namely: the ‘common plan’ and Ngudjolo’s ‘essential contribution’ to the objective elements of the crime.[iv] While the Chamber did not enter into this issue in depth, Judge Van den Wyngaert issued a concurring opinion, addressing Pre-Trial Chamber I’s interpretation of Article 25(3)(a) in its decision confirming charges against Ngudjolo based on indirect co-perpetration.[v]

Judge Van den Wyngaert’s concurring opinion addressing the mode of responsibility adopted by Pre-Trial Chamber I in the confirmation decision echoed Judge Fulford’s concurrence to the trial judgment in the Lubanga case, which also called into question the interpretation of Article 25(3)(a) by Pre-Trial Chamber I. In the confirmation of charges decisions in both the Lubanga and Katanga & Ngudjolo cases, Pre-Trial Chamber I applied the ‘control over the crime’ theory in its interpretation of Article 25(3)(a), finding that it was the best means of distinguishing between principals and accessories and in ensuring the liability of principals who might be removed from the scene of the crime.[vi]

The ‘control of the crime’ theory was described by the Pre-Trial Chamber in the Lubanga and Katanga & Ngudjolo confirmation of charges decisions as follows:

Principals to a crime are not limited to those who physically carry out the objective elements of the offence, but also include those who, in spite of being removed from the scene of the crimes, control or mastermind its commission, because they decide whether and how the offence will be committed.[vii]

The Pre-Trial Chamber added that under Article 25(3)(a), a principal ‘is one who (i) physically carries out all elements of the offence (commission of the crime as an individual); (ii) has, together with others, control over the offence by reason of the essential tasks assigned to him (commission of the crime jointly with others); or (iii) has control over the will of those who carry out the objective elements of the offence (commission of the crime through another person)’.[viii]

Pre-Trial Chamber I explained that applying the ‘control over the crime’ theory to co-perpetration involved ‘the division of essential tasks between two or more persons, acting in a concerted manner, for the purposes of committing that crime[…] The fulfilment of the essential task(s) can be carried out by the co-perpetrators physically or they may be executed through another person’.[ix] It thus required the Prosecution to prove two objective elements to establish co-perpetration: the existence of a common plan and a coordinated essential contribution to it.[x] Judge Fulford (Trial Chamber I) and Judge Van den Wyngaert (Trial Chamber II) both departed from the ‘control over the crime’ approach adopted by the Pre-Trial Chamber, as well as from the requirement that the Prosecution demonstrate two objective elements to co-perpetration: the common plan and the accused’s essential contribution.[xi]

Judge Fulford’s Separate Concurring Opinion in the Lubanga Trial Judgment

Favoring a plain-text reading of Article 25(3)(a), in his separate, concurring opinion to the Lubanga trial judgment, Judge Fulford argued that the two reasons put forward by the Pre-Trial Chamber for adopting the ‘control over the crime’ principle were unnecessary and imposed an unfair burden on the Prosecution.[xii] While noting that the Pre-Trial Chamber had found this approach necessary to distinguish between principals and accessories, as well as to extend to individuals ‘notwithstanding their absence from the scene of the crime’,[xiii] Judge Fulford had rejected the concept of a ‘hierarchy of seriousness’ distinguishing between principals and accessories. He underscored that the ‘control over the crime’ approach derived from the German domestic legal system where sentencing depended upon the mode of liability, which was not the case within the Court’s statutory framework.[xiv] He had also opined that the ‘control over the crime’ approach to establish liability over principals was rendered unnecessary based on his reading of the provision in which individuals with indirect involvement, or ‘notwithstanding their absence from the scene’, could be ‘prosecuted as co-perpetrators without relying on this principle’.[xv]

Concerning the objective requirements to co-perpetration, Judge Fulford found that the Statute required only an ‘operative link between the individual’s contribution and the commission of the crime’, not that the accused’s involvement was essential.[xvi]  He further contended that rather than requiring the establishment of a ‘common plan’, co-perpetration could be demonstrated by showing ‘coordination between those who commit the offence, which may take the form of an agreement, common plan or joint understanding, express or implied, to commit a crime or to undertake action that, in the ordinary course of events, will lead to the commission of the crime’.[xvii] However, Judge Fulford acknowledged that to preserve the rights of the accused, the Trial Chamber could not change the test to a lesser one of ‘contribution’, as opposed to ‘essential contribution’, at this stage of the proceedings and without prior notice. Therefore, he concurred with the majority on this issue. For further analysis of Judge Fulford’s separate concurring opinion, see the second Special Issue of Legal Eye on the ICC on the Lubanga judgment, and the Gender Report Card 2012.

Judge Van den Wyngaert’s Concurrence to the Ngudjolo Trial Judgment

Like Judge Fulford’s concurring opinion to the trial judgment in the Lubanga case, Judge Van den Wyngaert distanced herself from the ‘control over the crime’ theory, as derived from German law and used by Pre-Trial Chamber I in the interpretation of Article 25(3)(a). She found it inappropriate to directly import national legal principles into the ICC statutory framework and concurred with Judge Fulford’s preference for a plain meaning approach to interpreting the Statute.[xviii] She further underscored the importance of strictly construing the definition of crimes as required by Article 22(2),[xix] which she argued extended to forms of criminal responsibility as well.[xx] She stated, ‘treaty interpretation cannot be used to fill perceived gaps in the available arsenal of forms of criminal responsibility’.[xxi] Similar to Judge Fulford, Judge Van den Wyngaert disagreed with the underlying premise of the ‘control over the crime’ theory, namely, an implicit hierarchy according to which principals are more blameworthy than accessories. She stated: ‘Like Judge Fulford, I see no proper basis for concluding that acting under Article 25(3)(b) of the Statute is less serious than acting under Article 25(3)(a).’[xxii]

Judge Van den Wyngaert further noted that, as in the Lubanga case, Pre-Trial Chamber I in the Katanga & Ngudjolo case had grounded its interpretation of ‘commission through another person’ based on German law to find that the ‘control over the crime’ approach was ‘predicated on a notion of a principal’s control over the organisation’.[xxiii] In contrast, finding that Article 25(3)(a) spoke only of commission ‘through another person‘, Judge Van den Wyngaert contended that ‘elevating the concept of “control over an organisation” to a constitutive element of criminal responsibility under Article 25(3)(a) [was] misguided’.[xxiv] First, she found that substituting ‘organisation’ for ‘person’ violated strict construction.[xxv] Second, she found that ‘by dehumanising the relationship between the indirect perpetrator and the physical perpetrator, the control over an organisation concept dilute[d] the level of personal influence that the indirect perpetrator must exercise over the person through whom he or she commits a crime’.[xxvi] For Judge Van den Wyngaert, the level of influence of the former over the latter should involve ‘subjugation, the domination of the individual will of the physical perpetrator’.[xxvii]

Like Judge Fulford, Judge Van den Wyngaert took issue with the objective elements of co-perpetration, namely the existence of a common plan and the accused’s essential contribution to it. Observing that a common plan constituted a ‘crucial’ objective element in the Pre-Trial Chamber’s interpretation of ‘joint perpetration’, Judge Van den Wyngaert noted that the term ‘common plan’ appeared nowhere in the Statute, nor in the travaux préparatoires.[xxviii] She found the common plan requirement to be overly rigid as an objective element as it did not cover instances where two or more people ‘spontaneously commit a crime together on an ad hoc basis’.[xxix] She explained that as an objective element, the common plan turned the focus ‘away from how the conduct of the accused [was] related to the commission of a crime to what role he/she played in the execution of the common plan‘.[xxx]

Judge Van den Wyngaert also observed that the ‘essential contribution’ requirement was premised on the idea that the perpetrator should control the commission of the crime, and thus flowed from the ‘control over the crime’ theory. Judge Van den Wyngaert agreed with Judge Fulford that there was no statutory support for the essential contribution requirement.[xxxi] She found that it compelled ‘Chambers to engage in artificial, speculative exercises about whether a crime would still have been committed if one of the accused had not made exactly the same contribution’.[xxxii] However, while Judge Fulford had suggested that the required level of contribution be a ‘causal link between the individual’s contribution and the crime’, Judge Van den Wyngaert found causality to be too ‘elastic’.[xxxiii] Rather, she suggested that for joint perpetration, there must be ‘a direct contribution to the realisation of the material elements of the crime’ to be determined in the specific circumstances of each case.[xxxiv]

As noted above, with the exception of the crimes related to the use of child soldiers, the Pre-Trial Chamber confirmed the charges against Ngudjolo based on ‘indirect co-perpetration’.  Judge Van den Wyngaert observed that in doing so, the Pre-Trial Chamber combined ‘joint perpetration’ with ‘perpetration through another person’ to introduce the concept of ‘indirect co-perpetration’, and that it had found no legal obstacle in doing so.[xxxv] Judge Van den Wyngaert thus identified ‘indirect co-perpetration’ as a fourth alternative to the existing three provided in Article 25(3)(a), namely perpetration, joint perpetration, and perpetration through another person. She found this interpretation of the Statute ‘unconvincing’ as it led to ‘a radical expansion of Article 25(3)’ and ‘a totally new mode of liability’.[xxxvi]

Judge Van den Wyngaert described this mode of liability as the creation of a ‘new diagonal axis’, with ‘joint perpetration’ constituting a horizontal axis and ‘perpetration through another’ constituting a vertical axis.[xxxvii] She thus found that according to Pre-Trial Chamber I’s interpretation, it was possible to confirm charges based on this newly created mode of liability, ‘indirect co-perpetration’, without being able to confirm either joint perpetration, or indirect perpetration, both explicitly included in the Statute. She stated: ‘One needs to look no further than the (now largely discredited) facts confirmed by the Pre-Trial Chamber in the current case for an example of how this could be so.’[xxxviii]

Read the trial judgment acquitting Ngudjolo

Read the separate and concurring opinion by Judge Van Den Wyngaert

Read the first Special Issue of Legal Eye on the ICC on the Ngudjolo judgment

For more background about the case against Ngudjolo see the Gender Report Card 2012, 2011, 2010, 2009 and 2008

See also the series of Special Issues of Legal Eye on the ICC on the Lubanga judgment

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The following commentary first ran in a Special Issue of the Legal Eye on the ICC, a regular eLetter produced by the Women’s Initiatives for Gender Justice, an international women’s human rights organisation 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. This Special Issue is the second in a series of two Special Issues reporting on the second trial Judgment handed down by Trial Chamber II in the case against Mathieu Ngudjolo Chui (Ngudjolo) on December 18, 2012. 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 second Special Issue Legal Eye eLetter, click here.

On December 18, 2012, in the ICC’s second trial judgment, 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) in what was the Court’s second trial, as well as the second case, after the Lubanga case, arising from the DRC Situation. It was also the first case in which crimes of sexual violence were charged.[iii] The case centered on an attack on the village of Bogoro in the Ituri region by the Front de nationalistes et integrationnistes (FNI) and the Force de resistance 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 severed the cases against Ngudjolo and Katanga.[iv]

Ngudjolo was charged under Article 25(3)(a) of the Rome Statute with seven counts of war crimes: rape, sexual slavery, wilful killings, directing an 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] While the Chamber affirmed in the trial judgment 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 lead commander of the Lendu combatants from Bedu-Ezekere at the time of the Bogoro attack.[viii] Similarly, while finding the use of child soldiers to be a generalized phenomenon in Ituri, and more specifically that child soldiers from Bedu-Ezekere had participated in the attack on Bogoro, the Chamber concluded that it did not have enough evidence to link Ngudjolo to this crime beyond a reasonable doubt.[ix] For a more detailed analysis of the Chamber’s findings acquitting Ngudjolo, see the first Special Issue of Legal Eye on the ICC.

At the conclusion of the trial judgment, the Chamber ordered the Registry to take the necessary measures for ensuring Ngudjolo’s immediate release, and ordered the Victims and Witnesses Unit (VWU) to take any necessary measures to ensure the protection of witnesses. However, his actual release has been delayed by numerous procedural obstacles, described in greater detail below, and he currently remains at a detention centre for refugees at Schiphol airport in the Netherlands, pending a decision on his application for asylum and his request for release from detention in order to participate in the Prosecution appeal of his acquittal.

At a hearing on December 18, 2012, the same day the judgment was delivered, the Prosecution orally requested that the Chamber maintain Ngudjolo in detention based on Article 81(3)(c)(i) of the Statute.[x]  The Prosecution argued in the alternative, that the Chamber stay his immediate release in light of the Prosecution’s forthcoming appeal of the trial judgment. The Prosecution alleged a risk of flight, based on a 2009 decision issued by the Chamber,[xi] and referred to the potential threat to witnesses.[xii] In their submissions concerning Ngudjolo’s continued detention, the Legal Representatives of Victims reiterated that Ngudjolo posed a risk of flight in light of the future Prosecution appeal, and that his release constituted a potential risk to victims and witnesses appearing in the context of the ongoing Katanga case, which they argued constituted an exceptional circumstance for the purpose of Article 81(3)(c)(i).[xiii] Legal Representative Luvengika specifically requested that if Ngudjolo were to be released, the Chamber apply one of the conditions of release set forth in Rule 119 of the Rules of Procedure and Evidence, without indicating any specific condition.[xiv] Both the Prosecution and Legal Representatives argued that the acquittal did not diminish the gravity of the crimes, which would be again considered on appeal.

In a third hearing that same day, the Trial Chamber issued an oral decision, finding no exceptional circumstances warranting Ngudjolo’s continued detention pursuant to Article 81(3)(c)(i). The Chamber underscored that the Prosecution submission focused on the substantive issues to be determined on appeal, namely the credibility and probative value of witness testimony,[xv] rather than on establishing exceptional circumstances necessitating Ngudjolo’s continued detention and stated that it could ‘only observe that the Office of the Prosecutor has been unable to justify the existence of such circumstances’.[xvi]  It noted in this regard that the Prosecution request could only be analyzed as one for continued detention, and not as a request for a stay in the execution of the judgment. It further found it had no legal basis upon which to stay Ngudjolo’s release. Noting the absence of any reference to any specific legal provision in the Victims’ Legal Representatives’ request that the Chamber apply conditions to Ngudjolo’s release pursuant to Rule 119, the Chamber found that it could not rule on the issue.[xvii]

The following day, on December 19, the Prosecution appealed the Trial Chamber’s oral decision to release Ngudjolo, simultaneously requesting that the Appeals Chamber suspend implementation of the trial judgment.[xviii] It again argued that Ngudjolo’s release should be suspended on an expedited basis, pending resolution of the appeal, essentially repeating the same arguments presented to the Trial Chamber on this issue, namely: risk of flight, potential threats to witnesses and that his release would render the Prosecution appeal of the judgment moot.

On December 20, the Appeals Chamber rejected the Prosecution request for suspensive effect. It noted that pursuant to Article 82(3), granting suspensive effect was an issue falling within its discretion to be determined based on the particular circumstances of the case.[xix] It reasoned that Article 81(3)(c) required that the acquitted be released immediately, and thus ‘particularly strong reasons’ for maintaining his detention must exist. It found that ‘the Prosecutor has put forward no such reasons’.[xx] The Prosecution subsequently withdrew its appeal of the Trial Chamber’s decision to release Ngudjolo.[xxi]

On December 21, 2012, Ngudjolo was released from the Court’s detention facilities and turned over to the Dutch police, which transferred him to Schiphol airport in order to deport him to the DRC.[xxii] In an attempt to avoid deportation, Ngudjolo requested asylum based on his testimony as a witness in his own case.[xxiii] He was subsequently placed in the detention centre for refugees at the airport, where he remains to date.[xxiv]

On the same day, the Defense filed a request with the Appeals Chamber, seeking the application of protective measures pursuant to Article 68 to enable Ngudjolo to relocate to a country within the Schengen zone, specifically Belgium, in order to apply for political asylum.[xxv] The Defense argued that as a witness in his own case, the protection afforded to witnesses pursuant to Article 68 should apply to Ngudjolo as it had applied to two detained defense witnesses who had subsequently sought asylum in the Netherlands.[xxvi] Specifically, the Defense argued that Ngudjolo’s testimony before the Court implicated the Congolese authorities in the attack on Bogoro, giving rise to a well-founded fear of political persecution.[xxvii] In support of its argument, the Defense noted that the military salary provided to Ngudjolo by the DRC was discontinued in October 2012. It thus requested that the Chamber suspend any repatriation measures to the DRC. On December 24, 2012, the Appeals Chamber confidentially ruled on the Defense request for relocation.[xxviii] On that same day, the Registry filed a confidential ‘Report on the developments relating to the release and asylum request made by Mathieu Ngudjolo Chui’ with three confidential, ex parte annexes.[xxix]

Over one month later, on January 30, 2013, the Defense filed an addendum to its request with the Appeals Chamber.[xxx] It argued that neither the Registry nor the VWU were fulfilling their obligations in ensuring Ngudjolo’s protection as a witness as ordered in the trial judgment, or in implementing their obligations pursuant to Rule 185 of the Rules of Procedure and Evidence.[xxxi] The Defense asserted that there was no legal basis for his detention by the Host State, as he was not illegally present in the Netherlands, and that he should be placed in liberty for the purpose of his participation in the appeal as well as to pursue his asylum application. Specifically, it requested that the Appeals Chamber order the Registry to provide a document to the Host State indicating that Ngudjolo’s presence in the Netherlands was necessary for the purpose of the appeal.[xxxii] It further requested that Ngudjolo be remitted back into the custody of the Court for the purpose of determining where to relocate him, pending the appeal of his case and his asylum application.[xxxiii]

In a response ordered by the Appeals Chamber,[xxxiv] the Registry noted that it had received no indication from the Appeals Chamber as to whether Ngudjolo’s presence was necessary for the purpose of the appeals, or whether the procedures would be conducted through written submissions. However, it expressed its willingness to do whatever was necessary to ensure his presence if it was required.[xxxv] It also asserted that the legality of Ngudjolo’s presence in the Host State, and thus his detention by the Dutch authorities, did not fall within the Court’s competence. The Registry further indicated that the Host State had informed it that the UN Security Council travel ban would not be lifted until a State had agreed to receive Ngudjolo within its territory.[xxxvi] Concerning the Defense request for protection, the Registry noted that the VWU had conducted an evaluation and determined that the request was without merit.[xxxvii] On 20 March 2013, the Appeals Chamber granted the Defense request to reply to the Registry’s Report and observations,[xxxviii]  and ordered that it be filed confidentially.[xxxix]

On February 8, 2013, the same day that the Defense filed a second addendum to its request,[xl] the Legal Representatives of Victims submitted a joint request to the Appeals Chamber for access to the confidential, ex parte annexes to the Defense filings.[xli] In the request, they noted the victims’ continued interest in the appellate proceedings, particularly concerning Ngudjolo’s release and relocation.[xlii] On Marc 6, the Appeals Chamber subsequently ordered the Registry to reclassify the filings and to contact the Host State to seek permission to reclassify its submissions.[xliii] The Netherlands did not oppose reclassifying the three annexes to the Registry report as public.[xliv]

On March 27, 2013, the Defense filed another urgent request to the Appeals Chamber, indicating that the conditions of detention at Schiphol airport impeded Ngudjolo from exercising his right to adequate time and facilities to prepare his Defense.[xlv] The Defense noted its inability to communicate freely and confidentiality with its client, Ngudjolo’s inability to access his case file, and a negative health and psychological impact from sharing his cell with another national of the DRC. It requested guidance and a time limit extension in order to be able to submit a response to the Prosecution document in support of the appeal of the trial judgment.[xlvi]

The appeals proceedings remain ongoing at the time of writing.

Read the trial judgment acquitting Ngudjolo

Read the first Special Issue of Legal Eye on the ICC on the Ngudjolo judgment

For more background about the case against Ngudjolo see the Gender Report Card 2012, 2011, 2010, 2009 and 2008

See also the series of Special Issues of Legal Eye on the ICC on the Lubanga judgment

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The ICC Prosecutor charged Katanga with crimes allegedly committed during an attack on Bogoro, a village in the eastern part of the Democratic Republic of the Congo. Katanga was originally charged with “indirect co-perpetration” of the crimes—allegedly by using a primarily Ngiti militia, the Force de résistance patriotique en Ituri (FRPI), to carry out the crimes. His co-accused, Mathieu Ngudjolo, was also charged with indirect co-perpetration for using another, primarily Lendu militia, the Front des nationalistes et intégrationnistes (FNI), to commit crimes during the Bogoro attack. The prosecution claimed the two accused had jointly planned and executed the attack and that the purpose of the attack was to “wipe out” the primarily Hema inhabitants of Bogoro.

Acting under Regulation 55 of the Regulations of the Court, the majority of the judges are considering changing Katanga’s alleged mode of liability to Article 25(3)(d)(ii), a “lesser” form of liability called “common purpose” liability. It essentially means Katanga would be charged for unintentionally, but knowingly, contributing to the crimes instead of being directly responsible for them. The new mode of liability would apply to all crimes except for those relating to the use of child soldiers.

Due to this development in the case against Katanga, the judges severed the two cases. In mid-December, Ngudjolo was acquitted of all charges and subsequently released; the prosecution has appealed his acquittal.

The trial chamber sought submissions from the parties on the proposed changes. After the defense appealed this proposed change and lost, the parties submitted their observations. The trial chamber will now determine whether it will change the charges, and if so, how.

Prosecution Submissions

In its recent submission, the prosecution argued that the evidence the chamber heard during the trial would support a conviction if the charges were changed. In order to prove Katanga is guilty under “common purpose” liability, the prosecution has to prove that Katanga made a significant contribution to crimes committed by a group acting according to a common criminal purpose.  According to the prosecution, the Ngiti combatants attacked Bogoro in a planned and coordinated manner, leading to the commission of war crimes and crimes against humanity.

The prosecution contended that the evidence demonstrates that Katanga contributed to crimes committed in Bogoro by:

1. Organizing and participating in discussions with other Ngiti commanders that led to the plan to attack the village; and
2. Obtaining and distributing weapons and ammunition to the Ngiti combatants that committed the crimes in Bogoro.

The group does not need to have a “common plan” to specifically commit crimes, but its plan needs to include some element of criminality. The prosecution argued that the “common plan” can be implicit. The common plan can also be inferred from the concerted action of the group or from the intention of a leader who has played a major role in the group, such as by creating, leading or organizing the criminal activities of the group, the prosecution submitted. The common plan can also arise suddenly, and does not necessarily need to be pre-formed, the prosecution argued. The prosecution also maintained that the accused does not necessarily have to be a member of the group or share the common purpose, only the people who physically commit the crimes.

The prosecution argued that any contribution to the crimes would be sufficient for conviction, as long as it was linked to the commission of the crimes by the group. This contribution can be linked to the physical perpetration of the crimes, such as by providing weapons or ammunition, or it can be linked to the mental state of those who committed the crimes, such as by encouraging troop morale, the prosecution argued. Also, the prosecution claimed, the contribution can be linked to any members of the group, even if that member of the group did not physically commit the crime.

This means that the prosecution would have to prove that the combatants who committed the attack on Bogoro were part of a group that shared a common plan. However, it would not be necessary to prove that Katanga was a member of that group, just that he contributed to their commission of the crimes. The prosecution argued that the Ngiti combatants from the Walendu-Bindi collectivité, which eventually became known as the FRPI, formed the “group” that attacked Bogoro. The group acted according to a common plan to attack Bogoro and “wipe out” the predominantly Hema population living there, the prosecution argued.

The prosecution alleged that Katanga was the leader of this group and contributed to their crimes. According to the prosecution, Katanga intentionally made this contribution by organizing planning meetings with other leaders of the Ngiti combatants and distributing weapons and ammunition to them. The prosecution argued that Katanga knew these weapons were to be used to attack and “wipe out” the Hema population of Bogoro.

Therefore, if the trial chamber decides to change the charges, Katanga should be found guilty, the prosecution argued.

Four months after being acquitted in the second trial verdict at the International Criminal Court (ICC), Mathieu Ngudjolo Chui is fighting to remain in Europe, having applied for asylum in the Netherlands. His claim is based on his contention that information he presented during his case in relation to the alleged role of the Congolese government in the attack on Bogoro will put him in danger if he is returned. Meanwhile, in the Democratic Republic of Congo (DRC), one local group has taken controversial steps to ensure that Ngudjolo will face new charges at the national level if he returns there.

This effort has divided public opinion. Some argue that Ngudjolo should be tried for other incidents not included in the ICC’s charges and for which they contend that stronger evidence may be available. Others argue that charges that are presented now, after an acquittal at The Hague, would be seen as biased and might serve more to sow tensions than to advance justice.

Relying on Article 153 of the Constitution of the DRC, which allows for direct application in national courts of international treaties signed by DRC, a local NGO, l’Action Citoyenne contre l’Impunite (ACCI) has deposited a complaint with the prosecutor general encouraging the prosecution of Ngudjolo for war crimes and crimes against humanity committed in the town of Bunia from May 6-11, 2003.

In this complaint, the NGO, along with a number of victims, accuses Ngudjolo of attacking the headquarters of the diocese of Bunia at Mudzimaria on May 6, 2003, where a number of Hema had taken refuge as the Ugandan army was retreating. According to the complaint, Ngudjolo, personally and through the actions of his soldiers, caused the death of a number of civilians sheltered there, including Abbot Jean Ngona. The complaint alleges that those killed were targeted solely on the basis of their ethnic background and refers to systematic pillage, citing evidence that Ngudjolo and his troops directly appropriated church vehicles.

The second part of the complaint alleges that Ngudjolo personally organized attacks targeting Hema civilians and their property in the middle of Bunia town on May 10-11, 2003. Specifically, Ngudjolo is accused of the murder of 14 Hema civilians who were in hiding and the kidnapping of four women who were then submitted to sexual violence.

The lodging of the complaint has divided local human rights organizations. Although ACCI tried to engage a broad spectrum of local civil society groups when preparing the complaint, a significant number refused, considering the move ill thought out and unjustified, either because it was unlikely to succeed or because it might further inflame ethnic tensions. Others feel that if the charges against Ngudjolo are well-founded then he should be prosecuted, regardless of the difficulty of the case or the potential impact on public opinion.

For Maître Loma, Secretary-General of ACCI, the complaint goes someway to rectifying the sense that Ngudjolo’s acquittal was a result of poor evidence gathering and not his innocence. In his words, “It would be unjust that a criminal with blood on his hands should escape justice due to a technicality. It is for that reason that we have initiated a complaint in favor of the victims who are ready themselves to give evidence … in order that justice be done.” Maître Macky, of the local NGO Justice Plus, supports the effort and hopes that other local civil society organizations will do so as well “so that these crimes do not become dead letter.” The killings in Bunia that are the subject of ACCI’s complaint have been cited as amongst the most serious allegedly committed by Ngudjolo. They are crimes of which evidence is also most readily available. One activist, Maître Kamba argued that it was the particular gravity of these crimes, particularly the assassination of three abbots, which demanded prosecution.

Others oppose the move, arguing that the case is not only unlikely to succeed, but may increase ethnic tensions. Some said that the fact that so few cases addressing similar crimes had been successful was grounds for skepticism. Further concern was expressed that the case could implicate high level government officials, which lead to additional obstacles.

Others were more concerned about the potential ethnic implications. One lawyer argued that “it would be unjust to accuse only Ngudjolo when Hema combatants also committed serious crimes.” The spokeswoman of a rural women’s association also expressed desire that any complaint be balanced, despite her recognition that the victims of atrocities in Ituri are frustrated to see that their attackers go free, she argued, that any complaint should include both ethnicities. Indeed another activist claimed that the predominantly Hema affiliation of the NGO that initiated the complaint would undermine its potential to deliver justice. It would open the door to claims that the action was motivated by a desire for revenge, rather than true accountability – or worse could be viewed as “provocation” against the Lendu community.

Still others express concern about judicial harassment: Mr. Ngudjolo has not only been acquitted by an international court, he was also previously acquitted at the national level in a 2003 case in Bunia. The Association des Femmes Juristes Pour La Paix argued that the case risked disseminating even more confusion about the purpose of judicial action and could be viewed as judicial harassment of Mr. Ngudjolo. Maître Nziwa, another local activist, was quoted on Radio Merveille as saying that it would be unjust to commence a new prosecution against Ngudjolo, after he has faced so many unsuccessful attempts in the past. After all, Ngudjolo was detained in Makala prison from 2003 to 2005 before his transfer to the ICC.

It is clear that many ordinary Iturians hold out little hope for justice whether at national or international level. Research carried out by Justice Plus published in January 2013, found that many in Ituri claim that they no longer believe in the potential for justice having been so disappointed by previous accountability efforts. The ICC’s decisions to date do not seem to have swayed public opinion, which on the whole maintains that justice continues to be denied. The research showed that there are calls for transitional justice mechanisms that will help to address the roots of ethnic conflict and restore relationships. Civil society could be supported to play a role in this. One of the conclusions of the study is that NGOs in the region need to be well informed and trained to speak to the population, or they will not be able to play their proper role in mediating ethnic conflict. If not, the relationship between the Hema and Lendu will remain embittered.

The prosecution has indicated that it will also file a public, redacted version that protects the identity of those mentioned in the brief. The defense of Ngudjolo has requested that the brief be translated into French. The defense of Germain Katanga, whose case before the ICC was previously joined with Ngudjolo’s, has also requested a copy of the brief. Katanga faces similar charges before the ICC but his case was severed from Ngudjolo’s pending possible changes to the charges.

Meanwhile, Ngudjolo has been detained by the Netherlands on an apparent immigration infraction. After his acquittal, the ICC ordered his immediate release. Upon his release, he was taken into custody by Dutch immigration officials because he does not have a valid residence permit allowing him to remain in the Netherlands. He has claimed asylum in the Netherlands and has requested assistance from the ICC  in securing his release from detention by the Dutch and ensuring his protection.

The ICC prosecutor charged Katanga with crimes against humanity and war crimes allegedly committed during an attack on Bogoro, a village in the eastern part of the Democratic Republic of the Congo. Katanga was originally charged with “indirect co-perpetration” of the crimes – allegedly by using a militia, the Force de résistance patriotique en Ituri (FRPI), to carry out the crimes. His co-accused, Mathieu Ngudjolo Chui, was also charged with indirect co-perpetration for using another militia, the Front des nationalistes et intégrationnistes (FNI), to commit crimes during the Bogoro attack. The prosecution claimed the two accused had jointly planned and executed the attack. In mid-December, Ngudjolo was acquitted of all charges and subsequently released; the prosecution has appealed his acquittal.

Nearly six months after the trial closed, a majority of Trial Chamber II, Judge Christine Van Den Wyngaert dissenting, informed the parties that it was considering a re-characterization of the mode of liability applicable to Katanga. Acting under Regulation 55 of the Regulations of the Court, the majority of the judges are considering changing Katanga’s alleged mode of liability to Article 25(3)(d)(ii), a “lesser” form of liability called “common purpose” liability. It essentially means Katanga would be charged for unintentionally but knowingly contributing to the crimes instead of being directly responsible for them. The new mode of liability would apply to all crimes, except for those relating to the use of child soldiers. Due to this development in the case against Katanga, the judges severed the two cases.

Katanga appealed the decision and asked for it to be suspended. The trial chamber’s notification decision is not final, as it only notifies the parties that they are considering a change and asks for submissions about the proposed change. However, Katanga’s defense argued that the modification violated the Rome Statute and falls outside the scope of Regulation 55. The defense argued that the trial chamber did not have the discretion to make such a decision, that the decision violated his fair trial rights, and that the decision indicated the majority was biased against him.

The prosecution and the legal representatives for victims argued that the trial chamber majority did not make any errors in its decision. The trial chamber majority acted properly when it gave its notice, the prosecution argued. Changing the mode of liability from the one charged, which the defense characterized as a “radical effect,” is simply the normal effect of Regulation 55, the prosecution argued.

According to the prosecution, there is nothing in the ICC’s documents or rules that limits the scope of changes the chamber can make under Regulation 55, as long as the trial chamber:

1. Remains within the facts and circumstances described in the charges;
2. Gives the parties a chance to make arguments about the changes, time to prepare a new defense and to recall or call new witnesses; and
3. Protects the fair trial rights of the defendant.

The prosecution also argued that the majority’s decision was in line with the goal of Regulation 55 – to close impunity gaps. The prosecution contended that the purpose of the regulation is to prevent acquittals based on legal qualifications determined very early in the trial process before all of the evidence is heard. What the majority has done in this case, the prosecution argued, is perfectly in line with that goal—after evaluating all of the evidence, it has realized that the legal characterization determined at the pre-trial stage, when only some of the evidence was presented, was incorrect. This, the prosecution contends, is exactly the scenario Regulation 55 was designed to address.

The Appeals Chamber considered that the timing and scope of the decision fit within the framework of Regulation 55. According to the Appeals Chamber, the decision itself does not violate Katanga’s fair trial rights. However, it acknowledged that there was a risk that the trial chamber could violate Katanga’s fair trial rights depending on how it conducts additional proceedings. In particular, the Appeals Chamber was concerned about violating Katanga’s rights to a trial without undue delay, given the late timing of the trial chamber decision.

Trial Chamber II will now consider submissions from the parties on the potential change and decide how to proceed if it does indeed make a change to the charges against Katanga.

The three witnesses were brought to The Hague in March 2011 to testify in the defense of Germain Katanga and Mathieu Ngudjolo Chui, who were charged by the ICC with war crimes and crimes against humanity committed during an attack on Bogoro, a village in eastern Democratic Republic of Congo (DRC). The witnesses had been imprisoned in the DRC pending charges related to the conflict there. Therefore, they were incarcerated at the ICC Detention Center during their time in The Hague.

During their testimony, the witnesses implicated the president of the DRC, Joseph Kabila, in crimes committed in Bogoro. For this, they claim, they will face torture or death if they are returned to the DRC. Therefore, they have claimed asylum in the Netherlands.

While the Dutch authorities have processed these asylum claims, the witnesses have remained in the ICC Detention Center for nearly two years. Their asylum lawyers claim this detention is unfair and have requested the ICC trial chamber to put an end to it.

Meanwhile, Mathieu Ngudjolo has been acquitted of all charges and released. He was subsequently taken into detention by the Dutch authorities for not having a residence card and has filed his own claim for asylum in the Netherlands. Germain Katanga is still on trial, awaiting a decision about potential changes in the charges against him.

Delays in Asylum Claims

The witnesses filed asylum requests on May 12, 2011. The Dutch Immigration Service initially refused to process the requests according to normal Dutch asylum law. However, in December 2011, a Dutch court overturned this decision and the immigration procedure began in January 2012. According to their lawyers, the Immigration Service rejected the asylum claims in October 2012, referencing Article 1(F) of the 1951 Refugee Convention,[i] and finding that returning the witnesses to the DRC would not violate Article 3 of the European Convention on Human Rights (ECHR). [ii] According to the asylum lawyers, the October 2012 decision was rendered over four months after the legal time limits for the Netherlands to process asylum claims.

The witnesses have appealed these decisions. An appeal hearing will be held on April 11, 2013 before the District Court of The Hague, sitting in Amsterdam. Normally, the lawyers explained, an appeal decision is given within six weeks of the hearing. However, in complex cases, they said, a delay is likely in these cases because they are complex and the three cases are being heard at the same time.

According to the witness’ lawyers, the Netherlands has failed to properly investigate their claims. The Netherlands improperly investigated the witness’ potential involvement in serious crimes, the lawyers claim. This faulty investigation led to the improper conclusion that the witnesses should be denied asylum according to Article 1(F) of the 1951 Refugee Convention, their lawyers asserted. The lawyers claimed the Netherlands also conducted an improper investigation into whether the witnesses could be safely returned to the DRC without being subject to torture or inhuman or degrading treatment or punishment, a right protected by the ECHR.

These investigative failures form the basis of the witness’ appeal before the Dutch District Court. In particular, the lawyers claim the Netherlands has violated the witness’ rights under Article 3 of the ECHR. Given the current situation in the DRC and the situation of the witnesses, the lawyers told the ICC Trial Chamber that they expect the Dutch courts to consider the investigations faulty. In this case, the Immigration Services would have to conduct new investigations, causing further delay in the proceedings.

There are other reasons for potential delays, the lawyers submitted. There is a significant overlap between these cases and the asylum claim made by Mathieu Ngudjolo when he was released from the ICC Detention Center, they said. Therefore, they lawyers have requested the District Court to await the outcome of Ngudjolo’s asylum procedure because it might require a reassessment of the facts of the witness’ cases.  This could lead to delays, as could additional appeals in the witness’ cases. If the witness’ win their appeals, a new decision must be made by the Immigration Services, which could also lead to up to six months of delay. This new decision would also be subject to review, a cycle which the lawyers claimed could be repeated several times. If the witness’ lose their claim, the lawyers have indicated they will bring a petition before the European Court of Human Rights, a process that could cause as much as a year of further delay.

Challenges to Detention

The witnesses have also contested their continued detention at the ICC Detention Center. Their lawyers argue that this prolonged detention, without any proper charges against them and without a valid reason, violates Article 5 (the right to liberty and security of person) and Article 13 (right to effective remedy before a national authority) of the ECHR.

In September 2012, the Single Judge of The Hague District Court ordered the Netherlands to take custody of the witnesses. This decision was appealed and overturned by The Hague Court of Appeal in December 2012. The lawyers appealed this decision before the Dutch Supreme Court, arguing that the Court of Appeal had made several errors in legal reasoning and a misunderstanding of the decisions of Trial Chamber II of the ICC. The lawyers estimated that a decision in the Supreme Court case could take until March 2014, possibly longer.

The delays in these cases are not the witness’ fault, the lawyers submitted. Therefore, the lawyers argued, the witnesses should not have to suffer the consequences of the delays by continuing their detention at the ICC.  They have already been detained there for nearly two years. If the Trial Chamber does not intervene, the lawyers argued, the witnesses could face an additional year or more in the ICC’s detention facility. The unfairness of this detention, they argue, is compounded by the fact that they have not received a valid court order from the DRC that would justify their detention in these circumstances. Based on these factors, the lawyers requested the Trial Chamber to end the detention of the witnesses.

The following commentary first ran in a Special Issue of the 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. This Special Issue is the first in a series of two Special Issues reporting on the trial Judgment handed down by Trial Chamber II in the case against Mathieu Ngudjolo Chui on December 18, 2012. 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 first Special Issue Legal Eye eLetter, click here.

On December 18, 2012, in the ICC’s second trial judgment, 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), constituting the Court’s second trial, as well as the second case, after the Lubanga case, arising from the DRC Situation. It was the first case in which crimes of sexual violence had been charged.[iii] The case centered on an attack on the village of Bogoro in the Ituri region by the Front de nationalistes et integrationnistes (FNI) and the Force de resistance 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 severed the cases against Ngudjolo and Katanga.[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]

The trial judgment principally contained the Chamber’s factual conclusions related to the totality of the evidence concerning the organization and structure of the Lendu combatants from Bedu-Ezekere[vii] within the relevant period, including Ngudjolo’s role and function. While the Chamber affirmed that the events as alleged, including the crimes, had taken place,[viii] it concluded that, in the absence of sufficient evidence, it could not find beyond a reasonable doubt that Ngudjolo was the lead commander of the Lendu combatants from Bedu-Ezekere at the time of the Bogoro attack, as charged by the Office of the Prosecutor. Similarly, while finding the use of child soldiers to be a generalized phenomenon in Ituri, and more specifically that child soldiers from Bedu-Ezekere had participated in the attack on Bogoro, the Chamber concluded that it did not have enough evidence to link Ngudjolo to this crime beyond a reasonable doubt.[ix]

Although deciding to acquit Ngudjolo based on the absence of sufficient evidence to prove his criminal responsibility, the Chamber underscored that the failure to prove this allegation beyond a reasonable doubt did not call into question the alleged facts in the case. It stated: ‘To declare that an accused is not guilty does not imply that the Chamber finds him innocent.’[x]

As the first cases to go to trial with charges of gender-based crimes, the trial against Ngudjolo and Katanga represented the first time at the ICC that victims/survivors of rape and sexual slavery were called by the Prosecution to testify about those crimes. Three witnesses who were victims of sexual violence gave extensive testimony, in both open and closed session, describing the multiple rapes to which they were subjected during the attack, and their abduction and rape after the attack.[xi] In the closing arguments, the discussion of these charges centred on the credibility of the witnesses who had testified about their experiences of rape and sexual enslavement, the temporal scope of the charges and on the issue of cumulative charging.[xii] In the final judgment, the Chamber made very limited findings concerning the sexual violence charges, but found that, as a factual matter, there was extensive evidence attesting to the commission of rape and sexual enslavement.[xiii]

Prosecution investigation and witness credibility

Similar to the trial judgment in the Lubanga case by Trial Chamber I,[xiv] Trial Chamber II dedicated a portion of the Ngudjolo judgment to the Prosecution investigation and to the credibility of Prosecution witnesses. The Chamber acknowledged that the Prosecution investigation of the Katanga & Ngudjolo case, like that of the Lubanga case, was one of the Prosecution’s first, and that it was conducted in an insecure region with little infrastructure.[xv] It recognized the difficulty in finding witnesses who were able and unafraid to testify, as well as in gathering reliable documentary evidence.[xvi] Yet, the Chamber underscored the importance of conducting investigations closer in time and place to the events in question, noting, for example, that the earliest documents in the case file were dated from 2006, three years after the facts under investigation.[xvii]

The Chamber identified several important weaknesses in the Prosecution’s case. First, the Chamber noted that it would have been desirable for the Prosecutor, prior to the commencement of the trial, to have travelled to the places in question.[xviii] Notably, the Trial Chamber had travelled to the DRC on January 18 and 19, 2012, visiting Bunia, Aveba, Zumbe, Kambutso and Bogoro.[xix] This was the first time an ICC Trial Chamber had visited the site of alleged crimes. As described by the Chamber, the site visit enabled it to obtain a sense of the environment and the geography, and to verify specific points mentioned by witnesses and the accused.[xx] The Chamber referred to its findings based on the site visit repeatedly throughout the judgment, particularly in its evaluation of witness credibility. It listed several examples of how knowledge of Zumbe and Kumbutso as well as the distances between these locations and Bogoro, would have aided in the clarification of testimony and a clearer appreciation of the evidence.[xxi]

The Chamber also stated that it would have been desirable for the Prosecution to have called as witnesses several commanders who played a central role prior to, during and after the attacks.[xxii] Specifically, it indicated that the testimony of military officials such as Colonel Aguru, captain Blaise Koka and commanders Boba Boba, Yuda and Dark would have provided important information on the preparation of the attack, how it unfolded and on the forces that remained in Bogoro after the battle.[xxiii] It also suggested that it would have been desirable to have obtained a statement from Ngudjolo during the investigation phase as it would have enabled the Chamber to have confronted him with prior statements.[xxiv]

The Chamber further suggested that the Prosecution should have engaged in a more ‘attentive’ analysis of the civil status and educational history of its alleged former child soldier witnesses.[xxv] It noted that it was the Defense teams that had provided a large number of civil status documents and educational records for Prosecution witnesses, which had enabled a more precise determination of the witnesses’ ages and the locations in which they had studied. It also underscored the fact that the Prosecution 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.[xxvi] It stated, ‘without doubt the Prosecution could have gone deeper into these issues’. [xxvii]

After an extensive analysis of their testimonies, the Trial Chamber determined 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. All three witnesses had claimed to be former child soldiers. Based on contradictions in their testimonies and documentary evidence produced by the Defense demonstrating their actual ages, scholastic records and whereabouts at the time, the Chamber found that the witnesses lacked credibility in their testimonies about their ages, school attendance and conscription. Significantly, the Prosecution had relied almost entirely on the testimony of these three witnesses to demonstrate Ngudjolo’s authority as lead commander of the Lendu militia, and thus the finding that these witnesses were not credible led to the Chamber’s decision to acquit the accused.

In the trial judgment in the Lubanga case, Trial Chamber I had similarly found that 11 alleged former child soldier witnesses for the Prosecution gave contradictory evidence concerning their ages, school attendance, the identity and well-being of family members, or the circumstances of their recruitment, with one exception, and were thus not credible and could not be relied upon in that case.[xxviii] While Trial Chamber I in Lubanga had also considered evidence concerning the influence that Prosecution intermediaries may have had on witnesses as a significant factor, the role of intermediaries was not similarly highlighted by Trial Chamber II in the judgment. Although the credibility of Prosecution witnesses in the Ngudjolo case was, in part, attributed by the Defense to their relationship to Prosecution intermediaries, including those at issue in the Lubanga case, Trial Chamber II declined to include a discussion of these linkages within the judgment, and it based its credibility findings on the contradictory testimonies of the witnesses in question and on the contravening evidence presented by the Defense.

Events in Bogoro

Despite its acquittal of Ngudjolo, the Trial Chamber affirmed that the events in Bogoro and the crimes confirmed by the Pre-Trial Chamber had occurred. At the time of the attack, Bogoro, a town in the Ituri region of north-eastern DRC and strategically located between Bunia, capital of Ituri, and the Ugandan border, was under the control of, and was the location of a military camp of, the Union des patriotes congolais (UPC), a predominantly Hema militia of which Thomas Lubanga Dyilo was President.[xxix] The attack took place in the context of ongoing fighting between the Lendu, Ngiti and Hema ethnic groups in Ituri. In the trial judgment, the Chamber found that the attack started at dawn, between 4 or 5 o’clock in the morning, when the villagers were awoken by bullets. It noted that both UPC and civilian witnesses described a large number of assailants, who came from all directions.[xxx] The Chamber found that the assailants arrived by diverse routes leading to the village, including from the direction of neighboring villages Zumbe and Lagura, forcing the UPC and accompanying villagers to flee through a corridor that led to Bunia. It noted that several witnesses identified the assailants as Ngiti and Lendu based on language (Kilendu or Kingiti). It found that commander Kute (Lendu) was among the assailants on the day of the attack. The Chamber found that the UPC camp fell before noon.[xxxi] The Chamber was unable to conclude, based on the evidence, the exact number of assailants or the exact time frame in which the combatants from Bedu-Ezekere took part in the attack.[xxxii] It was also unable to determine the precise number of civilians killed during the attack.[xxxiii]

The Chamber found that the assailants were armed with machetes, arrows, knives and swords (armes blanches), and that some carried fire arms; some wore military uniforms, others were dressed as civilians. It found that there were women among the attackers, as well as young combatants, notably among the Lendu, who were armed and fought with the adults. It found that child soldiers killed villagers, gashed people with machetes and participated in pillaging.[xxxiv]

The Chamber recounted victim-witness testimony to find that at the beginning of the attack, numerous villagers left their homes, seeking refuge, some in the Institute of Bogoro, a former school that was at the center of the UPC camp; others in the bush. The judgment notes that those who fled to the bush were identified and killed.[xxxv] It found that some women were raped during the attack, while others were taken into captivity and subsequently raped.[xxxvi] The Chamber further found that houses and public and private buildings were destroyed and burned, including churches and schools, and that goods were taken away. It noted that several witnesses identified the pillagers as Lendu and Ngiti, testifying that the goods were carried away in the direction of Bedu-Ezekere.[xxxvii]

Ngudjolo’s criminal responsibility

In light of the forthcoming decision in the Katanga case, which will also be based on the evidence presented at their joint trial, Trial Chamber II addressed only those issues necessary for determining the culpability of Ngudjolo.[xxxviii] The Chamber thus analysed the evidence as it pertained to Ngudjolo’s authority over the Bedu-Ezekere combatants. Specifically, it examined the organization and structure of the combatants, and Ngudjolo’s role and functions before, during and after the attack. As noted above, the Prosecution relied on the testimony of Witnesses 250, 279 and 280, none of whom the Chamber found reliable, to sustain its allegation that Ngudjolo was the head of the Lendu combatants at the time of the attack.[xxxix]

One of the most contested issues in the case involved a shift in the Prosecution case in the terminology used to describe Ngudjolo’s position at the time of the attack in February 2003.  The Prosecution shifted from asserting that Ngudjolo was the lead commander of the FNI at the time of the Bogoro attack, as presented to and confirmed by the Pre-Trial Chamber, to sustaining in its concluding brief that Ngudjolo acted as the head of the Lendu militia of Bedu-Ezekere. This change in terminology reflects the ambiguity about the name of the Lendu militia at the time of the attack.  However, the Trial Chamber found that the Prosecution change in terminology did not affect the basis of the confirmed charges, the essential facts and circumstances of which the accused was aware from the beginning of the trial.[xl]

Regarding the organizational structure of the Lendu militia from Bedu-Ezekere, the Prosecution had alleged that a youth auto-defense movement grew into an organized military structure with a well-defined chain of command that was not limited to self-defense, but also launched attacks.[xli] However, the Chamber was unable to conclude beyond a reasonable doubt that the youth auto-defense movement of Bedu-Ezekere developed into a hierarchical military structure with a clearly defined chain of command as alleged by the Prosecution. Rather, it found beyond a reasonable doubt that at some time between 2001 and 2003, the Lendu combatants were regrouped into specific positions with commanders who were charged not only with self-defense, but also with launching attacks.[xlii]

Specifically, the Prosecution had relied on the testimony of its three key witnesses[xliii] to assert that: there were numerous combatants; military camps were established and led by commanders; the Lendu militia had disciplinary and reporting procedures, and conducted military training and parades; arms and munitions were distributed; and, communication existed between the camps. Relying on the evidence presented by the Defense, the Chamber found that there were at least 500 combatants, that the three main camps were in Zumbe, Ladile and Lagura and that they were led by the commanders Nyunye, Boba-Boba and Kute, respectively.[xliv] However, although the Chamber affirmed the existence of these military camps, it found that it was not possible to conclude, based on the evidence that it had found credible, that the camps were composed of combatants under a hierarchical military structure. Specifically, it stated that it did not have evidence enabling it to conclude that the Lendu combatants ‘were organised within a single structure divided into sectors, battalions, companies, squads and sections’ as found by the Pre-Trial Chamber in the confirmation decision. In addition, the Chamber was not able to make any finding on the exact role played by the above-mentioned commanders.[xlv] Rather, the Chamber simply concluded that there were military-type positions in Bedu-Ezekere prior to 24 February 2003.[xlvi]

The Chamber also concluded that it did not have enough evidence to establish the existence of disciplinary and reporting procedures, or the existence of parades and military trainings in the camps.[xlvii] The Chamber concluded, based on the testimony of several witnesses, including Prosecution witnesses, that the Lendu militia had additional means of communication beyond horns, whistles and drums, as had been argued by the Defense, including mobile phones.[xlviii] Finally, on the basis of extensive witness testimony, including Prosecution witnesses, the Chamber found that the Lendu militia had the capacity to launch offensive attacks as of 2001.[xlix]

Regarding Ngudjolo’s role and functions within the Lendu militia, the Chamber examined the evidence related to Ngudjolo’s social status, his activities and training as a nurse, his military training in the civil guard, and his role and functions before, during and after the Bogoro attack. The Prosecution had relied on the testimony of its three key witnesses, as well as Witness 219, none of whom the Chamber had found credible, to sustain that Ngudjolo was the lead commander in Bedu-Ezekere at the time of the Bogoro attack. The Defense had argued that Ngudjolo was a nurse working in Kambutso on the day of the attack, assisting with a birth.[l]

While the fact that Ngudjolo worked as a nurse was not contested by the parties, his activities between September 2002 and June 2003 were.[li] The Chamber noted that several witnesses confirmed Ngudjolo’s presence at the Kambutso health centre on the day of the attack, but stressed that it did not find these witnesses credible.[lii] Further, while the Chamber accepted the Defense version of the events, placing him at the health centre, it found that his presence in Kambutso did not affect his criminal responsibility, as he could have been simultaneously a nurse and a military chief.[liii]

Concerning Ngudjolo’s position prior to the Bogoro attack, the Chamber noted that a large majority of the witnesses who testified on this issue had based their knowledge on hearsay.  In other words, the Chamber found that almost all of the witnesses who had testified that Ngudjolo was the chief of the Lendu militia, including two victims, had simply heard that Ngudjolo was the lead commander of the Lendu militia, and provided no detail as to the manner in which he had exercised his authority. It thus accorded this testimony little probative value. The Chamber could not exclude the possibility that these witnesses had associated Ngudjolo’s rise in military status at the end of March 2003 to the position he had occupied before the attack in February of that year.[liv]

Ngudjolo’s rise within the ranks of the FNI-FRPI alliance after the Bogoro attack was also a critical issue in the case. For the Prosecution, Ngudjolo’s elevated role and functions after the Bogoro attack were in continuity with the period prior to the attack, and constituted circumstantial evidence of his position of authority before the Bogoro attack. The Defense had portrayed Ngudjolo’s rise within the military in the period after the Bogoro attack to a mix of ‘chance’ and ‘careerist opportunism’.[lv] The Chamber confirmed Ngudjolo’s participation in important political and military events in Ituri after March 6, 2003, relying extensively on video evidence. For example, the Chamber considered Ngudjolo’s signature on the cessation of hostilities agreement of March 18, 2003, convened under the auspices of MONUC, which he had signed as a colonel, representing the Lendu from Djugu.[lvi] The Chamber noted that other well-known figures, such as the customary chief of Bedu-Ezekere and military commander Boba Boba, did not sign the accord, thus demonstrating Ngudjolo’s authority. However, it could not infer from his signature on the document that he had exercised such functions as of 2002.[lvii] The Chamber also considered Ngudjolo’s participation in the FNI-FRPI alliance, from 18 March until October 2003, as deputy commander in charge of operations, (chef d’état-major adjoint chargé des opérations), during which time he directed three brigades.[lviii] The Chamber found that Ngudjolo’s post in the alliance demonstrated recognition of his military authority as well as his military competence.[lix] In contrast, although the evidence revealed that the Lendu militia participated in the attacks on Mandro and Bunia on March 4 and 6, 2003, respectively, the Chamber could not find beyond a reasonable doubt that Ngujdolo had led those attacks.[lx]  Although Ngudjolo was not charged with crimes relating to those attacks, the Prosecution had introduced evidence relating to those attacks to support its arguments about Ngudjolo’s military position at the time of the attack on Bogoro.

The Trial Chamber found that it could not infer from the evidence concerning 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.[lxi] It noted that it had no reliable evidence prior to March 18, 2003, the date of signing of the Ituri Peace Accord, that Ngudjolo was lead commander. It thus could not exclude that he had insinuated himself into the political-military context after the attack on Bogoro.[lxii] Furthermore, the Chamber underscored that it had no credible evidence that Ngudjolo gave orders and military directives, took measures to ensure that they were respected and engaged in disciplinary procedures or imposed sanctions.[lxiii]

As noted above, the Chamber concluded that the presence of child soldiers among combatants in Ituri during the relevant period was a generalised phenomenon, including in Djugu. It also found that children under the age of 15 from Bedu-Ezekere, some carrying spears and machetes, were present at the Bogoro attack. However, the Chamber found that it did not have sufficient evidence demonstrating the provision of military training for children on the order of the accused, their use by Ngudjolo as body guards or for any other purpose before, during or after the Bogoro attack. Thus, it could not, beyond a reasonable doubt, link Ngudjolo to the presence of children at the Bogoro attack.[lxiv]

Judge Van den Wyngaert issued a concurring opinion on the mode of responsibility adopted by Pre-Trial Chamber I in the decision confirming the charges. A more detailed analysis of her concurring opinion on the interpretation of Article 25(3)(a) will be provided in the next Special Issue of the Legal Eye on the ICC eLetter.

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

Read the trial judgment acquitting Ngudjolo.

For more background about the case against Ngudjolo see the Gender Report Card 2012, 2011, 2010, 2009, 2008.

For a detailed description of the closing arguments in the case against Katanga and Ngudjolo see Gender Report Card 2012.

Read the third Special Issue of the Legal Eye on the ICC eLetter on Prosecution investigation and use of intermediaries in the Lubanga case.