Trial Chamber II at the International Criminal Court (ICC) applied an impossible standard when it acquitted Mathieu Ngudjolo, the prosecution has argued on appeal. Challenging the trial chamber’s acquittal of Ngudjolo of charges of war crimes and crimes against humanity, the prosecution raised three grounds of appeal:

1. The Trial Chamber erred in law in its application of the standard of finding “guilt beyond a reasonable doubt” found in Article 66(3) of the Rome Statute;
2. The Trial Chamber erred in law in applying Article 74(2) because it did not consider all of the evidence and facts in making its decision; and
3. The Trial Chamber made a procedural error and misapplied Article 64(2), which provides that “the Trial Chamber shall ensure that a trial is fair and expeditious and is conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses.”

Ngudjolo was charged with seven counts of war crimes (using children under the age of fifteen to take active part in hostilities; directing an attack against civilians; willful killing; destruction of property; pillaging; sexual slavery; and rape) and three counts of crimes against humanity (murder, rape, and sexual slavery) allegedly committed during an attack on the village of Bogoro, in the Democratic Republic of the Congo (DRC) on February 24, 2003.

For all of the crimes except those related to child soldiers, he is accused of having committed the crimes through “indirect co-perpetration,” where the accused used a hierarchical organization (the Front des Nationalistes et Intégrationnistes (FNI, National Integration Front)) to carry out the crimes. This means that Ngudjolo allegedly controlled the combatants who physically committed the crimes. The prosecution alleged that Ngudjolo was directly liable for the crime involving child soldiers. The prosecution also claimed that Ngudjolo and Germain Katanga, his co-accused until their trials were severed had a common plan to “wipe out” Bogoro and its Hema inhabitants.

Ngudjolo pleaded not guilty to all charges. He did not deny that atrocities were committed in Bogoro. However, he denied that he commanded the FNI during the attack. He claimed he was not in Bogoro on the day of the attack and that he did not meet Katanga until after the attack had already taken place. The Ngudjolo defense argued that the prosecution had failed to prove a link between Ngudjolo and the crimes. Rather, the Ngudjolo defense placed the blame for the attack squarely on DRC President Joseph Kabila. Kabila himself planned the Bogoro attack, the Ngudjolo defense contended, because Kabila wanted to regain control over Ituri.

The judges concluded that the prosecution had failed to prove beyond a reasonable doubt that Ngudjolo was the commander of the FNI. The judges found that there was insufficient evidence to conclude beyond a reasonable doubt that Ngudjolo was the commander of the Lendu militia based in the Bedu-Ezekere groupment. The chamber considered that just because Ngudjolo became a leader of the group in March 2003 did not mean he was a leader at the time of the attack on Bogoro.

This reasoning is flawed, the prosecution has argued on appeal, and the Appeals Chamber should overturn the acquittal.

“Guilt Beyond a Reasonable Doubt”

Although the prosecution recognized the importance of the “beyond reasonable doubt” standard required for conviction, it does not require “that the Chamber search for and then reject all hypothetically possible contrary inferences, however unrealistic or unsupported” before it can convict, the prosecution argued. However, this is the approach the chamber took in the Ngudjolo trial, the prosecution argued. It applied an unreasonably difficult standard of proof, the prosecution contended, and searched for “all potential contrary explanations” to evidence that suggested Ngudjolo was guilty, even if those alternative explanations were not supported by the evidence or were nonsensical.  The prosecution argued that the trial chamber’s conclusions “at best establish a hypothetical alternative reading of the evidence.” According to the prosecution, the trial chamber effectively required proof beyond any doubt.

For example, the prosecution pointed to the evidence of witness P-317. A UN human rights investigator, P-317 testified that Ngudjolo had admitted to her that he organized the February 24, 2003 Bogoro attack. He allegedly told her that Bogoro was a legitimate military target and that there were no civilians living there at the time. Although the trial chamber considered P-317 a reliable witness and accepted that Ngudjolo had confessed organizing the attack, the prosecution stated, the trial chamber did not accept this as proof of his guilt. The chamber concluded that his confession was not detailed enough and considered that it was possible he had lied to her about his role in the attack in order to improve his reputation in the Congolese army. According to the prosecution, this conclusion is “wholly speculative and factually unsupported.” If interpreted correctly, Ngudjolo’s confession showed that he was trying to defend himself by legitimizing the attack rather than bolster his involvement in the attach, the prosecution contended.

The prosecution contended that it could not find any previous case where judges agreed that a person confessed knowingly and voluntarily, “but refused to credit the confession because of a speculative explanation – unsupported by the record and never proffered by the defense – that the person had a ‘possible’ reason to lie.”

It is an example of the trial chamber’s “flawed” approach to evaluating evidence and, ultimately, its decision to acquit Ngudjolo, the prosecution said. Applying this “unrealistic” standard of proof, the prosecution argued, explains why it was unable to find beyond reasonable doubt that Ngudjolo had authority over the Lendu combatants that attacked Bogoro.

Considering All of the Evidence

The trial chamber also failed to look at all of the evidence together, the prosecution claimed. According to the prosecution, the chamber’s analysis was “compartmentalized” and “selective” and “ignored” important corroborating evidence. When the trial chamber did find one piece of evidence consistent with another, it questioned its credibility on the basis that the consistency could be due to “collusion,” the prosecution averred.

The prosecution explained that judges’ evaluation of evidence takes place in three stages. First, the trial chamber evaluates the reliability and credibility of evidence. Second, the chamber uses the reliable and credible evidence to determine if the prosecution has proven all of the alleged facts. Third, the judges must determine if all of the elements of the alleged crimes and modes of liability have been proven beyond a reasonable doubt. However, the prosecution argued, the trial chamber failed to consider the totality of the evidence in each of these three stages.

In particular, the prosecution took issue with the trial chamber’s treatment of the so-called “Soap Letter,” a letter defense witness D03-66 admitted that he wrote. The prosecution argued that the letter was critical evidence that corroborated testimony of prosecution witnesses about Ngudjolo’s organization of the Bogoro attack. However, the trial chamber did not consider the letter authentic so did not rely on it in its findings. According to the prosecution, the trial chamber failed to properly consider the totality of D03-066’s testimony and other corroborating evidence before it rejected the authenticity of the letter.

The prosecution also argued that the trial chamber failed to properly evaluate the credibility of its witnesses and failed to consider key relevant evidence in its determination of the facts. The chamber’s mistreatment of evidence, the prosecution maintained, caused it to acquit Ngudjolo.

Fair Trial Rights and Witness and Victim Protection

The prosecution also argued that the trial chamber made a procedural error and misapplied Article 64(2). This article provides that “the Trial Chamber shall ensure that a trial is fair and expeditious and is conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses.” The prosecution argued that the trial chamber infringed the prosecution’s right to a fair trial. However, all other information relating to this ground of appeal was redacted from the public appeals brief.

Appeals Process

The Appeals Chamber is not bound by the Trial Chamber II’s interpretations of law. The Appeals Chamber will make its own conclusions about how the law should be interpreted and then will use that interpretation to review the Trial Chamber’s factual findings.

Regarding alleged errors of fact, the Appeals Chamber will usually defer to the trial chamber’s findings, even if it would have come to a different conclusion. It will only interfere with the factual findings if the trial chamber has made a clear error—when the evidence would not reasonably lead to the same conclusion.

The Appeals Chamber will give the trial chamber some deference in the exercise of the trial chamber’s discretion in procedural matters. For alleged procedural errors that were critical to the verdict or could potentially cause the decision to be reversed or revised, the Appeals Chamber will only intervene where the trial chamber has abused its discretion.

For the reasons discussed above, the prosecution argued that the only reasonable conclusion a trier of fact could have reached based on the evidence and factual findings during the trial is that Ngudjolo was the leader of the Lendu combatants that attacked Bogoro. Accordingly, the prosecution argued, the Appeals Chamber should invalidate the trial chamber judgment acquitting Mathieu Ngudjolo. It has requested the Appeals Chamber to find that Ngudjolo was the Lendu militia leader. It also requested that the Appeals Chamber remand the case to a different trial chamber to enter other factual and legal findings on the charges.