Dear Readers,

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.