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 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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