Dear readers – please find below a commentary written by Olivia Bueno at the International Refugee Rights Initiative (IRRI) in consultation with Congolese activists.  The views and opinions expressed here do not necessarily reflect the views and opinions of the International Refugee Rights Initiative or of the Open Society Justice Initiative.

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.