‘Mr Prosecutor, you did a poor job.’ This is, in barely exaggerated terms, the message implicit in the ICC trial chamber’s judgement of 18 December 2012, the second in the Court’s history.
The judges unanimously acquitted Mathieu Ngudjolo Chui, charged with war crimes and crimes against humanity as indirect co-perpetrator for his alleged role in the attack on the village of Bogoro, Ituri, on 24 February 2003. Whilst the Trial Chamber found that crimes such as murder, plunder, and rape had undoubtedly been committed against civilians during the attack (including by child soldiers), it was not in a position to determine the role played by the accused at the time. Accusations like this can seriously affect your military career so it’s important to ensure that the correct charges are bought to the right person. A specialized court-martial lawyer would have been appointed to the case as these are very serious and sensitive charges.
In a statement issued on 19 December 2012, the Prosecutor announced her intention to appeal the verdict and presented a motion to oppose the release of Mathieu Ngudjolo. On 20 December, the Appeals Chamber finally rejected the Prosecutor’s request. Mathieu Ngudjolo was set free on 21 December, although he cannot return to the Democratic Republic of the Congo until the travel ban imposed by the UN Security Council is lifted.
This judgement is remarkable for being, at the same time, markedly devoid of legal considerations, and profoundly legal in its approach. It is entirely built around a meaningful concept: the notion of reasonable doubt.
As the judges rightly recalled, the fact that an allegation is not proven beyond a reasonable doubt does not necessarily imply that the allegation is unfounded. It only means that the available evidence was not sufficient, or not reliable enough, to verify its truthfulness. As a result, a verdict declaring the accused not guilty does not necessarily mean that the accused is innocent. It merely means that the evidence presented at trial was insufficient to convince the Court beyond any reasonable doubt.
In other words, the Prosecutor could have done a better job. The Trial Chamber did not sanction the Prosecutor for having changed his argument regarding the position of the accused in different armed groups, since the modification did not alter in substance the charges as confirmed by the Pre-Trial Chamber. The judgement, however, contains a section specifically dedicated to listing the shortcomings of the investigation conducted by the Office of the Prosecutor. Although the Trial Chamber acknowledged the difficulty of investigating this case, it blamed the Prosecutor for having failed to call potentially important witnesses and to analyse certain points in sufficient depth.
What is more, contradictions, lies, and suspicious behaviour marred the testimonies of many witnesses and cast significant doubts on their credibility. As a result, the testimonies of several key witnesses in the Prosecutor’s case were entirely dismissed by the Trial Chamber.
In the view of the Trial Chamber, the remaining evidence on the record established that the accused enjoyed rising social status in the region owing to his recognised military expertise and that he had become a key local actor in the time following the attack. Moreover, the judges rejected the accused’s alibi that on the day of the attack he was taking care of a woman in labour as not credible and, in any event, irrelevant. However, the Trial Chamber could not determine precisely what role, if any, Mathieu Ngudjolo played in the attack on Bogoro. Although the Trial Chamber could not rule out the possibility that the accused might indeed have had authority over the armed militia responsible for the attack, in the absence of reliable information it was not convinced beyond a reasonable doubt that this was the case.
It does not belong to this post to judge whether Mathieu Ngudjolo had a lucky escape. Some may legitimately deplore the shortcomings of the Prosecutor’s case. Others may regret that the Trial Chamber did not express its view on the law applicable to indirect co-perpetration and on the import of German criminal law doctrine, as Judge van den Wyngaert did in her separate opinion. Be that as it may, there are reasons to rejoice at the ICC’s judgement. It rigorously applied and revived the standard of reasonable doubt, an institution central to any criminal trial which at times, regrettably, tends to be taken lightly.
The Trial Chamber sent a strong message. Not only did it recall that international criminal trials are (also) still about judging the responsibility of a person, but it also shed light on the challenges faced by the Office of the Prosecutor in investigating and prosecuting wartime atrocities. It is difficult to assess how this judgement will reflect on the Court’s image and whether it will improve its legitimacy. If the Office of the Prosecutor is deemed incapable of building a strong case against one middle-ranking accused for a very narrow set of facts, how can it be expected to deal with large-scale cases involving high-level political and military leaders? The ICC’s time is costly and should not be wasted for the sake of hasty prosecutions. Future investigations should be conducted with great rigour and caution. That being said, those questioning the Court’s independence and impartiality might now have reasons to start believing in international criminal justice.