The Hague — The International Criminal Court's (ICC) acquittal on December 18, 2012, of a Congolese rebel leader on all charges should re-energize efforts to prosecute others for atrocities in the Democratic Republic of Congo.
The three judges of Trial Chamber II of the International Criminal Court found insufficient evidence to establish "beyond reasonable doubt" that Mathieu Ngudjolo Chui was responsible for war crimes and crimes against humanity during an attack on the village of Bogoro in the Democratic Republic of Congo's Ituri district, in February 2003. That attack was the trial's sole focus.
"The acquittal of Ngudjolo leaves the victims of Bogoro and other massacres by his forces without justice for their suffering," said Géraldine Mattioli-Zeltner, international justice advocacy director at Human Rights Watch. "The ICC prosecutor needs to strengthen its investigations of those responsible for grave crimes in Ituri, including high-ranking officials in Congo, Rwanda, and Uganda who supported the armed groups fighting there."
Ngudjolo was the former chief of staff of the Front for National Integration (FNI), an armed group largely made up of combatants from the Lendu ethnic group. The FNI and their allies battled the Union of Congolese Patriots (UPC), a militia largely consisting of ethnic Hema combatants that was led by Thomas Lubanga. Lubanga was the first person to be tried at the ICC and was convicted in March of recruiting and using child soldiers during the Ituri conflict.
Congolese authorities arrested Ngudjolo in the capital, Kinshasa, in February 2008 while he was undergoing military training following his official appointment as a colonel in the Congolese army. In November 2009 his trial was joined with that of Germain Katanga - the leader of an allied militia, the Patriotic Force of Resistance in Ituri (FRPI) - which allegedly also participated in the Bogoro massacre.
In the judgment, the judges found that the prosecution had failed to demonstrate beyond reasonable doubt that Ngudjolo was the leader of the Lendu combatants at the time of the Bogoro attack in 2003. Given this finding, the judges declined to examine whether Ngudjolo had taken part in a common plan to conduct an attack on Bogoro. The judges stressed that their finding about Ngudjolo's responsibility does not mean "that crimes were not committed in Bogoro on 24 February, 2003 nor does it question what the people of this community have suffered on that day."
"The newly elected prosecutor, Fatou Bensouda, and the court's outreach unit should explain the meaning of this decision, as well as next steps, to affected communities in eastern Congo, particularly those who suffered at the hands of FNI forces," Mattioli-Zeltner said. "Given the judges' comments on the insufficient evidence produced during the trial, Bensouda, should speed up efforts to improve investigative practices and prosecutorial policy."
At last month's ICC Assembly of States Parties session in The Hague, Bensouda stated her commitment to improving investigations by the Office of the Prosecutor.
The prosecutor has 30 days to appeal the judges' decision to acquit Ngudjolo.
On November 21, 2012, the court decided to separate the cases of Ngudjolo and Katanga, who were both accused of war crimes and crimes against humanity for the Bogoro massacre and to re-qualify the mode of liability under which Katanga is held criminally responsible. Katanga's defense has indicated it will seek to appeal this decision. In light of these developments, a verdict against Katanga is not expected for several months.
Evidence presented at the trial corroborated findings by Human Rights Watch about the role of high-ranking military and political officials in Kinshasa and in Uganda in providing strategic direction, and financial and military support to the FNI and FRPI. In particular, the trial exposed a covert military operation that began around September 2002, coordinated by the Congolese army under a secret structure known as the integrated operational military command (or EMOI). The secret structure planned military operations and provided weapons, soldiers, and financial support to Congo's allies in Ituri, including the FNI and the FRPI, among others.
The Ituri conflict from 1999 to 2005 and subsequent other conflicts in eastern Congo have also been marked by the participation of non-Congolese forces. Ituri became a battleground involving Uganda, Rwanda, and Congo. These governments provided political and military support to Congolese armed groups despite abundant evidence of their widespread violations of international humanitarian law. It is crucial for the ICC to investigate those behind the armed groups in Ituri in order to bring justice to Congo's victims, Human Rights Watch said.
Current events in North Kivu have raised similar considerations. A rebellion by the M23 group that began in April is backed by Rwandan military officials, who have provided weapons, recruits, financing, and other types of direct military support. The M23 has committed widespread war crimes. One of its leaders is Bosco Ntaganda, wanted by the ICC since 2006 on charges of recruiting and using child soldiers, as well as murder, pillage, and rape allegedly committed in Ituri in 2002-2003, while he was Lubanga's right-hand man.
"Militias in Ituri, such as Ngudjolo's FNI, did not act alone - just as Ntaganda's M23 is not acting alone today in terrorizing the Congolese population," Mattioli-Zeltner said. "The ICC prosecutor should ensure that justice is done by giving greater attention to senior officials who arm, finance, and support abusive armed groups in eastern Congo."
Ngudjolo's case is the second to reach the judgment phase at the ICC, which began operations in 2003. Another trial, related to the Central African Republic, is under way. An additional trial is scheduled to start in 2013, in relation to Kenya, and a hearing to confirm the charges against former Ivory Coast president Laurent Gbagbo is set to start in February 2013.
In the course of the armed conflict that afflicted the Ituri district of eastern Congo between 1999 and 2005, Mathieu Ngudjolo Chui, a nurse by profession, became a senior military leader in the ethnic Lendu armed group known as the Front for National Integration (FNI), in 2003 holding the position of military chief of staff. The fighting in Ituri between 1999 and 2005 resulted in the deaths of tens of thousands of civilians, many of whom were killed in ethnic massacres, the widespread rape of women and girls, torture, and the forced recruitment of children. Hundreds of thousands of civilians were forced to flee their homes.
In October 2003, Ngudjolo was arrested with the assistance of United Nations peacekeepers in Bunia, Ituri's capital, for the killing of a businessman linked to a rival armed group. The government later accused Ngudjolo of war crimes for a massacre committed by FNI troops in the town of Tchomia in May 2003 and transferred him from Bunia to Makala prison in Kinshasa.
In 2005, after the downfall of some of the FNI's top political and military leaders, Ngudjolo helped to form a new armed group consisting of the remnants of previous militia groups. The new group became known as the Congolese Revolutionary Movement (Mouvement Révolutionnaire Congolais or MRC).
In mid-2006, Ngudjolo signed an agreement with the Congolese government for the disarmament and integration of MRC forces under his command into the national army. He also joined with the rank of colonel. No further investigations were carried out into his involvement in grave human rights abuses. In November 2007, Ngudjolo left Bunia to pursue military training in Kinshasa, where he was arrested in February 2008 in response to the ICC arrest warrant.
The FNI and its allied militia, the FRPI, received military and financial support from Uganda, and from late 2002, from the Congolese government in Kinshasa as it attempted to regain territory won by Lubanga's militia, the Rwanda-backed UPC. While Ugandan forces were in Congo in 2003, they carried out joint military operations with the FNI and FRPI. In 2002 and 2003, the FNI and FRPI also benefited from military training and support from a national rebel group, the Congolese Rally for Democracy - Liberation Movement (Rassemblement congolais pour la democratie - Mouvement de libération or RCD-ML), then led by Mbusa Nyamwisi, who later occupied high-level political positions in Kinshasa, including foreign affairs minister from 2007 to 2008.
The trial of Ngudjolo and Katanga started on November 24, 2009. They were charged as indirect co-perpetrators on seven counts of war crimes and three counts of crimes against humanity. The Office of the Prosecutor called 24 witnesses and the defense teams for Katanga and Ngudjolo respectively called 17 and 11 witnesses. The accused themselves appeared as witnesses - a first at the ICC. Ngudjolo's defense team rested its case on November 11, 2011, less than two years after the start of the trial.