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Special Issue #3 — January 2014 |
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Welcome to the |
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The Women's Initiatives for Gender Justice is an international women's human rights organisation that advocates for gender justice through the International Criminal Court (ICC) and through domestic mechanisms, including peace negotiations and justice processes. We work with women most affected by the conflict situations under investigation by the ICC. The Women's Initiatives for Gender Justice works in Uganda, the Democratic Republic of the Congo, Sudan, the Central African Republic, Kenya, Libya and Kyrgyzstan. Offices 
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Dear Friends,Welcome to the third Special Issue of Legal Eye on the ICC, a regular eLetter from the Women's Initiatives for Gender Justice. In the Legal Eye you will find summaries and gender analysis of judicial decisions and other legal developments at the International Criminal Court (ICC), and discussion of legal issues arising from victims' participation before the Court, particularly as these issues relate to the prosecution of gender-based crimes in each of the Situations under investigation by the ICC. The Court currently has eight Situations under investigation: Uganda, the Democratic Republic of the Congo (DRC), Darfur (Sudan), the Central African Republic (CAR), Kenya, Libya, Côte d'Ivoire and Mali. In addition to the Legal Eye on the ICC, we also produce Women's Voices, a regular eLetter providing updates and analysis on political developments, the pursuit of justice and accountability, the participation of women in peace talks and reconciliation efforts from the perspective of women's rights activists within armed conflict situations, specifically those countries under investigation by the ICC. More information about the work of the Women's Initiatives for Gender Justice and previous issues of Women's Voices and Legal Eye on the ICC can be found on our website at iccwomen.org. This Special Issue is the third in a series of Special Issues reporting on the second trial Judgement handed down by Trial Chamber II in the case against Mathieu Ngudjolo Chui (Ngudjolo) on 18 December 2012. In this third Special Issue, we discuss the Prosecution's appeal of the judgement acquitting Ngodjolo, and the release in 2013 of Ngudjolo from the Schiphol immigration detention centre in the Netherlands. In the second Special Issue, we analysed the proceedings regarding Ngudjolo's release following his acquittal as well as Judge Van den Wyngaert's separate and concurring opinion on Article 25(3)(a). In the first Special Issue, we discussed the Chamber's judgement acquitting Ngudjolo of all charges brought by the Prosecution, focusing on the Chamber's findings in relation to the Prosecution investigation, the credibility of witnesses and Ngudjolo’s alleged responsibility. DRC :: Prosecution appeals Trial Chamber II's judgement acquitting NgudjoloOn 18 December 2012, in the ICC's second trial judgement, Trial Chamber II[1] acquitted Mathieu Ngudjolo Chui (Ngudjolo) of all crimes charged by the Prosecution in the case The Prosecutor v. Mathieu Ngudjolo Chui.[2] Ngudjolo was tried jointly with Germain Katanga (Katanga). It was the first case in which crimes of sexual violence had been charged,[3] and the second case, after the Lubanga case, arising from the DRC Situation. The case centred on an attack on the village of Bogoro in the Ituri region by the Front des nationalistes et intégrationnistes (FNI) and the Force de résistance patriotique en Ituri (FRPI) on 24 February 2003. Katanga and Ngudjolo were the alleged commanders of the FRPI and FNI, respectively. On 21 November 2012, Trial Chamber II by Majority severed Ngudjolo case from the Katanga case.[4] 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.[5] He was also charged with three counts of crimes against humanity: rape, sexual slavery and murder.[6] As described in greater detail in the first Special Issue of Legal Eye on the ICC on the Ngudjolo trial judgement, the trial judgement principally consisted of the Trial Chamber's factual conclusions related to the organisation and structure of the Lendu combatants from Bedu-Ezekere within the relevant period, including Ngudjolo's alleged role and function in that militia. While the Chamber affirmed that the events as alleged, including the crimes, had taken place,[7] it concluded that, in the absence of sufficient evidence, it could not find beyond a reasonable doubt that Ngudjolo was the supreme commander of the Lendu combatants from Bedu-Ezekere at the time of the Bogoro attack, as charged by the Prosecution. The Trial Chamber thus acquitted Ngudjolo of all charges, due to the absence of sufficient evidence to prove his criminal responsibility. Specifically, the Trial Chamber found 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. The Prosecution had relied almost entirely on the testimony of these three witnesses to demonstrate Ngudjolo's authority as supreme commander of the Lendu militia.[8] The Chamber also found that several of the witnesses who testified on this issue had based their knowledge on hearsay. It thus accorded this testimony little probative value. The Chamber reasoned that it could not exclude the possibility that these witnesses had associated Ngudjolo's status at the end of March 2003 to the position he had occupied at the time of the attack in February of that year.[9] The Trial Chamber further declined to infer from the Prosecution evidence of 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 in February.[10] For a more detailed analysis of the Chamber’s findings acquitting Ngudjolo, see the first Special Issue of Legal Eye on the ICC of February 2013. The Prosecution filed its notice of appeal two days after the issuance of the trial judgement, on 20 December 2012.[11] On 19 March 2013, the Prosecution submitted a confidential, ex parte document in support of the appeal, asserting three grounds of appeal. On 22 March 2013, the Prosecution filed a confidential, redacted version of its document in support of the appeal with the third ground of appeal entirely redacted.[12] On 3 April, the Prosecution filed a public, redacted version of its document in support of the appeal.[13] The arguments supporting the third ground of appeal remained fully redacted.[14] On 6 March 2013, the Appeals Chamber granted a joint request[15] by the Legal Representatives of Victims to participate in the appeal, reiterating their right to access confidential documents, but not those classified as ex parte.[16] On 16 May, the Appeals Chamber granted a second joint request by the Victims' Legal Representatives[17] to reclassify the third ground of the Prosecution appeal. It ordered the Registry to reclassify it as confidential, in order to enable the Legal Representatives of Victims to submit observations relating to it.[18] In its first ground of appeal, the Prosecution argued that the Trial Chamber had ‘misapplied’ the standard of proof, ‘beyond reasonable doubt’. The second ground of appeal asserted that the Chamber had erred in failing to consider the totality of the evidence in its assessment of witness credibility, the facts of the case, and Ngudjolo's guilt. According to the Prosecution’s brief, the redacted third ground claimed that the 'Trial Chamber infringed the Prosecution's right to a fair trial under Article 64(2)' due to a procedural error.[19] Based on these grounds, the Prosecution sought a reversal of the trial judgement, a factual finding by the Appeals Chamber concerning Ngudjolo's position of authority, and a full or partial retrial. The Prosecution’s arguments under the first and second grounds of appeal are summarised below. At the time of writing, the Appeals Chamber has not yet issued a decision on the appeal. First ground of appeal: The Trial Chamber misapplied the 'beyond reasonable doubt' standardUnder its first ground of appeal, the Prosecution argued that by engaging in 'a hypothetical alternative reading of the evidence', Trial Chamber II effectively required a higher standard of proof, 'beyond any doubt'.[20] The Prosecution underscored the jurisprudence of the ad hoc tribunals and diverse national jurisdictions to assert that the application of the 'beyond reasonable doubt' standard must be based on logic, reason and common sense, as well as the evidence, or lack thereof, that was adduced at trial.[21] It argued that the Trial Chamber had engaged in a pattern of concluding that the Prosecution had not established facts beyond a reasonable doubt 'based on a possible alternative or competing inference or other grounds' that was neither logical, nor based on the trial record.[22] In support of its argument, the Prosecution referred to the testimony of Witness 317, an investigator in the United Nations Mission in the Democratic Republic of the Congo (MONUC) human rights section charged with investigating the Bogoro attack. Witness 317 testified that Ngudjolo had admitted to her that he had organised the Bogoro attack on 24 February 2003, as well as a subsequent attack on Mandro.[23] The Prosecution noted that the Trial Chamber found Witness 317[24] to be credible but refused to rely on her testimony to establish Ngudjolo's authority, reasoning that it could not be excluded that Ngudjolo had lied to enhance his career.[25] The Trial Chamber had stated, ‘it cannot be ruled out that Mathieu Ngudjolo […] had wanted to claim responsibility for an attack so that he would be given a higher rank if integrated into the regular Congolese army’.[26] In their appeals brief, the Prosecution underscored that Ngudjolo had never offered such an explanation for his alleged admission to Witness 317, but rather had denied that he had ever met her or made such a statement.[27] It further noted that at the time of his meeting with Witness 317, Ngudjolo was already a high-ranking official. It argued that ‘this wholly speculative and factually unsupported finding — contrary even to the testimony of Ngudjolo himself — illustrates the Chamber’s flawed approach to the evidence that, ultimately, led it to acquit Ngudjolo’.[28] The Prosecution also referred to the testimony of Defence Witness D02-176, a captain and company commander of the Union des patriotes congolais in Bogoro who was present during the attack and who the Prosecution asserted 'unequivocally recognized Ngudjolo as one of the Lendu commanders at Bogoro' on the day of the attack.[29] It noted that the Chamber 'declined to credit' his testimony because it could not exclude the possibility that he had confused Ngudjolo's later status with his actual position prior to the attack. It stated, 'again, the Trial Chamber's competing inference is not based on any evidence in the record'.[30] The Prosecution further asserted that the language used by the Trial Chamber revealed an incorrect application of the burden of proof. For example, it recalled that the Chamber had stated that one could not 'necessarily and totally exclude' that Ngudjolo had imposed himself as an 'indispensible interlocutor after the battle of Bogoro and after that only'.[31] The Prosecution argued that the standard of proof of 'beyond a reasonable doubt' did not require such necessary and total exclusion. Second ground of appeal: The Trial Chamber failed to consider the totality of the evidenceIn the second ground of appeal, the Prosecution argued that the Trial Chamber had failed to consider the totality of the evidence as required by Article 74(2) at what the Prosecution cited as the three stages of the decision-making process: assessing the credibility of the evidence, making factual findings, and reaching a final decision on Ngudjolo's guilt.[32] Noting that the Chamber could rely on circumstantial evidence, and that hearsay evidence was admissible, the Prosecution asserted that the Chamber had failed to consider relevant corroborating evidence when it assessed specific facts.[33] Specifically, the Prosecution asserted that the Trial Chamber had failed to consider credible aspects of testimony from witnesses that it had determined unreliable, despite the fact that there was corroborating evidence concerning portions of their testimony that were credible. For example, it observed that the Chamber had dismissed the testimony of Witness 250 in its entirety, which provided a detailed account of the Bedu-Ezekere militia and the Bogoro attack, despite the existence of corroborating evidence on these issues.[34] In the trial judgement, the Chamber had found that while Witness 250's testimony demonstrated sincerity and precise knowledge of the militia's disciplinary regime, it was not as precise, and was even contradictory, regarding Ngudjolo's authority.[35] It had further found that Witness 250 was not a member of the militia in Zumbe, as he had claimed, but rather a student in Kagaba, during the relevant period.[36] It concluded that Witness 250's testimony had very weak probative value and could not be relied upon for the purposes of this case.[37] In its appeals brief, the Prosecution detailed other witness testimony and documentary evidence supporting Witness 250's claims concerning Ngudjolo's responsibility, and stated: 'The Chamber thus rejected his key evidence, along with other corroborative evidence, that together established Ngudjolo's authority in Bedu-Ezekere'.[38] The Prosecution also referred to the Trial Chamber's decision not to give weight to the testimony of Witness 317, whom the Chamber had found credible, arguing that this decision as demonstrated the Chamber’s failure to properly assess the probative value of the evidence.[39] As noted above, the Trial Chamber had found Ngudjolo's admission to Witness 317 that he organised the Bogoro and Mandro attacks to be too general, and to be inconsistent with his admission to a Congolese public prosecutor that he only orchestrated the attack on Bunia.[40] The Prosecution argued that Ngudjolo only admitted to his involvement in the attacks on Bogoro and Mandro to Witness 317 because that was the scope of her investigation as a UN human rights investigator.[41] It further argued that Ngudjolo’s admission to the Congolese public prosecutor that he 'only led the 6 March 2003 operation on Bunia' was an attempted denial in order to avoid responsibility for war crimes.[42] The Prosecution argued that the Trial Chamber failed to consider evidence corroborating Witness 317's testimony, including the relevant hearsay evidence of six witnesses.[43] It submitted that 'no reasonable trier of fact could have found that the evidence together with the factual findings entered by the Trial Chamber falls short of establishing beyond a reasonable doubt' Ngudjolo's role in leading the Lendu combatants in the attack on Bogoro.[44] ■ Read the Trial Chamber’s judgement acquitting Ngudjolo of all charges ■ Read the Prosecution’s public redacted document in support of the appeal DRC :: Ngudjolo released from Schiphol immigration detention centre on 4 May 2013In Trial Chamber II’s judgement acquitting Ngudjolo of all charges, on 18 December 2012, the Chamber ordered the Registry to take any 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. As described in greater detail in the second Special Issue of Legal Eye on the ICC, on 21 December 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 return him to the DRC.[45] In an attempt to avoid repatriation, Ngudjolo requested asylum based on his testimony as a witness in his own case.[46] He was subsequently placed in the immigration detention centre at the airport, where he remained until 4 May 2013.[47] During his detention, which lasted over four months, the Defence had filed multiple and urgent requests to the Appeals Chamber seeking, inter alia, that it 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 Prosecution appeal of the acquittal,[48] and that Ngudjolo be remanded back into the custody of the Court for the purpose of determining where to relocate him, pending the appeal of his case at the ICC and his asylum application.[49] The Defence had also argued that the conditions of detention at Schiphol impeded Ngudjolo from exercising his right to adequate time and facilities to prepare his defence.[50] In a filing in June 2013 providing an update to the Appeals Chamber on Ngudjolo’s situation, the Registry indicated that on 3 May 2013, a Dutch Court of Appeal had ordered his release, finding that 'alien retention, whilst an asylum procedure is on-going, cannot be continuous as no exceptions to the applicable law and procedures have been demonstrated'.[51] The Registry indicated that, following his release from the Schiphol immigration detention centre, Ngudjolo was provided with a document enabling him to legally reside in the Netherlands, and was thus able to meet with his Defence team and attend any hearings before the ICC Appeals Chamber. At the same time, the Registry noted that a destination country for relocation was being identified 'in order to ensure Mr Ngudjolo's departure at the earliest convenience'.[52] The Registry further noted that Ngudjolo remained under its responsibility, and was monitored 'on a regular basis'.[53] International law observers also reported that the Dutch Court ordered the State to provide monetary compensation in the amount of approximately EUR 2400 for the time that Ngudjolo spent unlawfully detained, and that Ngudjolo's counsel for the purposes of the asylum proceedings, Flip Schüller and Göran Sluiter,[54] were preparing a criminal complaint alleging that Ngudjolo was 'abducted' by the Dutch authorities at the time of his release from the ICC in December 2012.[55] On 27 May, the ICC Appeals Chamber issued a decision in response to the Defence's urgent requests.[56] It found the Defence request that Ngudjolo be remanded back into the Court's custody to be moot in light of his release from detention. It nonetheless held that the ICC had no competence to review his claims of illegal detention by the Host State.[57] Regarding Ngudjolo's request that the Appeals Chamber order the Registry to issue a document to the Host State indicating that his presence was required for the appeals proceedings, the Appeals Chamber found that his presence was not currently required, since no hearings had been scheduled for the appeal. It thus considered that no document was required from the Registry.[58] The Appeals Chamber observed that Ngudjolo's presence in the Netherlands was potentially temporary and dependent upon the outcome of his asylum application. It noted that he had applied for asylum in order not to be returned to the DRC and because no other relocation options had been provided for him upon his release. However, the Appeals Chamber found that the pending asylum application did not negate the Registrar's obligation to give effect to his acquittal pursuant to Rule 185(1). It thus instructed the Registry to make 'such arrangements as he considers appropriate for the transfer of Mr Ngudjolo in accordance with rule 185(1) ... and article 48 of the Headquarters agreement, and taking into account Mr Ngudjolo's views, including as regards his security situation.'[59] ■ Read the Registry’s report update on the situation in relation to Mathieu Ngudjolo Chui ■ Read the Statement of the Women’s Initiatives for Gender Justice on the Ngudjolo acquittal ■ Read the trial judgement acquitting Ngudjolo ■ For more background about the case against Ngudjolo see the Gender Report Card 2012, 2011, 2010, 2009 and 2008 ■ For a detailed description of the closing arguments in the case against Katanga and Ngudjolo see Gender Report Card 2012 ■ Read the first and second Special Issue of the Legal Eye on the ICC eLetter on Trial Chamber II's acquittal of Ngudjolo and his subsequent detention at Schiphol |
Footnotes 1 Trial Chamber II was composed of Presiding Judge Bruno Cotte (France), Judge Fatoumata Dembele Diarra (Mali) and Judge Christine Van den Wyngaert (Belgium).
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