Arrest of Mathieu Ngudjolo Chui Marks a Milestone in the Fight against Impunity in the Congo

Published: 1 Apr 2008

Refugee Rights News
Volume 4, Issue 2
April 2008

On February 6, 2008, Mathieu Ngudjolo Chui became the third war crimes suspect to be transferred to the International Criminal Court in the Hague. His transfer marks another milestone in ongoing efforts to address the impunity which facilitated widespread atrocities that occurred during the war in Congo.

Since 1998, the conflict is estimated to have claimed the lives of 3.8 million people, including 60,000 civilians in the Ituri region in northeastern DRC, where Ngudjolo was active. 3.4 million civilians are estimated to have been displaced–with more than half a million in the Ituri region alone.

Ngudjolo was the former leader of the National Integrationist Front militia (also known by its French acronym FNI), affiliated with the Lendu ethnic group. He is charged with nine counts of war crimes and crimes against humanity, including murder, inhumane acts, sexual enslavement and using child soldiers in the Bogoro village attack in which 200 civilians died and women and young girls were abducted and turned into sex-slaves.

In 2002/3, over 8,000 civilians died and more than half a million people were displaced in Ituri as a consequence of the armed conflict between the FNI and other armed militias in the region.

The ongoing march of justice

While a positive development, the fact that Ngudjolo is only the third war crimes suspect which has been announced by the Hague must be understood against the backdrop of the enormity of the human suffering of the Congo. If impunity for the range of human rights abuses is to be addressed, a wide range of additional measures will need to build on the efforts of the International Criminal Court.

DRC, in its statement upon ratification of the Rome Statue of the ICC on April 11, 2002, noted “it was ashamed of the atrocities occurring on its territory and looked forward to ICC assistance in punishing those responsible.” Since the referral of the DRC situation by the government to the ICC in March 2004, the ICC has brought two other suspects to the Court, Thomas Lubanga Dyilo, former warlord and leader of the Union of Congolese Patriots (UPC), and Germain Katanga. The UPC and Lubanga are accused of massacring civilians in various towns in the Ituri region and recruiting child soldiers as young as 10 and supplying them with Kalashnikovs since 2002.  Between 2002 and 2003, more than 800 civilians were reported to have been killed by the UPC in the mining town of Mongbwalu and adjacent villages.

The ICC issued an arrest warrant for Lubanga on February 10, 2006 and he was transferred to the Hague on March 17, 2006. Lubanga’s trial, the first for the ICC, was scheduled to start on March 31. However, his trial has been delayed to June 23 due partly to failure by prosecutors to disclose to the defense all its evidence and the identities of witnesses testifying, and the extent and circumstances of victim participation. Other crucial evidence was provided only in redacted or summary form, according to British Judge Adrian Fulford. A spokesperson for the Office of the Prosecutor stated that “the disclosure delays related to witness protection and the difficulties of conducting a trial during an ongoing conflict when violent militias are still active and influential in Ituri.”

Having been in custody in Kinshasa since March 2005, the second war crimes suspect Germain Katanga was transferred to the Hague on October 17, 2007. Katanga was the former chief of staff of the Patriotic Force of Resistance in Ituri (FRPI), the military wing of the Front for National Integration (FNI) militia. He is charged with three counts of crimes against humanity and six counts of war crimes for his involvement in killings, pillaging, using child soldiers and sexual enslavement during an attack on the town of Bogoro alongside Ngudjolo.  Katanga also played a part in the mass murder at the hospital of Nyakunde in September 2002.  Over a 10-day period 1,200 Hema and other civilians were murdered.

A hearing to determine whether the charges against him are strong enough to merit trial was scheduled for February 28, but was also postponed by the Chamber as the Defense hadn’t been given access to the evidence which the Prosecution intends to rely on 30 days before the initiation of a confirmation hearing. A status conference on April 1 dealt with a variety of procedural issues.

Although the ICC cases are proceeding it is clear that a comprehensive justice will not end a with the few high profile cases that will be prosecuted in the Hague. In order to promote a broader restoration of the justice system in Ituri, the European Union has provided the DRC with funding to support justice and rule of law since 2004.  This program has focused on the Ituri region with the objective to end the de-facto impunity for serious civil offenses in Bunia through the establishment of courts, training of prosecutors and legal defense and the building of a prison.  On February 17, 2004, the civilian Tribunal de Grande Instance in Bunia was established and by July some 50 cases had reached a verdict of the roughly 300 cases that had been initiated.  However, the national judiciary remains beset with problems, including obstruction from the authorities, problems with security and a lack of protection for witnesses. In addition, the program has been more targeted at addressing ordinary crimes than war crimes and crimes against humanity. Indeed, the government gave the Prosecutor no particular mandate for prosecuting war crimes. Instead, militia leaders have been prosecuted for minor offences or have been, like Ngudjolo, acquitted, leading the local population to doubt the seriousness of new judicial authorities.

In October 2007, Katanga told a Human Rights Watch researcher during an interview on the complicity of other groups that “his militia group regularly received financial and military support from high-ranking officials in Kinshasa and Uganda and that he had personally been involved in meetings where such support was discussed.”

Double jeopardy

In 2003, Ngudjolo escaped from prison while in custody on charges of murdering a Hema businessman linked to a rival armed group. He was acquitted in June 2004. The decision was appealed, but was eventually released due to a lack of evidence by the Bunia court.

Ngudjolo has raised the fact that he has already been tried and acquitted for similar charges in the DRC as a possible defense. Indeed, if national prosecution takes place the ICC would not normally be in a position to continue the case due to the operation of two legal principles incorporated into the Court’s statute. The first is the “non bis in idem principle” which indicates that the same person cannot be prosecuted twice for the same crimes and the principle of complementarity, which is intended to limit international interventions to cases where the national authorities are either unwilling or unable to intervene.

ICC advocate Christian Hemedi argues that the case never received a final judgment and is therefore exempt from this principle. In an interview with Le Potentiel he pointed out that the case had been moved to Kinshasa for reasons of public safety and eventually freed before the judgment was made. This, alongside the fact that the ICC indictments (for war crimes and crimes against humanity) differ from the common law crimes for which Ngudolo was arrested in DRC, he argues, obviate the need to apply either principle.

Political implications

Throughout discussion about accountability in Congo, the question of how prosecutions may impact political negotiations has been a major problem. Indeed, fears that an investigation would stand in the way of a new power-sharing agreement that placed leaders of military and political groups in government positions were cited as arguments against the Court’s intervention.

The fact that Ngudjolo was in military training in Kinshasa at the time of his arrest following his appointment as a colonel in the Congolese national army in October 2006 only highlights the powerful positions that some human rights abusers in DRC occupy, and the political sensitivity of prosecuting them. Human Rights Watch’s International Justice Program Counsel, Param-Preet Singh, points this out by saying “instead of rewarding abusive warlords like Cobra Matata and Peter Karim with plum military posts, the Congolese authorities should follow the ICC’s lead and try them for war crimes in fair and effective trials.”

In addition, the Prosecution’s announcement that it will not pursue further prosecutions in Ituri has sparked diverse reactions.  REDRESS has expressed concerns that the Court has “unfinished business” in Ituri. They have also documented the discrimination felt by some in the Lendu community (from which two of the three indictees come) due to what they see as unbalanced prosecutions. They link this to the prosecutions of the affiliated Hutu prosecutions by the ICTR. “The Hema, affiliated to the Tutsi get away lightly,” says Eloi Uwodhi of LIPADHO, Ligue Pour la Paix et les Droits de l’Homme.

The Congolese Coalition for Transitional Justice, however, sees the Court’s intention to move to other areas as positive. They pointed out that the focus on Ituri caused those committing crimes elsewhere not to be worried—perhaps minimizing the Court’s deterrent effect. The CCJT therefore invited the Court “to spread its activities to crimes committed in the other provinces of the DRC in order to meet the expectations expressed during the Conference on Peace, Security and the Development of North and South Kivu.”

The hearing on the confirmation of the charges in the case of the Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui will start on 21 May.  The start of Lubanga’s trial is scheduled for 23 June.

Programmes: Resolving Displacement
Regions: Great Lakes Region, Democratic Republic of Congo
Type: Library, Refugee Rights News