Ngudjolo Trial Faces Double Jeopardy Claim

The third Congolese in custody at the International Criminal Court, ICC, Mathieu Ngudjolo Chui, has questioned the admissibility of his case by claiming he has already been tried and acquitted for similar charges in his native Democratic Republic of Congo, DRC.



His lawyer Jean-Pierre Kilenda Kakengi Basila has asked ICC judges for more time to gather proof of national procedures against Ngudjolo. He has also requested that prosecutors pass over information they uncovered during investigations in the DRC relating to trials there.



Basila said he is also contacting Ngudjolo’s lawyers in Bunia and Kinshasa for their documents and files.



Ngudjolo is the former leader of the National Integrationist Front militia group, FNI, and the third rebel leader from the DRC charged by the ICC for crimes against humanity and war crimes which took place in Bogoro, a village in the northeastern region of Ituri, in 2003.



On February 7, he joined Thomas Lubanga Dyilo, head of the Union of Congolese Patriots, UPC, and Germain Katanga, leader of the Patriotic Resistance Force, FRPI, who were already in detention at the court.



During his first court appearance on February 11, Basila read out a letter from Ngudjolo saying he had already been tried and acquitted in the DRC on similar charges.



"I do not understand why I was arrested anew by the International Criminal Court,” said Basila, citing the letter.



The ICC can only investigate and prosecute war crimes if a country is unable or unwilling to do so itself. In 2004, the DRC government wrote to the ICC inviting their investigators into the country, acknowledging that it was unable to hold its own investigations and trials.



ICC prosecutors accuse Ngudjolo of nine counts of war crimes and crimes against humanity, including murder, inhumane acts, sexual enslavement and using child soldiers in connection with an attack on Bogoro in which 200 civilians died.



Back in the DRC, Ngudjolo was arrested in October 2003 for the murder of a Hema businessman, and stood trial at the civilian Tribunal de Grande Instance in Bunia.



He was acquitted in June 2004 due to an apparent lack of evidence, although human rights groups say this was because witnesses were scared to testify.



While in custody for the murder charge, the DRC government charged Ngudjolo with war crimes committed in the town of Tchomia in May 2003. He was later transferred to Kinshasa for trial at a military tribunal, and was detained in a Makala prison from where he escaped before a verdict was reached.



How the war crimes case against Ngudjolo progressed before his escape has been somewhat shrouded in mystery.



Federico Borello from the Transitional Justice and Fight Against Impunity Unit at MONUC, the UN peacekeeping mission in DRC, said his team has approached the judicial authorities to clarify what happened after Ngudjolo escaped.



“No-one seems to have any records. We only know Ngudjolo was transferred for the massacre of Tchomia, but then he escaped. What happened in between we don’t know - even whether there were hearings. But there was never a judgment against him,” explained Borello.



IWPR managed to get hold of John Penza Ishayi, a magistrate at the Auditorat militaire de garnison de l'Ituri in Bunia, who confirmed that “Ngodjolo was acquitted..by the District Court of Bunia.



“The prosecution appealed the verdict. While Ngudjolo was in detention at the Makala prison in Kinshasa, a second case was filed against him for systematic attacks launched against the civilian population of Tchomia and Bogoro.”



However, according to the prosecution judge, Ngudjolo was never put on trial for the second case "because he escaped from Makala prison, and went back to Bunia to create another armed branch".



“The file was transferred to the national prosecution office but Ngudjolo was never interrogated. In the end, Ngudjolo has never been prosecuted or sentenced for any of the offences that the ICC is prosecuting him for. His lawyer is just trying to distract the court.”



Anneke Van Woudenberg from Human Rights Watch, HRW, confirmed that two national cases had been brought against Ngudjolo. However, she told IWPR that there could be no double jeopardy claims in relation to the ICC case as a result of these.



“He was not acquitted for war crimes but for murder in a civilian court. There was no judgment on the war crimes charge for the massacre in Tchomia,” said Van Woudenberg.



Prosecutors at the ICC say they have thoroughly researched the admissibility of the case against Ngudjolo and are sure there have been no national proceedings on the specific charges brought by them for war crimes in Bogoro in 2003.



The ICC’s Beatrice Le Fraper Du Hellen, who works on admissibility issues and court relations with national institutions, said that before deciding whether to intervene in a country, ICC lawyers carefully check national trials to ensure that there are no proceedings underway already.



“If we see there are no such proceedings, we may decide to open an investigation and focus on very specific incidents, and then do a more specific admissibility test on the incidents we are investigating to see whether there have been any proceedings,” she said.



“It is a very thorough process before, and after, we open an investigation.”



Since 2004, the European Union has ploughed money into the DRC justice system in a bid to support the rule of law in Ituri, which has suffered from bloody inter-ethnic violence since the wider 1998-2003 Congo war ended.



However, the national judiciary remains beset with problems, including obstruction from the authorities, problems with security and a lack of protection for witnesses.



Although the EU began funding the Bunia court in January 2004, the Congolese government did not allow its prosecutor to prosecute war crimes and crimes against humanity in Ituri - a source of frustration for HRW.



The pressure group said that Ituri militia leaders have been prosecuted for minor offences and often acquitted or given sentences that could have led the local population to doubt the seriousness of Bunia’s new judicial authorities.



Even court judges have criticised the system, especially in relation to security, seeing as many of them received death threats, leading to a suggestion by the prosecutor that trials be held somewhere other than Bunia.



Despite the presence of MONUC peacekeepers, witnesses pulled out of testifying against militia leaders because of threats from armed groups, which HRW says could explain the murder charge acquittal of Ngudjolo before the Bunia court in June 2004.



“While he appeared very confident at the start of the trial, ultimately the prosecutor was only able to produce one prosecution witness. The other witnesses who had made statements during the investigation withdrew them and refused to appear in court due to pressure from the leaders of the FNI,” said a statement from HRW.



“The sole prosecution witness only testified at the court’s first hearing, before refusing to appear at subsequent sessions, citing increasingly insistent threats by FNI supporters. In the end, the prosecution had nothing left to support its case and the only option left to the court was to acquit Matthieu Ngunjolo due to lack of evidence.”



Commentators say that even if Ngudjolo had not escaped and had stood trial for war crimes in his own country, the trial would not have passed muster with the international community.



Van Woudenberg said her team has seen “significant problems with military and civilian proceedings throughout the DRC with significant political interference into the trials”.



She added that there is no witness protection programme in the Congo, and no law governing how witnesses can be protected.



Borello, who has monitored several cases in the DRC in the last few years, said that some have reached satisfactory judgments, while others have been total miscarriages of justice.



He said it is “difficult to know” how Ngudjolo’s Kinshasa war crimes trial would have turned out if it had gone ahead.



While the military court in Bunia has been supported by EU funding, the one in Kinshasa has not.



“The military court in Bunia has had good standards when it reached judgments, because it was supported by the EU so the judges were trained and paid, but other parts of the country have had terrible standards,” said Borello.



Katy Glassborow is one of IWPR’s international justice reporters. Marie Delbot is a Paris-based IWPR researcher.