Home » Author: Kirsten J. Fisher » First ICC Not-Guilty Verdict: Expectations and Failure to Convict

First ICC Not-Guilty Verdict: Expectations and Failure to Convict


On 18 December 2012, the International Criminal Court (ICC) acquitted Congolese warlord Mathieu Ngudjolo Chui of the war crimes and crimes against humanity for which he was prosecuted. Naturally, some are angry about the verdict. But what does the verdict really say about the Court? And what does the anger say about expectations of it?


This case was the second in the 10 year history of the Court to reach a verdict. The first was earlier this year when, on 14 March 2012, the Court found Thomas Lubanga Dyilo (Lubanga), also a Congolese warlord, guilty of the war crime of conscripting and enlisting children under the age of fifteen years and using them to participate actively in hostilities. On 10 July 2012, the Court sentenced Lubanga to 14 years in prison, minus the time from his surrender to the ICC in 2006 until the date of his sentencing. Therefore, his sentence was to spend an additional 8 years from the date that his sentence was read.

The case against Ngudjolo Chui was originally made in conjunction with one against Germain Katanga. Their joint trial opened on 24 November 2009. Ngudjolo Chui and Katanga were accused of war crimes and crimes against humanity allegedly committed in the village of Bogoro in the Ituri district of eastern DRC from January to March 2003 – alleged murder or willful killing, inhumane acts, sexual slavery, rape, cruel or inhuman treatment, using children to participate actively in hostilities, outrages upon personal dignity, intentional attack against the civilian population, pillaging and destruction of property.

In a controversial decision in November 2012, the ICC Trial Chamber severed the two cases and announced that a judgement in the matter of Ngudjolo Chui was forthcoming and the legal proceedings against Katanga would continue. Observers who speculated that the separation meant that the Trial Chamber was preparing to deliver an acquittal for Ngudjolo Chui were correct.

From this verdict emerge two issues. One is getting legal minds very excited: a 34-page separate concurring opinion filed by Judged Christine Van den Wyngaert in which “she tackled all of the crucial issues raised by the case, many of which were sidestepped by the full Trial Chamber’s decision”. Cornell Law Professor Jens David Ohlin offers a very nice summary on his blog, Lieber Code.

The other concerns questions of justice for victims and the expectations of the permanent international court when the Office of the Prosecutor was unable to demonstrate beyond a reasonable doubt that Ngudjolo Chui was guilty of committing the international crimes of which he was accused.

Presiding Judge Cotte, reading a summary of the judgment in public, explained that in view of the evidence before the Court and:

the testimonies of witnesses called by the Prosecution, the Defence, the Legal Representatives of Victims and the Chamber itself, it has not been proven beyond reasonable doubt that Mathieu Ngudjolo Chui was the commander of the Lendu combatants from Bedu-Ezekere during the attack against the Bogoro village on 24 February 2003. As a result, the Chamber is of the view that the Prosecution has not proved beyond reasonable doubt that Mathieu Ngudjolo Chui was responsible, within the meaning of article 25-3 of the Rome Statute, for the crimes allegedly committed during the attack. Hence, the judges decided to acquit the accused“.

The Court emphasized that its decision reflects the high standards that evidence presented to support a suspect’s guilt must prove it “beyond a reasonable doubt”. It also underlined the fact that a decision by the Court to find a suspect not guilty does not necessarily mean that he (or she) is found to be innocent.

What must be excruciatingly painful for victims of war crimes and crimes against humanity for which Ngudjolo Chui was indicted must also be seen as a sign that the Court works. In the case of a criminal justice system, some failures are a sign that the system is working justly according to safeguards established because of our limitations in omniscience and the potential for mistakes or abuses of power.

It is dangerous territory to expect that every case that comes before the Court must be resolved with a guilty verdict. What then is the point of the Court — beyond theatrics?

In a fair legal system, defendants are presumed innocent until proven guilty. And, in a fair legal system, defendants will be acquitted for different reasons. Defendants will sometimes escape justice. It is the price that is paid for not convicting and punishing the innocent.

That being said, the Prosecution can and will appeal the verdict. The case against Ngudjolo Chui is not yet finished.


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