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Congo warlord’s acquittal upheld by ICC as assault on Hutu militia begins

Notorious: Mathieu Ngudjolo, who awaits the ICC’s latest verdict. EPA/Tugela Ridley

The Democratic Republic of Congo (DRC) has launched long-planned strikes against Rwandan Hutu rebels on its territory, after they failed to meet a disarmament deadline.

The strikes mark a major escalation in a conflict that claimed close to six million civilian lives, but which has never really gone away.

Meanwhile, the final chapter in one of the most notorious atrocities of the Second Congo War is about to be told. The International Criminal Court (ICC) has upheld the acquittal of militia leader Mathieu Ngudjolo – 12 years after the Bogoro massacre for which he was originally tried.

Acquittal and appeal

On February 24 2003, armed groups allegedly led by Ngudjolo and Germain Katanga attacked the Hema village of Bogoro. More than 200 civilians were killed, most of them children. Homes were ransacked, and survivors were locked in a room filled with corpses. Many of the attackers were made up of child soldiers in their ranks. Women and girls were dragged away by the attackers to be gang-raped for days.

Ngudjolo was long wanted by the ICC for leading one of the Lendu groups that committed crimes during the attack on Bogoro. He was finally arrested in the DRC and transferred to the court in February 2008. Ngudjolo was jointly charged with co-accused Germain Katanga for committing war crimes and crimes against humanity in Bogoro. He pled not guilty, claiming he had been in another town delivering a baby at the time of the massacre.

In December 2012, the Trial Chamber acquitted him, holding that the prosecution had not proven beyond reasonable doubt that he was the commander in charge of the Bogoro attack. But the prosecution appealed the decision, arguing that the Trial Chamber misapplied the standard of proof, did not consider all the evidence, and failed to provide a fair and expeditious trial.

Ngudjolo and his defence team claimed that the prosecution’s appeal continued to harass the defendant, who they described as the “victim of everything that has happened”.

In the end, the appeal decision upheld the original trial decision and confirmed his acquittal. Despite a confession made by Ngudjolo to a UN investigator on his organisation of the Bogoro massacre, the ICC found that this statement was too general, and was probably a gambit to obtain a promotion in the DRC army. In addition, the appeal chamber found that the original failure to release full phone records to the prosecution implicating Ngudjolo in intimidating witnesses did not undermine the prosecution’s right to a fair trial.

But the acquittal of Ngudjolo stems from disturbing weaknesses in the ICC prosecutor’s original investigation – which in turn shows just how difficult it is to secure justice for victims and perpetrators in a conflict as sprawling as the DRC’s.

Hard graft

Investigating international crimes is an enormously difficult task. The ICC prosecution has fallen short of its own standards in the past – and it will continue to do so. The court faces the unique challenge of investigating international crimes during conflict or insecure areas without the benefit of its own police force, meaning it relies on states to co-operate in investigations – even when they are as fragile and embattled as the DRC.

And while the ICC judges have doggedly safeguarded defendants’ right to a fair trial, the prosecution in Ngudjolo’s case failed to effectively conduct a thorough investigation that could deliver justice to the Bogoro victims.

A refugee camp in Eastern DRC. EPA/Dai Kurokawa

Despite the prevalence of sexual violence in Ituri and at the Bogoro massacre for which he was originally convicted, Ngudjolo was not found responsible for rape or sexual violence. There are similar concerns in the case of Uganda’s Dominic Ongwen, who faces very narrow charges despite the array of crimes of which he is suspected.

Perhaps these “representative” prosecutions are the best the ICC can do with its limited resources and constrained investigations. But ultimately, it is up to states to effectively investigate and prosecute those responsible for crimes on their territory and to provide reparations directly to victims.

Bad neighbours

The cases before the ICC need to be considered in the wider context of the conflict in Ituri and the Great Lakes region.

Much of the ethnic violence in the eastern DRC began with atrocities committed by Ugandan forces. The UN International Court of Justice also found Uganda responsible for killing, torturing and targeting civilians, destroying and looting their property, and training child soldiers, amongst other violations. In 2005, the Ugandan government was ordered to pay billions of dollars to the DRC in reparations – but ten years on, the money has yet to materialise.

Rwanda, meanwhile, has been heavily involved in the conflict in the eastern DRC since the end of its own genocide in 1994. Rwanda has backed pro-Tutsi groups such as the CNDP and M23 against Hutu groups such as the FDLR in the neighbouring Kivus, and UN investigators have documentedthe exploitation of resources by both Rwandan and Ugandan forces and their proxy militias.

One of Rwanda’s former militia leaders, Bosco Ntaganda, awaits trial before the ICC in June. He faces charges for crimes in Ituri, and was known as “The Terminator” in the Kivus for the atrocities his group committed there.

Two decades on from the Rwandan genocide, the failure of the international community and governments in the region to protect civilians and end impunity means the ICC’s work will only ever be a drop in the ocean. Despite the recent offensive against the Hutu FDLR by Congolese forces, the two sides have often fought together in the past and have committed numerous atrocities jointly.

The DRC and Uganda were early supporters of the ICC, but they have failed to hold their own forces to account for past atrocities and to stop them from committing more. And now the 22,000-strong UN peacekeeping force in DRC has backed out of the planned assault on FDLR rebels because the DRC will not withdraw two generals who are implicated in past human rights violations. That in turn sets the stage for increased Rwandan involvement – and with it, the risk of renewed cross-border violence with massive casualties.

For justice of victims of international crimes to be truly done, states and the international community obviously need to do more to prevent and punish those who wish to commit mass atrocities. But how to “do more” in countries as messy and multi-polar as that in the DRC is far from clear.

This article has been updated to reflect the ICC’s decision to uphold Ngudjolo’s acquittal.

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