Ngudjolo says he is a victim in appeals hearing

Ngudjolo was charged with seven counts of war crimes (using children under the age of fifteen to take active part in hostilities; directing an attack against civilians; willful killing; destruction of property; pillaging; sexual slavery; and rape) and three counts of crimes against humanity (murder, rape, and sexual slavery) allegedly committed during an attack on the village of Bogoro, in eastern Democratic Republic of the Congo (DRC) on February 24, 2003.

For all of the crimes except those related to child soldiers, he is accused of having committed the crimes through “indirect co-perpetration,” where the accused used a hierarchical organization — allegedly a Lendu militia that later became known as the Front des Nationalistes et Intégrationnistes (FNI, National Integration Front) — to carry out the crimes. This means that Ngudjolo allegedly controlled the combatants who physically committed the crimes. The prosecution alleged that Ngudjolo was directly liable for the crime involving child soldiers. The prosecution claimed that Ngudjolo and Germain Katanga, his co-accused until their trials were severed, had a common plan to “wipe out” Bogoro and its Hema inhabitants.

On December 18, 2012, Trial Chamber II acquitted Ngudjolo of all charges. The judges concluded that the prosecution had failed to prove beyond a reasonable doubt that Ngudjolo was the commander the Lendu combatants who allegedly attacked Bogoro. This was the key finding in the case, and the trial chamber did not make any further findings on the alleged crimes.

The prosecution filed three grounds of appeal:

  1. The Trial Chamber misapplied the criminal standard of proof;
  2. The Trial Chamber erred by failing to consider the totality of the evidence and facts for its decision-making; and
  3. The Trial Chamber infringed on the prosecution’s right to a fair trial under Article 64(2).

Under the first ground of appeal, the prosecution complained that the trial chamber did not reasonably apply the “beyond reasonable doubt” standard required for a conviction. The prosecution argued that this standard “does not require proof beyond any doubt and does not require the Chamber to search for and then reject all hypothetically possible contrary inferences, however unrealistic or unsupported” before finding an accused guilty. However, that is what the trial chamber did in this case, the prosecution contended.

As an example of this flawed reasoning, the prosecution (as well as the legal representatives for victims) pointed to the trial chamber’s findings about the testimony of witness P-317. P-317, a UN human rights investigator, testified that Ngudjolo had told her that he organized the Bogoro attack. Although the chamber accepted that he made this admission and found P-317 to be a credible witness, it found that Ngudjolo might have made this admission in an effort to bolster his reputation in the Congolese army. Therefore, the trial chamber did not accept the admission as proof of his guilt. This is just one example of the chamber’s flawed approach to evidence, the prosecution argued. It demonstrates how the chamber refused to make findings against the accused without first rejecting all potential alternatives, even if those alternatives were not supported by the evidence or were not based on logic or the trial record, the prosecution argued.

The prosecution argued in their second ground of appeal that the chamber failed to consider the totality of the evidence on record. Instead, the prosecution argued, the chamber’s analysis was “compartmentalized and selective” and viewed evidence in isolation, instead of as a whole. According to the prosecution, the chamber ignored critical corroborating evidence, and when corroborating evidence was considered, the chamber questioned its credibility on the basis of potential collusion.

Arguments regarding the third ground of appeal — the failure to protect fair trial rights — were conducted in private session.

The prosecution requested the Appeals Chamber to reverse the trial judgment and make a factual finding that Ngudjolo was the leader of the Lendu combatants who attacked Bogoro on February 24, 2003. The prosecution further asked the Appeals Chamber to remand the case for a retrial before a different trial chamber to make necessary legal and factual findings on other issues and on the issue of Ngudjolo’s leadership position in case the Appeals Chamber rejects that request.

The legal representatives for the two groups of victims (general victims and child soldiers) supported the prosecution’s submissions and largely made similar requests of the Appeals Chamber. The legal representative for general victims argued that the judgment was so tarnished with accumulated errors that it invalidated the chamber’s conclusions. Moreover, the victims’ legal representative argued, the proceedings were so flawed that the chamber failed to uphold its duty to provide a fair trial. The judgment must be recast, he argued.

The legal representative for child soldiers argued that the trial chamber had essentially invented a defense for Ngudjolo. One example of many raised by the legal representatives for child soldiers was the trial chamber’s finding that Ngudjolo’s statements to P-317 were not credible. Ngudjolo argued that he had never met P-317 and could therefore not support the line of reasoning presented by the trial chamber, the legal representative argued. This approach to the evidence is incorrect and constitutes a grave error, the legal representative submitted.

The defense for Ngudjolo argued that the appeal was baseless and merely another opportunity for the prosecution to harass Ngudjolo. The prosecution was inconsistent and incoherent, and this is reflected in the trial judgment, the defense argued. The defense submitted that during the closing arguments, the trial chamber was intent on establishing the precise nature of Ngudjolo’s status as the alleged leader of the Lendu militia but that the prosecution admitted the evidence was not specific in this regard. This is a “public admission of failure,” the defense argued. The defense argued that the trial judgment was sound and should be upheld by the Appeals Chamber.

Ngudjolo also took the opportunity to address the Appeals Chamber. Ngudjolo insisted on his innocence and his position as a nurse during the conflict in the DRC. He argued that he was never a leader of the Lendu militia. He further submitted that it was the president of the DRC, Joseph Kabila, who planned the attack on Bogoro. Ngudjolo claimed that the truth about the Bogoro attack was known and questioned why the prosecution refused to indict those persons who are truly responsible. He wondered why the prosecution was so “hell-bent” on accusing him. Because of his statements about President Kabila and others who he argues are responsible for the Bogoro attack, he can never return to the DRC, where his life would be in danger, he said.

“I am a victim of everything that has happened,” Ngudjolo told the Appeals Chamber.

The Appeals Chamber will now deliberate on the parties’ submissions before making its findings.

This is article was produced by and originally appeared on the International Justice Monitor, a project of the Open Society Justice Initiative.