An acquittal at the ICC

Judges at the International Criminal Court today acquitted a Congolese militia commander on charges that he ordered a 2003 massacre in the town of Bogoro. Mathieu Ngudjolo Chui was the leader of one of several militia groups operating in the Ituri region of eastern Congo, which experienced large-scale bloodshed in 2002 and 2003. Congo’s central government surrendered Ngudjolo to the court in 2008.

The judges found inadequate evidence that Ngudjolo ordered the massacre in question:

[T]he 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 Chamber emphasised, however, that the approach it adopted does not mean that, in its opinion, no crimes were committed in Bogoro on 24 February 2003, nor does it question what the people of this community have suffered on that day. The Chamber also emphasised that the fact of deciding that an accused is not guilty does not necessarily mean that the Chamber finds him innocent. Such a decision simply demonstrates that, given the standard of proof, the evidence presented to support his guilt has not allowed the Chamber to form a conviction “beyond reasonable doubt”.

The decision is a stiff blow to the prosecutor’s office. The court only issued its first verdict, a conviction of rival Ituri militia commander Thomas Lubanga, in March of this year. While ultimately successful, that case was beset with delays and frequently criticized for its lack of ambition (Lubanga was charged only with recruiting and using child soldiers, rather than ordering massacres, rapes, or other crimes). The Ngudjolo decision will underscore concerns that the new court is struggling to make an impact.

This impression is unfair in some respects. Acquittals on their own do not signal an ineffective court or even a failed prosecution strategy. Writing on FP‘s Passport blog, Joshua Keating correctly reminds critics of the prosecution’s strategy that it’s unreasonable to expect convictions in every case:

In any fair court, defendants — includings ones who are almost certainly guilty — are going to sometimes be acquitted for reasons ranging from lack of evidence to prosecutorial incompetence. There are certainly reasonable calls being made to reform the court, and mistakes may have been made in this prosecution but if these are to be more than show trials meant to give a formal veneer to the widespread opinion of the international community, we’re going to have to accept that sometimes the bad guys will get away with it.

What’s more, there is plenty of precedent for international prosecutors coming up short. Nuremberg prosecutors failed to secure convictions of several key German industrialists and leaders. Just last month, judges at the international tribunal for the former Yugoslavia acquitted Kosovo’s former prime minister.

But the Ngudjolo decision may point to a deep-seated difficulty for the young court. The ICC prosecutor’s office has made clear that it will target only those most responsible for grave crimes. In all its investigations, prosecutors have sought charges against leadership-level officials rather than mid-level commanders. In Uganda, prosecution officials went straight for the top commanders of the Lord’s Resistance Army. In Sudan, they pursued several senior Sudanese minister, a janjaweed commander, and president Omar al-Bashir. In Libya, the court issued arrest warrants against Moammar Gaddafi, Saif Gaddafi, and the regime’s intelligence chief.

This "leadership" strategy has several important advantages. First, it responds to the moral insight that those in leadership positions are most culpable and the proper focus of international judicial efforts. A leadership strategy also allows a court with limited resources to narrowly focus investigations that might otherwise become sprawling enterprises. And, in theory at least, the strategy keeps the onus on states to prosecute lower-level perpetrators.

From an evidentiary standpoint, however, these cases are extremely challenging. Because senior leaders rarely have victims’ blood on their own hands, prosecutors are compelled to piece together evidence that they ordered or acquiesced to crimes. Assembling that kind of case often requires either the cooperation of mid-level commanders or intercepts and imagery often in the hands of key national intelligence services. Both sources are difficult. By declining to prosecute mid-level commanders, the court has limited its ability to build cases from the bottom up. Rulings by the ICC judges about the confidentiality of evidence, meanwhile, have restricted the prosecution’s ability to use intelligence from national governments and the United Nations to build its cases.

The Ngudjolo verdict is the clearest evidence yet that these obstacles may be serious ones for ICC prosecutors. There may be more to come. The court’s inability to get custody of many of those it has indicted has likely masked some significant holes in its cases against them.