Today the ICC acquitted Mathieu Ngudjolo Chui. He was on trial for allegedly committing war crimes in the DRC. This acquittal is important not only as another dubious first- the summary suggests that the judges were dissatisfied with the quality of the prosecution’s witness testimony- but because of how it may guide other trial chambers in the standard of review of evidence and modes of liability.
One member of the trial court, Judge Wyngaert, was particularly troubled by the elements of indirect co-perpetration and the application of the so-called control theory imported from German Legal doctrine. Her analysis of the engineworks of international criminal law theories of liability will probably interest lawyers more than non lawyers. But these same issues of modes of liability are being challenged by at least one defence team of the Kenyan Accused. So I’ll blog more on this once I’ve looked through the various judgements (so far the main judgement is french only).
Another important lesson from the Ngudjolo acquittal is just how problematic joint trials can become. The Prosecutor originally charged Ngudjolo and Germain Katanga separately. A decision was then taken to join the two cases for trial. Shortly before Ngudjolo’s acquittal, the Judges again separated the two cases. We’ll know the reasons fully once the Katanga case ends but it is food for thought in view of the way the Kenya cases have been joined for trial.
UPDATE 22 DECEMBER 2012: Another reason why Judge Wyngaert’s Opinion is vital is that she is one of the trial judges in the Kenya cases where, among other things, Uhuru Kenyatta and Francis Muthaura are charged as indirect co-perpetrators of crimes against humanity. Will her strong views on the nature of indirect co-perpetration affect how the parties (Prosecutor and Defence teams) approach the trial?
UPDATE 23 DECEMBER 2012: Ngudjolo’s acquittal may also cause ethnic turbulence in his home province of Ituri. This is because some of the fighting in the 2002-2003 Congo conflict took the form of ethnic war between Hema and Lendu within Ituri Province. Now a Lendu leader, Ngudjolo, has been acquitted whereas Thomas Lubanga who led a largely Hema militia was convicted. How will it play in the ‘silent war’ of histories where each ethnic group writes it’s own history of the conflict casting itself as an innocent victim responding to atrocious aggression by the enemy? How will it play in terms of perceptions of the court where aggrieved Hemas may feel themselves ‘victims’ of international justice that has convicted one of their sons, while acquitting a son of the perceived Lendu enemy?
The ethnic dimension is also present in the Kenya case and remains a thorny question that must be addressed throughout and after the trials. While PEV did not degenerate into all-out war at the level of the Ituri conflict, how would an acquittal in one case be met if it is accompanied by a conviction in the other? Will it feed the sense of victimhood amongst Kalenjin, Kikuyu or Meru? Or will it show that international justice is fair-handed and each accused had an equal chance before the court?