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The Prosecutor v. Mathieu Ngudjolo

Court International Criminal Court (Trial Chamber II), The Netherlands
Case number ICC-01/04-02/12
Decision title Judgment Pursuant to Article 74 of the Statute
Decision date 18 December 2012
  • Mathieu Ngudjolo Chui
  • The Prosecutor of the International Criminal Court
Other names
  • Case No. ICC-01/04-02/12
Categories Crimes against humanity, War crimes
Keywords children under the age of 15 taking active part in hostilities, credibility of witnesses, crimes against humanity, war crimes
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Mathieu Ngudjolo Chui was charged with crimes against humanity (crimes committed on a widespread basis and directed against civilians) and war crimes (prohibited acts committed during war) that occurred during the attack against the Bogoro village on 24 February 2003. In particular, the Accused was suspected of killing, training and using children to support his military activities, destroying houses, and attacking the inhabitants of the Bogoro village. These crimes were allegedly committed by the accused together with Germain Katanga and other persons.

Regarding of the use of children, the Trial Chamber stated that these were often present in military groups in Ituri. However, it was not proven that the accused himself trained or involved children under the age of fifteen in war activities.

In addition, it was not proven that the accused was a commander of Lendu group in February 2003. Therefore, he was released. Nevertheless, regardless of the acquittal of the accused, the Trial Chamber emphasised that the acquittal does not mean that crimes were not committed on 24 February 2003 and that the victims did not suffer damages. 

The Prosecutor v Mathieu Ngudjolo case is the second judgment issued by the ICC, and its first acquittal.

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Procedural history

On 7 February 2008, the warrant for the arrest of Mathieu Ngudjolo Chui was unsealed. On the same day, he was transferred to the ICC. He was charged with committing, through other persons, three crimes against humanity and seven war crimes.

On 10 March 2008, his case was joined to the case of Germain Katanga. The trial began on 24 November 2009.

On 30 September 2008, Pre-Trial Chamber I confirmed the charges against Mathieu Ngudjolo Chui. The confirmed charges were crimes against humanity (murder, sexual slavery and rape) and war crimes (using children under the age of 15 to take active part in hostilities, deliberately directing an attack against the civilian population as such or against individual civilians or against individual civilians not taking direct part in hostilities, wilful killing, destruction of property, pillaging, sexual slavery and rape).

On 21 November 2012, the two cases were separated by the Trial Chamber II. 

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Related developments

On 19 December 2012, ICC Prosecutor Fatou Bensouda issued a statement specifying that the Office of the Prosecutor will appeal the decision of the Trial Chamber to reject the continued detention of the Mr. Chui and the verdict.

On 20 December 2012, the Appeals Chamber rejected the Prosecutor’s request to keep the accused in custody during the appeal against his acquittal. The next day he was released from custody.

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Legally relevant facts

The accused was the alleged leader of the Front des Nationalistes et Intégrationnistes (FNI). During the period October 2006 until his arrest, the accused was a Colonel in the National Army of the Government of the Democratic Republic of Congo (‘FARDC’) (para. 6). 

On the morning of 24 February 2003, members of the accused's militia allegedly entered the village of Bogoro and launched an indiscriminate attack, targeting mainly civilians. Children under the age of fifteen actively participate in the attack. In addition, houses and public and private buildings were “de-roofed”, destroyed and burnt and property belonging to civilians in Bogoro was taken during and after the attack. During the attack, women were raped, and numerous Bogoro inhabitants were killed or kept in captivity (paras. 337-338).

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Core legal questions

  • Is Mathieu Ngudjolo Chui guilty of committing, through other persons, crimes against humanity and war crimes during the attack against the Bogoro village on 24 February 2003?

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Specific legal rules and provisions

Rome Statute of the International Criminal Court:

  1. Individual criminal responsibility (Art. 25(3)(a).
  2. Crimes against humanity (Art. 7(1)(a), Art.7(1)(g)).
  3. War crimes (Art. 8(2)(a), Art. 8(2)(b)(i), Art. 2(b)(xiii), Art. 8(2)(b)(xvi), Art. 2(b)(xxii), Art. 8(2)(b)(xxvi)).
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Court's holding and analysis

On 18 December 2012, Trial Chamber II acquitted Ngudjolo Chui of the charges of war crimes and crimes against humanity. The Trial Chamber II stated that the Prosecutor failed to present sufficient evidence that Ngudjolo Chui was the commander of Lendu combatants during the attack (para. 503).

Regarding the use of child soldiers, the Trial Chamber stated that ‘presence of children in combatant groups in Ituri was, at the material time, a widespread phenomenon’ The Trial Chamber concluded that it is not established beyond reasonable doubt that prior to, during or following the attack the accused himself had trained, used as personal bodyguards or for any other purpose children under the age of fifteen (para. 516). In addition, certain key witnesses (P-250, P-279, P-280, P-28, and P-219) were found not to be credible.  

Based on the evidence presented, the Trial Chamber reasoned that the prosecutor had failed to present sufficient evidence to prove beyond all reasonable doubt that the accused was responsible for the commission of the alleged crimes during the attack on Bogoro village. 

The judges emphasised, however, that their decision did not mean that no crimes were committed in Bogoro or that the people of the community had not suffered in the attacks. In addition, the Trial Chamber ordered the immediate release of Ngudjolo Chui.

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Further analysis

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Instruments cited

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Related cases

  • ICC, Situation in the Democratic Republic of the Congo, In the case of the Prosecutor v. Germain Katanga, Case No. ICC-01/04-01/07.

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Additional materials

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