CONGOLESE militia leader Mathieu Ngudjolo Chui was acquitted at the Hague war crimes court today, after prosecutors failed to prove he ordered atrocities in eastern Congo a decade ago.
Delivering only its second verdict in 10 years of existence, the International Criminal Court (ICC) saw insufficient evidence to find Ngudjolo guilty of massacres during a war in Ituri district in 2003. In its first ever verdict, in July, the court had jailed opposing commander Thomas Lubanga Dyilo for 14 years.
Ngudjolo was accused of war crimes and crimes against humanity, including overseeing killings, rape and pillage. His prosecutors will appeal the verdict and the court was to rule later on Tuesday whether to free him from jail in the meantime.
The judges said they had no doubt the people of Ituri suffered the massacres described at Ngudjolo's trial and critics of the ICC called for better prosecutions in future in order that victims and their surviving relatives should have justice.
"The people trusted the International Criminal Court more than our national courts," said Emmanuel Folo of Ituri human rights group Equitas. "After this decision, for those who were victims of this, there is a feeling of disappointment. The victims feel forgotten, abandoned by international justice."
The acquittal also raised doubts about the case against Ngudjolo's better known co-accused, Germain Katanga. Judges extended Katanga's trial last month in a move that some observers said might raise the probably of a conviction.
The violence in Ituri was a localised ethnic clash over land and resources among myriad conflicts that spun out of the wider war in Democratic Republic of Congo from 1998 to 2003.
Some rebels involved in the current M23 insurgency in neighbouring North Kivu province were involved in fighting in Ituri - among them M23 leader Bosco Ntaganda, who is himself on the ICC wanted list for war crimes alleged in Ituri in 2003.
Prosecutors accused Ngudjolo of ordering fighters to block roads around the village of Bogoro in February 2003 in order to kill civilians attempting to flee and that civilians, including women and small children, were burned alive inside their homes.
Two hundred people were killed during and after the attack on the village when ethnic Lendu and Ngiti fighters destroyed the homes of the village's mainly Hema inhabitants.
Describing the prosecution case as relating to a "a very concise incident", international criminal lawyer Nick Kaufmann, said: "The prosecution failed to investigate the chain of command adequately as far as the attack in Bogoro is concerned."
The ICC judges stressed that atrocities had been committed during the conflict, but said the witnesses prosecutors had chosen to testify to Ngudjolo's involvement were not credible.
"This does not in any way throw into question what befell the people of that area on that day," presiding judge Bruno Cotte said.
UNLIKELY TO BE OVERTURNED
Ngudjolo's defence asked judges to release him immediately, saying he would not leave the European Union and would return to court for the prosecution's appeal hearing.
Legal experts said it was unlikely the acquittal would be overturned because new evidence cannot be introduced at appeal. Appeals panels rarely reassess the credibility of witnesses.
"The acquittal of Ngudjolo leaves the victims of Bogoro and other massacres by his forces without justice for their suffering," said Geraldine Mattioli-Zeltner, international justice advocacy director at New York-based Human Rights Watch.
"The ICC prosecutor needs to strengthen its investigations of those responsible for grave crimes in Ituri, including high-ranking officials in Congo, Rwanda, and Uganda who supported the armed groups fighting there."
Luis Moreno Ocampo, who stepped down as chief prosecutor this year, failed to convince judges to approve some of his requests for arrest warrants or for cases to be tried in relation to the Congo conflicts.
In May, the ICC refused to issue an arrest warrant for Sylvestre Mudacumura, a militia leader operating in the Kivu provinces, saying his charge sheet was not detailed enough.
Judges last month split the cases against Katanga and Ndgujolo, postponing a verdict on the former until next year and giving prosecutors time to build a case centred around the claim that Katanga was part of a criminal plan to commit war crimes.
That decision, which would allow Katanga to be convicted even if he had not himself committed or ordered war crimes, has been appealed by the defence and criticised by scholars and by dissenting judge Christine van den Wyngaert. She said the decision would cause Katanga "irreparable prejudice".
Thomas Lubanga, the court's first convict, was sentenced to 14 years earlier this year for his role in recruiting child soldiers to another side in the same conflict in Ituri.
Some observers said the different outcomes of the trials for militia leaders from different tribes could cause new friction.
"Lubanga was a Hema leader, and the acquittal of a Ngudjolo, a Lendu, just after the conviction of a Hema could exacerbate tension between the two ethnicities in Ituri," Jennifer Easterday of the Open Society Justice Initiative said.
Ngudjolo was arrested by U.N. peacekeepers in Bunia, eastern Congo, in October 2003, and was handed over by Democratic Republic of Congo's government to the ICC in 2008.