Why I wrote an 'angry human rights' piece about rape and international law

Yesterday, A Safe World for Women published my piece on the International Criminal Court's acquittal of DRC warlord Mathieu Ngudjolo Chui.

It's not a balanced piece. Ngudjolo is guilty. His acquittal is not the fault of the ICC judges but of the prosecution team who presented an extremely weak case.

There was no excuse for such a weak case. There is an abundance of evidence in the DRC, where hundreds of thousands of women and children have been raped and millions killed in the last ten years or so.

It's not a PC thing to admit, especially for a human rights folk, that the ICC is essentially 'a court for the guilty' and that an acquittal is unacceptable. But this is the harsh truth. I talk about this further in the piece; thousands and thousands of women have been raped by thousands of militias and soldiers. The DRC does not have the will or capacity to hold them all to account. So the International Community, working through the ICC, attempts to provide some form of justice or recourse for victims. They cannot try the thousands of guilty. So they choose a handful, to make an 'example' of.


And they fail in even that.

It's not enough to have rape listed as a war crime. Last year, the International Criminal Tribunal for the Former Yugoslavia (ICTY) produced a documentary about the prosecution of sexual violence in international law entitled 'The Triumph of Justice'. It's worth a watch as it is interesting. Although the ICTY has done much for the advancement of the prosecution of sexual violence, the title is disingenuous in the extreme. About 30 individuals have been convicted on charges related to sexual violence by the ICTY. Around 50,000 women were raped during the conflict in Bosnia alone.

Let's not speak about the triumph of anything here except impunity.

Ngudjolo Acquitted of all charges by ICC

This morning, in only the second verdict by the ten year old International Criminal Court (ICC), Mathieu Ngudjolo Chuiwas was acquitted of all charges against him.

Ngudjolo was charged with seven counts of war crimes and three counts of crimes against humanity relating to an attack against the village of Bogoro on February 24, 2003 by the FNI (National Integration Front), a group of combatants from Ituri in Eastern DRC.

The Judges based their findings on the question of Ngudjolo's authority over the FNI and thus his responsibility for atrocities committed, not whether such atrocities were in fact committed.

The Prosecution claimed that through a hierarchical system of command, Ngudjolo was responsible for the use of child soldiers, mass rape and other atrocities. Ngudjolo pleaded not guilty to all charges. He did not deny atrocities were committed, but claimed he was not in command of the FNI on the day in question.

The Defence, rather cleverly it would seem, claimed the Prosecution did not provide enough evidence linking Ngudjolo to the alleged crimes and instead placed the blame on DRC President Joseph Kabila.

The Judges agreed that the charges had not been proven beyond reasonable doubt. Presiding Judge Bruno Cotte noted "If an allegation has not been proven beyond all reasonable doubt this does not necessarily mean that the alleged act did not occur. Declaring a person not guilty does not mean the Chamber is convinced of the person’s innocence; just that they are not convinced of the person’s guilt as charged,”

Has justice actually been done or merely seen to be done?

The case is not necessarily a blow to those seeking justice for crimes against international human rights law. It proves that due judicial process is followed at the ICC and that is not a court for the already convicted, as critics often claim.

However, as we have seen with the two international ad-hoc  tribunals, lost in the arguments over minute aspects of international law is actual recourse for the victims. It's an extremely frustrating process for those of us not familiar with the intricacies of international law (fully proclaiming my ignorance here).

It reminds me of the cases of the Guildford Four who were wrongfully convicted of bombings carried out by the Provisional IRA and spent almost fifteen years in prison. There were other innocents in similar situations, the McGuire Seven, the Birmingham Six. In these cases, the wrong men were imprisoned for years.  

Innocent men were imprisoned but the general public was satisfied people were being held accountable for the murder or innocents. Justice was not done but it was seen to be done.

I am sure the victims of the IFN in DRC will feel something similar. It goes back to the eternal question of juggling justice and the rights of victims with the rights of the accused and due legal process.

The ICC Judges had ordered the Registrar to take measures to release Ngudjolo immediately and to ensure protection for witnesses who had given testimony against him. ICC Chief Prosecutor Fatou Bensouda has requested Ngudjolo not be released immediately and will present arguments to this effect this afternoon.
 
In his excellent and very readable "An Introduction to the International Criminal Court," , Prof. William Schabas notes that "There may well be a denial of the presumption of innocence but it will not have been committed by the Court itself,"  Today's judgement has validated this remark.