With Ngudjolo Acquittal, Prosecutor is now Batting 50/50

In the second prosecution to reach the judgment stage, a three-judge Trial Chamber of the International Criminal Court has just acquitted Mathieu Ngudjolo of war crimes and crimes against humanity.

The judgment is straightforward and entirely accessible to those without legal training: the three judges didn’t believe many of the key witnesses called by the prosecution.

Most experienced lawyers will acknowledge that a unanimous acquittal rooted in the lack of credibility of the prosecution witnesses is relatively impervious to appeal. Although appeals are more or less de rigueur at the international criminal tribunals, the Prosecutor might be wise to decide to devote her precious resources to other pressing priorities rather than try to contest today’s findings by the Trial Chamber. She might decide quickly, and give Ngudjolo enough time to go home for Christmas.

Those who cherish justice should always welcome an acquittal, in the sense that it demonstrates a functional system where the presumption of innocence is applied genuinely. It hardly needs to be said that an acquittal in no way indicates that the crime was not committed, merely that the Prosecutor went after the wrong man.

But as for the health of the institution, there is something troublesome about an Office of the Prosecutor with a batting average at trial of only 50%. To an extent, this might be written off as bad luck, were it not for its other failed efforts. The Ngudjolo case had passed the confirmation hearing stage, which is a preliminary type of hearing designed to eliminate cases where even substantial grounds for a conviction cannot be determined. But the Prosecutor has also stumbled in 4 of the 14 cases to get to the confirmation hearing stage. So the batting average could also be taken as 5 out of 14, which is not impressive, and which fails to take into account the fact that several of the 10 where ‘substantial grounds’ were determined have not yet reached the trial stage.

The Ngudjolo prosecution failed the ‘reasonable doubt’ test, but in a rather dramatic way, with the dismissal of the credibility of the testimony of several key prosecution witnesses rather than, as is the situation in where there is a close call, of a difficulty or ambiguity in the interpretation of testimony where the evidence is otherwise credible. It is the difference between saying ‘It was dark, and we are not convinced that the witness was able to identify clearly the defendant’ and ‘We think the defendant is not believable’. The Prosecutor’s witnesses are in the second category, according to the Trial Chamber.

In the ‘summary’ that was read out in Court today, the president judge, Bruno Cotte, made the point that the judgment means that ‘to declare that an accused is not guilty does not necessarily mean that the Chamber concludes he is innocent’. This seems a bit of a gratuitous statement, especially in light of the fact that its verdict is founded on the lack of credibility of the witnesses.

The judgment rests on an assessment of the facts, and while this is not meant to be a criticism of it at all, there is little of substantial legal interest in the findings of the Trial Chamber. It is more like the verdict of a jury, albeit a reasoned one, than an assessment that rests upon a controversial assessment of legal issues.

Where we get the law is in Judge Van den Wyngaert’s fascinating separate opinion. She uses the occasion to express her views upon the modes of participation in the Rome Statute. Her decision largely endorses the views expressed by Judge Fulford in his separate opinion in the Lubanga case earlier this year. Judge Van den Wyngaert rejects the importation of what is known as the theory of indirect co-perpetration. She insists that the Rome Statute contains a codification of the forms of participation and that it is simply not appropriate to enlarge or modify this as if the text itself did not really exist.

Some observers were perhaps tempted to dismiss Judge Fulford’s separate opinion as a rear-guard attempt of a common-law trained jurist. No longer. With the addition of Judge Van den Wyngaert’s eloquent voice, this becomes a harder contention. She is Belgian, and was trained in a system based upon continental theories of participation. Moreover, she comes with the immense credibility of an academic who has been specialised in international criminal law throughout her long and distinguished career.