The Day After Russia Attacks
What War in Ukraine Would Look Like—and How America Should Respond
In this podcast edition of Foreign Affairs Unedited, Benjamin Duerr, a correspondent covering war crimes issues and the courts in The Hague, discusses the acquittal of Mathieu Ngudjolo Chui with Foreign Affairs Deputy Web Editor Brian O’Connor. Read the article “Acquitted, But Not Free.”
This interview has been edited and condensed. A rush transcript is below.
O’Connor: You had a really interesting story that just published on a Mathieu Ngudjolo Chui. He's one of the few people who has ever actually been acquitted of a war crimes trial. The first one ever with the International Criminal Court. And having this verdict rendered him homeless, it rendered him without a state and he was living through sponsored housing and didn't necessarily know what his next steps would be because the international system had not set something up for cases that would end in acquittals. I was curious to learn a little bit more about how you came to the story and how you first met with Ngudjolo.
Duerr: Yeah, well I'm... I'm a the correspondent at the ICC, so I'm following the trials and also the people on both sides, on the prosecution side but also on the accused person's. And I've been following the Ngudjolo case, it was actually a case with two defendants, he was one of them. The other one has been sentenced to, I think 12 years and Ngudjolo has been acquitted, and that was in 2012. Back then it was quite a surprise for everyone, no one thought actually that the ICC could acquit someone. For some it was a surprise, for others it was a shock. So I wanted to know more about that case and I tried to approach Ngudjolo and his lawyers when he was acquitted in 2012 but it has been quite hard to get hold of him.
Duerr: Finally I met him two years later, earlier this year after he was acquitted on appeal. But then also his lawyers felt that its time for him to tell his story and to give the world his perspective. So actually I had the support of his lawyers and they asked him if he would want to speak to me and he was very willing and was quite open to that and so, I spoke to him several times about his trial, about the life after his trial and also about his future perspectives.
O’Connor: You mentioned toward the end of the article that he did return to Congo but that there really aren't too many options available to him and you mentioned that that's a part of a bigger concern, where people who will be acquitted of international crimes or be acquitted from International Tribunals often return home with very few prospects in terms of what they can do next. They might even face persecution and prosecution.
Duerr: Absolutely. Basically I think there are two options. One would be, to return home to their home countries or to find another country which would accept them as asylum seekers or refugees. Ngudjolo actually, he tried to stay in the Netherlands or at least in Europe so he filed several asylum requests both in Holland and in other European countries but all of them had been rejected. So there was only the other option, returning to Congo. But as you say, that in some cases its a problem. Especially in cases where people are on the losing side of a conflict and Ngudjolo, he has been a rebel leader in... Or was accused of being a rebel leader in Congo, so he was seen as an enemy of the government and that's why he feared reprisals if he would return to Congo.
That's the problem with regard to the governments but also the broader public opinion or the... How those people are being seen. Even though they're acquitted, one tends to see them as war criminals. The mere fact that he has been charged with war crimes and crimes against humanity, kind of stigmatizes him and all the others. And that makes it very hard to find a country or even to go on to start a new life because that's also what Ngudjolo said, his name, and his story, and his face has been in the media worldwide. So everyone knows, his story knows, his face knows that he's been accused of war crimes and crimes against humanity. And that of course, makes it very difficult to start a new life, yeah.
O’Connor: It seems like the UN International Criminal Tribunal set up a system that may have provided some service promise in regard to Rwanda, in setting up a safe house and tents, and yeah, for the 14 people who were acquitted. It sounds like that that's not necessarily going to be the precedent though.
Duerr: For the ICC, I think it would need decades for such a safe house to be established, and Ngudjolo has been the only person so far in almost 15 years, to build a house for those very few cases seems unlikely. The case of, or the safe house in Rwanda, it is a solution, but there's also a negative side to that. It's a house where those people live in prison-like circumstances. They have been acquitted but they're not really free for their own safety. So the question is, is that really a solution? Or if we have such a house, how can we give those people the freedom they deserve in terms of the verdict?
O’Connor: You talk about how practitioners and scholars have both really ignored the idea of rehabilitating those who've been acquitted. Why is this the case?
Duerr: I think the reason why there is not really a system in place that will deal with those cases, is that no one really thought about the possibility that there would be acquittals, I think. When the ICC, or the tribunals were created in the 1990s, there was the hope to end conflicts and to bring war criminals and perpetrators to trial, that there was this fighting for justice and against impunity that people expected convictions, that's one point. And the other point was that, especially when the ICC was created, it was, I think there was a conference. It took six weeks to negotiate the Rome Statute, the founding treaty of the ICC.
So, quite a short period of time, and in this short period of time, more urgent questions had to be addressed, especially with regards to prosecution, or investigations, and also the trial phase that governments tended to focus on those urgent, time sensitive things to get the court started. And didn't necessarily look at the time when trials finished because it was clear that it would take years, if not decades for cases to finish. So, there was no urgency to discuss that. And in the years prior to the acquittal, no one followed up, so it never came up again. And that's why, especially the ICC ended up with quite detailed rules for investigations and trial phase, but nothing for the time after trial.
O’Connor: Now it seems as though because they've had to focus on much more immediate concerns, they've kind of painted themselves into a corner, so to speak.
Duerr: Yeah. I think they are not doing much. And their argument has always been that it's not the ICC's responsibility. The ICC says once a trial is finished, it's not the court's responsibility anymore. The second answer would be that, it's part of the responsibility of the Member States. And I think, in... When the governments or representatives of the Member States, will be meeting later this year, probably this will come up again.
And especially the question of, who would be willing to harbor those people who've been acquitted? Because the aim of the ICC would be to have a list of countries which would be willing to grant refugee, the refugee or asylum status to acquitted persons. No country or no government has been willing to be the first one on that list, but I think that's what Member States are discussing and will be discussing and will have to discuss to solve that and as a result of Ngudjolo, of the Ngudjolo case.
O’Connor: Absolutely, and following on from that, what is Ngudjolo doing now?
Duerr: When I met him in person in Holland, he said that he will not be able to return to Eastern Congo where his family lives because that's just too dangerous for him. That's where he has been a member of that group and where he fears for his life. That's why he wanted to stay in the capital of Kinshasa. I had a brief email conversation with him after he returned to Congo, and then he, as you say, stayed in a hotel, but I haven't heard from him in the last week, so...
O’Connor: It's fascinating. It seems as though no matter what the verdict is, you will still encounter some form of imprisonment just for the fact that you have stood trial.
Duerr: It is, it is fascinating, and it's also fascinating because we're speaking about people who have been accused of the most severe crimes you can imagine. Ngudjolo has been charged with war crimes and crimes against humanity, among them murder, rape, sexual slavery. He has been accused of being the leader of a group who has killed 200 people in just a couple of hours. We're talking about those kind of people. That's what most people see, but what a lot of people don't see is that they're also humans. If they're acquitted, they're, as one member of the ICTR, the Rwanda Tribunal put it, "Haunts them for the rest of their life." And this is something people tend not to see what impact such accusations have on a person's life, and that's quite interesting.
O’Connor: Benjamin Duerr, thank you so much for joining me on the podcast today. It was a pleasure.
Duerr: Thanks for having me.