How a Great Power Falls Apart
Decline Is Invisible From the Inside
Four days before Christmas, the guards brought Mathieu Ngudjolo Chui his suitcase. It was time for him to leave. A few days earlier, he had been acquitted of three counts of crimes against humanity and seven counts of war crimes by the International Criminal Court (ICC). After 1,779 days in detention—almost five years in total—Ngudjolo was discharged from the court’s detention center in The Hague.
Ngudjolo is a former member of the Democratic Republic of the Congo’s Nationalist and Integrationist Front militia and was accused of murder, sexual slavery, and rape. In the early hours of February 24, 2003, a group of armed men invaded the village of Bogoro in eastern Congo while its residents slept. The men burned people alive, threw babies against walls, and took women as sex slaves. By the end of the afternoon, 200 people were dead. According to the ICC prosecutors, Ngudjolo commanded the attack. During his trial, however, none of the witnesses could confirm that he was indeed the group’s leader. And so, in 2012, Ngudjolo became the first person to be found not guilty by the ICC.
Ngudjolo is 44 years old and wears dark jeans and a lavender white-striped shirt. A watch that is too big is dangling around his left wrist as he gestures. Two years after his acquittal, he is still living a life of waiting and fighting. When his war crimes trial ended, a new struggle began. In the absence of any regulations or procedures for war crimes acquittees, neither the ICC nor the Netherlands as its host state really knew what should happen to him. For lack of a better place, Ngudjolo was brought to a hotel in The Hague, where he stayed for several months. Later, the ICC rented a small apartment for him and paid for his food. Ngudjolo has since picked up some Dutch, so he can go grocery shopping and navigate through town. He has made day trips to Amsterdam and Rotterdam. To pass the time, Ngudjolo did weekly volunteer work for a religious congregation and a nongovernmental organization in The Hague that supports homeless people.
Despite the ICC acquittal, Ngudjolo could not simply return to a normal life. “My face has been in the media all over the world, everyone knows me and my story,” he says. After the verdict, he was not allowed to take up a job in the Netherlands, nor was he permitted to return to his family in Congo. Ngudjolo has no passport and he is still under a travel ban set by the United Nations Security Council. Even though he was acquitted, Ngudjolo is still not a free man.
Rehabilitating those acquitted of war crimes is an issue that has been ignored for many years by both practitioners and scholars.The situation resembled similar cases at another international tribunal. “You can't get more innocent than seven or eight judges telling the world that they are innocent,” Everard O'Donnell, then deputy registrar of the UN International Criminal Tribunal for Rwanda, told reporters. The tribunal has prosecuted perpetrators of the 1994 Rwandan genocide and has acquitted 14 people since it began in 1995. “Somehow, the fact that they have been indicted haunts them for the rest of their existence.” Like Ngudjolo, some of the Rwandans could not return to a normal life. The international trial made them relatively famous, putting them at risk for reprisals if they returned home. Similarly to Ngudjolo, they too struggled to find a place. Unable to return home, and with asylum denied, they had no place to go.
To deal with the acquitted, the Rwanda tribunal has created a “safe house” in the Tanzanian town of Arusha to host some people who could not return to their home country. Among those who were freed but could not find a place to call home were former Rwandan Minister of Transportation André Ntagerura and former Rwandan Minister of Education André Rwamakuba—both of whom held power during the genocide.
Aside from the safe house established after the Rwanda tribunal, the UN has not created any rehabilitation or reintegration schemes for those acquitted of war crimes. Neither has the ICC. Ordinary prisoners often receive psychological or practical assistance after their release. In many states, programs for rapists or drug addicts exist. However, no such support scheme exists for convicted war criminals or people who are acquitted and leave the international detention center after several years.
Rehabilitating those acquitted of war crimes is an issue that has been ignored for many years by both practitioners and scholars. Joris van Wijk, assistant professor at the Amsterdam Free University, has launched a research project on the rehabilitation of war criminals, finding that although millions of dollars are spent on the investigation and the trial phases of war crimes cases, the portions of the trial that follow receive little, if any, attention or financing. “Nobody sees itself as the problem owner,” says van Wijk. The ICC argues that its responsibility ends with an acquittal. The Netherlands as the host state does not want the court to become an entry path to Europe and takes a tough stance as a result.
The ICC opened its doors in 2002 as the first permanent global criminal court and has handed down three verdicts since: two convictions and Ngudjolo’s acquittal. When the court was created, however, some say few seemed to have given a thought that there could be cases where convicted persons have served their sentences to completion or in which defendants could be acquitted. Van Wijk says that during the court's founding treaty negotiations, more urgent issues had to be discussed—putting this issue off for future deliberation.
Without a country to call home, Ngudjolo was trapped again in a new legal battle to determine where he could stay.After serving sentences or being acquitted, such individuals find that their journey toward the next chapter of their lives much depends on whether or not they were on the winning side of whatever conflict led them to trial in the first place. Those who were on the losing side (say, rebels who fought a lost battle against a regime) would find it difficult, if not impossible, to return home safely. These people risk reprisal attacks and new charges in a local trial. University of London Professor Kevin Jon Heller argues that an ICC acquittal does not prevent national authorities from starting new prosecutions against the person—proceedings that could be motivated by leaders to get a conviction they did not get in The Hague. The second option, finding a new home, also provides a unique challenge for those who have been accused of serious crimes. Governments are often hesitant to grant asylum to anyone connected to war crimes, genocide, or crimes against humanity.
The Ngudjolo case has highlighted all of these deficiencies and challenges for the first time. After two years of waiting in The Hague for the outcome of his appeals proceedings, Ngudjolo was officially acquitted in February of this year. But no permanent solution for his stateless condition has been found. Ngudjolo was detained by Dutch authorities while he was trying to leave the court because he did not have a visa, and neither the Netherlands nor any other European country agreed to grant him asylum. Returning home was not an option for Ngudjolo; in his testimony, he implicated the Congolese government in the conflict and feared reprisals. As Ngudjolo was still a member of the Congolese armed forces, his asylum request in Europe could be seen as desertion—a capital offense for which he could face the death penalty. Both his lawyers and Amnesty International then urged the Dutch authorities not to extradite him.
Without a country to call home, Ngudjolo was trapped again in a new legal battle to determine where he could stay. In April, a Dutch court declined his asylum request, paving the way for expulsion. After his deportation, reports emerged that he was forced into a car and driven away upon his arrival in Congo. Congolese authorities called it a “debriefing with the intelligence service.” After several hours, he was free again.
The ICC may, for the first time, have fully completed a case, but whether it did so successfully and established a blueprint for those to come is up for debate. Human Rights Watch has criticized Ngudjolo's expulsion to Congo. Acquitted defendants should not have to face significant physical and legal dangers when returning home, nor should they have to live as virtual prisoners in temporary housing, argues Heller. Instead, prior to a judgment the ICC should identify states willing to grant refugee status to defendants in case of an acquittal. Such lists were established for the UN-sponsored Rwanda and Yugoslavia tribunals with regard to convicted persons. Alternatively, the ICC could restrict the capabilities for nations to pursue prosecution of acquitted persons by amending its founding treaty. This would allow states to pursue only new charges and evidence that was not considered during a person’s international trial.
In the meantime, Mathieu Ngudjolo has been repatriated. He returned to Congo this past May, ending his five years in Europe while his case made its way through the court. Although he was excited to see his family, Ngudjolo would have chosen a safe life in Europe if given the option. His family resides in the eastern part of Congo, where the conflict has barely cooled down since he was arrested and brought to The Hague. As a result, he cannot stay with them.
“Eastern Congo is too dangerous,” said Ngudjolo. For the lack of an alternative, he is currently living in the capital of Kinshasa, once again confined to a hotel room.