The cases against former Central African Republic militia leaders Alfred Yekatom and Patrice-Edouard Ngaïssona, who are in detention at the International Criminal Court (ICC), have been joined by a ruling issued on February 20. They will have a joint confirmation of charges hearing starting on June 18, 2019.
Prosecutor Fatou Bensouda last month supported the joinder of the cases, saying since the two accused face similar charges, trying them jointly would save the court’s time. Alfred Yekatom and Patrice-Edouard Ngaïssona are alleged to be former commanders in the Anti-Balaka militia, which is accused of committing various atrocities against the Muslim population in the African country between September 2013 and December 2014.
According to the prosecution, the Anti-Balaka militia in which Ngaïssona was the most senior leader and the “National General Coordinator,” targeted the Muslim civilian population in retribution for crimes committed by a predominantly Islamist militia known as the Seleka.
In the ruling, Pre-Trial Chamber II judges Antoine Kesia‐Mbe Mindua (presiding), Tomoko Akane, and Rosario Salvatore Aitala stated that separate proceedings are not necessary at this stage. The judges said, “Joint proceedings against Yekatom and Ngaïssona will serve to enhance the fairness and expeditiousness of the proceedings by avoiding the duplication of evidence, inconsistency in the presentation and assessment of evidence, undue impact on witnesses and victims and unnecessary expense.”
Under Article 64(5) of the Rome Statute, trial judges may direct that there be joinder or severance of charges against more than one accused. Meanwhile, Rule 136(1) of the Rules of Procedure and Evidence provides that persons accused jointly shall be tried together unless the trial chamber orders that separate trials are necessary, in order to avoid serious prejudice to the accused, to protect the interests of justice, or because a person jointly accused has pleaded guilty.
The judges noted that Article 64(5) and Rule 136 confer broad discretion on the chamber to join or sever charges against more than one person. However, judges had to consider whether joining cases was necessary to avoid “serious prejudice”’ to the suspects and to protect the interests of justice.
According to the judges, the alleged crimes in both cases are “virtually indistinguishable” as they constitute the same widespread and systematic attack against the civilian population in the same geographical areas. They also noted that the specific crimes alleged to have been committed by Yekatom and Ngaïssona correspond to a large extent because all the crimes alleged against Yekatom are also alleged against Ngaïssona. As a result, said the judges, the evidence the prosecutor intends to rely on to establish the charges against the suspects is expected to be substantially the same.
Another reason for the joinder was that none of the defense teams had demonstrated that joining the cases at this stage of the proceedings would seriously prejudice the suspects or would be contrary to the interests of justice.
Ngaïssona’s lawyers agreed that there appeared to be a substantial overlap in the charges that could favor a joinder. They added, however, that since the prosecution had not produced the document defining the charges, it was doubtable whether it was suitable or within the pre-trial chamber’s powers to order a joinder at this stage.
Similarly, Yekatom’s lawyers opposed joining the two cases at this stage and asked judges to postpone their decision until the prosecution had provided more detailed information on the charges against the two accused and disclosed the evidence it intends to present.
According to the arrest warrant, Yekatom served in the national army, the Central African Armed Forces (FACA), before being elected a member of parliament. He allegedly commanded an Anti-Balaka group consisting of around 3,000 men, of whom 200 were former FACA members. He is also alleged to have been a top leader in the Anti-Balaka militia, who represented it at high-level meetings and negotiations.
As for Ngaïssona, it is alleged that following meetings in Cameroon and France between former CAR president François Bozizé, who had been deposed by the Seleka, Ngaïssona and others loyal to Bozizé agreed to organize pro-Bozizé forces to overthrow the Seleka. Ngaïssona reportedly provided finances to found the militia, transferred money from Bozizé to the militia to prepare attacks, procured ammunition, and gave orders such as to attack perceived enemy positions.