The International Criminal Court (ICC) prosecutor has asked judges to join the cases against two former militia commanders in the Central African Republic, arguing that since they face similar charges, trying them jointly would save the court’s time.
According to prosecutor Fatou Bensouda, if the two cases are joined, the court “will avoid the unnecessary cost and work of having witnesses testify more than once or with managing two separate but substantially overlapping case files.”
Alfred Yekatom and Patrice-Edouard Ngaïssona, who were commanders in the Anti-Balaka militia, were arrested last year and stand accused of several war crimes and crimes against humanity, including murder, torture and cruel treatment, mutilation, attacking buildings dedicated to religion, and actively using child soldiers in hostilities.
Yekatom was transferred to the court last November following his arrest from his country’s parliament, where he is a member. Ngaïssona, who is a committee member of the Confederation of African Football, was arrested in France last December and transferred to The Hague last month.
The prosecution alleges that fighters of the Anti-Balaka, a predominantly Christian militia, committed numerous crimes as they fought against the Seleka, a coalition of armed groups predominantly composed of Muslims. It claims the attacks were carried out in furtherance of an organizational policy to target Muslims in retribution for crimes committed by the Seleka.
In her February 4 submissions, Bensouda said joining the cases would minimize the potential impact that presenting evidence before the court would have on the physical and mental well-being of witnesses.
“For many witnesses, the pain and trauma connected with recounting their horrific experiences in court will not have to be re-visited,” she said. “Joinder would also permit a comprehensive examination of witnesses, saving witnesses from the inconvenience of traveling twice, spending unnecessary time away from work and family, and potential re-traumatization.”
Last month, Pre-Trial Chamber II judges asked the prosecution and the defense for their views on the feasibility of joining the cases. The judges, Antoine Kesia‐Mbe Mindua (presiding), Tomoko Akane, and Rosario Salvatore Aitala, noted that the ICC Appeals Chamber had previously ruled that cases could be joined at the pre-trial stage. This had resulted in the joinder of the cases against former Congolese rebel leaders Germain Katanga and Mathieu Ngudjolo.
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.
Bensouda said the evidence the prosecution intends to use in support of charges against Yekatom is substantially the same as the evidence it intends to use against Ngaïssona, given the overlap in the alleged crimes and contextual requirements. She said this means substantially the same witnesses, audio-visual information, and documentary evidence for both cases.
Eric Plouvier, who represents Ngaïssona, said on February 11 that although there appeared to be a substantial overlap in the charges that could favor a joinder, it was regrettable that the prosecution had not produced the document defining the charges. He added that for this reason, it was doubtable whether it was suitable or within the pre-trial chamber’s powers to order a joinder at this stage.
Similarly, lawyers for Yekatom have argued that, before receiving the Document Containing Charges (DCC), it would be premature to determine whether a joinder would not hurt the accused’s fair trial rights.
The prosecutor said the two accused’s crimes substantially overlap, with Ngaïssona alleged to be responsible for all crimes alleged against Yekatom. In both cases, the prosecution charges that there was a widespread and systematic attack against the civilian population in the context during a non-international armed conflict. Similarly, the prosecution alleges in both cases that there was an organizational policy to target primarily the Muslim population in the CAR capital Bangui and at least five prefectures in the west of country, in retribution for Seleka crimes.
The prosecution has proposed that if the cases are joined, the joint confirmation hearing should be held from June 18, 2019 – the scheduled date for Ngaïssona’s confirmation hearing. Yekatom’s confirmation hearing is scheduled for March 30, 2019, and his lawyers have asked judges to maintain this date.