Why ICC Confirmation of Charges Hearing for Yekatom And Ngaïssona was Postponed to September

The confirmation of charges hearing for former militia leaders Alfred Yekatom and Patrice-Edouard Ngaïssonahas been postponed at the request of the prosecution, which needed more time to institute sufficient measures to protect witnesses and victims. Earlier scheduled for next month, the hearing will start on September 19, 2019.

The prosecution said there was a massive volume of information collected during the investigation that it still had to review amidst “limited prosecution resources.” Before completing this review, the Office of The Prosecutor (OTP) cannot disclose all of its evidence or witnesses to the defense.

The prosecution also needed additional time to implement unique pseudonyms concerning redactions to the identities of all innocent third parties. Prosecutor Fatou Bensouda said while applying redactions may appear simple or straightforward, it is a highly labor-intensive and painstakingly detailed process that requires secondary and often tertiary quality control reviews.

Names of some witnesses, individuals who provide information, and others who are referred to in court documents are often replaced with pseudonyms in order to guard against potential reprisals against them.

Yekatom and Ngaïssona are accused of being senior commanders in the Anti-Balaka militia, which allegedly committed atrocities against the Muslim population in the Central African Republic (CAR) during 2013 and 2014. The prosecution alleges that the Anti-Balaka militia, in which Ngaïssona was purportedly the most senior leader and the “National General Coordinator,” targeted the Muslim civilian population in retribution for crimes committed by a mainly Islamist militia known as the Seleka.

Defense lawyers opposed the postponement, arguing that the prosecutor’s lack of preparation should not prejudice the accused’s rights. They said the prosecutor started investigations in this case five years ago, so she has had sufficient time to complete investigations and institute protective measures. 

However, Pre-Trial Chamber II judges Antoine Kesia‐Mbe Mindua (presiding), Tomoko Akane, and Rosario Salvatore Aitala ruled that the need to effectively protect the safety, physical and psychological well-being, dignity, and privacy of victims and witnesses necessitated a postponement.

In the appeal, the prosecutor said additional time was justified because the current case is larger in terms of alleged crimes than any case arising from the conflict in the Democratic Republic of Congo or Kenya. That means there are more witnesses to protect, more information that requires review, and more work to be done before the confirmation process.

The judges noted that the CAR continues to experience a precarious security situation, meaning the prosecution has significant challenges in meeting its disclosure obligations. Further, the prosecutor’s obligation to safeguard the safety and security of witnesses requires ongoing assessment based on specific and up-to-date factors. The judges said that, as an example, the arrest of persons for whom a warrant of arrest had been issued by the court impacted upon the protection of witnesses.

Judges also agreed that applying unique pseudonyms for innocent third parties was a challenge to the prosecution’s disclosure obligations, as this exercise was resource-intensive given the scope of crimes alleged against Yekatom and Ngaïssona, and the voluminous supporting material. According to them, the need to internally review the application of unique pseudonyms constituted a reasonable and necessary measure because this exercise must be carried out with precision and care due to the importance of pseudonyms in protecting the persons concerned and the rights of suspects.

Yekatom’s lawyers contended that it was inexcusable and unreasonable for the prosecution to realize that it was not ready to respect disclosure deadlines just 14 days before the expiry of the deadline. Both defense teams said the joinder of the cases against Yekatom and Ngaïssona did not justify the inability to compile a list of witnesses. They argued that identification of additional witnesses was not a valid justification for postponing because the prosecutor’s investigation should largely be completed prior to the confirmation hearing.

In a March 21, 2019 decision, Pre-Trial Chamber II judges rejected defense appeals and affirmed the joinder of the cases of Ngaïssona and Yekatom, who are accused of similar crimes allegedly committed against the Muslim population in the Central African Republic (CAR). In ordering the joinder, judges said a joint trial would enhance the fairness and expeditiousness of the proceedings by avoiding duplication of evidence, inconsistency in the presentation and assessment of evidence, undue impact on witnesses and victims, and unnecessary expense.

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