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  • Mansi Avashia

A Curious Case for Individual Criminal Responsibility: The Yekatom and Ngaïssona.......

This article is authored by Mansi Avashia, a fourth-year student pursuing B.A.LL.B. (Hons.) at Gujarat National Law University.


A Curious Case for Individual Criminal Responsibility: The Yekatom and Ngaïssona Confirmation of Charges Decision. The International Criminal Court [“ICC”] opened its second situation in the Central African Republic [“CAR”] in September 2014. The first case to arise from the Prosecutor’s investigation was decided by the Court on December 20, 2019, when Pre-Trial Chamber II [“PTC”] confirmed the charges against Alfred Yekatom and Patrice-Edouard Ngaïssona. It was found that there was sufficient evidence to indicate that the ‘substantial grounds to believe’ standard under Article 61(7) of the Statute was fulfilled for most of the charges. This post will critically examine the PTC’s assessment of co-perpetration under Article 25(a) of the Rome Statute and the stance taken by the Chamber on cumulative charging under the various modes of responsibility laid down in the Statute. The Office of the Prosecutor’s Submissions ​The main allegation of the Office of the Prosecutor [“OTP”] was premised on the existence of two common plans- a strategic common plan and an operational common plan. The strategic common plan aimed at regaining CAR’s ousted President Franҫois Bozize’s power. For this purpose, they employed existing self-defence groups also known as ‘Anti-Balaka’. They were trained to oppose the Seleka, a political group predominantly consisting of Muslims which had played an important role in overthrowing President Bozize. According to the OTP, the strategic common plan had an ‘element of criminality’ because the Anti-Balaka had been mobilized against the Seleka and Muslims in general, and thus in the ordinary course of events, the Anti-Balaka would commit brutalities against the Muslim population in CAR. The operational common plan was focused on targeting Muslims, who were perceived to be a part of/supportive of the Seleka due to their religious or ethnic affiliations. The OTP argued that both the plans had different goals but they employed identical means. Further, the members of the Strategic Common Plan wanted to exploit the crimes committed by the members of the Operational Common Plan. As a result of this, the acts of the Anti-Balaka groups in pursuance of the Operational Common Plan were attributable to the members of the Strategic Common Plan. Ngaïssona, a close aide of President Bozize, participated in the Strategic Common Plan. The OTP claimed that he had made an essential contribution by developing and implementing the Strategic Common Plan and charged him as a direct co-perpetrator, assisting, or common purpose liability under Article 25(3)(a), (c) and (d) respectively. Yekatom was a leader of one of the Anti-Balaka sub-groups and hence was charged as a direct and indirect co-perpetrator, ordering/soliciting/inducing, assisting, or common purpose liability under Article 25(3)(a), (b), (c) and (d) and as a military commander under Article 28(a) for failing to prevent the crimes committed by his sub-group. Assessment of Article 25(A) by the PTC Article 25(3)(a) encompasses three modes of responsibility: direct perpetration, co-perpetration and perpetration by means. ​The Court has laid down that to prove co-perpetration, certain objective and subjective elements have to be fulfilled. The objective elements are the division of criminal tasks, pursuant to a common plan or agreement and coordinated essential contribution by each co-perpetrator. For the subjective elements, the co-perpetrators must be aware of the factual circumstances and must mutually accept and be aware and that implementing the common plan may result in the fulfillment of the objective elements of the crime. Common Plan Requirement In paragraph 60 of the decision, the PTC has laid down that ‘the common plan may be one of the shapes taken by a criminal agreement and that, despite its apparent ubiquity, the very compatibility of the notion of a common plan with the statutory framework and its usefulness vis-à-vis article 25 of the Statute is far from being a foregone conclusion’. This finding is rather strange since the existence of a common plan as an objective element of co-perpetration under Article 25(3)(a) has been well established since the very first decision by the ICC (Lubanga Confirmation of Charges, para. 343). Further, it has been a recurring theme in ICC jurisprudence. It has been upheld in the confirmation of charges decisions of, inter alia, Blé Goudé, Ongwen, and Bemba. The Lubanga Appeals Chamber decision, which the PTC relies on in this case, has held that "it is this very agreement […] that ties the co-perpetrators together and that justifies the reciprocal imputation of their respective acts.” A person who contributes to a group crime without having agreed to do so cannot be held vicariously liable for the perpetrator’s acts and, at the most, may be an accessory to the crimes. The PTC’s finding departs from a settled position of law, and the judges do not throw any light on what they consider as the requisite co-perpetration elements. In the decision, the PTC relies on the Lubanga Appeals Chamber judgment, Judge Fulford’s and Judge Van Den Wyngaert’s dissenting opinions in the Lubanga Trial Chamber judgment and Katanga Regulation 55 decision respectively. However, it is safe to say that the PTC’s findings are misplaced since the dissenting opinions do not accept the ‘control over the crime’ theory which requires ‘essential contribution’ to prove responsibility under Article 25(3)(a). Both the judges have retained the common plan requirement in their understanding of co-perpetration under Article 25(3)(a) (Separate Opinion of Judge Adrian Fulford, para. 16 and Minority Opinion of Judge Christine Van Den Wyngaert, footnote 261). Cumulative Charging It was found that Yekatom was responsible under Article 25(3)(a) as a co-perpetrator or an indirect perpetrator, or under Article 25(3)(b) for ordering the commission of the war crimes and crimes against humanity. The PTC found it ‘unnecessary’ to establish his responsibility under Article 25(3)(c) and (d). Ngaïssona’s responsibility for some of the charges was confirmed under Article 25(3)(c) as aiding, abetting or otherwise assisting; or as ‘any other contribution’ as under Article 25(3)(d)(i) or (ii). As mentioned above, the OTP had resorted to cumulative charging for both Yekatom and Ngaïssona. In the Document Containing Charges, they submitted that all modes of liability should be accepted by the PTC so as to not restrain the Trial Chamber. For instance, in the event the defendant was charged only under Article 25(3)(a), but the Trial Chamber found that he could be imputed under Article 25(3)(b), the PTC’s decision would restrict them. This approach was adopted by the PTC in the Ongwen decision where it was laid down that alternative charges should be confirmed by the PTC for the Trial Chamber to determine the applicable standard of proof at trial. In fact, this stand has been taken in various previous decisions, such as Al Mahdi, Ntaganda and Blé Goudé, where the PTC confirmed the charges for all modes of responsibility as there was sufficient evidence to indicate the same. This approach has also encompassed in the Chambers Practice Manual (para. 67). However, in the present case, the PTC has not given any justification for denying the cumulative charging, apart from finding it ‘unnecessary’. The PTC should have discussed how the OTP’s evidence was insufficient to prove all the charged modes of responsibility. Conclusion In the pre-trial proceedings, the judges need to ensure that the charges are clearly stipulated and supported by the evidence before the matter is determined by the Trial Chamber. This can make the case much simpler for the OTP and the defence. However, the PTC’s findings on co-perpetration responsibility and alternative charging in the Yekatom and Ngaïssona’s confirmation of charges decision do not provide any clarity to any of the concerned parties. The decision showcases a departure from well-established jurisprudence and poses as a confusing precedent. It is highly probable that these matters will be raised by the OTP before the Trial Chamber, thus resulting in more expensive and lengthier proceedings.

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