A “Schrödinger’s Cat” Moment for Co-Perpetration Liability? The Yekatom and Ngaïssona Decision on the Confirmation of Charges

On 11 December 2019, Pre-Trial Chamber (PTC) I of the International Criminal Court (ICC) confirmed, in part, the charges of war crimes and crimes against humanity in the case against Alfred Yekatom and Patrice-Edouard Ngaïssona. The (highly) redacted version of the Decision was published on 20 December 2019. So far, it has received little attention in scholarly writings and in the blogosphere, except for Paul Bradfield’s insightful contribution in EJIL:Talk!. This is quite surprising, considering that the Decision arguably departs from previous ICC case law in several important respects, including in its interpretation and application of co-perpetration responsibility. In this contribution, we appraise the Prosecution’s construction of the criminal responsibility of both accused as co-perpetrators in the Document Containing the Charges. Then, we evaluate the Pre-Trial Chamber’s findings on the legal framework of co-perpetration, as well as the subsequent application of this framework to the case facts to confirm the charges against the accused.

The Prosecution’s construction of Yekatom and Ngaïssona’s criminal responsibility: a déjà vu of “inter-linked JCE’s”

In the Document Containing the Charges, the Prosecution alleges that Ngaïssona and Yekatom committed the charged crimes as “members of two common plans – a broad one and a subsidiary one, respectively under article 25(3)(a)” (para. 2). The ‘broad’ plan, which is also referred to as the “Strategic Common Plan” (SCP), allegedly came into existence around June 2013, when the former President François Bozize, the accused Ngaïssona, Maxim Mokom and unspecified other individuals from “Bozize’s inner circle” agreed to regain political control over the Central African Republic (CAR) (paras. 121 and 129). They set out to achieve this objective “by using criminal means, in particular, instrumentalizing pre-existing ‘self-defence groups’ and others, later collectively known as the Anti-Balaka” to repel the Seleka militias which had ousted them from power. The Prosecution specified that the confederates knew that “mobilizing and using Anti-Balaka groups would, in the ordinary course of events, result in the violent targeting of the Muslim civilian population in western CAR and the commission of the charged crimes” (paras. 3, 121). The SCP thus clearly had ‘an element of criminality’.

Subsequently, Ngaïssona and others from ‘Bozize’s inner circle’ started liaising with the leaders of various Anti-Balaka groups on the ground in CAR. The accused Yekatom commanded one such group, which was active in Bangui, Bimbo, and the Lobaye Prefecture. According to the Prosecution, Yekatom and his Anti-Balaka group participated in a:

“subsidiary common plan to violently target the Muslim population there and in areas in southwestern CAR, who […] were perceived as collectively responsible for, complicit with, and/or supportive of, the Seleka”.

This ‘subsidiary’ plan is also labelled as the “Operational Common Plan” (OCP) (paras 6 and 186). The OTP alleges that the Strategic and the Operational Common Plans were interlinked, in that “they were identical in the criminal means that they employed” and “members of the [strategic] common plan sought to exploit and enhance the crimes committed by members of the [operational] common plan” (para. 2).

After stating that Ngaïssona and Yekatom provided essential contributions to the execution of, respectively, the SCP and the OCP, the Prosecution concludes that:

the crimes committed by YEKATOM through his Operational Common Plan are imputable to members of the Strategic Common Plan, as are those committed by members of other Anti-Balaka sub-groups. By contrast, YEKATOM is responsible for his group’s crimes committed pursuant to his Operational Common Plan within the framework of the Strategic Common Plan, and not those crimes committed by other Anti-Balaka sub-groups. (para. 7)

In a nutshell, the core idea is that if the members of “Bozize’s inner circle” agreed to e.g. murder Muslims in cities X, Y and Z by using anti-Balaka groups (i.e. ‘leadership-level’ common plan), and one of those senior members then meets and agrees with the commander of one such group, e.g. Yekatom, to kill Muslims in city X (i.e. ‘subsidiary’ common plan), the execution of these plans will lead to two things. First, the said member of ‘Bozize’s inner circle’ would incur co-perpetration liability for the killings in city X, through his agreement to and participation in the ‘subsidiary’ common plan. Second, his responsibility as a co-perpetrator could, in turn, also be mutually attributed – through the “leadership-level” plan that he is also participating in – to all the other senior confederates in that plan, including to the accused Ngaïssona. This process of attribution will then be repeated for every ‘subsidiary’ common plan that a member of ‘Bozize’s inner circle’ forms with anti-Balaka commanders in cities Y and Z, ultimately allowing to hold Ngaïssona liable as co-perpetrator for all murders in X, Y and Z. Yekatom, on the other hand, cannot be liable as co-perpetrator for the killings in cities Y and Z because he was not a member of the “leadership-level” common plan, and maybe did not even know of its existence. He could only be a co-perpetrator of the killings in city X. This is what the OTP was effectively arguing in the above-cited paragraph.

Those familiar with the jurisprudential history of the “joint criminal enterprise” (JCE) doctrine could recognize Katrina Gustafson’s seminal work on “inter-linked JCE’s” in the Prosecution’s construction of Ngaïssona and Yekatom’s criminal responsibility. Confronted with the question of how “leadership-level” accused – who agree on a (nation-wide) common criminal plan and then use individuals who are not parties to that plan to execute it – can be held liable as principal perpetrators of these crimes, Gustafson proposed precisely the above formula of overlapping, ‘broad’ and ‘subsidiary’ common criminal plans (even using those very same labels). The OTP seems to have implemented Gustafson’s idea within the ICC legal framework of co-perpetration responsibility. To be sure, the Prosecution was definitely not adopting the JCE theory itself, for which Gustafson originally proposed her model, but the OTP’s construction of the case against Yekatom and Ngaïssona does animate her concept of inter-linked common plans.

An important question arises here. Why did the OTP not apply the ICC’s own, household notion of indirect perpetration here – which, through a different route, allows reaching the same result – but instead introduced this “antiquated” idea of inter-linked common criminal plans? Though we can only speculate, the answer may be that the OTP had concerns as to whether it can prove that the relationship between Ngaïssona and the other members of “Bozize’s inner circle”, on the one hand, and the various pre-existing Anti-Balaka groups in CAR, on the other hand, was truly of such nature as to satisfy the strict requirements of control for “indirect” co-perpetration (through an organized structure of power). As it happens, in their confirmation decision, the pre-trial judges very much rejected the idea that such relationship of indirect control existed:

the Prosecutor has failed to prove that the Anti-Balaka groups operating in areas far removed from the capital of Bangui were under the effective control of members of the National Coordination, including Ngaïssona. While the concerned Anti-Balaka groups were formally and politically under the umbrella of the National Coordination, as will be shown below, they retained a high degree of autonomy in terms of operational matters, so much so that the members of the National Coordination – most notably Ngaïssona – had limited, if any, knowledge and control over their criminal actions. (para. 164)

The theory of “inter-linked” common criminal plans (couched within the ICC’s concept of co-perpetration based on joint control) could have offered an elegant doctrinal solution to the above problem. The Pre-Trial Chamber, however, decided to follow an entirely different approach.

The PTC’s (lack of) definition of co-perpetration responsibility

The Confirmation of charges decision does not engage with the Prosecutor’s construction of the case in terms of two inter-linked common plans in a meaningful way. Instead, the Pre-Trial Chamber adopts an unhelpfully cryptic and seemingly revisionist approach to the notion of co-perpetration responsibility by holding that:

‘[t]he Chamber is mindful of the jurisprudence of the Appeals Chamber to the effect 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’ (para. 60).

The first part of this statement, holding that a ‘common plan’ is only one of the forms which a criminal agreement may take, is not very controversial. The ICC Appeals Chamber accepted already in the Lubanga Judgment that an agreement between co-perpetrators can take the form of a common plan, whilst being open to other types of agreements. Yet, the Appeals Chamber thus never meant to dismiss the idea that co-perpetration requires the existence of a criminal agreement between the co-perpetrators. In fact, the Appeals Chamber stressed that “[i]t is [the] very agreement – express or implied, previously arranged or materializing extemporaneously – that ties the co-perpetrators together and that justifies the reciprocal imputation of their respective acts” (para. 445).

Still, the PTC’s juxtaposition of the terms ‘agreement’ and ‘common plan’ reinforces the question of whether there really is a difference between the two, or whether we are just talking semantics. Some authors have contended that an agreement is:

“connotationally more specific and more personal and more suggestive of a point in time when there was a meeting of minds than […] alternative expressions [such as a ‘common plan’, LY/MC]” (p. 842).

However, seeing how loosely the ICC has defined the agreement (allowing for implicit agreements that develop extemporaneously), it is doubtful whether there is in fact any meaningful difference between a ‘common plan’ and an ‘agreement’ for the purposes of establishing co-perpetration liability. Indeed, ICTY case law on JCE – on which the ICC’s definition of the ‘common plan’ element is based – has confirmed that these are synonymous terms which can be used interchangeably.

The second part of the Pre-Trial Chamber’s finding in the enigmatic para. 60 – i.e. that the usefulness of the ‘common plan’ notion and its compatibility with the Rome Statute is far from a foregone conclusion – raises a fundamental issue, which the Pre-Trial Chamber does not convincingly substantiate. In support of its assertion, the Pre-Trial Chamber cites the separate opinions of Judges Fulford and Van den Wyngaert in, respectively, the Lubanga Trial Judgment and the Katanga Regulation 55 Decision. The problem is that Judge Fulford actually accepted the importance of the ‘common plan’ element for co-perpetration liability. In fact, he held that ‘the expression:

“commits […] jointly” denotes coordination between the individuals involved. This self-evidently necessitates a sufficient meeting of minds, by way of an agreement, common plan or joint understanding’ (para. 15).

Judge van den Wyngaert (in a different opinion than the one cited by the Pre-Trial Chamber) has indeed been critical of accepting the common plan as an objective element of co-perpetration, since “by turning the ‘common plan’ into an objective element, the focus of attention has shifted away from how the conduct of the accused is related to the commission of a crime to what role he/she played in the execution of the common plan” (Concurring opinion Ngudjolo Trial Judgment, para. 34). Having said that, she has emphasized the importance of co-perpetrators’ shared intent, which is manifested in their voluntary coordinated action. Thus, Judge van den Wyngaert – whilst dismissing the common plan as an objective element – still accepts that on a subjective level, coordinated action is essential to distinguish co-perpetration from random coincidental actions of individuals. Moreover, in later opinions – including the one cited by the Pre-Trial Chamber – Judge Van den Wyngaert has applied the common plan as an objective element of co-perpetration, thus suggesting that – even though she may not agree with this qualification – the common plan has become part of the ICC’s framework as an objective element of co-perpetration.

Other than questioning the relevance of the common plan element, the Pre-Trial Chamber never explains what it deems to be the proper legal definition of co-perpetration. If co-perpetration is not premised on the existence of a common plan, what then is the legal basis for establishing liability as co-perpetrator? More specifically, what are the legal elements of co-perpetration? By not answering these fundamental questions, the Pre-Trial Chamber neglects to provide any guidance as to what requirements must be proven beyond reasonable doubt, thus, leaving the Prosecution completely in the dark as to how they should pursue their case at trial.

The PTC’s construction of Yekatom and Ngaïssona’s criminal responsibility: a déjà vu of Nuremberg-era judgments

When it finally moves to assess the defendants’ criminal responsibility, the Pre-Trial Chamber refrains from engaging with the OTP’s theory of inter-linked common plans in any meaningful manner. In fact, the Pre-Trial Chamber misrepresented the Prosecution’s case on several points. For example, the Pre-Trial Chamber formulates the Strategic Common Plan as (re)claiming political power in CAR “by using criminal means, in particular instrumentalising pre-existing ‘self-defence groups’ and others” (para. 56). The problem with this formulation is that the use of Anti-Balaka groups to (re)claim political power does not constitute a criminal means: using others to gain power is not a crime. But this is also not what the Prosecution argued, as they specified that the members of the SCP “knew that by mobilizing and using Anti-Balaka groups [this] would, in the ordinary course of events, result in the violent targeting of the Muslim civilian population in western CAR and the commission of the charged crimes”. This entry is essential, since it explicates the criminal element of the common plan.

As explained, the Pre-Trial Chamber neglected to set out the elements of co-perpetration in a structured way. However, even when a judgment does not contain a separate section that defines the theoretical framework of a mode of liability, one could normally still distil its legal elements from the judges’ analysis of the accused’s responsibility for the charged crimes. Unfortunately, in this case, the Pre-Trial Chamber’s application of co-perpetration to the facts of the case is just as cryptic and open to guesswork as its interpretation of Article 25(3)(a). After explicating the accused’s involvement in a given incident, the Pre-Trial Chamber simply concludes that he did (not) co-perpetrate the charged crime. There is no factual analysis per legal element of co-perpetration, no reasoning as to the type and level of cooperation between a group of identified co-perpetrators, scarce, if any, explanation on the threshold of the accused’s contribution, and no analysis of what offences the alleged co-perpetrators agreed and intended to commit jointly.

Take, for instance, the Pre-Trial Chamber’s analysis of Yekatom’s liability for war crimes and crimes against humanity that an Anti-Balaka group committed against Muslims in the Yamwara School. The judges note that Yekatom issued ‘patently illegal orders’ to commit the said crimes, and was present when the crimes were perpetrated. Yekatom’s liability is then appraised in a single paragraph, which reads:

On this basis, the Chamber considers that Yekatom committed the aforementioned crimes jointly with others or through other persons under article 25(3)(a) of the Statute or, in the alternative, ordered the commission of these crimes pursuant to article 25(3)(b) of the Statute. The Chamber is further satisfied that Yekatom’s acts establish that, as the case may be, he (i) fulfils the specific mens rea elements pertaining to the aforementioned crimes; and (ii) had intent and knowledge in relation to these crimes under article 30 of the Statute. (para. 125)

This kind of language, where multiple forms of liability are lumped together to define in a single sentence the criminal responsibility of the accused, without any explanation of how their legal elements are satisfied by the case facts, is replete throughout the confirmation decision. It is a vague and unhelpful approach that reminds us of judgments of the Nuremberg-era tribunals, which were criticized already back then for being ambiguous. It is a rudimentary approach that does not deserve reinstatement in modern-day international criminal justice.

Conclusion

Going into Yekatom and Ngaïssona’s trial, the Prosecution is bound to have doubts as to what is happening with ICC law on co-perpetration. Is the Pre-Trial Chamber’s cryptic language in para. 60 of the confirmation decision signaling a judicial shift in the Court’s construction of co-perpetration responsibility and, if yes, what form is its revised framework going to take? Was the Chamber’s critique of the “common plan” element simply meant as a rejection of the OTP’s analysis of interlinked common plans, or is there something more to it? Without providing any definition of co-perpetration, yet ominously stating that (part of) its legal framework is “not a foregone conclusion”, the Pre-Trial Chamber placed this mode of liability in a dark box. Now, like in Schrödinger’s thought-experiment, the OTP will be trying to figure out if the concept of co-perpetration based on joint control over the crime, as we have known it so far, is dead or alive.