Alternative Charges and Modes of Liability in the Latest CAR Case at the ICC – Trouble Ahead?

On 20 December 2019, Pre-Trial Chamber II partially confirmed the charges against Alfred Yekatom and Patrice Ngaïsonna, two co-accused in the first case to arise from the Prosecutor’s investigation into the 2013 conflict in the Central African Republic. Notably, for numerous charged incidents the judges considered that the threshold of “substantial grounds to believe” was not established, mainly with regard to allegations against Ngaïsonna.

However, for the charges that were confirmed for trial, the decision’s treatment of the charged modes of liability raises some curious eyebrows. Two aspects stand out. First, the Chamber’s treatment of alternative charging, and second, its handling of the principal mode of liability under the Rome Statute, article 25(3)(a). Upon closer examination, the Chamber’s interpretation and application of the law in these two aspects represents a sharp turn away from existing jurisprudence, and arguably erodes the coherence of the charges. Consequently, the confirmation decision – which is supposed to provide clarity for the parties at trial – creates more uncertainty by pushing to the Trial Chamber issues that would be better resolved at this stage. This post considers how both of these areas were dealt with by the Pre-Trial Chamber, and how the trial may be affected going forward.

Alternative Charging

In the Document Containing the Charges (“DCC”), the Prosecution charged modes of liability in the alternative, arguing that where evidence establishes multiple legal characterisations of the same facts, “it is appropriate that charges be confirmed under all substantiated modes of liability, and left to the Trial Chamber to determine which of those legal characterisations meets the standard of proof at trial.” (para. 625)

In the present case, the full array of modes were alleged: Ngaïsonna was charged under article 25(3)(a), (c) and (d), i.e., as a direct co-perpetrator, assisting and/or through common purpose liability. Yekatom was charged under article 25(3)(a), (b), (c) and (d), i.e., as a direct and indirect co-perpetrator, ordering, assisting, and/or common purpose liability, as well as command responsibility under article 28 (see pp. 136-164 of the DCC for a helpful breakdown of the alleged modes per incident).

For charges that were confirmed, the judges declined to confirm all of the pleaded modes. For example, with regard to Yekatom, where the evidence established responsibility under article 25(3)(a) or (b), the Chamber repeatedly deemed it “unnecessary” to subsequently address responsibility under (c) or (d). (see e.g., paras. 99-100)

However, the rejection of (c) and (d) appears conceptually misplaced. If the criminal contribution of a suspect is deemed to be evident in the sense of article 25(3)(a), then such a contribution could likewise be legally characterised in the sense of (c) or (d), as “assisting” or as “any other contribution.” The Chamber does not engage with the consistent jurisprudence which has permitted alternative charging of modes, nor does it refer to the Chambers Practice Manual (updated recently in October 2019) that expressly endorses it, and which warns – as academics and dissenting judges previously have – of the spectre of Regulation 55:

In the charges, the Prosecutor may plead alternative legal characterisations, both in terms of the crime(s) and the person’s mode(s) of liability. In this case, the Pre-Trial Chamber will confirm alternative charges (including alternative modes of liability) when the evidence is sufficient to sustain each alternative. It would then be the Trial Chamber, on the basis of a full trial, to determine which one, if any, of the confirmed alternative is applicable to each case. This course of action should limit recourse to Regulation 55 of the Regulations, an exceptional instrument which, as such, should be used only sparingly if absolutely warranted. In particular, it should limit the improper use of Regulation 55 immediately after the issuance of the confirmation decision even before the opening of the evidentiary debate at trial. (emphasis added) (Chambers Practice Manual, 2019, para. 67).

With respect to Yekatom, the Chamber also declined to confirm article 28, the mode of command responsibility, noting that “the narrative of the relevant events as emerging from the available evidence is such that Yekatom’s conduct resulted in the realisation of the objective elements of the crimes, rather than only consisting in the mere failure to prevent or repress crimes committed by other persons.” (para. 58) Again, the Chamber’s approach here is conceptually askew. A commander can actively engage in criminal conduct, while also failing to repress the crimes of their subordinates, or to later refer them to the competent authorities for investigation. This logic was noted by the Pre-Trial Chamber in Ongwen, where, faced with a similar situation, nevertheless retained article 28 on the docket (Ongwen Confirmation Decision, para. 147).

The Ongwen Pre-Trial Chamber also recalled how, in Gbagbo, article 28 was pleaded but not confirmed in the confirmation decision, yet was re-instated by the Trial Chamber via Regulation 55, with the approval of the Appeals Chamber. Because the facts supported the charging of article 28 in Ongwen – and despite the Chamber’s stated preference – it was correctly retained. The Pre-Trial Chamber in the present case chose not to do so.

As a result, we can expect the Prosecutor to seek leave to appeal the loss of modes that plainly should have been confirmed, or to ask the Trial Chamber to reinstate them via Regulation 55, creating more litigation for the parties and using up valuable time that is better spent preparing for trial. But when trial does begin in this case, it will perhaps also be of concern to the parties how one of the confirmed modes, article 25(3)(a) – the so-called “principal” mode of liability – is to be treated by the parties.

Article 25(3)(a)

Article 25(3)(a) has been the subject of much judicial discussion and academic commentary down the years, with often fragmented jurisprudence on its makeup. This mode, which holds someone liable where they commit a crime, “whether as an individual, jointly with another or through another person,” has been interpreted to encompass multiple sub-modes of liability, namely direct perpetration, co-perpetration, indirect perpetration, and indirect co-perpetration. Depending on the variant that is being applied, a number of constituent elements need to be proven.

Take co-perpetration, which jurisprudence has (generally) held to require proof of a common plan/agreement between two or more persons, and control over the crime by virtue of an essential contribution by the accused (see e,g., Ntaganda Trial Judgement, para. 774). As a starting point, therefore, in order to send someone to trial as a co-perpetrator, a Chamber would need to make factual findings – to the required threshold – that indeed there existed a common plan or agreement of some kind.

In the present case, in the DCC, the Prosecutor alleged two overarching common plans, a “strategic” common plan (of which Nagïsonna was a member), and an “operational” one (of which Yekatom was a member). The DCC explains, at significant length and in much detail, the two common plans, their origin and implementation, and lists the various essential contributions made by both accused. (see generally, DCC, pp. 35-66)

However, the Pre-Trial Chamber decided it was not going to engage with the notion of a common plan at all, either on a factual or legal level. It is worth quoting the relevant paragraph in full:

The notion of a common plan as a vehicle for imputing individual responsibility for the charged crimes has been a recurrent feature of the cases brought before the Chambers since the Court’s early days, in line with the jurisprudence of the ad hoc tribunals. Here, the Prosecutor relies on a variation of this notion, alleging the existence of a ‘Strategic’ and an ‘Operational’ common plan as two distinct and complementary aspects of a joint criminal design. Being aware of the limited and specific purpose of the confirmation of charges stage of the proceedings, the Chamber does not consider it necessary or appropriate, for the purposes of the present decision, to determine or otherwise address the extent to which either the notion of a common plan, or its specific variation used in this case, are compatible with the statutory framework. The 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. (Confirmation Decision, para. 60). (emphasis added)

In taking this stance, the Chamber relies on the Lubanga Appeal Judgement, which states that the “agreement may take the form of a common plan” (para. 445), as well as referring to separate and dissenting opinions from Judge Adrian Fulford and Judge Christine Van Den Wyngaert that purportedly cast doubt on the relevance of the common plan to article 25(3)(a) liability (see fn. 106). Yet, these opinions are more concerned with the “control over the crime” theory and the nature of the “contribution” required under the mode, not the common plan element per se.

Indeed, in a later minority opinion, not cited to by the Pre-Trial Chamber, Judge Van Den Wyngaert states, that “a common plan is an essential subjective element of joint commission under article 25(3)(a), without which it is not possible to speak of co-perpetration.” (fn. 261, emphasis added).

The Pre-Trial Chamber’s rejection of the common plan is peculiar, as while it effectively disowns the concept, it nevertheless acknowledges the Appeals Chamber’s acceptance of it. If it’s ok then, why then reject its utility to the present case? Besides, there is arguably little conceptual difference between a “common plan” and an “agreement”. At the end of the day, both necessarily involve two or more people agreeing to a course of action that will, in the ordinary course of events, result in the commission of crimes.

Also, the Pre-Trial Chamber does not pronounce on what it considers the constituent elements of co-preparation to be, or whether it endorses (or not) other aspects of prior caselaw regarding its constituent elements. The Chamber then proceeds incident-by-incident, as it considers it to be “conceptually and methodologically appropriate” to examine the suspects’ alleged contributions “in respect of each of the charged incidents and at the evidence cited in support of those allegations.” (Confirmation Decision, para. 57)

Where article 25(3)(a) is confirmed for a particular incident, it is extremely hard to discern what other form of criminal “agreement” the Chamber considers to be present, as no express findings are made in this regard. As such, the Chamber arguably does not apply the logic of its own reasoning.

As an example, take section E of the decision, which deals with the crimes that occurred in the PK9 – Mbaïki Axis (paras. 129-143), where Yekatom is an alleged to be, inter alia, an indirect co-perpetrator (DCC, p. 143). The Chamber recounts the alleged facts, how civilians were attacked and extorted at roadblocks controlled by the Anti-Balaka militia, and how a Muslim civilian was killed. Evidence placed Yekatom in the area, as being in control of the roadblocks, and having knowledge of the killing. After reviewing the evidence, the Chamber simply concludes: “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.” (para. 140)

The Chamber does not make a factual finding as to the presence of any other form of criminal “agreement” that was present in order to justify confirming article 25(3)(a) for this incident, nor does it engage with the notion of an “essential contribution” for this incident either, or in the decision more generally. The phrase “essential” appears 3 times in the decision.

The Chamber indicates elsewhere that it understands the need to determine whether the accused has made an essential contribution, when it dismisses, for this very reason, article 25(3)(a) as a potential mode of liability for Ngaïssona (see para. 103). In the operative part of the confirmation decision, the Chamber lists, in 4 bullet points, general “contributions” made by Yekatom (p. 103), but does not indicate if these are the relevant “essential contributions” in the sense of his article 25(3)(a) liability. We can only assume that they are.

Yet, the parties, and more importantly, the accused, should not be assuming anything. They should know. In order to send someone to trial, the “threshold of substantial grounds” to believe needs to be satisfied for both the charged crimes and the relevant mode of liability. And, if a given mode of liability, like direct/indirect co-perpetration, requires the presence of certain facts like a common plan or another form of agreement, those factual findings should be made in the confirmation decision in order to send a suspect to trial. The Chamber does not appear to have taken a consistently clear and sound approach in this regard.

Conclusion – the impact of the Chamber’s approach on the forthcoming trial

In conclusion, it is clear that the Prosecution presented a significant body of incriminating evidence implicating both Yekatom and Ngaïsonna, and that a full trial is indeed warranted for the confirmed charges. However, as noted above, we can expect to see the Prosecutor seek the retention of modes of liability that should have been confirmed, either through seeking leave to appeal now, or via Regulation 55 later on before the Trial Chamber.

More importantly, for the Pre-Trial Chamber to effectively decline to make legal and factual findings on the constituent elements of 25(3)(a) presents a number of dilemmas for the parties. For example: does the Prosecution now have to prove the common plans it alleged in the DCC? Does it call witnesses to prove the existence of the “strategic” and “operational” common plans? How should it approach proving the constituent elements of article 25(3)(a) in light of the confirmation decision? For the Yekatom Defence, the decision arguably creates a deficiency of notice in respect of article 25(3)(a), and the theory of the case has now shifted significantly as a result of the Chamber’s approach.

It will not be forgotten that in 2018 the Appeals Chamber in Bemba considered that deficient notice of the relevant mode in that case, article 28, caused prejudice to Jean-Pierre Bemba, and contributed to his ultimate acquittal, stating:

One of the elements of command responsibility under article 28(a) of the Statute is that the commander must have failed to take “all necessary and reasonable measures within his or her power to prevent or repress [the crimes’] commission or to submit the matter to the competent authorities for investigation and prosecution”. It follows that the accused person must be informed of the factual allegations on the basis of which the Prosecutor seeks to establish this element. (emphasis added) (Bemba Appeal Judgement, para. 186).

Regardless of one’s opinion of the overall soundness of the Bemba Appeal Judgement, the aftermath will nevertheless have impressed upon all subsequent litigants at the ICC the need to ensure that factual notice of the both the alleged crimes and the constituent elements of the charged mode of liability be as clear as possible. In the present case, the Pre-Trial Chamber relied upon a passage from the Lubanga Appeal Judgement, cited above, to justify the exclusion of the common plan. But there is another passage of the same judgement that also merits highlighting:

[t]he Appeals Chamber finds that, in order to be able to prepare an effective defence, where an accused is not alleged to have directly carried out the incriminated conduct and is charged for crimes committed on the basis of a common plan, the accused must be provided with detailed information regarding: (i) his or her alleged conduct that gives rise to criminal responsibility, including the contours of the common plan and its implementation as well as the accused’s contribution. Lubanga Appeal Judgement, para. 123)

It follows that whether it be a common plan, a criminal agreement, or some other form of meeting of the minds, the “contours” of article 25(3)(a) notice must be clearly conveyed to the accused, first through the DCC, and then confirmed in the confirmation decision. In the present case, the Prosecution had endeavoured to do so in the DCC, and in copious detail. But, the confirmation decision leaves a cloud of ambiguity that the parties will now struggle to navigate through, as they proceed towards the Trial Chamber.