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.
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). Read the rest of this entry…