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Home Posts tagged "CAR"

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

Published on January 21, 2020        Author: 

 

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). Read the rest of this entry…

 

In Bemba and Beyond, Crimes Adjudged to Commit Themselves

Published on June 13, 2018        Author: 

And now, it seems, we must fear to endure crimes adjudged to have no cognizable author – crimes that everyone knows occurred, but that escape the assignment of responsibility that is supposed to be an essential function of international criminal justice. Crimes adjudged, as one commentator lamented, to have committed themselves.

Provoking these dire sentiments is Friday’s International Criminal Court judgment in Prosecutor v. Bemba, in which a bitterly divided Appeals Chamber exonerated a politician-warlord from the Democratic of Congo (DRC) whom a Trial Chamber had sentenced to serve eighteen years in prison. The Appeals Chamber majority, constituting three of the five appellate judges, first maintained that the 2016 trial judgment merited no deference, then proceeded to evaluate the case de novo, and ultimately found all five counts of conviction unsustainable. The man whom para. 13 of the appeals decision identifies as “President of the MLC, a political party founded by him and based in the northwest of the DRC, and Commander-in-Chief of its military branch, the ALC,” thus was acquitted of charges on which he had been held since 2008. Bemba is awaiting the results of his appeal on a separate conviction for witness tampering. Yesterday, the Court ruled that he could join his family in Belgium while he awaits sentencing in that case. Read the rest of this entry…

 

Fiddling While Rome Burns?  The Appeals Chamber’s Curious Decision in Prosecutor v. Jean-Pierre Bemba Gombo

Published on June 12, 2018        Author: 

On March 21, 2016, after a 4-1/2 year-long trial that heard the testimony of 77 witnesses, the introduction of 773 items of evidence, and gave rise to a transcript that was thousands of pages long, a unanimous Trial Chamber convicted Jean-Pierre Bemba Gombo of crimes against humanity and war crimes committed by his troops in the Central African Republic from 2002-2003 and sentenced him to 18 years imprisonment.  The case was the first to find a perpetrator guilty of command responsibility under article 28, and the first ICC case involving a conviction for sexual violence. The three trial judges, were unanimous in their assessment of Bemba’s culpability under the Statute, although two judges raised questions regarding the parameters of article 28.

On June 8, the Appeals Chamber reversed, 3-2, and acquitted the accused finding that Bemba’s conviction exceeded the facts and circumstances described in the charges brought against him and declined to permit a trial on the facts it found to be outside the scope of the initial Trial Chamber Judgment. Judges Monagang (Botswana) and Hofmański (Poland) would have upheld the conviction and penned a lengthy Dissenting Opinion.  Judge Eboe-Osuji (now President of the Court) would have permitted a retrial on the new charges his colleagues found to be outside the scope of the original conviction, but was apparently unable to persuade his colleagues to join him in that view. 

How did this happen? Read the rest of this entry…