Central African Republic national Mahamat Said Abdel Kani will remain in custody in The Hague pending his trial after the Appeals Chamber of the International Criminal Court confirmed a trial chamber’s decision to detain him.
“The Appeals Chamber may confirm, reverse, or amend the decision appealed. In the present case, it is appropriate to confirm the impugned decision and reject the appeal,” said Judge Gocha Lordkipanidze (presiding) when he read a summary of the judgement.
On March 3, 2022, Trial Chamber VI rejected Said Abdel Kani’s request for interim release and remanded him pending his trial, which is scheduled to start on September 26, 2022.
The trial chamber said there is a significant risk that the former commander of the Séléka militia might abscond if he were to be allowed to return to the Central African Republic (CAR) with or without conditions.
The Appeals Chamber concurred, saying the trial judges had determined that there is a “significant risk” based on the evidence before them indicating that Said Abdel Kani may still enjoy the support of his network in the Front Populaire pour la Renaissance de la Centrafrique (FPRC).
“Thus, the Appeals Chamber is not convinced that there was a presumption of continued detention, absent any concrete evidence, as argued by the defence,” said the judge, recalling the trial chamber’s decision on the serious nature of the charges Said Abdel Kani is facing and the risk that he might abscond in fear of the consequences should he be convicted.
The chamber also rejected the request for interim release based on indications that the accused still has support in the CAR and that, if he was released, he would be in a favourable position to interfere with ongoing investigations or proceedings, either personally or through third persons.
The Appeals Chamber, composed of five judges – Lordkipanidze, Piotr Hofmański, Luz del Carmen Ibáñez Carranza, Marc Perrin de Brichambaut, and Solomy Balungi Bossa – also dismissed all the five defence grounds of appeal.
One of the grounds argued that the Trial Chamber’s finding of the potential of witness interference was based on an annex to a report of the Registry that was not accessible to the defence, which it claimed is inconsistent with an adversarial proceeding.
In response, the Appeals Chamber said a person facing allegations before a court has a general right to disclosure of evidence under Article 67 of the Statute, including adequate time and facilities for the preparation of the defence and exculpatory evidence.
However, it did not find the defence’s arguments about the prejudice caused by the non-disclosure of information in the Registry report annex persuasive.
“Human rights jurisprudence holds that the right to disclosure is not absolute and withholding information may in some cases be permissible so as to preserve the fundamental rights of another person,” the Appeals Chamber said.
Said Abdel Kani’s troubles arise from the Central African Republic situation, which the government referred to the ICC on May 30, 2014. CAR said the conflict had persisted since August 1, 2012. On October 30, 2018, the Prosecutor submitted an application for the issuance of a warrant of arrest for Said Abdel Kani for crimes allegedly committed in Bangui, between April 12, 2013, and November 27, 2013, when he was commander of the Séléka militia group.
He was surrendered to the ICC on January 24, 2021 and made his initial appearance before Pre-Trial Chamber II’s Judge Rosario Salvatore Aitala on January 28 and 29, 2021. The confirmation of charges hearing took place between October 12 and 14, 2021 and Pre-Trial Chamber II partially confirmed the charges of crimes against humanity and war crimes brought against Said Abdel Kani and committed him to trial.
This is the ICC’s second investigation into crimes in the former French colony. The court had previously looked into the events that took place in the CAR before 2012, ultimately convicting a vice-president of the neighbouring Democratic Republic of the Congo, Jean-Pierre Bemba, on March 21, 2016. However, on June 8, 2018, the Appeals Chamber decided, by majority, to acquit him of the charges of war crimes and crimes against humanity.
The investigation that led to Said’s indictment also pulled in Patrice-Edouard Ngaïssona and Alfred Yékatom, whose trial opened on 16 February, 2021 before Trial Chamber V. They are both charged with dozens of counts of murder, torture, and the destruction of religious sites. The two belonged to a Christian militia known as the anti-Balaka, which began to organise attacks against the Séléka in 2013. The conflict has killed more than 5,000 people and left more than 1.1 million others displaced in a country of only 5 million.
Apart from the ICC, the Special Criminal Court (SCC) was set up in 2015 in the CAR capital, Bangui, to try serious international crimes committed during conflicts in the country since 2003.
This is a hybrid court that is integrated into the Central African Republic’s domestic judicial system. However, it is staffed by both international and CAR judges, prosecutors, and administrators. The court became operational on October 22, 2018, and held its inaugural session. According to Human Rights Watch, it’s first trial was set to open on April 19, 2022 against Issa Sallet Adoum, Yaouba Ousman, and Mahamat Tahir, who were accused of war crimes and crimes against humanity committed during attacks on the villages of Koundjili and Lemouna in May 2019. They were members of the “3R” (Retour, Réclamation, Rehabilitation) rebel group.
The SCC operates in partnership with the United Nations and the UN peacekeeping mission, MINUSCA, which supports its operationalisation and provides security.
International Criminal Court Prosecutor Karim Khan welcomed the official opening of the Special Criminal Court in Bangui and reiterated the commitment of the Office of the Prosecutor (OTP) to actively support the work of the SCC.
“I have been clear since I took up office one year ago. Justice is best delivered closest to those impacted by crimes. We should support all efforts that aim to engage with and empower communities, that allow them to participate more directly in the process of justice. The SCC is an excellent example of how this partnership between the international community, national authorities and local actors can result in tangible steps towards this goal,” Khan said in a speech read by ICC Deputy Prosecutor Mame Mandiaye Niang during the court’s official opening in Bangui on May 11, 2022.
He added that the opening of the first trial of the SCC in a country where the crimes under international law alleged by the Special Prosecutor are supposed to have been committed is a high point in the symbolic distribution of justice.
The court will operate in line with the principle of complementary, an essential pillar of the Rome Statute, which Khan has been championing since he took office in June 2021.
“The court must remain a mechanism of last resort, and The Hague a city of last resort,” Khan has said in the past.
The Prosecutor also congratulated the national authorities of CAR and noted that the fight against impunity and the strengthening of the rule of law are essential components in the reconstruction and reconciliation process in the country, stressing that essential justice is first and foremost the justice of proximity: one which is rendered in the immediate environment of the alleged perpetrators of the crimes and the victims.
The Deputy Prosecutor said the synergy and combined actions would make the fight against impunity for crimes under international law effective and justice relevant to the most affected communities.
Niang was received in Bangui by Arnaud Djoubaye-Abazene, Minister of State for Justice, the Promotion of Human Rights, and Good Governance of the CAR, who reiterated the government’s commitment and willingness to support the SCC in carrying out its mandate, and to strengthen cooperation with the OTP in the conduct of its investigative and prosecutorial activities.
He also met Michel Landry Louanga, President of the SCC, its vice-president, Herizo Rado Randriamanantena, and the SCC Registrar, Dieudonné Senego.
