By Waceke Njoroge
The rejection of Central African Republic’s Mahamat Said Abdel Kani’s appeal against a decision on victims’ applications to participate has moved his case closer to the opening of his confirmation of charges hearing provisionally set for October 12, 2021 at the International Criminal Court.
Kani had asked the ICC’s Appeals Chamber to rule on Pre-Trial Chamber II’s “Decision establishing the principles applicable to victims’ applications for participation”, rendered on April 16, 2021.
The Central African Republic (CAR) national is suspected of being responsible for crimes against humanity consisting of imprisonment or other severe deprivation of liberty, torture, persecution, enforced disappearance, and other inhumane acts; and war crimes in the form of torture and cruel treatment.
The Appeals Chamber, composed of judges Gocha Lordkipanidze (presiding), Piotr Hofmański, Luz del Carmen Ibáñez Carranza, Marc Perrin de Brichambaut, and Solomy Balungi Bossa, rejected Kani’s appeal and confirmed the decision.
The Appeals Chamber’s decision dated September 14, 2021, as summarised by Judge Lordkipanidze, held that exceptions to the transmission of copies of victims’ applications to the parties are permissible as long as this is not prejudicial to, or inconsistent with, the rights of a suspect or an accused to a fair trial.
The judges found that the approach adopted by Pre-Trial Chamber II for transmitting victims’ applications for participation to the parties and admitting victims to participate in the proceedings is in principle an adequate tool to ensure the fairness and expeditiousness of the proceedings. However, they said, in some cases the safety and well-being of the victims may be more appropriately safeguarded by implementing necessary redactions to the victims’ applications prior to their transmission to the parties.
Kani is suspected of committing the crimes jointly with others and/or through others; or ordered, solicited, or induced the crimes; or aided, abetted or otherwise assisted in the commission of the crimes; or in any other way contributed to the commission of the crimes.
The former Séléka commander’s troubles flow from the Central African Republic situation, which the government had 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 Kani for crimes allegedly committed in Bangui, Central Africa Republic, between April 12, 2013 and November 27, 2013 as the commander of the Séléka militia group.
When issuing the warrant of arrest on January 7, 2019, Pre-Trial Chamber II’s Judge Rosario Salvatore Aitala, found that there were reasonable grounds to believe that an armed conflict not of an international character was ongoing on the territory of the CAR from at least March 2013 until at least January 2014 between the Séléka – a coalition of armed groups predominantly composed of Muslims opposed to former President François Bozizé – and the Anti-Balaka – a movement opposed to the Séléka and supportive of Bozizé.
The judge said he had found reasonable grounds to believe that, from at least March 2013 until at least January 2014, a widespread and systematic attack was conducted by members of the Séléka against the civilian population and those perceived to be collectively responsible for, complicit with, or supportive of Bozizé’s government and, later, of the Anti-Balaka.
Kani’s initial appearance was before Judge Aitala on January 28 and 29, 2021. The government of CAR surrendered him to the ICC on January 24, 2021.
His case is one of two that are before the ICC. The case against Alfred Yekatom and Patrice-Edouard Ngaïssona, Anti-Balaka leaders, are at the trial stage. Yekatom was surrendered to the ICC on November 17, 2018 and appeared for the first time before Pre-Trial Chamber II on November 23, 2018. The warrant for his arrest was issued on November 11, 2018 and unsealed on November 17, 2018. Ngaïssona was arrested by the French authorities on December 12, 2018 and transferred to the ICC Detention Centre on January 23, 2019. His initial appearance before Pre-Trial Chamber II took place on January 25, 2019. His arrest warrant was issued on December 7, 2018 and his case was joined with that of Yekatom on February 20, 2019.
Their confirmation of charges hearing was held on September 19-25 and October 11, 2019. On 11 December 2019. Pre-Trial Chamber II partially confirmed the charges of war crimes and crimes against humanity brought by the Prosecutor against Yekatom and Ngaïssona and committed them to trial.
On March 11, 2020, Pre-Trial Chamber II rejected the Prosecution’s request for reconsideration of, or alternatively leave to appeal the decision on the confirmation of charges against the two and on March 16, 2020, the Presidency of the ICC constituted Trial Chamber V to be in charge of the case. The chamber is composed of judges Bertram Schmitt, Péter Kovács, and Chang-ho Chung.
The trial opened on February 16, 2021. The prosecution has started presenting its evidence and the testimonies of its witnesses are ongoing.
Led by Michel Djotodia, the Séléka were a coalition of several previously uncoordinated political factions and armed groups, including the Convention des Patriotes pour la Justice et la Paix Fondamentale (CPJP-F), predominantly composed of Muslims.
From late 2012 to early 2013, the Séléka advanced southwards towards the capital, Bangui, attacking police stations, occupying military bases, capturing towns and regional capitals, and targeting those suspected to support Bozizé. Though a ceasefire agreement had been signed on January11, 2013 in Libreville, Gabon, senior Séléka commanders continued with their plan to attack Bangui. They captured the capital city on March 24, 2013, forcing Bozizé to flee into exile in Cameroon as Djotodia proclaimed himself president of CAR.
Forces loyal to the former government continued their resistance and fighting with the Séléka continued for several months, with both sides employing heavy weapons. In the course of their search operations, looking for weapons and members of Forces Armées Centrafricaines ̶ the Armed Forces of the Central African Republic (FACA) in areas of Bangui considered to be supportive of Bozizé, Séléka members killed an unknown number of residents.
They used members of the local population, known as indicateurs, to identify the houses of perceived supporters of Bozizé, such as retired military men, gendarmes, policemen, civil servants, or relatives of the former president. Notably, Muslims and Muslim houses were spared.
The Séléka targeted the civilian population based on religious grounds. Christians were considered supporters of the former government. Other affiliations included government employees, ethnicity, Bozizé’s Gbaya tribe, and specific neighbourhoods.
The former president’s inner circle organised a pro-Bozizé counter-movement composed of FACA and former Garde Présidentielle members as well as pre-existing and new self-defence groups. The movement came to be known as “Anti-Balaka”. Their objectives were to remove Djotodia from power, defend against and oust the Séléka from the country, and target the Muslim population in western CAR in retribution for the crimes and abuses committed by the Séléka.
By September 2013, Anti-Balaka groups were engaged in hostilities against the Séléka in western CAR, spreading east to Bouca and then south to Bossemptélé. Even though Djotodia officially disbanded the Séléka movement through a presidential decree on September 12, 2013, it continued to exist and to engage in hostilities with the Anti-Balaka. Hostilities culminated in the December 5, 2013 attack on Bangui by various Anti-Balaka groups. About 1,000 men attacked Bangui from different directions, using heavy weapons, assault rifles and machetes. This sparked a cycle of violent reprisals by the Séléka and the Anti-Balaka in various neighbourhoods in Bangui and throughout western CAR against civilians perceived as supporting either side. An estimated 1,000 people were killed in Bangui alone on the day following the attack.
Djotodia resigned on January 10, 2014 and the Séléka forces retreated to the north and east of CAR and a transitional government under interim President Catherine Samba-Panza took office.
During the pretrial hearing, Judge Lordkipanidze said the court had found that there were reasonable grounds to believe that the Séléka and the Anti-Balaka qualified as armed groups. They exhibited a sufficient degree of organisation, with commanders controlling militants within their respective bases; orders were circulated down the chain of command and were obeyed by subordinates; they possessed military equipment, including firearms and heavy weapons; and had the ability to plan military operations and put them into effect.
In this regard the judge found reasonable grounds to believe that Kani, in his position as commander of the Séléka from at least April 12, 2013 until August 22, 2013, was responsible for having committed the crimes he was accused of.
Other suspects of the atrocities of that troubled time in the Central African Republic will be tried in Bangui before the Special Criminal Court (SCC). The hybrid international tribunal has the mandate to try individuals accused of “serious violations of human rights and international humanitarian law”, including war crimes, crimes against humanity, and genocide in the Central African Republic (CAR) from January 1, 2003.
Although it held its inaugural session on October 22, 2018, the SCC has yet to hear its first case. It was set up as a response to the vicious conflict that raged from late 2012 to 2014 between the Séléka armed group, the CAR government, and the Anti-Balaka armed forces. The court, with a mandate of a maximum of 10 years, has announced that it will start its first trial before the end of 2021.