International Criminal Court Prosecutor Karim Khan QC has asked Trial Chamber V to direct the Registry to grant Central African Republic national Maxime Jeoffroy Eli Mokom Gawaka access to materials placed on the trial record of the case of his compatriots, Alfred Yekatom and Patrice-Edouard Ngaïssona.
The Office of the Prosecutor (OTP) told Judge Bertram Schmitt (presiding), Judge Péter Kovács, and Judge Chang-ho Chung that the materials include “all confidential, excluding ex parte, submissions of the parties and participants; all transcripts of testimonies, including private sessions; all confidential, excluding ex parte, decisions issued by the chamber; all confidential exhibits deemed formally submitted into evidence; and all witness statements, with the existing redactions applied.”
“The material is relevant to Mokom’s defence due, inter alia, to the geographical, temporal, and material substantive overlap between the Yekatom and Ngaïssona case and the Mokom case,” said the application dated April 8, 2022.
The prosecution noted that there is a substantial overlap between Mokom’s alleged conduct and the underlying charges against Yekatom and Ngaïssona, adding that the two proceedings involve the same facts and circumstances concerning the conflict in the Central African Republic (CAR), the context, temporal period, and crimes committed by the Anti-Balaka militia group, of which all three defendants were members.
“The material is relevant to Mokom’s defence because access to the record may facilitate and importantly, expedite, Mokom’s pre-trial preparation,” the OTP said.
The prosecution noted that access to the material should be conditioned on the continuation of existing protective measures and redactions to ensure the safety and well-being of witnesses, victims, and other persons who may be at risk on account of the activities of the court.
Mokom is a former leader of the Anti-Balaka militia and the fourth suspect from the Central African Republic brought before the ICC to face charges of war crimes and crimes against humanity committed in that country between at least December 5, 2013, and at least December 2014 in various locations, including Bangui, Bossangoa, the Lobaye Prefecture, Yaloké, Gaga, Bossemptélé, Boda, Carnot, and Berberati.
The CAR government referred the situation in its territory to the ICC on August 1, 2012. Pre-Trial Chamber II joined the Yekatom and Ngaïssona cases on February 20, 2019. The charges of war crimes and crimes against humanity were partially confirmed against the two on December 11, 2019. Their trial opened on February 16, 2021, before Trial Chamber V and is currently going on, with the prosecution presenting its evidence and the testimony of its witnesses.
Other cases of war crimes and crimes against humanity arising from the CAR’s long history of conflicts are scheduled to be heard by the Special Criminal Court (SCC) set up in 2015 in the capital Bangui to try serious international crimes committed since 2003.
According to Human Rights Watch (HRW), the first case before the special court is set to open on April 19, 2022 against Issa Sallet Adoum, Ousman Yaouba, and Tahir Mahamat, members of the “3R” (“Retour, Réclamation, Rehabilitation”) rebel group, in connection with war crimes and crimes against humanity committed in May 2019 in Koundjili and Lemouna villages, in the northwestern part of the country in the province of Paoua.
The incidents were the first major violation of a 2019 peace agreement between the government and rebels.
The court’s mandate is to investigate and prosecute “grave violations of human rights and international humanitarian law committed on the territory of the Central African Republic since January 1, 2003, […] notably the crimes of genocide, crimes against humanity and war crimes.” The court, which was operationalised in October 2018, has a mandate of five years, which can be renewed only once.
The ‘hybrid” court is integrated into the Central African Republic’s domestic judicial system, but staffed by both international and local judges, prosecutors, and administrators. The SCC has three organs: the prosecutor’s office, the chambers, and the registry, and is supported by a special judicial police unit and a group of legal representatives. The court operates in partnership with the United Nations.
On September 8, 2021, the SCC’s substitute prosecutor, Alain Tolmo, announced that the court would begin its first trials before the end of the year. According to HRW, details about the case against Adoum, Yaouba, and Mahamat were revealed in December 2021 during a public hearing of an appeal by the defendants before a pre-trial chamber. The chamber ruled that there were sufficient grounds to send the case to trial, but dismissed charges of rape against Yaouba and Mahamat. Rape charges related to the same incidents were upheld against Adoum, in addition to other alleged war crimes and crimes against humanity.
On February 21, 2022, the trial chamber president issued an order assigning a trial chamber to hear the case. The trial chamber has since conducted two status conference hearings – on March 17 and 26 – and is scheduled to hold a third one before the opening of the trial. Sources said the chamber and the parties discussed issues relating to the trial, including the order of appearance of witnesses and experts, how long each will testify, and whether they will testify publicly or require measures of confidentiality.
The first trial will be a crucial test for the special criminal court system, which is considered important to addressing impunity in connection with atrocity crimes. Due to constrained resources, the International Criminal Court can only deal with a limited number of cases.
It is not clear how many cases the SCC will hear. Several suspects are in pre-trial detention, although the court has not made public the exact number and their identities. It has maintained that such details cannot be disclosed due to the confidential nature of investigations, which is a general principle in many civil law systems.
In September 2021, the court brought crimes against humanity charges against Captain Eugène Ngaïkosset, known within the country as “The Butcher of Paoua”. He led a presidential guard unit implicated in numerous crimes between 2005 and 2007, and is alleged to have also committed crimes as an Anti-Balaka leader in Bangui in 2015.
In November 2021, the SCC ordered the arrest of a former armed militia group leader and current government minister, Hassan Bouba Ali, known as Hassan Bouba, for war crimes and crimes against humanity. Bouba was a high-ranking leader in the rebel group Unité pour la Paix en Centrafrique (UPC) in 2015, when the alleged crimes were committed. He was appointed a special adviser to President Faustin-Archange Touadéra in 2017 and then livestock minister ….in 2020. Bouba was scheduled to appear before the SCC on November 26 for a custody hearing, but national gendarmes invaded the detention facility he was being held and escorted him home. The court deplored the minister’s “escape” as an obstacle to the proper administration of justice. International and local human rights and civil society organisations as well as the country’s lawyers condemned the release as undermining the court’s independence and victims’ rights to justice.