The International Criminal Court’s Pre-Trial Chamber II has been sent back to the drawing board to revisit its decision rejecting the appointment of a defence counsel picked for Central African Republic national Maxime Jeoffroy Eli Mokom Gawaka, who has been charged with crimes against humanity.
The Appeals Chamber reversed the pre-trial chamber’s decision and ordered it to provide further reasons for its judgement.
“…the Appeals Chamber may confirm, reverse or amend the decision or order appealed. In the present case, it is appropriate to reverse the impugned decision and remand the issue to the pre-trial chamber to provide further reasons for its decision as directed in this judgement,” said Appeals Chamber Presiding Judge Solomy Balungi Bossa as he read the judgement of an appeal Mokom had filed against the decision barring Nicholas Kaufman from defending him.
Consequently, the pre-trial chamber directed the parties to the suit to make submissions on any issue arising out of the Appeals Chamber judgment by July 29, 2022.
In his submission, the duty counsel, Gregory Townsend asked the chamber to allow Mokom to have his choice of counsel, saying it would also “… facilitate the most efficient start of the process of disclosure by the prosecution”.
He said Mokom had promised that if Kaufman’s standing is restored, he would instruct the counsel to avoid any postponement of the confirmation hearing.
The prosecution said it deferred to the ultimate decision of the court as to whether a conflict of interest or other impediment exists, or whether any waiver would be sufficient.
The proceedings arose from a March 16, 2022 request by Mokom to the ICC Registry to formally appoint Kaufman as his counsel. Following routine, the pre-trial chamber ordered Kaufman, the prosecution, and the Registry to submit their observations regarding any potential conflict of interest regarding the appointment. From the submissions, the chamber on March 25, 2022, ordered the Registry to revoke its appointment of Kaufman as Mokom’s counsel, saying it had found a conflict of interest “…that could not be remedied through obtaining the written consent of potentially affected clients or withdrawing from representation…” as the advocate had represented other clients in the case against Alfred Yekatom and Patrice-Edouard Ngaïssona, one of the other cases arising from the Central African Republic situation (CAR II) which bore a striking similarity to Mokom’s suit. Mokom is a former leader of the Anti-Balaka militia, as are both Yekatom and Ngaïssona.
Both Mokom and Kaufman separately asked Pre-Trial Chamber II to reconsider its decision, but their requests were dismissed, with the judges saying Kaufman had no standing to make the plea. However, the chamber allowed them to appeal the decision, bringing the case before the Appeals Chamber.
The Appeals Chamber, composed of Judge Bossa, Judge Piotr Hofmański, Judge Luz del Carmen Ibáñez Carranza, Judge Marc Perrin de Brichambaut, and Judge Gocha Lordkipanidze, directed the pre-trial chamber to issue a new decision on the matter “…based upon all available information, setting out precise and detailed reasons as to whether there is an impediment to representation or a conflict of interest within the meaning of articles 12 and 16 of the Code to Kaufman’s representation of Mokom that cannot be remedied”.
The appeal judges noted several anomalies in the way the parties conducted themselves in the matter. They noted that the duty counsel had filed the appeal brief late and that he did not follow the prescribed format which must “set out the grounds of appeal [containing] the legal and/or factual reasons in support of each ground of appeal”.
“The Appeals Chamber cautions counsel to exercise greater diligence in future filings before the court,” the judges said.
They also took issue with the way the pre-trial chamber filed the parties’ email submissions as an annex to an order scheduling a status conference, saying they were not filed in a clear manner and that a summary of the submissions was. Not included in the impugned decision. They urged the pre-trial chamber to remain vigilant in maintaining the case record.
The majority of the Appeals Chamber, with Judge Ibáñez and Judge Bossa dissenting, rejected the defence’s arguments that the pre-trial chamber erred in finding that Kaufman was unable to provide effective representation and in failing to allow him time to resolve the conflict of interest.
However, they agreed with the defence that the pre-trial chamber erred in failing to provide a sufficiently reasoned decision. They also agreed that the chamber should have been more precise in explaining the conflict and why it did not allow Kaufman to adequately represent Mokom. They were also not convinced that the chamber had sufficiently explained why it was necessary for Kaufman to withdraw from representing Mokom.
Mokom is a former leader of the Anti-Balaka militia suspected of involvement in war crimes and crimes against humanity committed in the Central African Republic 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.
He is suspected of committing the crimes jointly with others and/or through others in furtherance of a policy to target the Muslim population and others perceived to support the Séléka or to be “foreigners” in Bangui and western CAR.
The opening of the confirmation of charges hearing was provisionally scheduled for January 31, 2023, during which the pre-trial chamber will determine whether there is sufficient evidence to establish substantial grounds to believe that the suspect committed each of the crimes he is charged with. If the charges are confirmed, the case will be transferred to a trial chamber for subsequent proceedings.
The Chadian authorities handed Mokom to the ICC on March 14, 2022, on account of an outstanding warrant of arrest issued under seal on December 10, 2018.
The case resulted from an armed conflict between the Séléka – a coalition of armed groups predominantly composed of Muslims opposed to then CAR President François Bozizé – and the Anti-Balaka – a movement opposed to the Séléka and supportive of Bozizé in 2013.
