One of the International Criminal Court’s few remaining trials concluded last week with sentencing hearings, even though a judgment has not yet been issued. The trial of Alfred Rhombot Yekatom and Patrice-Edouard Ngaïssona for war crimes and crimes against humanity has been going on since 2021. Both men are being held responsible for attacks by the anti-Balaka militia in the Central African Republic in 2013 and 2014.
In his opening remarks in the sentencing hearings, deputy ICC prosecutor Mame Mandiaye Niang described how this trial had required “creativity” and “perseverance”. Hearings had to continue online during Covid. The three judges outlasted their original mandates, staying on the additional months required into late 2024 and early 2025 to provide a ruling before they leave. And for the first time at the ICC, they were joined by an alternate judge, to prevent any delay (as happened in the Al Hassan case).
The sentencing hearing was held – in another first for the ICC – before the judges have yet pronounced guilt or not. It was therefore marked by some linguistic Olympics with both prosecution and defence forced into wording their submissions in the future perfect tense with convolutedly worded sentences like “the judges will have decided,” as they argued what might constitute a fair sentence for whichever of the alleged crimes is attributed to each man. The suggested jail time ranged from time served as argued by defence to the maximum possible of 30 years as demanded by the victims' representative.
Last month the court held contemporaneous hearings for closing arguments in both the Abd al Rahman case concerning Darfur and this one, but the CAR case was relegated to the second courtroom, and the hearings got little public attention. That seemed to reflect the struggle observers have also had with covering a trial whose final briefs are hundreds of pages long and in which the word [REDACTED] appears at least 2.000 times in those available to the public.
A power-driven Ngaïssona
Ngaïssona faces 31 counts of war crimes and crimes against humanity and Yekatom 21 counts, as confirmed by the pre-trial chamber nearly five years ago. The alleged crimes were committed during part of Central African Republic’s ongoing civil war in which Muslim forces known as the Seleka swept into the western part of the country during 2013 and local militia known as the anti-Balaka attacked back.
In his closing arguments, prosecutor Kweku Vanderpuye described “a widespread campaign that saw the near total severance of the Muslim community and one involving indiscriminate targeting of Muslim civilians in collective retribution for crimes and atrocities committed by the Seleka”. He outlined how Ngaïssona “is charged as an accessory” and how he “aided and abetted the commission of the crimes and otherwise contributed to the anti-Balaka's commission of them in furtherance of its criminal activity”. Ngaïssona “wanted power whether indirectly,” he said, “or directly through seeking that office [the presidency] himself, a position in the transition government or a lucrative directorship”.
Several names recured during the hearings, including the anti-Balaka leader and former CAR president Francois Bozizé, for whom there is an international arrest warrant by the Special Criminal Court, a UN-sponsored tribunal in Bangui, and another senior leader Maxime Mokom, who was transferred to The Hague, but against whom all charges were dropped in October 2023.
Ngaïssona “chose to partake in Bozizé's rhetoric engendering and instrumentalizing ethnic division and hatred,” said Vanderpuye, and “he helped to facilitate its [the anti-Balaka’s] operations and its capacity by providing money including for ammunition and weapons by liaising and coordinating with key leaders, com’zones (combatants of a zone) and coordinators such as Maxime Mokom”.
Yekatom, “fuelled by vengeance”
As for Yekatom, the prosecutor argued that he was responsible for “the crimes committed by his anti-Balaka group in Boeing,” a neighborhood in Bangui, “and along the PK9-Mbaiki axis in the Lobaye prefecture,” and “for the recruitment of children under the age of 15 into his anti-Balaka group”.
Yekatom “enlisted and structured thousands of elements – 3,000 according to him. He deployed them in operations, including to areas where the Muslim civilian population had already been made vulnerable after the Seleka had fled the anti-Balaka. He trained them. He armed them,” Vanderpuye said. “Yekatom’s elements were fuelled by vengeance and a violent anti-Muslim animus. At a minimum, Yekatom knew, as would anyone applying common sense, that setting such individuals on Muslim civilians would result in exactly the retributive violence against them for which he is responsible. Indeed, it was in executing his orders that his group committed such crimes. And as the evidence shows, he and his commanders even expressly ordered the killing of Muslim men and women, civilians”.
“This is a man who shot three of his own elements, killing two of them. This is a man who admitted … that his group had decapitated a prisoner in their custody because he was a traitor.” These crimes, the prosecutor said, “were consistent with the anti-Balaka's criminal organisational policy,” and they “formed a part of the group's widespread attack against the Muslim civilian population”.
“Nothing of it is justifiable”
The office of the prosecutor is asking for not less than 22 years in prison for Yekatom and not less than 20 years for Ngaïssona. “Mr Yekatom was more hands-on in the commission of the crimes within the context of his anti-Balaka group as its senior-most figure and commander. Ultimately, he played an essential role in his group's commission of the charged crimes,” argued Vanderpuye. “Mr Yekatom knew exactly what he was doing,” and “his contributions to the commission of the charged crimes at any stage, whether at conception, planning, preparation, attempt or execution, were such that he had control over whether those crimes would be committed or the manner in which they would be committed.” In fact, “the crimes were executed with near automatic compliance with his orders.”
“Mr Ngaïssona, however, was a leader in the broader anti-Balaka movement whose conduct and participation extended well beyond any single group of local elements. His conduct went towards the collective of anti-Balaka groups operating in the western Central African Republic. As such, his physical distance from the commission of the crimes is not a mitigating factor for the purposes of sentencing.” The prosecutor quoted the accused in his own words: "The anti-Balaka have not got two entities. The anti-Balaka which I coordinate is a sole and single movement which is throughout the entire territory. When I give an order to my children, I think that it is immediately put into action."
“Simply put, serious crimes demand serious punishment,” Vanderpuye said. “These crimes were inflicted on vulnerable persons, insular, defenceless communities and innocent civilians, including children. Nothing of such conduct or participating in it to any extent, regardless of the motive, is excusable. Nothing of it is justifiable.”
Dmytro Suprun, the legal representative for some 292 former child soldiers, asked for Yekatom, who alone faces the accusation of conscripting youth, a sentence of no less than 20 years of imprisonment. While the victims’ legal representatives, in their closing brief on behalf of 1673 victims, argued that both Yekatom and Ngaïssona should be sentenced to 30 years of imprisonment. They said there are “no mitigating circumstances” and “nothing in the individual circumstances of Mr Yekatom or Mr Ngaïssona could justify a reduction of the sentence”. One of their lawyers, Marie-Edith Douzima-Lawson reminded the court that “the victims in the Central African Republic have not been able to receive justice for the crimes committed in their country, and this has been the case for decades. Such circumstances only perpetuate impunity and encourage such cycles of violence”.
A “fundamentally flawed case”
In a more than 200-page closing brief, Yekatom’s defence team argued that the prosecutor’s case “was fundamentally flawed from the outset, rooted in a misunderstanding of the CAR crisis and the response to Seleka atrocities”. They honed in on the allegations of fabrication of evidence in this case, and stated that there is no proof “that Mr Yekatom issued any criminal orders or instructions”. Nor is there that “the orders issued had any direct effect on the commission of the charged crimes”. They presented Yekatom as a man of peace. “Mr. Yekatom has never denied the existence of crimes committed in the context of the CAR crisis or the harm suffered by victims and in particular to the Muslim community in 2013 and 2014. Indeed, it was the very existence of such crimes that drove Mr. Yekatom to work towards the promotion of peace and to secure social cohesion, working alongside religious and local leaders to reach this goal.” In a balancing act between denying the guilt of their client and having to plead for a light sentence in case of a conviction, they ask for “a fair, proportionate and appropriate sentence for each individual crime” and for the judges to acknowledge that there is a large degree of overlap in the underlying conduct for each charge. Having challenged “the Prosecution’s reliance on the nebulous ‘anti-Balaka’ term,” they argued that the judges should “critically evaluate the reality of such organisation noting, inter alia, the alleged size, composition and differing objectives of the ‘anti-Balaka’ as well as the timeframe in which such coordination would have taken effect”.
Scapegoat
Ngaïssona’s defence team suggested Ngaïssona was essentially a scapegoat. “It would be a disgrace to international justice if he were found guilty just because someone has to bear responsibility.” They pleaded that Ngaïssona’s “maximum potential sentence should be time served in detention”.
“He was never directly involved,” said his defence lawyer Geert-Jan Alexander Knoops, “in [the] planning or execution” of the alleged crimes. He pointed out that “the prosecution has presented no evidence suggesting that Mr Ngaïssona directly participated in, oversaw, had contemporaneous awareness or approved of the charged crimes. The allegations regarding instructions, if proven, were wholly unrelated to the commission of crimes against the Muslim civilian population. Moreover, there is no evidence showing the tangible effect these instructions had on the alleged Yekatom group’s and the Bossangoa group’s actions on the 5-December attack and its aftermath. Therefore, Mr Ngaïssona’s potential contribution toward an organizational criminal policy or criminal common purpose was neither important nor vital.”
Knoops reminded the court of the withdrawal of charges against Mokom and the acquittal of Jean-Pierre Bemba in a previous CAR trial before the ICC, to suggest that the office of the prosecutor was trying to make sure “someone has to pay for these crimes,” while he warned, “the demands of justice can never be sacrificed on the altar of retribution”.
Whether Yekatom and Ngaïssona are found guilty or not, there will likely be appeals hearings. Meanwhile, the courtrooms of the ICC have few public hearings scheduled this year apart from the pre-trial hearing of Joseph Kony in absentia announced in the fall and the start of the defence case in yet another CAR trial against alleged Seleka leader Mahamat Said in March.
