At Long Last: The International Criminal Court Strikes in the Central African Republic

[Patryk I. Labuda is a Hauser Global Fellow at New York University School of Law.]

News broke on Saturday, November 17, that the Central African Republic (CAR) had transferred Alfred Yekatom, alias ‘Rombot’ or ‘Rambo’, to the International Criminal Court (ICC). According to the arrest warrant, Yekatom has been charged with crimes against humanity and war crimes for acts allegedly committed between December 2013 and August 2014. Although this is the ICC’s first publicly available arrest warrant in the ‘CAR II’ situation, there is reason to believe more arrests in CAR II are imminent. This post examines the Yekatom case, what his arrest means for the ICC and CAR, and what to expect in the coming months.

Who is Yekatom and what is he charged with?

Born in 1975 or 1976, Yekatom is a former member of the national army, rising to the rank of Chief corporal. During the 2013-2014 civil war, Yekatom participated in the so-called ‘anti-balaka’ movement, a coalition of predominantly Christian and animist self-defense groups that sought to counter the Séléka, a predominantly Muslim group which came to power in March 2013. Yekatom is alleged to have commanded a group of approximately 3,000 irregular fighters in one of the anti-balaka’s factions.

Yekatom is well known in CAR (see, for instance, this story by Elsa Buchanan from January 2017; see also these two videos: here and here). Under sanctions by both the United Nations and the US government for his role in the anti-balaka movement, Yekatom was nonetheless elected to the National Assembly in 2016. As will be explained later, it is potentially significant that at the time of his transfer to The Hague Yekatom was a sitting Member of Parliament.

An ICC Pre-Trial Chamber issued a sealed arrest warrant against Yekatom on 11 November 2018. Yekatom is charged with seven counts of crimes against humanity, including murder, torture, deportation, persecution and enforced disappearances, and nine counts of war crimes, including murder, torture, intentional attacks against civilians and recruitment of child soldiers. The Chamber concluded there were reasonable grounds to believe that a non-international armed conflict was ongoing in CAR from at least September 2013 until at least December 2014, and the three judges also found that the anti-balaka carried out a widespread and systematic attack against the Muslim civilian population as well as perceived Seleka supporters. It is alleged that Yekatom committed or otherwise ordered, solicited, induced and facilitated the commission of these crimes, and that he may be responsible as a military commander.

Why now?

Yekatom was in the news very recently (see here). For the past few months, a scandal involving the President of the National Assembly, Karim Meckassoua, has rocked the political establishment in CAR. On 26 October, after months of debate, Meckassoua was finally relieved of his functions. On 29 October 2018, during a parliamentary hearing to elect Meckassoua’s successor, Yekatom pulled out a gun and fired two shots. He was promptly arrested.

The timing of Yekatom’s arrest and transfer to the ICC is anything but coincidental. The ICC Prosecutor requested an arrest warrant under seal the very next day: 30 October. On 5 November, the Prosecutor reminded the Pre-Trial Chamber of the need to urgently issue an arrest warrant. The Chamber obliged a week later, issuing a sealed warrant on 11 November. Another week and Yekatom was in The Hague. Why the haste?

Under CAR law, parliamentarians benefit from immunity. They may be arrested and detained when caught en flagrant délit, but initiating criminal proceedings requires the National Assembly to affirmatively lift parliamentary immunity (2016 CAR Constitution, Art. 67). Not only is it unclear that such a decision would be forthcoming – judging by past events in Bangui Yekatom could have escaped from prison or been provisionally released. In other words, the ICC Prosecutor had to act quickly – it is very likely she already had evidence against Yekatom, but his transfer to the ICC appears to have been triggered by his unrelated arrest in CAR.

Complementarity and the Special Criminal Court

The timing, circumstances and wider context of Yekatom’s arrest inevitably raise questions about complementarity. Why is the ICC – instead of focusing on national jurisdictions that are ‘unable or unwilling’ to prosecute – wasting precious time and resources, yet again, on cases that could be prosecuted domestically (think Lubanga, Katanga, Al-Mahdi, Mudacumura, etc)? This question seems especially relevant in CAR, where the new Special Criminal Court (SCC) finally launched investigations just weeks ago. Can it credibly be argued that the ICC should prosecute Yekatom given that the international community has just poured millions of dollars into a new hybrid court that is supposed to bring perpetrators to justice in CAR?

I have argued previously that the relationship between the SCC and the ICC, as set out in the SCC”s organic law of 2015 (Art. 37), violates the Rome Statute’s rules on complementarity (Labuda, JICJ, pp. 191-195). Indeed, if CAR or Yekatom bring a complementarity challenge under Article 19 of the Statute, the ICC’s judges should, in theory, declare the case inadmissible. In other words, Yekatom would be sent back to CAR and that should be the end of the matter as far as the ICC is concerned.

In fact, the reality is more complex. First, the arrest warrant (para. 5) suggests that the ICC’s judges will fall back on the Court’s unpersuasive ‘inaction’ standard to justify the Court’s exercise of jurisdiction in this case. If she hasn’t already, the ICC Prosecutor is probably busy persuading the SCC Special Prosecutor, Toussaint Muntazini, that he does not really need to prosecute Yekatom in Bangui. Hence, if a complementarity challenge is brought, it would probably be argued that there is no domestic case, meaning CAR is ‘inactive’ and so the ICC is allowed to step in. This is disingenuous at best, but as adroitly noted by Sergey Vasiliev on Twitter, the harsh reality is that the ICC needs trials to justify its existence. By the same token, the sad reality is that the ICC’s complementarity jurisprudence – premised on the false dichotomy between ‘inaction’ and ‘unable and unwilling’ – long ago became a fig leaf for institutional self-preservation.

Second, and more significantly: CAR is, in fact, ‘unable’ to prosecute Yekatom. Why? Because Yekatom arguably benefits from parliamentary immunity. Despite its hybrid composition, the SCC is a national court fully integrated into the CAR justice system, which means it cannot ignore Yekatom’s constitutionally-guaranteed immunity. As explained in my article (pp. 195-199), this should be a paradigmatic case of a state’s inability to prosecute under complementarity, justifying the assertion of ICC jurisdiction. In other words, CAR’s legal inability to handle this case would explain why an international trial of Yekatom is not just convenient for the ICC but also legally necessary. Unfortunately, the ICC is unlikely to go down this route to justify its fully legitimate exercise of jurisdiction.

Conclusion

The Yekatom case raises many other legal and non-legal questions. Most notably, the arrest warrant suggests that the ICC will have to grapple with the level of organization required for crimes against humanity, and specifically whether loosely organised anti-balaka groups meet the threshold of Article 7 in the Rome Statute. Equally important, the Prosecutor will have to show compelling evidence of Yekatom’s command responsibility, which is complicated not just by the anti-balaka’s diffuse modus operandi but also Jean-Pierre Bemba’s recent acquittal (incredibly enough, the ICC’s only other case from CAR until now).

This brings us to the politics of this case. Whatever one thinks of the highly controversial Bemba acquittal, the ICC simply cannot afford another shoddy trial that will end in acquittal for lack of evidence. It must be hoped that the Prosecutor’s sudden application for an arrest warrant is not just a case of prosecutorial opportunism, but rather the maturation of a patient and well thought-through prosecutorial strategy in CAR. It is an open secret that the Prosecutor has compelling evidence of Séléka crimes, but has struggled to build cases against the anti-balaka, due to the group’s diffuse command structure and its political connections to the current CAR government. The fact that the first arrest in the CAR II situation is of an anti-balaka member suggests that the ICC has learned from its one-sided prosecutions in countries like the Democratic Republic of Congo or Uganda. Predicting the future is a risky business, but now that an anti-balaka commander is in The Hague, it would not be unreasonable to anticipate a Séléka arrest very soon.