The ICC’s Troubled Track Record on Sexual and Gender-Based Crimes Continues: The Yekatom & Ngaïssona Case (Part 2)

[Rosemary Grey is a University of Sydney (Australia) Postdoctoral Fellow, based in the Sydney Law School & Sydney Centre for International Law. Valerie Oosterveld is a Professor at Western Law (Canada) and a member of the Canadian Partnership for International Justice and Rebecca Orsini is a second-year law student at Western Law (Canada) and a graduate of the University of Toronto.]

Part 1 of this post discussed recent cases – in particular, Yekatom & Ngaïssona – involving International Criminal Court (ICC) prosecution requests to add or modify sexual violence charges after the confirmation of charges stage. We focused on two factors to be considered in such cases: the gravity of the proposed charges, and whether the Prosecutor’s request demonstrated reasonable diligence.

This post considers whether the addition of the charges would create undue prejudice to the accused.  We also consider the silences around gender-based persecution in the Yekatom & Ngaïssona case.

Undue Prejudice to the Accused

Art. 67 of the Rome Statute sets out the rights of suspects and accused people in ICC proceedings, including the right to: ‘be informed promptly and in detail of the nature, cause and content of the charge’, ‘have adequate time and facilities for the preparation of the defence’, and ‘be tried without undue delay’.

Art. 61(9), by which the Prosecutor can seek leave to amend the charges after the confirmation decision but before trial begins, naturally impacts these rights: if an application under art. 61(9) succeeds, the defence will need to review the information the Prosecutor discloses, conduct its own investigation, and potentially adjust its strategy. This can delay the trial and prolong the accused’s pre-trial custody.

In Yekatom & Ngaïssona, Pre-Trial Chamber II (PTCII) relied on these rights when rejecting the Prosecution’s request to amend Yekatom’s charges to include rape and sexual slavery. However, the PTC did not address any of the Prosecutor’s arguments as to lack of undue prejudice to the accused: no trial date has yet been set, a delay can be mitigated, and other interests (such as victims’ concerns, establishing truth and accountability for the full range of violations, and judicial economy) should also be considered alongside the accused’s rights.

As the Prosecutor and the victims’ counsel pointed out, the proceedings in this case are at an early stage: no trial date has yet been set and the trial is unlikely to happen in the near future. The PTC did not address those submissions.

As the victims’ counsel in Yekatom & Ngaïssona observed, in several prior cases, ICC and International Criminal Tribunal for the former Yugoslavia judges agreed to postpone the trial’s starting date so the Prosecutor could conduct further investigations and amend the charges. While that necessarily caused a delay in the proceedings, the judges in those cases did not consider that delay to be ‘undue’. The PTC in Yekatom & Ngaissona provided no reason to depart from those prior cases, especially when, in this instance, the Prosecution was not seeking to conduct further investigations; it had already obtained the necessary evidence for the proposed sexual violence charges.

The Prosecutor had also seemed to indicate (despite redactions) that the evidence supporting the additional charges overlaps significantly with existing evidence, perhaps on the child soldiers charges, thus indicating that any delay caused by the additional charges would not be significant. The PTC did not address how this evidential overlap could mitigate delay.

Further, the PTC did not consider how delay could be mitigated through other means, despite the fact that the Prosecutor suggested two possibilities: witness statements could be disclosed to the defence as ‘attorneys-eyes-only’, to allow the defence immediate access without risking the security of the witness; and witness statements could be disclosed ‘in the form of extracts or excerpts, to the extent the security situation allows’. The Prosecutor was also open to any suggestions the PTC ‘may otherwise deem appropriate’. The PTC did not address the feasibility of the Prosecutor’s suggestions or consider any other mitigating actions that could be taken, such as granting pre-trial release under art. 60(4), or subtracting time in custody from the sentence in the event of a conviction in accordance with art. 78(2).

The PTC accepted that there must be a balancing of the rights of the accused against ‘the effectiveness of the prosecution’ and that the accused’s rights were ‘the ultimate benchmark’. The PTC further stated that ‘the Prosecutor should not benefit from an unfettered right to resort to art. 61(9) of the Statute at her ease’.

The PTC referred to the need to ‘balance the rights of both the accused and the victims’, but did not actually analyse any of the concerns expressed by the victims’ counsel. These included the fact that the victims had being voicing concerns about the lack of sexual violence charges since July 2019, that these crimes had ‘devastating consequences’ for the victims, that refusing to amend the charges would effectively deny the victims ‘access to justice’ and that ‘it would be unthinkable for the Chamber to adjudicate the present case with blinders on, knowing fully well that rape and sexual slavery […] was a well-known and systematic phenomenon’ in the period relevant to the charges.

The Prosecutor also stated that establishing truth and accountability and maintaining judicial economy (i.e. avoiding another trial on new charges) were important considerations. The PTC did not address these concerns. As the victims’ counsel pointed out, ‘the expeditiousness of the proceedings should never outweigh the duty to establish the truth’.

The concerns indicated by the Prosecutor and victims’ counsel, but not addressed by PTCII, echo those of Justice Winter of the Special Court for Sierra Leone’s Appeals Chamber in the Prosecutor v Fofana and Kondewa (Civil Defence Forces) judgment (partially dissenting opinion). In a case involving a similar amendment request which was also denied prior to trial, Justice Winter held that the Trial Chamber did not correctly balance the rights of the accused with other important factors: the scope and nature of the amendments; the consequences of admittance—and denial—of amendments on the trial proceedings; whether the amendments would help to ensure ‘that the real issues in the case will be determined’; the fairness of the proceedings to both the defence and prosecution; and whether denial of the amendments would impede the Special Court’s fulfillment of its mandate, which includes the prosecution of gender-based crimes and providing victims with proper access to justice.

The Yekatom amendment decision came in the midst of the COVID-19 lockdown of the ICC, which is currently operating on a significantly reduced schedule and a ‘work-from-home’ format. The Prosecutor and defence have both expressed concern about the impact of COVID-19 restrictions on their preparations for the case (e.g. in the first Status Conference). The PTCII did not discuss this reality, and whether it would impact the issue of undue delay.

Given that the accused’s rights are paramount, it is possible that the PTC decision is correct that amending the charges at this point would unfairly prejudice the accused. However, relying solely on the rights of the accused without addressing any of the countervailing interests does not present a balanced view of the costs and benefits of amending the charges against Yekatom.

The Prosecutor filed a request for leave to appeal the rejection of both amendment requests in Yekatom and Ngaïssona. PTII denied this request on 19 June, thereby closing the door on the opportunity for a more gender-informed judgment in this case.

The end result is a case which will consider sexual violence in a very limited way: only against Ngaïssona and only relating to one incident. The result is the virtual invisibility of sexual violence in the Yekatom & Ngaïssona case.

The Gendered Basis of Crimes, Invisible Again

Even before the litigation about amending the charges, the framing of sexual and gender-based crimes in the Yekatom & Ngaïssona raised concerns.

The Prosecutor’s Document Containing the Charges (DCC), filed back in August 2019, included allegations that are indisputably gendered. Of the many rapes described in the DCC, including those allegedly committed in Bangui and in several other towns, all were perpetrated against women and girls — mostly Muslim women and girls, but also Christian women whom the perpetrators perceived as helping Muslims. The DCC also referred to several massacres of Muslim people, including in Guen village, where Anti-Balaka elements allegedly killed at least 75 Muslim civilian men and boys, some just nine years old.

In the DCC, these acts of rapes and murder formed part of the ‘persecution’ charges under Art. 7(1)(h). Court-watchers might have expected these acts to be charged as persecution on intersecting grounds, including gender grounds. After all, it has been six years since the Office of the Prosecutor committed, in its Gender Policy, tounderstanding how gender intersects with other factors, and to using the provision on gender-based persecution to the ‘the fullest extent possible’.

When perpetrators wage an attack against an identifiable group (in this case, Muslim people and their perceived supporters) and subject men and women from that group to different crimes, the persecution becomes multi-dimensional. It is not only religious persecution, for example; it is persecution on intersectingreligious and gender grounds.

The differential treatment of male and female victims is prima facie evidence of the gendered basis of this persecution. The gendered basis is even more apparent when that treatment accords with entrenched beliefs about men’s and women’s respective roles. This includes a belief that men are entitled to sexually exploit women, and that dominating women makes those men more ‘manly’, which as research has shown, can be a prerequisite for respect within a military force. It also includes a belief that men and boys are potential combatants, and are therefore a threat to be neutralised before they militarise.

Perpetrators sometimes verbalise these beliefs explicitly, but even without that, the inferences of gender-based persecution are often clear from the differential treatment of the victims and the nature of the crimes.

Despite that, the Yekatom & Ngaïssona DCC did not acknowledge the gendered basis of the above killings or rapes. In the DCC, the victims in the persecution charges were identified as ‘Muslim civilians, who, based on their religious, national or ethnic affiliation, were perceived as collectively responsible for, complicit with, and/or supportive of, the Seleka’. As noted in Part 1 of this post, these counts of persecution were mostly not confirmed; in most of the relevant locations, the PTC was not satisfied that Ngaïssona’s criminal responsibility for persecution had been established to the required threshold.

This silence on gender-based persecution in the DCC is nothing new: it follows many prior ICC cases in which the gendered basis of persecution was obscured, as we have written about before (here and here). And yet in recent years, there have been signs of change. The Prosecutor did include charges of gender-based persecution in its Afghanistan investigation request, filed back in 2017, and also in the Al Hassan case, which begins trial next month. Gender-based persecution is also being considered in the Prosecutor’s Nigeria preliminary examination, which is currently underway.

Seen in that context, the relative silence on gendered crimes in general, and gender-based persecution in particular, in Yekatom & Ngaïssona is a regression. Hopefully, this case proves to be an anomaly, and gender does not continue to be erased from the ICC’s jurisprudence as a whole.