The Trial Judgment in Yekatom and Ngaïssona: A Judgment of Many Firsts Built on Case Management (Part 1)

[Alexander Heinze is an Acting Professor at the University of Bremen and lecturer at the University of Göttingen]

On 24 July 2025, Trial Chamber V (TC V) of the International Criminal Court (ICC) issued its 1,600-page Judgment in the Yekatom and Ngaïssona case, convicting both former Anti-Balaka leaders of a catalogue of war crimes and crimes against humanity—including murder, persecution, forcible transfer, torture and attacks on places of worship—carried out during their militia’s campaign against the Muslim civilian population in the Central African Republic between September 2013 and January/February 2014, and sentencing Yekatom to 15 years’ and Ngaïssona to 12 years’ imprisonment. If the Judgment needed a heading, it would be “Case Management”. It caps an exceptionally complex trial that drew on nearly 20,000 exhibits and testimony from 174 witnesses. To handle this Herculean task, flexibility was key. The TC V obviously used the flexibility of the Chamber bestowed by the Statute and the Rules of Procedure and Evidence to manage the trial efficiently – especially the amounts of electronic evidence. It is no exaggeration to note that TC V is the first Chamber to deal with admissibility issues of Facebook evidence in such an extensive way. This flexibility extended towards the interpretation of substantive law, where the Chambers applied not only a broad reading especially of the law on the modes of liability but also a case-by-case approach that blurred the lines between questions of law and fact.

Two case management aspects that may easily be overlooked exemplify how the TC V and staff must have gone the extra mile to handle this case: Despite the almost unfathomable amount of evidence, the TC V’s deliberations lasted only six months (Closing Statements from 9-12 December 2024 – Trial Judgment on 24 July 2025). This is far below the ICC’s self-imposed ten-month cap (Chambers Practice Manual, para. 88) and equally fast was only the TC in Lubanga. The Bemba TC took over 16 months, Ongwen over ten. There are good reasons to criticize case management conducted at the expense of the rights of the Defence and victims, but this efficiency is unparalleled, and it can only be speculated that this has been a team effort (including legal officers) along the lines of the Guidelines for ICC Judgment Drafting (Annex to the Chambers Practice Manual, see especially paras. 25 et seq.). A second example is the decision of the TC to “render any potential decision on sentencing pursuant to Article 76 of the Statute simultaneously with its judgment under Article 74 of the Statute” (Decision on Sentencing Procedure, para. 2). It has been the preferred option at the ICC so far to hold a separate sentencing hearing, which prolonged the proceedings (for a critique see here, p. 581). The TC V in Yekatom and Ngaïssona is the first to render judgment pursuant to Article 74 and sentencing pursuant to Article 76 of the Rome Statute simultaneously in one decision. One might object that the TC VIII in Al Mahdi also rendered judgment and sentence simultaneously, but this case involved an admission of guilt.

In this entry I would like to show with selected examples how the TC V’s case management is reflected in the Judgment, together with selected examples. 

Modes of Liability – Blurred Attribution

The flexible approach by the TC V is particularly visible in its application of the modes of liability on Article 25(3) ICC Statute.

How actively involved were Yekatom and Ngaïssona in the Anti-Balaka actions? This was one of the central questions raised in the confirmation hearing and during the trial phase. Already the Pre-Trial Chamber (PTC II) adopted a remarkably ambivalent attitude toward the elements of Article 25(3)(a) ICC Statute (criticism here and here). Its elaborations on the element of an essential contribution remained vague (Confirmation Decision, para. 57). It further observed – in what observers described as “cryptic language” – that a “common plan may be one of the shapes taken by a criminal agreement,” but that nothing in Art 25(3)(a) requires such a plan to contain an element of criminality (para. 60, emphasis in the original). Its approach thus lowered the objective threshold and, by implication, blurred the line between Art 25(3)(a) principals and Art 25(3)(c)/(d) accessories (see also here). In the course of the trial, the Defence gratefully seized upon this restrained approach by PTC II as an opportunity and attempted to exclude co-perpetration altogether, though ultimately without success (Decision on Scope of Charges, para. 17). 

Attribution As a Package Deal 

In the Judgment, the Trial Chamber V (TC V) reaffirmed established ICC jurisprudence on the structure of Article 25(3) ICC Statute (Judgment, paras. 3868 et seq.) and applied a nuanced approach to Yekatom’s liability that blends direct and indirect perpetration concepts. For Counts 1, 4, 5, and 8, the Chamber found Yekatom liable as committing jointly with others under Article 25(3)(a), characterizing his responsibility as that of a “direct perpetrator for having founded his group and himself launching and carrying out the attack, as a chief of his group and an armed participant in it” (Judgment, paras. 4013). Notably, while acknowledging that parts of the attack were committed indirectly through other elements (such as Alkanto firing at the Boeing Mosque and Cœur de Lion shooting Muslim traders), the Chamber concluded that “the mode of responsibility of indirectly committing through others does not fully or meaningfully capture the entirety of Mr Yekatom’s conduct” (Judgment, paras. 4013). By contrast, for Counts 2, 3, and 6, the Chamber found Yekatom committed the crimes through others under Article 25(3)(a), representing a more traditional application of indirect perpetration. The Chamber’s approach represents an interesting evolution in ICC jurisprudence by recognizing that a single accused’s conduct may be better characterized through a combination of direct and indirect perpetration theories rather than forcing it into one doctrinal category (Judgment, paras. 4013). The Chamber’s emphasis on Yekatom’s dual role as both hands-on participant and organizational leader reflects a sophisticated understanding of how leadership functions in militia contexts, where commanders often retain direct combat roles while exercising command authority. This approach aligns with the functional understanding of Article 25(3) while demonstrating judicial flexibility in applying modes of liability to complex factual scenarios involving both direct participation and organizational control. 

Broad Reading of Article 25(3)(c) ICC Statute

Turning to Ngaïssona, the Chamber rejected the Prosecution’s primary theory of indirect co-perpetration and instead convicted him exclusively as an accessory (Judgment, paras. 4029 et seq). Ngaïssona’s sustained financing, logistical support and political front-man role for the Anti-Balaka constituted assistance that “had a positive effect on the commission of the crimes during the Bangui Attack” (Judgment, paras. 4037) and on the Bossangoa and subsequent operations. That assistance was given “for the purpose of facilitating” the attack and with full awareness that Anti-Balaka elements would, in the ordinary course, commit murder, forcible transfer, persecution and related war crimes (Judgment, para. 4042). It seems that the TC V applied a rather low threshold on the contribution element: “the Chamber considers that it is not required for the Chamber to assess, as a matter of law, whether Mr Ngaïssona’s actions had any effect on such crimes, contrary to what is argued by the Ngaïssona Defence” (Judgment, para. 4037). This elasticity is evident from Judge Kovács’ dissent, where he considered that even on the Chamber’s own generous contribution test, the leap from general support to the particular cruelty inflicted on Saint Cyr went beyond what could be foreseen in the “ordinary course of events” (Judgment, paras. 4285-4286). 

Flexibility is also key when it comes to the link between the assistance and the crimes: The Chamber is in line with ICC jurisprudence when it dispenses of a “causal” link between the two (Judgment, para. 4038). However, without some sort of threshold in Article 25(3)(c) – for instance, a normative criterion such as increasing risk of the commission of the crime (see Ambos, Treatise I, p. 239) – the actus reus assistance becomes vague. 

In analysing the subjective requirement, the Chamber followed Bemba et al. (Bemba et al. TJ, para. 1327), stressing that the “purpose” requirement attaches to the facilitation, not to a desire to see every particular crime occur, and holding that Ngaïssona’s knowledge of the Anti-Balaka’s violent anti-Muslim agenda sufficed (Judge Kovács’ dissenting, see paras. 4264-4267). It also rejected Defence arguments that a causal nexus or minimum quantitative threshold of assistance is required. By holding that “Mr Ngaïssona need not have known all the details of the crimes” the Chamber again applies a rather low threshold, justified through the macro-criminal context (Judgment, para. 4038).

Ngaïssona’s Neutral Acts as a Litmus Test for the Chamber’s Article 25(3)(c)-Application

Ngaïssona Defence argued that some of Ngaïssonas financial contributions to the Anti-Balaka were “not directly linked to specific hostile acts” and some aligned “more with humanitarian assistance than with the financing of an armed struggle” (Judgment, paras. 4038-9). Should these acts be qualified as neutral contributions, this would again be an indication of the unsuitability of the low contribution threshold mentioned above – in a way that these contributions must at least increase the risk of a crime being committed (see Ambos, Treatise I, p. 239)? There is a debate over whether neutral contributions should somehow be normatively limited with regard to their qualification as aiding and abetting (see in more detail here). By merely applying the “elements under the Statute”, the TC V rejected those normative considerations (Judgment, para. 4040). Yet, especially the gravity threshold embodied in Articles 17(1)(d) and 53(1)(b), (c), (2)(b), (c) ICC Statute suggests that the contribution must be qualified somehow (see Ambos, Treatise I, p. 242). Judge Kovács’ reasoning (Judgment, paras. 4128, 4285) illustrates why purely formal reliance on Article 25(3)(c) risks sweeping in marginal, even neutral, assistance unless a further normative qualifier – such as risk-enhancement – is adopted.

All this shows: Through a holistic assessment of the already vague attribution criteria in Article 25(3)(a) and (c) ICC Statute, the Chamber has considerably expanded its scope for legal subsumption.

A Canopy View of Evidence

In Tolkien’s The Hobbit, when lost in Mirkwood’s darkness, Bilbo climbs to the forest canopy where to gain a better perspective. While he finds sunlight and butterflies he still cannot see the forest’s end from his position. Like Bilbo’s ascent above Mirkwood’s canopy, the Chamber’s approach to evidence assessment reflects a deliberate strategy of gaining perspective through timing. Especially the assessment of evidence stands as paradigmatic of the Chamber’s flexible and holistic approach. Yet, many procedural controversies that fundamentally characterised the trial phase find only brief mention in the Judgment—for instance, regarding witness preparation and disclosure duties.

TC V rejected witness preparation outright, i.e. the meetings between a witness and the calling party to prepare testimony and streamline questioning (Decision on Protocols, paras. 9, 21). Instead, it allowed assistance for the witnesses in reflecting “on their memory of the events as well as their statement, while still maintaining spontaneity of their responses when examined before the Chamber”, so-called witness familiarization, regulated through a protocol that resembles – with some exceptions – its predecessor protocols from Ongwen and Al Hassan (Decision on Protocols, paras. 17-30). The Judgment does not revisit the broader issue of witness preparation itself but addresses witness familiarization strictly in relation to assessing witness credibility (Judgment, paras. 3106–3118). 

Disclosure became a defining theme of the case, as it always has been a neuralgic issue causing delays (see Independent Expert Review Report, para. 481). This is not the place to delve into the depths of disclosure matters during the trial phase in Yekatom and Ngaïssona, I have done this elsewhere. Between September 2019 and June 2024 the Chamber(s) recorded more than a dozen Prosecution violations, ranging from late provision of potentially exculpatory statements to failure to supply metadata needed for meaningful electronic searches (see, e.g., Yekatom Motion for Finding of Disclosure Violation, paras 10–12). Each time the Chamber opted for calibrated remedies – targeted exclusion of exhibits, brief adjournments, or orders to certify a complete audit of the OTP database – rather than the nuclear option of a stay of proceedings (see, e.g., Decision on Disclosure Violations, para. 17). As expected, the Judgment of 24 July 2025 is almost silent the procedural disclosure battles that characterised earlier phases of the case. Disclosure issues came up only indirectly. The last attempt to somehow materialise the disclosure violations was their qualification as mitigating circumstances by the Defence (Judgment, para. 4392). The Chamber dedicated this attempt the following sentence: “The Chamber is not persuaded that any of the alleged violations should be considered in mitigation” (Judgment, para. 4461).

What the Judgment does disclose, however, is a very flexible approach to the admissibility of evidence, which I would like to exemplify with its approach to authenticity and credibility. Like Bilbo climbing above Mirkwood’s canopy to gain perspective on their journey, the Chamber’s decision to defer final admissibility determinations until the end of proceedings allows it to rise above the immediate confusion of individual evidentiary disputes and assess each piece of evidence within the complete evidential landscape. The approach must be viewed against the background of the Chamber’s so-called ‘submission approach’.

The Submission Approach as a Door Opener

TC V adopted the so-called “submission approach”, whereby evidence admissibility decisions are generally deferred until the end of proceedings unless evidence has been obtained by means of a violation of the Statute or internationally recognized human rights and is thus subject to the exclusionary rule of Article 69(7) ICC Statute (Judgment, para. 132). This rather succinct statement reflects the result of a debate that has been going on since 2016: For a long time, as soon as evidence had been submitted, Trial Chambers decided on its admissibility, hence called “admission approach” (see, for instance, Katanga and Ngudjolo, para. 13). Only the decision on the weight attached to the evidence has been reserved until the end of the Trial (see the description in Bemba, para. 37). Later, Trial Chambers started rejecting this practice and promoted an alternative approach that deferred the admissibility decision until the end of the proceedings, the so-called “submission approach” (see, for instance, Ongwen, para. 237). 

The shift from an admission to a submission approach has laid bare once again the cultural differences in ICC procedural law. This is especially visible when it comes to documentary evidence and its authenticity. The ICC does not treat authenticity as an absolute requirement for admissibility but rather as a factor affecting the evidence’s probative value. Documents may be accepted if supported by the chain of custody, metadata, or witness testimony, even without formal assurances, with minor discrepancies not necessarily undermining authenticity. TC V applied this approach to Facebook evidence and call data records (CDRs), thereto later. In Gbagbo and Blé Goudé, after the Defence requested an admissibility decision excluding the respective documents for authenticity concerns, the Trial Chamber on the basis of the submission approach decided to postpone such a decision until the end of the trial. Judge Henderson, in his dissent to the (impugned) TC I decision, voiced a general critique against the submission approach that may well be reiterated in Yekatom and Ngaïssona: “[T]his Trial Chamber did not make any admissibility rulings. This means that there has been absolutely no filter on what the parties were able to submit into the case record. This has resulted in the case record being flooded with documents of doubtful authenticity as well as documents containing significant anonymous hearsay” (para. 4). Despite the strength of the submission approach especially in handling a great amount of evidence, these objections have merit. Yet the admission approach is equally unconvincing when it comes to authenticity issues. As demonstrated in Gbagbo and Blé Goudé, authenticity doubts can often only be clarified through additional evidence (here, para. 39). This is exactly where the submission approach intervenes: the Chamber broadens the evidentiary context by postponing an admissibility decision. Conversely, authenticity concerns raised early on by the Trial Chamber might be misconstrued as an admissibility assessment, leading to unnecessary confusion. It does not come as a surprise that in Gbagbo and Blé Goudé, the Defence sought to see this as a violation by the Chamber of its own submission approach.

So when the TC V highlights its adoption of the submission approach, this is more than a technicality; it is a trial and evidence management strategy that was possibly without an alternative, considering the vast amounts of evidence (Judgment, paras 132). This strategy allowed the Chamber to disarm many possible Defence concerns about fair trial aspects under the umbrella of a holistic evidence assessment. The Chamber therefore also noted “the Ngaïssona Defence’s allegation that the adoption of the ‘submission approach’ by the Chamber ‘had serious consequences for the evidentiary position of the Defence’” but recalled that the submission approach was “firmly established in the practice of the Court” and that it “had the opportunity to, and did in fact, present arguments concerning the submission of items of evidence throughout the trial, as well as effectively examine witnesses. The Chamber is of the view that the Ngaïssona Defence’s allegations stem from a stated preference for the ‘admission evidentiary regime’, and considers without merit its arguments that prejudice ensued as a result of ‘irrelevant evidence’ becoming part of the case file or it being ‘overflowed’” (Judgment, para. 134). 

The flexibility goal that is inherent in the submission approach shaped all evidentiary considerations by the Chamber, reflected by the part on general evidence aspects at the beginning of the Judgment – something that reads like the Chamber’s evidentiary prayer: Irrelevant evidence is not automatically excluded; hearsay and circumstantial evidence are admissible and weighed in context, with no automatic exclusion (Judgment, para. 135); there is no strict legal requirement for corroboration; a single piece of evidence may suffice depending on circumstances; challenges concerning credibility or reliability of evidence are addressed during the evaluation of weight and credit (Judgment, para. 138). As economically understandable as this might seem, it sacrificed many questionable rulings on probative value for the greater good of a manageable trial.

You can find Part 2 of this post here.