The Crime of Persecution in Yekatom and Ngaïssona: An Intersectionality-Based Critique

[Bruno Biazatti is a doctoral researcher at the Luxembourg Centre for European Law, University of Luxembourg, and a doctoral student at the Federal University of Minas Gerais, Brazil]

On 24 July, the Trial Chamber V (TC-V) of the International Criminal Court (ICC or the Court) issued its judgment in the Yekatom and Ngaïssona case, convicting both co-defendants of war crimes and crimes against humanity in the Central African Republic (CAR), including persecution under art. 7(1)(h) of the Rome Statute (discussed by Irving & Rewald, Anderson; Heinze here, here, here). This post argues that, instead of moving the ICC’s nascendi practice on intersectionality forward, the judgment constitutes a setback for not properly evaluating the multiple and intersecting grounds of discrimination in the crime of persecution. Intersectionality is understood as “multiple reasons or factors that interact to create a unique and distinct burden or risk of discrimination” (Gonzales Lluy et al. v Ecuador, Concurring Opinion of Judge Ferrer Mac-Gregor, para. 11). Although Yekatom and Ngaïssona has been rightly criticized for not including sexual and gender-based crimes to a sufficient degree, especially gender-based persecution (see Oosterveld, pp. 358-370; Gray, Oosterveld & Orsini here and here), this post will focus on the intersection of religious, political, and ethnic discrimination in the case.

The Factual Context

The Yekatom and Ngaïssona case refers to a conflict between two armed groups seeking political control in the CAR: the Seleka and the Anti-Balaka, which are composed of predominantly Muslims and Christians, respectively. Both sides of the conflict committed atrocities against the civilian population. As Yekatom and Ngaïssona were members of the Anti-Balaka, the case focused on the crimes this group committed against the Muslim population. The trial judgment found that these civilians were attacked because of the Anti-Balaka’s assumption that the entire Muslim population was Seleka’s members or allies:

Due to the religious and ethnic commonalities between the Muslims in the CAR and the Seleka, the Anti-Balaka perceived the former as collectively responsible for, complicit in, or supportive of the violence and abuses committed by the Seleka. On this basis, as the Anti-Balaka emerged and coalesced in pursuit of its core objective, its elements targeted the Muslim civilian population, specifically in the west of the CAR, killing and dislocating them (para. 45).

In fact, recognising a multiplicity of grounds of discrimination in the crime of persecution, particularly ethnic and religious grounds, was the Prosecutor’s strategy from the outset (Document Containing the Charges, para. 255). The Confirmation of Charges Decision followed suit, confirming the crime of persecution on “political, ethnic and/or religious grounds” (pp. 106, 110). 

Missing Intersectionality: The TC-V’s Legal Assessment of Persecution

Regrettably, the intersectionality between religious, political, and ethnic discrimination mostly disappeared in the TC-V’s assessment of persecution. The case had four counts of persecution, which could be divided into two groups: (i) counts 8, 28, and 42, which refer to Anti-Balaka’s attacks against entire localities known to be inhabited by Muslims; and (ii) count 17, which had a much narrower scope and concerned crimes against seven specific individuals apprehended by Anti-Balaka on suspicion of being Seleka. Yekatom and Ngaïssona were both convicted of counts 8, 17, and 28, while only Ngaïssona was accused and convicted of count 42. 

Regarding counts 8, 28, and 42, intersectionality is not present at all in the judgment, since the TC-V recognised persecution solely on religious grounds, under three arguments: (i) the Anti-Balaka “targeted Muslim persons by reason of their perceived religious commonalities with the Seleka” (paras. 4004, 4341); (ii) the Anti-Balaka leaders specifically ordered the attack against Muslim civilians and neighbourhoods known to be inhabited by Muslims (paras. 4004, 4106); and (iii) the Anti-Balaka’s attack against a mosque (paras. 78, 4004). 

The TC-V recognised two discriminatory grounds (religious and ethnic) only in count 17, but the judgment remained frustratingly vague and seemingly contradictory in this regard. In its assessment of the discriminatory intent under count 17, the TC-V at first followed its single-ground approach from counts 8, 28, and 42: the Chamber did not engage with intersectionality, simply concluding in its ratio decidendi that such intent requirement was fulfilled in count 17 “by virtue of [the seven persons’ targeting] being based on religious grounds” (para. 4231; emphasis added). At sentencing, the TC-V reaffirmed that “Yekatom’s elements targeted a total of seven individuals at Yamwara on religious grounds” (para. 4602; emphasis added). There was no mention of ethnic or political discrimination and their intersection. Therefore, similar to its assessment of counts 8, 28, and 42, the TC-V’s reasoning on count 17 presented a uni-sectional approach to persecution, based exclusively on religious discrimination. 

Nonetheless, the verdict for count 17 at the end of the judgment presented a different conclusion when compared to count 17’s reasoning, finding Yekatom and Ngaïssona both guilty of persecution not only on religious grounds but also on ethnic grounds (pp. 1609, 1612). This inconsistency only occurred with regards to count 17, since the verdict for counts 8, 28, and 42 aligned with the judgment’s reasoning and referred exclusively to the religious ground of discrimination. 

Besides this discrepancy between the reasoning and the verdict in count 17, the fact that the TC-V’s argumentation in this count referred only to the victims’ perceived religion as the sole basis for their discrimination meant that the Chamber failed to indicate the nature of the interaction between the religious and ethnic grounds of discrimination that the verdict later recognises. Specifically, the judgment does not explain if and how the religious and ethnic affiliations of the victims intersected to create unique disadvantage. The result is that it remains unclear if count 17 constitutes a simple case of multiple discrimination (in which multiple grounds of discrimination are charged cumulatively) or intersectional discrimination (in which multiple grounds of discrimination compound to increase the victims’ vulnerability and harm in unique ways). This is because the mere recognition of more than one ground of discrimination does not necessarily prove that intersectional discrimination occurred.

Furthermore, it is not clear why the ethnic ground of discrimination was added alongside religion only in count 17, while persecution in counts 8, 28, and 42 remained based on religion only. One could speculate that this occurred because counts 8, 28, and 42 refer to a larger and more amorphous scope of victimization than count 7 (i.e., the inhabitants of entire localities). This might have led the TC-V to rely on religion only, presumably under the understanding that, if some unspecified victims in counts 8, 28, and 42 were not Muslims, they were assumed to be so by the Anti-Balaka. 

Equally important is the fact that the seven victims in count 17 were interrogated by Anti-Balaka specifically about their ethnicity (para. 4224) and some of them were verifiably not Muslim. The TC-V explained that “even though some of these seven persons were not Muslims themselves, however, by virtue of being apprehended together and suspected of being linked to the Seleka, Mr Yekatom’s group considered them all to be Muslims” (para. 4230). As a result, the Chamber also saw fit that the verdict identifies the targeted group of persecution in count 17 and in counts 8, 28, and 42 differently: while the verdict described the targeted group in counts 8, 28, and 42 as “Muslim civilians perceived by the Anti-Balaka as supporters of or affiliated with the Seleka” (pp. 1608, 1610, 1615; emphasis added), the qualifier “Muslim” disappeared in count 17, with the verdict simply referring to “civilians perceived by the Anti-Balaka as supporters of or affiliated with the Seleka” (pp. 1609, 1612).  

Conclusively, intersectionality was not the cornerstone of the TC-V’s legal findings pertaining to persecution, in particular because: (i) more than one ground of discrimination (religious and ethnic) were recognised in only one of the four counts of persecution (count 17); and (ii) such recognition was spelled out only in the verdict, leaving unclear in the TC-V’s legal analysis whether there was intersectionality between those two discriminatory grounds. In summary, the Chamber stripped down the intersectional components of the Anti-Balaka’s persecution to focus mainly on religious discrimination.

Political Persecution 

Regarding the crime of persecution in specific, intersectionality is particularly valuable to assess the element of discriminatory intent, since it may assist in the determination of the full range of discriminatory grounds that apply in the case. This could in turn capture more precisely the often-multifaceted intention of those engaging in persecution as well as the unique qualitative experiences of the victims, highlighting the mutually reinforcing but different forms of discrimination they endured (see Maučec, pp. 540-541; Beringola, pp. 103-105). Accordingly, the absence of an intersectional approach to persecution in Yekatom and Ngaïssona entailed that important aspects of the Anti-Balaka’s discriminatory intent fell through the cracks of the trial judgment. 

A key example was the TC-V’s disregard for the political dimension of the discrimination against the Muslim population. In the judgment, this political aspect was framed as a mere historical or societal background to the religious persecution, rather than an integral component of the crime as such. However, political discrimination could have been arguably included in the crime of persecution. This is because the TC-V repeatedly indicated, in its factual findings, that the Anti-Balaka attacked the Muslim population not only because of the latter’s religion and ethnicity, but also because the Anti-Balaka perceived all Muslims in the CAR as political enemies, i.e., as Seleka’s supporters (paras. 45, 48, 49, 3939, 3944, 3999, 4100). The judgment asserted that the Anti-Balaka “target[ed] Muslim civilians without distinguishing [them] from the Seleka” (para. 4106) and “equated the Muslim civilian population with the Seleka and its acts, targeting it accordingly” (para. 1219). 

The ICC’s case-law confirms that the circumstances in Yekatom and Ngaïssona could amount to political persecution. In Ongwen Trial Judgment (paras. 2847-2848), the ICC convicted the defendant of persecution on political grounds because his armed group perceived the targeted civilians as supporters of the government of Uganda and, thus, as the political enemy. The basis for such perception was primarily the simple fact that the targeted victims lived in government-established camps for internally displaced persons. In Abd-Al-Rahman Trial Judgment (para. 936), the victims of persecution included several male members of a specific ethnic group in Darfur (the Fur). They were attacked because their combined ethnicity and gender made the perpetrators assume that they were active supporters of opposing rebel groups. Thus, the intersection of political, ethnic, and gender discrimination was upheld in the crime of persecution. The same rationale can be found in Said Confirmation Decision (pp. 53-54, 60-61). 

Accordingly, in Ongwen, Abd-Al-Rahman, and Said, the political dimension of the persecution derived from the fact that the selection of the specific civilian groups to be attacked was based on the assumption, accurate or not, that the targeted civilians were supporting the defendant’s political enemies. Similarly, in Yekatom and Ngaïssona, the Anti-Balaka attacked the Muslim civilians not simply because of their religious and/or ethnic affiliation, but also because they were perceived as political enemies. This alone confirms the political component of Anti-Balaka’s persecution. 

The Intersection of Political, Ethnic, and Religious Discrimination

The evidence not only corroborates the Anti-Balaka’s political discrimination, but it also discloses the intersection of the political, ethnic, and religious grounds of discrimination. Two concurrent factual elements demonstrate such an intersection: (i) the religion and/or ethnicity of the Muslim victims was precisely what led the Anti-Balaka to perceive and attack them as Seleka’s allies; and (ii) the Muslim population as a whole was targeted not only as members of a certain religion or ethnic group as such, but also as persons assumed to be linked to the Seleka. Thus, intersectionality helps to comprehend that the victims were attacked owing to the concurrence of their religious/ethnic affiliation and the political meaning that the Anti-Balaka attached to such specific affiliation. In the end, the political, ethnic, and religious aspects of the discrimination — i.e., being a Seleka member, belonging to an ethnic group assumed to support the Seleka, and being a Muslim — were fundamentally intertwined in the eyes of the Anti-Balaka, warranting a conviction for persecution on political, ethnic, and/or religious grounds.

Recognizing the intersection of the political, ethnic, and religious grounds of discrimination would also frame better the TC-V’s finding that the armed conflict in the CAR did not have a religious nature at its outset (para. 1234). The situation evolved from a predominately political conflict (between the Seleka and the Anti-Balaka) to a religious one (between Muslims and non-Muslims) mostly due to propaganda by the Seleka and the Anti-Balaka. These groups instrumentalized religion to create or radicalize divisions in CAR’s society for their own strategic purposes. For instance, the Anti-Balaka’s leadership used propaganda to associate all Muslims, even civilians, with the Seleka and the atrocities it committed, creating a spirit of resentment, hatred, and vengeance in non-Muslims towards the Muslim population as a whole (paras. 1219-1234). Prior to the conflict, Christians and Muslims cohabited peacefully in the CAR (para. 669).

Lastly, in the victims’ perspective, an intersectional analysis is compelling because it would highlight the specificities of the discrimination suffered by the Muslims in the CAR, underscoring their unique qualitative experiences as victims and the unique consequences of the Anti-Balaka’s discrimination. The scope of victimization can only be fully understood when seen in light of the mutually reinforcing but different forms of discrimination (political, ethnic, and religious) the victims endured. Referring primarily to religious discrimination in the judgment fails to capture the particularities of the dangers and harm suffered in the intersectional experience of the victims in the CAR. This could have implications not only for the conviction, but also for the sentence and reparations. Finally, the recognition that intersectional discrimination took place may also have an expressive or symbolic significance to the victims, operating as a form of satisfaction that would reassert their dignity and recognize the multifaceted nature of the harms they suffered (Sutton, pp. 111-113).

Final Remarks 

In evaluating the Anti-Balaka’s persecutory campaign, the judgment in Yekatom and Ngaïssona did not establish a multi-axis framework of assessment that would foreground the unique, complex, and compounded nature of the discrimination of the Muslim population in the CAR. This is particularly regrettable because the Abd-Al-Rahman Trial Judgment, issued by a different chamber in October 2025, approximately three months after the Yekatom and Ngaïssona judgment, incorporated intersectionality more significantly, with the defendant being convicted of persecution on political, ethnic and gender grounds. The same could be said about the Kony Confirmation Decision, issued in November 2025. In this ruling, persecution was confirmed on age and gender grounds with regards to boys and girls abducted and integrated into the defendant’s armed group (pp. 96, 100; see also Grover, pp. 41-89). It is interesting to note that, except for the alternate judge, all members of the Yekatom and Ngaïssona Trial Chamber were men, while all three judges of the Abd-Al-Rahman Trial Chamber and two judges of the Kony Pre-Trial Chamber were women (in this regard, see McLoughlin et al.). One only hopes that an intersectional sensibility will grow further roots in the ICC’s future practice, adding new dimensions to the crime of persecution and recognising with greater finesse the victims’ suffering and the defendant’s scope of criminal responsibility.