The new lawyer for former militia leader Patrice-Edouard Ngaïssona is contesting a decision by International Criminal Court (ICC) judges to join the Ngaïssona case with that of another former militia commander from the Central African Republic (CAR).

Geert-Jan Alexander Knoops has argued that joining Ngaïssona’s case with that of Alfred Yekatom is premature and violates his client’s fair trial rights. He faults Pre-Trial Chamber II for making the joinder decision before receiving the views of Ngaïssona’s recently-appointed lawyers.

Last month, Pre-Trial Chamber II joined the two cases, stating that a joint trial would serve to enhance the fairness and expeditiousness of the proceedings by avoiding the duplication of evidence, inconsistency in the presentation and assessment of evidence, undue impact on witnesses and victims, and unnecessary expense.

According to the judges, the alleged crimes in both cases are “virtually indistinguishable” as they constitute the same widespread and systematic attack against the civilian population in the same geographical areas. The judges also noted that the specific crimes alleged to have been committed by Yekatom and Ngaïssona correspond to a large extent because all the crimes alleged against Yekatom are also alleged against Ngaïssona. As a result, the judges said the evidence the prosecutor intends to rely on to establish the charges is expected to be substantially the same.

In the request for leave to appeal that ruling, Knoops states that the chamber based its reasoning to join the cases on the mere expectation that the evidence the prosecution would rely on in the two cases would be the same. However, he contends that at this stage such an expectation is speculative and premature because the prosecution has not produced the Document Containing the Charges (DCC), which would provide a complete and updated presentation of the charges.

Knoops cites Article 64(5) of the court’s Rome Statute that states that the trial chamber may, as appropriate, direct that there be a joinder or severance in respect of charges against more than one accused. This, he argues, implies that the charges constitute “the centre of gravity” of a decision of joinder or severance. Knoops says a “charge” should therefore not be reduced to a mere accusation but must be composed of facts, a legal characterization of the facts, and a liability mode.

The defense has cited the cases of Germain Katanga and Mathieu Ngudjolo, which Pre-Trial Chamber I joined due to a common application for a warrant of arrest. It says, however, that the joint case was later severed due to a change to the legal characterization of one of the modes of liability. “The fact that an application for a warrant of arrest or a warrant of arrest itself contains initial observations on the modes of liability, which is the case here, cannot supplement the absence of a DCC that would contain proper notice and an assessment of the modes of liability,” argues Knoops.

The prosecution charges that Yekatom and Ngaïssona were commanders in the Anti-Balaka militia, which allegedly committed atrocities against the Muslim population in the CAR during 2013 and 2014. It says the Anti-Balaka militia, in which Ngaïssona was purportedly the most senior leader and the “National General Coordinator,” targeted the Muslim civilian population in retribution for crimes committed by a mainly Islamist militia known as the Seleka.

Knoops also argues that the chamber failed to address the request by Ngaïssona’s former lawyer, Eric Plouvier, to allow the accused’s new lawyer “to make any further or different submissions” regarding the joinder. Plouvier resigned as Ngaïssona’s lawyer early last month. Knoops said three days after he replaced Plouvier as Ngaïssona’s lead attorney, and before he made any submissions on the issue, judges ordered the joinder of the cases.

In a response, the prosecution has asked judges to dismiss the defense application, which it claims does not identify any appealable issue. According to the prosecution, all the alleged issues being appealed are based on a misreading of the joinder decision or underlying submissions, or merely disagree with the chamber’s assessment.

The prosecution argues that, contrary to the assertion by Knoops, Ngaïssona’s former lawyer did not ask that the accused’s new lawyer should be permitted to make further submissions on the feasibility of joinder. Rather, says the prosecution, he alluded to factors that “weighed in favor” of such possibility.

In his submissions, Plouvier said there appeared to be a substantial overlap in the charges against Yekatom and Ngaïssona that could favor a joinder. He added, however, that since the prosecution had not produced the document defining the charges, it was doubtable whether it was suitable or within the pre-trial chamber’s powers to order a joinder at that stage.

Meanwhile, the prosecution has also stated that the Appeals Chamber in the Katanga and Ngudjolo case determined that a pre-trial chamber can order the joinder of charges even before charges are formally submitted. Accordingly, “the resolution of the same question by Appeals Chamber is neither necessary at this stage, nor would it materially advance the proceedings.”

Ngaïssona was arrested in France last December and transferred to The Hague last January. His joint confirmation of charges is scheduled for June 2019.