International Criminal Court (ICC) judges have rejected defense appeals and affirmed the joinder of the cases of former militia leaders Patrice-Edouard Ngaïssona and Alfred Yekatom, who are accused of similar crimes allegedly committed against the Muslim population in the Central African Republic (CAR).

In a March 21, 2019 decision, Pre-Trial Chamber II judges rejected both appeal grounds advanced by the defense. The chamber composed of judges Antoine Kesia‐Mbe Mindua (Presiding), Tomoko Akane, and Rosario Salvatore Aitala dismissed defense allegations that the joinder would violate the rights of the accused to a fair and expeditious trial.

In ordering the joinder last month, judges said a joint trial would enhance the fairness and expeditiousness of the proceedings by avoiding duplication of evidence, inconsistency in the presentation and assessment of evidence, undue impact on witnesses and victims, and unnecessary expense.

Ngaïssona’s defense subsequently argued 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. The defense contended that 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.

Yekatom’s lawyers also sought to appeal on the ground that judges may have misapplied the court’s rules by joining the cases on the expectation of what prosecution evidence would be. They said judges’ conclusion that information available to the defense was sufficient to discern any potential prejudice arising out of a joinder, was manifestly unreasonable and constituted an error of law. Further, they stated that if it became necessary to sever the proceedings at a later stage, the prejudice to Yekatom would be much greater.

However, the judges affirmed that the joinder decision was based on findings that the contextual elements of the alleged crimes against humanity and war crimes in both cases are virtually indistinguishable and that all crimes alleged against Yekatom are also alleged against Ngaïssona. They said these findings were based on the chamber’s assessment of the facts and evidence submitted in the proceedings.

According to judges, in claiming that the chamber may only order a joinder of the cases once the charges are known, “the defense is in fact objecting to the court’s legal framework and jurisprudence.” This was because the Appeals Chamber had confirmed in the cases of Germain Katanga and Mathieu Ngudjolo that the Pre-Trial Chamber has the power to order a joinder of cases at this stage of the proceedings.

The judges also stated that, in ordering the joinder, they considered any “serious prejudice” to the defense, noting that this obligation exists irrespective of any submissions made by the defense. They added: “Submissions from the parties assist and inform the chamber in reaching its decision but, ultimately, the chamber is best placed to assess whether a joinder of the cases is warranted, having the required understanding of both cases, their scope, the alleged crimes, and alleged roles of the suspects.”

Further, the judges stated that under Rule 136, the chamber may join or sever cases on its own volition. Rule 136(1) of the Rules of Procedure and Evidence provides that persons accused jointly shall be tried together unless the trial chamber orders that separate trials are necessary, in order to avoid serious prejudice to the accused, to protect the interests of justice, or because a person jointly accused has pleaded guilty.

Article 64(5) of the court’s Rome Statute provide that trial judges may direct that there be joinder or severance of charges against more than one accused.

In their appeal bid, Ngaïssona’s defense argued 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.

However, the judges said they did not see how Ngaïssona’s new lawyers were in a better position than his former counsel to submit observations on the feasibility of the joinder of the cases.

The confirmation of charges hearing for Ngaïssona and Yekatom is scheduled to start on June 18, 2019.