In an unprecedented move, the prosecutor of the International Criminal Court (ICC) has withdrawn charges against former Central African Republic (CAR) minister of Disarmament Maxime Mokom for war crimes and crimes against humanity during the process to confirm the charges against him, on October 16. Mokom has been released from prison. The prosecutor’s decision raises many questions about how the court manages its investigations and what may happen to any further cases he wants to bring against individuals from the CAR.
As recently as August this year, during the confirmation of charges hearings before three judges, the prosecution was arguing that Mokom coordinated attacks by anti-Balaka forces in Bangui and Bossangoa against the Muslim population in 2003 and 2004. In 20 counts of attacks on civilians, murder rape, pillaging and destruction of buildings, the prosecution had alleged that Mokom “was no mere bystander”, but rather someone who “must have known” that atrocities were being committed.
“Crumbling” evidence
Mokom was arrested in March last year on the border with Chad and transferred to the ICC’s detention unit. As his confirmation of charges hearing was heavily delayed, he was granted an interim release, but couldn’t find a European country willing to take him under the onerous conditions the court set. Mokom’s defence lawyer Philippe Larochelle told Justice Info he had mixed feelings about the prosecutor’s move - even though it now leaves his client free - because Mokom had spent 19 months in jail, without his charges confirmed, before “the prosecutor came to his senses”.
In the appeal to the judges, the prosecutor said the reason for the withdrawal of charges was the “unavailability” of witnesses. In a video statement deputy prosecutor Mame Mandiaye Niang said “we must constantly assess the evidence” at all stages and “only cases with reasonable prospects of conviction” should proceed. Without details he referred to “the crumbling” of part of the evidence and said there was “no realistic prospect” of success even if the charges had been confirmed. It was not an “easy” decision, he said.
Larochelle questioned the explanation as a “bogus reason” or a “smokescreen” because witness statements could be used if they were deceased, or they could be summoned. “It doesn’t hold water for me,” he said. During the confirmation of charges hearings Larochelle and his team had tried to show that the prosecution case theory was “like a butterfly”, that it had not settled on one clear analysis of Mokom’s role. “I know the evidence is not there,” said the defence counsel, describing “more exculpatory than inculpatory” evidence. Some observers speculated privately that the judges might already have been minded to not confirm the charges against Mokom.
Losing insider witnesses?
Gabriele Chlevickaite of Vrije Universiteit Amsterdam believes those “unavailable” must have been insider witnesses because for crime-based witnesses, “you could add additional time, or do additional investigations and find replacements”. These are broad charges against a high-ranking official which would “also indicate that in order to confirm the charges, they would need linkage evidence and linkage evidence can mainly be gotten from insider witnesses”.
In the other trial of anti-Balaka officials Alfred Yekatom and Patrice-Edouard Ngaïssona at the ICC, there was a postponement at the request of the prosecution before the confirmation of charges could begin in 2019 “due to witness protection issues”. Like in that trial, investigations in the Central African Republic are unlikely to have provided the prosecution with much in the way of documentary or forensic or intercepted evidence, she suggests.
Lucy Gaynor of Amsterdam University has been monitoring the CAR trials and she says that because the Yekatom and Ngaïssona trial has had so many private sessions, it’s become difficult for observers to assess what has happened with witness testimony in that case and whether they may be proving unreliable or fatigued or potentially unwilling to be questioned again in a further case “in case they're called out,” she says. “We just can't know.”
A structural problem
Mokom meanwhile was sentenced in the CAR to a life with hard labour on September 21. For now he is in The Netherlands, and needs to find a state to take him in – a situation that the ICC has faced before. After Congolese militia leader Mathieu Ngudjolo Chui was the first person to be acquitted by the ICC he was sent back to the Democratic Republic of Congo after being refused political asylum by the Dutch and Kenya in 2015.
The Mokom investigation is also not the first to face possible insider witness issues. “We had the Kenya situation with the cases against Kenyatta, Ruto and Sang being withdrawn, or having no case to answer being granted on the basis, basically, of witness tampering and recanting of their testimonies, which were mostly insider witnesses”, Chlevickaite recalls. She also says that in the Ivory Coast case of Laurent Gbagbo and Charles Blé Goudé, “it wasn't as obvious”, but “very high-ranking insiders were called to testify on the expectation that they would provide linkage evidence, and once on the stand didn't turn fully hostile but suddenly couldn't remember anything”.
This may be a structural issue at the ICC, which Chlevickaite says may be linked to the fact that the Office of the Prosecutor “has nothing to offer” the insiders in exchange for their testimony. “If you think of the International Criminal Tribunal for the former Yugoslavia, where insiders could be granted plea deals or something to incite them into testifying, or pressure them even in testifying, the ICC has nothing. It has never happened that an insider witness actually would turn into a suspect at the ICC in more than 20 years of practice.”
Deputy prosecutor Niang acknowledged that some may feel “disappointment” and “frustration”. He sought to assure that the decision to withdraw the charges “only concerns Maxime Mokom” and that it had “no impact or interference” on other potential CAR cases at the court.
