Mahamat Said Abdel Kani, called Said, was a senior Seleka figure. A commander well known in Bangui and in the Central African Republic (CAR) in 2012 and 2013, when this coalition of armed groups was fighting against the then President François Bozizé. Since he was arrested in 2021, in relation to his alleged role at the special police unit headquarters, the OCRB – the Central Office for the Repression of Banditry – in Bangui, his trial and his judgment became a cornerstone in the Hague court proceedings concerning the CAR.
But when on September 23rd, the presiding judge Miatta Maria Samba read a summary of the 662-page judgment in open court, half of the charges against Said were dismissed: the war crimes of torture, cruel treatment, and outrages upon personal dignity.
The judgment “unanimously considers that there was a non-international armed conflict in CAR between the Seleka and the Central African armed forces supported by the South African armed forces from at least late December 2012 until 24 March 2013”. The judges therefore consider that conflict between armed groups did not continue “following the Seleka takeover of Bangui on 24 March 2013”.
A non-international armed conflict
So, for the judges, there was no international armed conflict. Why does that matter? It’s “pretty obvious and fundamental”, says Annyssa Bellal expert in international law and the Executive Director of the Geneva Peacebuilding Platform, because “international humanitarian law, or the law of armed conflict, can only apply when there is an armed conflict”, and on that basis, war crimes charges are either in or out.
Arnaud Yaliki, a lecturer in public law at the University of Bangui, agrees: “legal characterization is an extremely important step.”
“It’s quite easy when we are facing an international armed conflict,” Bellal says. “Because here the threshold that has been determined by scholarship, by the case law, and in customary international law is very low; some kind of tension, or the use of armed force between two states, and then we have an armed conflict.” “For non-international armed conflict, it’s a bit more complicated,” she adds, “because the difference between a non-international armed conflict and a civil violent unrest, the use of political violence within a country, the limit here is tenuous”.
Disorganization and chaos
Bangui has not only national trials covering international crimes covering the last 20 years of violence, but also the UN-backed Special Criminal Court dealing with bringing to justice different political and armed groups’ leaders.
Stefan Waespi, former international investigating judge at that hybrid court says any suggestion that there was - even temporarily - not an non-international armed conflict, and therefore no jurisdiction, caused shock and disbelief when the argument was first mooted during opening statements in Said’s trial.
Bellal testified as an expert witness at the trial about the lack of organisation of the armed groups. “There was quite a high threshold of violence, but what did not exist and a lot of other organizations and scholars came to the same conclusion, is the lack of organization of the armed groups involved,” she says.
“These are the true criteria if you want to determine whether there is a non-international armed conflict; the level of violence; the violence needs to be protracted over a certain period of time, must be really heavy confrontations between the parties or civilians being really targeted; and you need to have the organization of a group, because you need to have a party to the armed conflict. And here, this is what was missing. At that moment, there was a lot of disorganization, chaos in terms of what was happening in the Central African Republic,” she adds.
She believes the judges “did well” because if they hadn’t provided a clear analysis, “it could perhaps have undermined the legitimacy of war crime prosecutions” by muddying the waters. Importantly though, the judges “emphasise that the period following 24 March 2013 was anything but peaceful for the civilians in CAR”.
Widespread and systematic attack against civilians
The case against Said concerned “18 charged incidents allegedly committed at the OCRB”. He was accused of the crimes against humanity of imprisonment, torture, other inhumane acts and persecution.
Judges unanimously found “that the Seleka carried out a widespread and systematic attack against the civilian population of Bangui from at least April 2013 until at least November 2013”. These included indiscriminate shootings, “rape, mistreatment and other forms of violence”, and extensive looting.
The court said that the “Seleka targeted the part of the population they perceived to support François Bozizé. The targeted population was identified by religion (Christian), ethnicity (particularly people belonging to the Gbaya, Mandja and Banda ethnic groups), gender (predominantly male), and association with Bozizé’s regime (including family members and personal associates of François Bozizé, former State officials and members or former members of the security and defence forces)”.
“International humanitarian law (war crimes) applies when there is an armed conflict”, notes Bellal, “but what is very important is that human rights law applies at all times - both in peacetime and wartime”.
Said’s own role
Said had been “appointed as head of the OCRB by Noureddine Adam, who was a Seleka leader and the Minister of Public Security, in mid to late April 2013”, said the judges. Yaliki agrees it’s important that the judgment confirms that "the OCRB level, it is a functioning state institution. Where a person is regularly appointed".
When he got to the OCRB he “was presented as being the ‘new person responsible’,” said the judges. He was “the de facto top ranking official at the OCRB and was in charge. [He] had control over the OCRB and when it came to orders and reports, everything went through him. All of the Seleka at the OCRB were under Mr Said’s command and reported to him”.
As the top man, he “gave orders for the OCRB Seleka to beat detainees. In addition, Mr Said was present when detainees were being beaten and tortured at the OCRB”, they added.
The judges identified all this activity as part of “a common plan to target perceived Bozizé supporters” and said it reflected “the broader Seleka policy to attack the civilian population perceived to support François Bozizé”.
Said’s own role was “an essential contribution to this common plan and that, in light of this role and functions, Mr Said acted with the necessary intent and knowledge,” they said.
Acts of torture: the arbatachar method
The judges outlined some of the horrendous conditions at the OCRB, “which the Seleka used following their takeover of Bangui until 30 August 2013”.
There they “routinely mistreated detainees physically and psychologically”. “Detainees were beaten, whipped and kicked. On one occasion, OCRB Seleka members ordered 16 detainees to remove their clothing upon arrival at the OCRB and threw sand, soil or clay mixed with water on their backs and whipped them multiple times, causing two detainees to soil themselves”.
Seleka members would “commonly tie detainees using the arbatachar method”, which involved forcing a person to lie down on their stomach and tying all four of their limbs together in the back with a cord. “This caused the person excruciating pain, and the Chamber considers that this constitutes an act of torture”, the judges said. “For example, one man was interrogated while he was held on the ground and severely beaten with ropes, whips and military belts all over his body, following which he was tied using the arbatachar method.”
One prisoner “was slapped and beaten all over with rifle butts by the OCRB Seleka. The following day he was tied using the arbatachar method, then kicked, hung against a wall, and beaten with various instruments”. Another “was also beaten while being tied using the arbatachar method, and he lost consciousness”. And “two other men were tied using the arbatachar method, one of them spending the night tied”.
The judges also focused on the conditions in cells at the OCRB. One “had no windows, bed, or toilet and its walls were marked by bullet holes and stained with blood. At times, cells in the courtyard were overcrowded to such an extent that the detainees had difficulty breathing and had to take turns to lie down”.
An underground cell, “in which multiple detainees were held”, was under the floorboards in Said’s own office in the main building of the OCRB. “The entrance of the underground cell was approximately 2 metres by 1 metre, and its interior was slightly bigger. Detainees had to urinate and defecate inside the underground cell.”
The Seleka, a first in The Hague
“It is the first time”, notes Yaliki, that “such a judgment was handed down or a senior official was tried” in The Hague.
The judges said that “there was an organisational policy on the part of the Seleka to attack the civilian population perceived to support François Bozizé”. The Seleka “were motivated by a desire to punish or extract what they believed to have been owed from persons perceived as associated with Bozizé’s regime”: “Senior Seleka leaders were present when crimes were committed and were themselves implicated. In addition, the Seleka leadership failed to take genuine and effective action to prevent or punish the criminality among their ranks, despite the fact that they could have done so.”
Bellal points out that “it’s not really a precise science” to assess “how an armed group like the Seleka functioned,” against the backdrop of a “state that was not very existent” and “chaotic”. The judges had to assess “that this particular guy was really in charge, and he knew exactly what he did. And in order for human rights law to apply, you need to also have some kind of a structure”.
Waespi notes that an ICC judgment on power structures “will be read and cited, especially by defence lawyers,” at the SCC in Bangui, but “it’s not binding”, and “will have no immediate effect on cases at the court”.
For Yaliki though, judging a Seleka leader to trial in The Hague in itself has an important meaning: “In intellectual circles, among victims’ associations, this is the first time that, at the level of international criminal justice, justice has been served to victims in all its rigor.”
And for him, this is not the only benefit of this judgment: “The icing on the cake was that the ICC has often been accused of issuing inconsistent sentences, of only convicting one side, meaning that it focuses much more on the big fish of the anti-balaka and not on the Seleka. And the fact that Mr Said has been convicted, I think that lends some credibility to the International Criminal Court.”
