The surrender of Albert Yekatom to the ICC: an infringement of the positive complementarity principl

1. The facts

In the Central African Republic (CAR) II situation, Albert Yekatom alias ‘Rambo’, the former leader of the Anti-Balaka militia, was surrendered by CAR authorities to the International Criminal Court (ICC) on 17 November 2018, to answer for alleged war crimes and crimes against humanity committed in the western part of CAR between December 2013 and December 2014.

This surrender was carried out following a warrant of arrest issued, under seal, by the ICC Pre-Trial Chamber II, against Yekatom on the 11 November 2018.

An armed group known as ‘Séléka’, composed mainly of Muslims and led by Michel Djotodia, emerged around August 2012 in the northern part of CAR, to oppose the government of François Bozize, who was at the time the president of CAR. Séléka successfully carried out a coup d’état on 24 March 2013. Self-defence groups known as ‘the Anti-Balaka’ arose in response to the coup d’état. The Anti-Balaka were organised in a military structure and composed mainly of Christians. The Anti-Balaka group retaliated against the crimes and abuses committed by the ‘Séléka’ and targeted mainly the Muslim population in the western part of CAR

On 29 October 2018, long before his surrender to the ICC, Yekatom, while carrying out his mandate as member of the CAR National Assembly, behaved in an undignified manner when he twice fired a gun in the Chamber of the National Assembly. Outraged by this behaviour, and the blatancy of it, members of the CAR National Assembly withdrew the immunity to which Yakatom was entitled as a member of the National Assembly.

The first ever surrender of a militia leader from CAR to the ICC has been hailed by many commentators not only as a strong stance against impunity, but also as ray of hope to help heal the wounds of the victims affected by the war in CAR, a country in which 80% of the territory is still under the control of armed groups. However, the surrender of Yekatom has raised some legal questions, one of which relates to the ICC’s prosecution policy.

2. The problem regarding the prosecution policy

It is true that the arrest of the militia leader is an important step in the fight against impunity for the heinous crimes committed in CAR. However, the question arises whether, with a view to preserving the limited resources of the ICC to be used in more important cases, it would have been more beneficial to try Yekatom at the newly established Special Criminal Court in CAR (SCC), instead of surrendering him to the ICC. In other words, why would the ICC intervene in a situation for which a special criminal court has been established, instead of intervening in another situation where the ICC’s involvement is more urgently required?

The question here is not whether the accused is guilty or innocent. Neither is it a jurisdictional issue. Rather, the purpose is to highlight a problem arising from the prosecutorial policy at the ICC.

The positive complementarity principle, which has been developed by the Office of the Prosecutor (OTP), encourages domestic prosecution of international crime in order to reduce unnecessary use of the limited resources of the ICC, thus enabling the Court to focus only on those situations most deserving of intervention.

3. Final thoughts

This post is by no means a criticism of the ICC for the arrest of Yekatom, but rather an attempt to highlight the concern that his surrender to the ICC may cast somewhat of a shadow over the SCC. It is regrettable that the policy of positive complementarity remains theoretical. As an alternative to the ICC, the SCC offers several advantages, not least of which is the proximity of the SCC to crimes, evidence and witnesses and its accessibility for victims.