About the author(s):
Coline Minguet is an FNRS-funded PhD candidate at UCLouvain, where she researches reparations for victims of sexual violence in armed conflicts under international law. She holds an LL.M. in International Legal Studies from New York University (NYU). Prior to her doctoral studies, Coline practiced as a lawyer at the Brussels French Bar, specializing in international arbitration and corporate law. She also served as a teaching assistant in public international law at UCLouvain.
On 24 July 2025, the International Criminal Court (the “ICC”) delivered its judgment in the case of The Prosecutor v. Alfred Yekatom and Patrice-Edouard Ngaïssona. The case arose from the conflict that escalated in the Central African Republic (“CAR”) following the 2013 seizure of power by the predominantly Muslim Seleka coalition, which triggered retaliatory attacks by the Anti-Balaka militias against Muslim civilians. Yekatom and Ngaïssona, key Anti-Balaka leaders, were convicted of multiple war crimes and crimes against humanity committed in Bangui and western CAR between September 2013 and February 2014, including murder, torture, persecution, and forcible transfer of civilians.
However, the Court did not uphold the charges of rape as a war crime and as a crime against humanity against Ngaïssona (who was only charged with one incident of rape), and no such charges were brought against Yekatom. Regarding the charges, the way in which the sexual violence allegations were handled at the preliminary stage of the case was already criticized at the time (notably, here and here).
This outcome mirrors previous shortcomings in the ICC’s approach to sexual violence, notably in the Bemba case – which also concerned the CAR, where sexual crimes are well documented – in which Jean-Pierre Bemba Gombo was acquitted of sexual violence charges on appeal. The judgment raises enduring concerns about the treatment of sexual violence in international criminal law and the ICC’s ability to deliver justice to victims.
This contribution provides a critical analysis of the Court’s reasoning concerning the crime of rape, structured around five sections: (i) the material elements of the crime; (ii) the mental elements; (iii) the Prosecution’s evidence of a pattern of sexual violence; (iv) the Chamber’s reasoning on sexual violence; and (v) a concluding reflection.
1. Material Elements of the Crime
In its judgment, the Chamber unequivocally found that the material elements of the crime (actus reus) of rape as a crime against humanity and as a war crime – that is, penetration by force, threat of force or coercion – were met (para. 4098).
The Chamber indicated that it was convinced, “beyond reasonable doubt”, that an Anti-Balaka fighter raped P-2462 during the attack on Bossangoa on 5 December 2013 (para. 4130). It also added that “it is not of the view that sexual violence in general is an ‘exceptional’ occurrence in the context of armed conflicts. On the contrary” (para. 4130). Importantly, the Chamber rejected the notion that sexual violence is exceptional in armed conflicts, thereby implicitly acknowledging its widespread nature. However, the Chamber did not draw any explicit legal conclusion from this acknowledgment. Considering this statement, the Chamber’s reasoning, as analyzed below, appears even more curious.
2. Mental Elements of the Crime
The Chamber did not hold Ngaïssona criminally responsible for rape, considering the mental elements of the crime (mens rea) were not met. The mode of liability considered for this crime was that of Article 25(3)(c) of the Rome Statute (the “Statute”), namely, aiding, abetting or otherwise assisting in the commission of the crimes. To be held criminally responsible, the aider or abettor “must at least be aware that the principal perpetrator’s offence will occur in the ordinary course of events” within the meaning of Article 30 of the Statute (para. 3883).
The Chamber adopted a stringent interpretation of Article 30 of the Statute, requiring that the accused possess “virtual certainty” that the consequence – in this case, rape – would occur “in the ordinary course of events”. As noted in another post discussing the case, this standard reflects settled ICC jurisprudence on the required mental elements (Lubanga, para. 447; Katanga, paras. 776-777; Bemba, para. 29; Ongwen, para. 2695; Al Hassan, para. 1121).
The Chamber considered that Ngaïssona did not possess the “virtual certainty” required under Article 30 that rape would occur in the ordinary course of the Anti-Balaka attack on Bossangoa (paras. 4128–4131).
This finding is not only disappointing in terms of justice for victims of sexual violence but also appears difficult to reconcile with the evidentiary record presented by the Prosecution and the Chamber’s reasoning in relation to other crimes.
The Prosecution’s Evidence of a Pattern of Sexual Violence
To establish Ngaïssona’s virtual certainty that rape would be committed during the attack, the Prosecution argued in its Closing Brief that “it was common knowledge that [sexual violence and rape] would be committed by parties to armed conflict in CAR, and particularly against victims perceived to be associated with the opposing armed groups” (para. 318).
The Prosecution submitted numerous items of evidence relevant to the prevalence of sexual violence in the CAR, such as international organizations and NGOs reports (that established the undisputed widespread nature of sexual violence), media articles and footage, CAR government documents, etc. The Prosecution indicated that the evidence submitted “[was] relevant to the prevalence of SGBV in CAR during and prior to the Relevant Period, and in particular, SGBV committed by the Anti-Balaka. They [were] relevant, inter alia, to the Accused NGAISSONA’s knowledge under article 30 and article 25(3)(d)(ii) that the Anti-Balaka would commit sexual violence ‘in the ordinary course of events’” (para. 4).
In its Closing Brief, the Prosecution relied notably on the following elements to establish the mens rea:
- The Report of the Mapping Project documenting serious violations of international human rights law and international humanitarian law committed within the territory of Central African Republic between January 2003 and December 2015, which indicated that “nearly all parties to the successive armed conflicts in the Central African Republic between 2003 and 2015 committed these various forms of sexual violence” (p. 17). The report documents instances of rape attributed to anti-Balaka forces;
- The peace agreements reached at Libreville in January 2013, Brazzaville in July 2014 (in French – which was signed by Ngaïssona) and Nairobi in April 2015 (not publicly available), each of which explicitly included sexual violence among the acts to be ceased;
- Documents originating from the CAR government;
- The (confidential) testimony of witness P-1838, which reportedly described the targeting of Muslim civilians by Anti-Balaka forces, including acts of rape and murder committed in and around Mbaïki. While the testimony is confidential and not publicly accessible, the public redacted version of the Prosecution’s request for its submissionindicates that the testimony primarily addressed the role and conduct of Yekatom and his subordinates during the December 2013 attacks.
Based on the evidence submitted, the Prosecution argued in its Closing Brief that Ngaïssona was aware of and encouraged the desire for revenge of the Anti-Balaka group against Muslims and knew that serious violence would ensue. The Prosecution submitted comparable evidence to establish the mental elements of the other crimes (Prosecution’s Closing Brief, paras. 307-379).
The Flawed Reasoning on Sexual Violence
At paragraph 4131 of the judgment, the Chamber began by emphasizing that its findings were strictly confined to the specific charges and evidence confirmed and presented in relation to Ngaïssona’s individual criminal responsibility. While the principle of basing judgments on confirmed charges and evidence directly linked to the accused is foundational in international criminal law, the Chamber did not express this caveat when assessing other crimes. From the outset, the Chamber thus appeared to seek to justify its restrictive approach to sexual crimes, indicating that it was within this narrow framework that it concluded the threshold of “virtual certainty” regarding the foreseeability of rape was not met.
Still within paragraph 4131, the Chamber affirmed that the requisite mens rea was established for other crimes – namely killings, injuries, dislocation, and destruction of property (paras. 4116–4125). This determination rested on a consistent pattern of Anti-Balaka operations conducted between September 2013 and early 2014 across multiple locations, characterized by recurrent and analogous acts of violence targeting Muslim civilians. The Chamber thus considered these crimes to have been a foreseeable outcome of the Anti-Balaka attacks in Bossangoa. In paragraph 4116, it specifically stated:
“As regards Mr Ngaïssona’s mens rea, the Chamber recalls its finding that Mr Ngaïssona made his contributions prior to the Bossangoa Attack fully aware that the Anti-Balaka would violently target the Muslim civilian population in the west of the CAR, committing the widespread attack that ultimately took place from September 2013 through February 2014, including the seminal coordinated Anti-Balaka attacks of Bangui and Bossangoa on 5 December 2013. Mr Ngaïssona knew that the Anti-Balaka perceived, and himself perceived, the Muslims in the CAR as collectively responsible for, complicit in, or supportive of the violence and abuses committed by the Seleka and that the Anti-Balaka targeted the Muslim civilian population, specifically in the west of the CAR, on this basis. The Chamber further considered that Mr Ngaïssona provided his financial aid, organisational assistance and psychological support to the Anti-Balaka in the context of anti-foreign sentiments and inflammatory rhetoric openly expressed by François Bozizé and others, which incited vigilance against those perceived to support the Seleka, in particular Muslim civilians” (emphasis added).
The Chamber went further, concluding that “Mr Ngaïssona was not only aware that the Anti-Balaka would commit these crimes in the ordinary course of events, but intended for them to commit these crimes in Bossangoa” (para. 4120).
Yet, the Chamber did not reach the same conclusion with respect to rape. It considered that it could not establish with sufficient certainty that Ngaïssona knew that rape would occur in the ordinary course of events.
The Chamber’s reasoning is flawed in at least two respects.
First, it offered no principled justification for distinguishing between crimes such as murder or dislocation, on the one hand, and sexual violence on the other. The Chamber acknowledged that Ngaïssona was aware – and even intended – that the Anti-Balaka attacks would violently target Muslim civilians, and that he was fully cognizant of the inflammatory rhetoric publicly directed against them. If other violent crimes were considered foreseeable outcomes of Anti-Balaka operations on this basis, then a coherent rationale was required to exclude sexual violence from this pattern of foreseeable violence – particularly in a setting marked by ethnic and religious hostility, and in light of the Chamber’s explicit rejection of the notion that such violence is exceptional in armed conflicts (para. 4130).
Accordingly, the analytical distinction drawn between sexual violence and other crimes lacks sufficient substantiation. Therefore, treating rape as an unforeseeable or isolated act appears artificial.
Second, the Chamber’s reasoning fails to adequately consider the specific evidentiary challenges inherent in prosecuting sexual violence, such as its frequent underreporting. As the Chamber itself acknowledged, rape is not exceptional in armed conflicts. The ICC has also previously acknowledged that stigma, trauma, and fear of retaliation can significantly hinder the reporting of sexual crimes (e.g. Ntaganda, Judgment, paras. 88, 102, 806 ; Ntaganda, Sentencing Judgement,paras. 107, 130). Despite this, and despite the Prosecution’s submission of extensive evidence attesting to the widespread nature of sexual violence in the CAR, the Chamber deemed this insufficient to establish Ngaïssona’s knowledge. It remains unclear what further evidence would have been required to conclude that he possessed the requisite mens rea for the crime of rape.
Conclusion
The ICC’s reasoning not only overlooked the well-established prevalence of sexual violence in armed conflicts, but also appeared to impose a more stringent evidentiary threshold for rape than for other crimes. While the standard for establishing mens rea was formally the same across charges, its application in this case suggested a higher burden of proof for sexual violence – without any principled justification. This is particularly troubling given that sexual crimes, due to their specific nature, arguably warrant a more flexible approach.
The absence of a conviction for rape in this case sends a concerning message: that such crimes remain too difficult to prosecute. This risks undermining the progress made in recognizing the rights of victims and hindering efforts to ensure accountability at the command level.
Rather than advancing legal reasoning to meet the specific challenges posed by sexual violence, this judgment marks a missed opportunity – and arguably, a setback – for victims seeking justice.