Tag: Central African Republic

International Criminal Court: Investigation of Ivory Coast Situation Is Authorized

On October 3, 2011, the Pre-Trial Chamber of the International Criminal Court (ICC) authorized the Prosecutor to conduct an investigation of the situation in the Ivory Coast (Cote d’Ivorie) for possible crimes against humanity and war crimes within the Court’s jurisdiction since November 28, 2010.[1]

Ivory Coast has been in turmoil since a coup in 1999 and a flawed 2000 election in which Laurent Gbagbo was elected president for a five-year term. Gbagbo, however, failed to hold an election in 2005 and was still in office when an election was held in November 2010. He was defeated in that election by Alassane Outtara, but Gbagbo refused to turn over power to Ouattara. Thereafter there was armed conflict between supporters of the two men that is the focus of the now authorized ICC investigation. In that conflict approximately 3,000 people were killed, and 500,000 people fled into neighboring countries. In April 2011 Gbagbo was forcibly removed from office and arrested with the help of French and U.N. military forces (In May Ouattara was formally inaugurated as president.) This August, Gbagbo and his wife were charged with looting, armed robbery and embezzlement by the country’s prosecutor.[2]

The Ivory Coast situation is an excellent illustration of the checks and balances within the ICC. One of the ways an investigation can be started by the ICC Prosecutor is on his own initiative (proprio motu), but that can happen if and only if a three-judge Pre-Trial Chamber authorizes the investigation, which is what just happened with the Ivory Coast.[3]

Such authorization is not automatic and cannot be presumed.

The Pre-Trial Chamber’s decision to authorize the Ivory Coast investigation is an 86-page careful analysis of the many legal conditions that must be satisfied for such an authorization. It concludes with a statement that one of the three judges will be filing a separate and partially dissenting opinion.[4]

The first condition was ICC jurisdiction over the Ivory Coast. It is not a State Party to the Court’s Rome Statute, but in April 2003 it submitted a declaration to the Court that the country accepted ICC jurisdiction for crimes on its territory since September 19, 2002 and for an unspecified period of time thereafter. The validity of this declaration was confirmed in a December 2010 letter from President-elect Ouattara, who pledged full cooperation with the Court in particular for crimes after March 2004. In addition, in May 2011 President Ouattara sent a letter to the Court in which he said that he believed crimes within the Court’s jurisdiction had been committed since the elections of 2010 and requested the ICC’s assistance in prosecuting perpetrators of such crimes. Therefore, the Pre-Trial Chamber concluded that the Court had jurisdiction over the situation in the Ivory Coast.[5]

The Pre-Trial Chamber then considered the materials regarding possible crimes committed by the pro-Gbagbo forces and concluded that there was reason to believe that they had committed crimes against humanity by murder, rape, arbitrary arrest and detention, enforced disappearances and torture and other inhumane acts.[6] The pro-Gbagbo forces also had been shown possibly to have committed war crimes in an armed conflict not of an international character by murders, intentional attacks on civilian populations and U.N. personnel, rape and sexual violence.[7]

The Pre-Trial Chamber also considered whether pro-Ouattara forces had committed similar crimes and concluded that there was reason to believe that they had. Their possible crimes against humanity were murder, rape and imprisonment and deprivation of liberty. Their possible war crimes were murder, rape, pillage, torture and other cruel treatment.[8]

The Pre-Trial Chamber emphasized that the authorization included continuing crimes after the Prosecutor’s application to the Chamber on June 23, 2011.[9] The Prosecutor also was asked in one month to submit additional materials for possible crimes in the Ivory Coast from 2002 (when the ICC commenced operations) through 2010.[10]

Last month President Ouattara appointed 11 people to the country’s new Commission on Dialogue, Truth and Reconciliation. Although modeled after South Africa’s Truth and Reconciliation Commission, it is unclear if it will be issuing amnesties and pardons.[11]

This Commission’s goals might be seen as conflicting with the ICC’s investigation and possible prosecution of people for committing crimes against humanity and war crimes in the country, but immediately after the Pre-Trial Chamber’s authorization of the ICC investigation, its Prosecutor stated that the investigation “should be part of national and international efforts to prevent future crimes in [the country” and that the Commission “would be a central piece of such efforts. National authorities could define other activities to help the victims, ensure peaceful coexistence and prevent future violence. Promoting justice and reconciliation . . . must be our common endeavour.”[12]

This is the Court’s seventh investigation, all from Africa. Three of the others are by submissions from States Parties: Uganda, Democratic Republic of Congo and the Central African Republic. Two are from submissions from the U.N. Security Council: Darfur (Sudan) and Libya. The other, Kenya, was another Pre-Trial Chamber approval of an investigation initiated by the Prosecutor.[13]

[1] Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situtation in the Republic of Cote d’Ivorie, (ICC Pre-Trial Ch. Oct. 3, 2011); ICC, Press Release: ICC Pre-Trial Chamber III authorizes the Prosecutor to launch an investigation in Cote d’Ivorie (Oct. 3, 2011); Assoc. Press, Int’l Court IJs Ivory Coast Violence Probe, N.Y. Times (Oct. 3, 2011); Post: International Criminal Court: Prosecutor Seeks To Open Investigation of Ivory Coast (May 23, 2011).

[2] Id.; Nossiter, Sayare & Bukefsky, Leader’s Arrest in Ivory Coast Ends Standoff, N.Y. Times (April 11, 2011); BBC, Ivory Coast reconciliation commission launched, BBC News (Sept. 6, 2011).

[3] Post: International Criminal Court: Introduction (April 28, 2011); Post: International Criminal Court: Prosecutor Seeks To Open Investigation of Ivory Coast (May 23, 2011).

[4] Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situtation in the Republic of Cote d’Ivorie, (ICC Pre-Trial Ch. Oct. 3, 2011).

[5]  Id. ¶¶ 10-15.

[6]  Id. ¶¶ 51-91.

[7]   Id. ¶¶ 127-153.

[8]  Id. ¶¶ 95-116, 157-172.

[9]  Id. ¶¶ 3, 179.

[10]  Id. ¶ 213.

[11]  BBC, Ivory Coast reconciliation commission launched, BBC News (Sept. 6, 2011);BBC, Ivory Coast gets truth and reconciliation commission, BBC News (Sept. 28, 2001);Ivory Coast launches reconciliation panel,al Jazeera.net (Sept. 28, 2011).

[12] ICC, Press Release: ICC Prosecutor: This decision ensures justice for victims in Cote d’Ivoire. I will conduct effective, independent and impartial investigations, (Oct. 3, 2011).

[13]  Post: International Criminal Court: Investigations and Prosecutions (April 28, 2011).

The International Criminal Court: Investigations and Prosecutions

All of the ICC’s initial six investigations come from Africa.

Uganda, Democratic Republic of Congo and Central African Republic. Three of the investigations arise from submissions to the Court by three of its African States Parties–Uganda, the Democratic Republic of the Congo and the Central African Republic. These ICC investigations have led to the issuance of 10 arrest warrants. One of the subjects from Uganda died of natural causes. Five of the subjects of these warrants remain at large. Three of the Congolese subjects (Lubanga, Katanga and Chui) are now on trial at the ICC, with the closing arguments in the ICC’s first trial (Lubanga) scheduled for this coming August. In addition, the trial of Jean-Pierre Bemba for actions in the Central African Republic started this past November.[1]

Kenya. Another investigation relates to Kenya. On November 26, 2009, the Prosecutor on his own initiative asked the Pre-Trial Chamber for permission to open an investigation into post-election violence in Kenya in 2007-2008 as possible crimes against humanity. On March 31, 2010, that Chamber approved that application. A year later–March 8, 2011, the Pre-Trial Chamber authorized the issuance of summonses to six individuals.[2]

Darfur (Sudan) and Libya. The last two investigations –Darfur (Sudan) and Libya– arise from submissions to the Court by the U.N. Security Council under Article 13(b) of the Rome Statute and Chapter VII of the U.N. Charter. (The latter gives the Council responsibility for the maintenance of “international peace and security.”)

In the Darfur (Sudan) situation, the Court has issued seven arrest warrants against six persons. One of the subjects (Bahr Idriss Abu Garda) appeared voluntarily at the Court and was in pre-trial proceedings, but on February 8, 2010, the Pre-Trial Chamber declined to confirm the charges against him, thus ending his case subject to reopening by the Prosecutor if there is additional evidence to support the charges. Two others (both Darfur rebel commanders) voluntarily surrendered themselves to the ICC, and in March 2011, the Pre-Trial Chamber confirmed the charges against them and committed them to trial. Three others remain at large, and one of them (Sudanese President Omar Hassan Ahmed Al Bashir) is the current head of state.[3]

As the Security Council resolution on Darfur itself noted, the Council under Article 16 of the Rome Statute has the power to stop any “investigation or prosecution” by the ICC  for a period of 12 months after the Council adopts a resolution to that effect under Chapter VII of the U.N. Charter and to renew such a resolution ad infinitum. Yet in the over five years after its referral of the Darfur situation to the Court, the Council has not chosen to exercise this power after being kept advised of developments by the Prosecutor’s personal biannual reports to the Council.[4] This refusal to defer the prosecution of President Bashir is despite requests to do so from African and Arab states.

The last of the six ICC investigations relates to the current situation in Libya. On February 26, 2011, the U.N. Security Council adopted Resolution 1970 that, among other things, referred the Libyan situation since February 15, 2011, to the ICC’s Prosecutor, directed the Libyan authorities to cooperate fully with the Court and Prosecutor and invited the Prosecutor to make periodic reports about his actions in this matter to the Council. The resolution also stated that “nationals, current or former officials or personnel from a State outside [Libya], which is not a party to the Rome Statute . . . shall be subject to the exclusive jurisdiction of that State for all alleged acts or omissions arising out of or related to operations in [Libya] established or authorized by the Council, unless such exclusive jurisdiction has been expressly waived by the State.”[5]

Two days later (February 28th) the Prosecutor stated that he had to decide whether to open an investigation regarding Libya and that he was collecting information to determine whether the necessary conditions for the Court’s jurisdiction were satisfied. [6] Another four days passed, and the Prosecutor on March 3rd announced that he was opening such an investigation.[7]

On May 4th the Prosecutor will report to the Security Council on the status of his Libyan investigation, including a possible request to the Pre-Trial Chamber to issue arrest warrants against those who appear to bear the greatest responsibility for crimes in Libya.

Preliminary examinations. In addition to these six investigations, the Office of the Prosecutor has conducted or currently is conducting preliminary examinations or analyses of situations in a number of other countries to determine if requests to the Pre-Trial Chamber should be made to commence investigations. These countries include Afghanistan, Chad, Colombia, Cote d’Ivorie, Georgia, Guinea, (Gaza) Palestine, Honduras and Nigeria. With respect to Afghanistan, which is a State Party to the Rome Statute, the Prosecutor has said that his office was looking into accusations of war crimes and crimes against humanity by the Taliban and by the U.S. and its allies.[8]

The Prosecutor also has declined to commence certain investigations that had been suggested by outsiders, and under Article 15(6) of the Statute the Prosecutor publicly has stated the reasons for these declinations. Two such instances are Iraq and Venezuela.

The ICC is well on the way to establishing itself as an important actor in the interactive global struggle against impunity for the worst violators of international human rights.

[3] ICC Press Release, Pre-Trial Chamber I declines to confirm the charges against Bahar Idriss Abu Garda (Feb. 8, 2010), http://www.icc-cpi.int/menus/icc/press%20and%20media/press%20releases/news%20and%20highlights/pr495?lan=en-GB.

[4]  See AMICC, ICC Prosecutor Reports to the United Nations, http://www.amicc.org/icc_activities.html#unreports. These reports include discussions of the Prosecutor’s efforts (a) to determine whether Sudan has capable domestic institutions and procedures to handle the crimes in question and (b) to address whether the “interests of justice” call for continuation or termination of the investigations.

[5] U.N. Security Council, 6491st meeting (Feb. 26, 2011); U.N. Security Council, Resolution 1970 (2011)  ¶¶ 4-8 (Feb. 26, 2011).

[6] ICC, Statement by the Office of the Prosecutor on situation in Libya (Feb. 28, 2011).

[7]  ICC, ICC Prosecutor to open an investigation in Libya (March 2, 2011).

[8]  ICC, Office of the Prosecutor, http://www2.icc-cpi.int/Menus/ICC/Structure+of+the+Court/Office+of+the+Prosecutor; Lauria, Court Orders Probe of Afghan Attacks, Wall St. J., Sept. 10, 2009; ICC Office of Prosecutor, Letter to Deputy High Commissioner for Human Rights (Jan. 12, 2010) (alleged crimes during the conflict in Gaza in December 2008 and January 2009), http://www2.icc-cpi.int/NR/rdonlyres/FF55CC8D-3E63-4D3F-B502-1DB2BC4D45FF/281439/LettertoUNHC1.pdf; ICC Office of the Prosecutor, ICC Prosecutor confirms situation in Guinea under examination (Oct. 14,  2009), http://www2.icc-cpi.int/Menus/ICC/Structure+of+the+Court/Office+of+the+Prosecutor/Comm+and+Ref/Guinea.