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CourPnale !InternationaleInternationalCriminalC o u r t

Original : English No.: ICC-01/05Date: 15 December 2006

PRE-TRIAL CHAM BER III

Before: Judge Sylvia Steiner, Presiding JudgeJudge Hans-Peter KaulJudge Ekaterina Trendafilova

Registrar: Mr Bruno Cathala

SITUATION IN THE CENTRAL AFRICAN REPUBLIC

Public DocumentProsecution's Report Pursuant toPre-Trial Chamber Ill's 30November 2006

Decision Requesting Information on the Status of the Preliminary Examinationofthe Situation in the Central African Republic

The Office of the Prosecutor Other ParticipantsM r. Luis Moreno-Ocampo, Prosecutor The Governmentof theM s. Fatou Bcnsouda, Deputy Prosecutor Central African Republic

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Introduction

1. The Office of the Prosecutor (hereinafter "OTP") files this report pursuant to Pre-Trial Chamber's II I request for information on the status of the preliminaryexamination of the situation in the Central African Republic (hereinafter, "CAR").The Rome Statute, in Article 53 (1), grants to the Prosecutor the prerogative todetermine when to initiate an investigation. The Pre-Trial Chamber's supervisoryrole, under Article 53 (3), only applies to the review of a decision under Article 53(1) and (2) by the Prosecutor not to proceed with an investigation o r aprosecution. The OTP submits that to date no decision under Article 53 (1) hasbeen made, and that accordingly there is no exercise of prosecutorial discretionsusceptible to judicial review by the Chamber. The OTP is nonetheless includingin this submission a description of the current status of the preliminaryexamination of the CAR situation.

Procedural background

2. On 22 December 2004, the OTP received a referral f rom the Government of theCentral African Republic.

3. On 19 January 2005, the Presidency issued a "Decision assigning the situation inthe Central African Republic to Pre-Trial Chamber III".1

4. On 4 February 2005, the Judges of Pre-Trial Chamber II I elected Judge SylviaSteiner as Presiding Judge.2

5. On 27 September 2006, the Registry filed a request made to the Chamber by theGovernment of the Central Afr ican Republic including, inter alia, a request that

1 I C C - O l / 0 5 - l .2 "E l ec t i on of the Pres iding Judge of Pre-Tr ial Chamber III", ICC-OI /05-2 . The Judges o f Pre-Trial Chamber I I Iagain elected J u dge Sylvia Steiner as Pre s id ing Judge on 28 March 2006 - "Electionof the Pre s id ing J u dge o fPre -Tr i al Chambe r III", ICC-01/05-4.

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the Prosecutor provide information on the alleged failure to decide, within areasonable time, whether or not to initiate an investigation.3

6. On 30 November 2006, the Chamber issued its "Decision Requesting Informationon the Status of the Preliminary Examination of the Situation in the CentralAfrican Republic",4 in which it requested the Prosecutor "to provide the Chamberand the Government of the Central African Republic, no later than 15 December2006, with a report containing information on the current status of thepreliminary examination of the CA R situation, including an estimate of when thepreliminary examination of the CAR situation will be concluded and when adecision pursuant to article 53 (1) of the Statute will be taken."

The Chamber's request

7. The OTP firstly submits that th e preliminary examination by the Prosecutor ofavailable information in respect of a situation under Article 53 (1) must beperformed in a comprehensive and thorough manner. The Prosecutor must makean informed an d well-reasoned decision on whether th e requirements o f Article53 (1 ) have been satisfied. Consequently it must be for him to determine thebreadth an d scope of this preliminary assessment.

8. Further, the breadth and scope of an examination under Article 53 (1) is si tuation-specific: it depends on the particular features of each situation, including, inter alia,the availability of information, th e nature and scale of the crimes, and theexistence of national responses in respect of alleged crimes. Accordingly,comparison with other situations previously dealt with by the OTP is not helpfulfor the purposes of assessing th e required length of the analysis phase of a newsituation. In this regard, the OTP submits that i t has set out publicly th e

3 "T ransmis s ion par le Gref f ie r d'une Requteau x K i n s de Sais ine de la Chambre P r l i m i n a i r e de la Cour PnaleIn terna t ionale e t An n e x e s Jointes". I C C - O I / 0 5 - 5 - C o n f .4 I C C - 0 1 / 0 5 - 6 (th "30 November 2006 Decision").

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procedures it will follow in the analysis phase in the Annex to its Policy Paper,which has been public since 21 April 2004. These procedures ar e reiterated in thepublic decisions in relation to Venezuela and Iraq in connection with thedecisions not to open investigations into those situations.5 The Iraq andVenezuela decisions show that each situation is unique. The time taken to verifyth e seriousness of the information, assess admissibility and address interests ofjustice issues depends on the particular circumstances in each situation and inparticular on the capability of those able to provide information.

9. The CAR situation presents challenges entirely di ffe rent to those that have beenencountered in any previous situation for a number of reasons: first, because ofthe national proceedings that have been initiated and must be properly assessed;second because of the very gradual manner in which important informationwhich has had a material impact on the gravity assessment of the situation hasbeen received; an d third because of the deteriorating security situation innor thern areas of the CAR rendering access to information increasingly difficult .Fur the r , every time that additional informat ion is received, an assessment must becarried out as to i ts reliability an d credibility in the context of the thresholdsestablished in Article 15 and Article 53 (1). Due to the limited resources andparticular procedures an d requirements o f some of the parties who have providedinformation, this process of verification has sometimes been slow. Throughoutthe entire examination process conducted thus far, the OT P has followed the samegeneral principles that have been established in the Annex to the Policy Paper andhave been applied in every situation to date.

10. The O TP notes that under th e terms of the Statute, th e referr ing State only has aright to make a request to the Pre-Trial Chamber to review a prosecutorial

5 Sec the An n e x e s to the "Update on C o m m u n i c a t i o n s Received by the Prosecutor", 10 Feb rua ry 2006 -available at ht tp: w\v\ \ . i cc-cpi . in t /o rgans otp/otp c o m . h t m l .

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decision not to proceed with an investigation or a prosecution.6 The OTP's duty,pursuant to Rule 10 5 (1), is confined to promptly informing in writing th ereferring State of a decision not to initiate an investigation under Article 53 (1).As already stated in paragraph 1 of this document, the OTP stresses that to dateno decision has been made under Article 53 (1), and that accordingly the dutyenshrined in Rule 105, and referred to by this Chamber in its 30 November 2006Decision,7 has not arisen. Finally, th e OTP, while committed to reaching decisionsunder Article 53 (1) as expeditiously as possible, submits that no provision in theStatute or the Rules establishes a definitive time period for the purposes of thecompletion of the preliminary examination. The OTP submits that this was adeliberate legislative decision that provides the required flexibility to adjust theparameters of the assessment or analysis phase to the specific fea tu res of eachpar ticular situation. That choice, and the discretion that it provides, shouldremain undisturbed.8

11 . Despite these considerations, and in the interests of transparency, the OTP willfurnish to the Chamber certain in fo rmat ion that the OTP considers it canresponsibly share at this early stage. By doing so, the OTP is neither accepting th eexistence of a legal obligation to submit this type of information absent anydecision under Article53 being made, nor adopting a precedent that it may followin f u t u r e cases. It expressly reserves its position on the proper scope of the legalprovisions cited by the Chamber in its 30 November 2006 Decision, the division ofcompetences between the OTP and Pre-Trial Chambers and the rights of Statesw ho have referred situations to the Court.

6 Ar t ic l e 53 (3) (a).1 See p. 3.8 The Prosecut ion f u r t h e r s u b m i t s that Regu la t i on 46 (2) is a provis ion wi th very conf ined and tangible purposes:t o de t e rmine t he in terna l d i s t r i bu t i on o f competences w i t h i n th e Pre-Trial Divis ion o f t h i s Court and to cla r i fythe scope o f a Pre-Tria l Chamber's competence with in a s i tua t ion. T he Regu la t i on o b v i o u s l y cannot expand th escope o f a Pre-Tria l Chamber's r ev i ew powers beyond those contemplated in the Statute, nor, conversely, cu r ta i la discret ionary authori ty vested upon th e Prosecutor by the same Statute.

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The current status of the CAR situation

12 .The OTP received the CAR referral on 22 December 2004. The referral indicatedthat national proceedings had begun in relation to serious crimes but that ajudicial decision had been taken not to continue with those proceedings and torefer them to the ICC. That decision was the subject to further appeal.

13. Prior to receiving the referral from the CAR, the OTP had received a number ofcommunicat ions in the form of reports f rom the Fdration Internationale des Liguesdes Droits de l 'Homme (FIDH) alleging crimes. The information received f romFIDH represented th e beginning of a process whereby the OTP receivedinformation f rom a variety of sources over a period of time, both before and afterth e receipt of the referral. The process of analysis has continued as informationhas been received and the OTP's decision will depend on an assessment of allrelevant information.

14 .On 22 December 2004, the CAR notified the OTP that it would transmit detailedinformation in respect of the referral within three months, explaining both th efacts in relation to the crimes and the details of the relevant criminal proceedingsthat had taken place, or were taking place, in Bangui, th e capital of the CAR. TheOTP finally received detailed information f rom the CA R authorities in June 2005.

15. From June 2005 onwards, th e Jurisdiction, Complementarity an d CooperationDivision ("JCCD") of the OTP continued with its analysis on the basis of thematerial received which included detailed research and documentation o n crimesallegedly committed in the CAR in 2002-2003, as well as the procs-verbaux f romth e judicial proceedings held in Bangui in relation to these crimes. In carrying ou tthis analysis, the OTP addressed information received both from the CARGovernment and other material received f rom non-governmental sources.

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16. In November 2005, the OTP sent a mission of fou r representatives to Bangui forthe purposes of fu r ther developing preliminary analysis, focussing in particularon collecting additio nal infor m ation on the condu ct of the national proceedingsprior to the referral . The mission held meetings with representatives f rom theCAR Government and the CAR judiciary, members of non-governmentalorganizations, as well as representatives f rom international organizations anddiplomatic missions. The mission was informed, inter alia, that a final decision onnational criminal proceedings was pending before th e Cou r de Cassation of theCA R. This decision was necessary before a determination could be made on theissue of admissibility.

17. The decision from the Cour de Cassation of the CAR was issued on 11 A pril 2006.The OTP then finalized the draf t repo rt prepared un der Article 53 (1) of the Ro meStatute. A first version of th is repo rt was circulated within the OTP in Ju ly 2006fo r th e purpose of inter-divisional consultation.

18. After July 2006, th e s i t ua t i on in the CAR developed fu r the r and the OTPcont inued to receive additional inf o rm atio n. The ongoing analysis of the si tuationwas influenced by a number o f supp lemen tary factors, including first, allegationsthat new crimes had been or were being com mit ted in nor thern CAR; and second,th e provision to the OTP of substantial additional information relating to crimesallegedly commit ted in 2002-2003. The OTP emphasises that each new piece ofinformation received, in respect of any si tuation, must be carefully examined andassessed. In particu lar, info rm ation on the developing violence in the north of theCAR ha s presented special difficulties because of the lack of access to this area.Consequent ly confi rmation of reports of alleged crimes in this area ha s beenextremely difficult to obtain.

19. Internal OTP procedures requi re a detai led report o n si tua t ions underconsideration for poss ible investigation (Article 53(1) re po rt). A n updated version

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of the Article 53 (1) repo rt on the C AR was circulated internally on 22 No vem ber2006. Further action will be taken in the light of the recommendations containedtherein.

20 . The Chamber has requested the OTP to provide an estimate of when thepreliminary exam ination o f the C AR will be co ncluded and w hen a decisionu nd e r Article 53 (1) will be taken. 9 W hile there is no o bligation u nder the Statu teor the Rules to provide such an estimate or to give such a date, the OTP iscommit ted to completing its analysis of the CAR situation as expeditiously aspossible and informing the relevant parties in a t imely fashion in accordance withthe Rules and Regu lations of the C ou rt . As the Prose cutor has indicated in hisrecent statem ent to the As sem bly of State Parties, i t is hoped that a decision c an bemade in the near fu ture , but a more specific estim ate is not possible at this t ime.

Lui sMorenfo-OcampoProsecutor

Dated this 15th day of December 2006At The Hague, The Netherlands

9 30 N o v e m b e r 2006 Deci s ion , p. 5.

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