Sentencia Corte Penal Internacional - 3 de Octubre de 2011

7/29/2019 Sentencia Corte Penal Internacional - 3 de Octubre de 2011

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Cou rPna l eI n t e r n a t i o n a l eI n t e r n a t i o n a lC r i m i n a lC o u r t

: iOriginal : En gl ish No . : ICC-02/11

Date : 3 Oc to be r 2011

P RE - T RI A L CH A M BE R I I I

Be f o re : Ju d g e S i lv i a F e r n a n d e z d e G u r m e n d i , P r e s i d i n g Ju d g eJu d g e E l i z a b e t h O d i o Be n i t oJudge Adr ian Ful f o rd

S I T U A T I O N I N T H E RE P U BL I C O F CO T E D ' I V O I RE

P u b l i cD ecisio n Purs ua nt to Art ic le 15 of the Rom e Sta tute on the Auth oris a t ion of an

Inves t iga t ion in to the S i tua t ion in the Re pu bl i c o f Cte d ' Ivo i re

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De cision to be notif ied, in accordance wit h Reg ulatio n 31 of the Reg ulatio ns of the Court, to:Th e Off ice of the Prosecu tor Co uns el for the Defen ceMr Luis M oreno-OcampoMs Fatou BensoudaLegal Representa t ives of Vic t ims Legal Representa t ives of Appl icantsUn represen ted Vic t ims Un represen ted App l i can t s for

Par t i c ipa t ion /Repara t ion

The Office of Public Counsel forVict ims The Office of Public Counsel for theDefence

S ta t e s ' Represen ta t ives Amicus Curiae

REGISTRYRegist rarMs Silvana Arbia

Detent ion Sect ion

Vic t ims and W i tnesses Uni tMs Maria Luisa Martinod-Jacome

O t h e r s

Vict ims Par t ic ipat ion and Repara t ionsSectionMs Fiona McKay

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a reasonable basis for believing that relevant crimes have been or are beingcom mitted, and (ii) a declarat ion ex plaining w hy th e crimes that are l isted fall with inthe jurisdiction of the Court.^

5. The Prosecutor has submit ted a number of annexes which include reports f rompublicly-available sources (international organisat ions, non-governmentalorganisat ions and the media) as well as certain confidential information. TheProsecutor emphasises that the incidents currently rel ied on are not exhaustive, butinstead they provide a sample that reflects the gravest crimes that occurred duringthe period of post-election violence.^ Moreover, the Prosecutor observes that the legalcharacterisat ion of these incidents and any crimes that may be addressed at a laterstage of the proceedings, if the request is granted, may deviate from the Request.^

6. The Prosec utor subm its that du e to the absence of nation al proc eeding s against thosew ho bea r the greatest respon sibil i ty for these crimes, and in the l ight of the sug gestedgravity of the acts committed, the cases that may potentially arise out of itsinvest igation into the si tuat ion will be admissible. Furthermore, based on theavailable information, the Prosecutor submits that he has no reason to believeop enin g an invest igation into the si tuat ion w ill not be in the interests of just ice. ^

7. In com plianc e w ith Rule 50 of the Rules of Pro ced ure and E videnc e ("Rules"), on 17June 2011 the Prosecutor provided notice to the vict ims or their legal representat ivesof his intention to request authorisat ion from the Chamber to init iate an invest igationin the Republic of Cte d'Ivoire, and he informed them that pursuant to Regulat ion50(1) of the Regulat ions they had 30 days to make any representat ions to theChamber .

^ ICC-02/11-3, paragraphs 61-173.^ ICC-02/11-3, paragraph 2 5.^ ICC-02/11-3, paragraph 2 5.^ ICC-02/11-3, paragraph 7.N o. ICC-02/11 4/86 3 O cto be r 2011

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14. The initial Declarat ion, wh ich explicit ly indicates i ts unspecified dur at ion , wa s sign edby the Minister of Foreign Affairs of the former President , Laurent Gbagbo, and hehad the authority to sign a valid declarat ion on behalf of Cte d'Ivoire. Thesubsequent confirmation of the validity of this Declarat ion in the abovementionedlet ters of 14 December 2010 and 3 May 2011 demonstrates the intention of the newly-elected authorit ies to coop erate with the Co urt . Alth oug h these letters refer to crimescommitted in 2004 and 2010, they do not seek to restrict or amend the scope of the2003 De claration bu t, instead, they specifically confirm th e acceptance by theRepublic of Cte d'Ivoire of the ICC's jurisdict ion as regards crimes allegedlycommitted in the recent past .

15. The Chamber concludes that the Court has jurisdict ion over crimes allegedlycom mitted in Cte dTv oire since 19 Septem ber 2002, on the basis of the Declarat ion ofacceptance of 18 April 2003 and the letters of December 2010 and May 2011. Indeed,since Cte d'Ivoire has confirmed its acceptance of jurisdiction in 2010 and 2011, theChamber does not need to assess whether the Declarat ion made in 2003 could, on i tsow n, cover crimes allegedly com mitted in 2010 or 2011. The relevant timeframe of theinvest igation, if authorised, wil l be determined by the Chamber on the basis of theProsecutor 's Request and the support ing materials, as well as the vict ims'repres entat ion s un de r Article 15 of the Statute.

III . PROCED URE UND ER ARTICLE 15 OF THE STATUTE16. Under Article 15(1) of the Statute, the Prosecutor may initiate investigations proprio

motu on the basis of information on crimes that are within the jurisdiction of theCourt. In accordance with Article 15(3) of the Statute, if the Prosecutor concludes thatthere is a reasonable basis to proceed with an invest igation, he shall submit a request

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for authorisat ion for an invest igation, together with any support ing material that hasbeen collected.

17. Rule 48 of the Rules provides that in determining whether there is a reasonable basisto proceed with an invest igation under Article 15(3) of the Statute, the Prosecutorshall consider the factors set out in Article 53 (l)(a) to (c) of the Statute. This provisionprovides that the Prosecutor, in deciding whether to init iate an invest igation, shallconsider whether (a) the information available to the Prosecutor provides areasonable basis to believe that a crime within the jurisdict ion of the Court has beenor is being committed; (b) the case is or would be admissible under Article 17 of theStatute; and (c) taking into account the gravity of the crime and the interests ofvict ims, there are nonetheless substantial reasons to believe that an invest igationw ou ld not serv e the interests of just ice.

18. In accordance with Article 15(4) of the Statute, if the Pre-Trial Chamber, uponexamination of the request and the support ing material , considers that there is areasonable basis to proceed with an invest igation, and that "the case" appears to fal lwithin the jurisdict ion of the Court , i t shall authorise the commencement of theinvest iga t ion, wi thout pre judice to subsequent de terminat ions by the Court wi threg ard to the jurisdic tion an d adm issibility of the case.^^ Pre-Trial Ch am ber II ha sindicated that "th e case" in Article 15(4) of the Statute shou ld be un de rsto od to relateto potential cases within the si tuat ion under considerat ion. ^ The "suppor t ingma terial" consists of all of the information in the annex es prese nted b y the Prosecuto ras part of his Request , including materials from governmental sources, internationalorgan isat ions, non- gov ernm ental organ isat ions a nd the media . ^ As set out in Article

^ Article 15(4) of the Statute.^ Pre-Trial Chamber II, Situation in the Republic of Kenya, D ecision Pursuant to Article 15 of the Rome Statute on theAuthorisation of an Investigation into the Situation in the Republic of Kenya, 31 March 2 010 (notified on 1 April 2010),ICC-01/09-19-Corr, paragraph 64.^ ICC-02/11-3 and attached confidential annexes 1 A, I B, IC, IG and 2, and public Annexes ID , IE , I F, 3,4 , and 5.No . ICC-02/11 9/86 3 O cto be r 2011

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features.^^ It is for the Prose cuto r to dem on stra te, to the rele van t sta nd ar d of proof,that the at tack was directed against the civil ian populat ion as a whole and not merelyagainst ran do m ly selected individuals.^^

33. The Chamber does not need to be sat isfied that the entire civil ian populat ion of thearea in quest ion was targeted.^^ However, the civil ian populat ion must have been theprimary object of the at tack and not just incidental vict ims. ^ The term "civil ianpopulat ion" refers to those who are civil ians, as opposed to members of armed forcesand other legitimate combatants.^^

Submissions of the Prosecutor34 . The Prosecutor a l leges tha t "pro-Gbagbo forces commit ted widespread and

systematic at tacks against civil ians associated with [Alassane Ouattara] in pursuanceof a policy of the State of Cte d'Ivoire under the leadership of former PresidentGbagbo to launch violent at tacks against poli t ical opponents or persons perceived to

^ ICC-Ol/05-01/08-424, paragraph 76. Pre-Trial Chamber II, referred in this paragraph to Pre-Trial Chamber I, Case ofthe Prosecutor v. Katanga and Ngudjolo Chui, Decision on the confirmation of charges, ICC-01/04-01/07-717,paragraph 399.^- ICC-Ol/05-01/08-424, paragraph 77. Pre-Trial Chamber II referred to ICTY, Prosecutor v. Stakic, Case No. IT-97-24-T, Judgement, 31 July 2003, paragraph 627; ICTY, Prosecutor v. Kunarac et al. Case No. IT-96-23 & IT-96-23/1-A, Appeal Judgement, 12 June 2002, paragraph 90.^ ICC-Ol/05-01/08-424, paragraph 77. Pre-Trial Chamber II referred to ICTR, Prosecutor v. Bagilishema, Case No.ICTR-95-1A -T, Judgement, 7 June 200 1, paragraph 8 0; ICTR, Pros ecuto r v. Semanza, Case No. ICTR-97-20-T,Judgement, 15 May 2003, paragraph 330; ICTY, Prosecutor v. Kunarac et al., Case No. IT-96-23 & IT-96-23/1-A,Appeal Judgement, 12 June 2002, paragraph 90.^ ICC-Ol/05-01/08-424, paragraphs 76-77. Pre-Trial Chamber II referred to ICTY, Prosecutor v. Kunarac et al.. CaseNo. IT-96-23 & IT-96-23/1-A, Appeal Judgement, 12 June 2002, paragraphs 91-92; ICTY, Prosecutor v. Stakic, CaseNo. IT-97-24-T, Judgement 31 July 2003, paragraph 624; ICTY, Prosecutor v. Vasiljevic, Case No. IT-98-32-T,Judgement, 29 November 2002, paragraph 33.^ ICC-Ol/05-01/08-424, paragraph 78. Pre-Trial Chamber II referred to ICTY, Prosecutor v. Kunarac et a i . C ase No.IT-96-23-T & IT-96-23/1-T, Judgement, 22 February 2001, paragraph 425; Article 3 Common to the 1949 GenevaConventions; A rticle 4 of the Con vention (III) Relative to the Treatment of Prisoners of War, 12 August 1949, UnitedNations Treaty Series, volume 75, p. 135; Articles 43 and 50 of Protocol Additional I to the Geneva Conventions of 12August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977,United Nations Treaty Se ries, volume 1125, p. 3.N o. ICC -02/11 15/86 3 O cto be r 2011

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Gbagbo securi ty forces and unofficial mili t ias against the headquarters of theopposit ion in Abidjan and in the neighbourhoods that were perceived as al l ied withAlassane Ouattara; i i) excessive force was used in heavily populated areas in order todisperse protesters; and i i i) mili tary roadblocks and checkpoints were set up by pro-Gbagbo militia members and security forces at which killings occurred.^^

56. The Prosecutor further submits that the alleged acts of violence were on a large scale,during which a considerable number of civil ians throughout the terri tory of Cted'Iv oire we re targeted.^^ These exten sive violation s are said to ha ve res ulted in thedisplacement of around one million people.^^

Materials presented by the Prosecutor57 . With regard to the first element set out above, the material presented by the

Prosecutor indicates that securi ty forces loyal to Laurent Gbagbo at tacked act ivistsassociated with the pro-Ouattara Rassemblement des Houphoutistes pour la dmocratie etla Paix ("RHD P") an d carried out raids against the hea dq ua rters of Mr Ou attatr a 'spolitical pa rty , the Ras sem blem ent d es Rpu blicains ("RDR").^^ Attack s were alsocarried out by pro-Gbagbo securi ty forces against neighbourhoods perceived as al l iedwith Alassane Ouattara.^^ It is repo rted that betwe en Decem ber 2010 and Janu ary2011, a number of assaults by pro-Gbagbo securi ty forces resulted in the deaths andthe disappearance of scores of residents of Abidjan.^^^

^^lCC-02/l 1-3, paragraph 111.^ ICC-02/11-3, paragraphs 112-114.^ ICC-02/11-3, paragraph 113.^ Amnesty International, "They looked at his identity card and shot him dead" Six months of post-electoral violence inCte dlv oi re . May 201 1, ICC-02/1 l-3-Anx4, pages 214 and 234; Human Rights Watch, Cte d'Ivoire: V iolenceCampaign by Security Forces, Militias, 26 January 2011, ICC-02/1 l-3-Anx4, pages 145-149.^ Human Rights Watch, Cte d'Ivoire: Violence Campaign by Security Forces, Militias, 26 January 2011, ICC-02/11-3-Anx4, pages 145-149; Amnesty International, "They looked at his identity card and shot him dead" Six months ofpost electoral violence in Cte d'Ivoire, May 2011, AFR 31/002/2011, ICC-02/1 l-3-Anx4, pages 223-225 and 234-235.Human Rights Watch, Cte d'Ivoire: Violence Campaign by Security Forces, Militias, 26 January 2011, ICC-02/11-3-Anx4, pages 145-149.N o. ICC -02/11 25/86 3 O ct ob er 2011

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immigrants in a vil lage near the border with Liberia on 22 March 2011. ^^ Theavailable material shows that UNOCI received information about mass graves acrossAbidjan, and it verified the existence of at least ten graves containing the bodies of 68peo ple al legedly kil led by pro-G bagb o m ilit ias on 12 April 2011, the day followingLaurent Gbagbo's arrest.^^^

Victims' Representations66. The Chamber has rece ived representa t ions f rom vic t ims concerning murders

allegedly committed by pro-Gbagbo forces from 28 November 2010 onwards. Vict imsreferred to acts of murder al legedly committed by pro-Gbagbo forces in Abidjanbetwee n D ecember 2010 and M arch 2011.^^^ The vict ims included RHDP mili tants andm em bers of the D ioula ethnic gro up and the Muslim community.^^ '' On e collectiverepresentat ion provides details of various murders al legedly carried out in the w^estof the country; in this instance, the vict ims were individuals who were believed to beforeigners or who originally came from the north of Cte d'Ivoire.^^^

Conclusions of the Chamber67. The Chamber concludes that the available information substantiates the Prosecutor 's

submission that there is a reasonable basis to believe that murders were committedby pro-Gba gbo forces from 28 Novem ber 2010 onw ards.

Human Rights Watch, Cte d'Ivoire: West African Immigrants Massacred, 31 March 2011, ICC-02/1 l-3-Anx4, page163.'^' UN Security Council, Twenty-seventh progress report of the Secretary-General on the United Nations Operation inCte d'Ivoire, 30 March 2011, S/2011/211, ICC-02/1 l-3-Anx3, page 21; Report of the High Commission for HumanRights on the situation of human rights in Cote d'Ivoire, 15 February 20 11, ICC-02/1 l-3-Anx 3, page 55; UN Hum anRights Council, Report of the United Nations High Commissioner for Human Rights on the situation of human rights inCte d'Ivoire, A/HRC/17/49, 14 June 2011, ICC-02/1 l-3-Anx3 , pages 198-199.^-IC C-02 /11-11 -Con f-Exp -Anx l38, 139, 160, 161, 163, 164, 166, 169, 178 186, 192, 193, 196, 197, 19 8, 20 1, 20 2,204, 205, 206, 213, 214, 215, 216, 217, 221, 222, 256 and 262.^ ^ ICC-02/11-1 l-Conf-Exp-Anx264, 265.^ ^ ICC-02/1 l-l l-Conf-Exp-Anx274 .No . ICC -02/11 29/86 3 O cto be r 2011

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Submissions of the Prosecutor78 . The Prosecutor refers to reports indicat ing that between December 2010 and February

2011 sup porters of Alassane Ouat tara were abducted and taken to unk no w nlocations.^^^

Materials presented by the Prosecutor79. According to a UNOCI report , 72 individuals had been abducted as of 27 January

2011. ^ A H um an Righ ts Watch r ep ort refers to a state m en t by UN HC R in wh ich it isset out that as of 10 February 2011 almost 100 people had "disappeared" during thepost-elect ion violence. - Other material demonstrates that on 4 January 2011 18Malian nationals working as baggage handlers in Abidjan were al legedly abductedand taken to an unknown destination by a group of armed civilians.^^^

80. Several instances of enforced disappearance are said to have occurred in theafterm ath of the pro -O ua ttara de m on stra tion on 16 De cem ber 2010. ^^ The availableinformation at tributes the disappearance of seven men associated with AlassaneOuattara 's poli t ical party to members of CECOS, the el i te gendarme and police unit ,as well as to pro-Gbagbo militia forces.^^^

ICC-02/11-3, paragraph 128.19'- ONUCI, Retranscription du pont de presse hebdomadaire de l'UNOCl, 27 January 2011, ICC-02/1 l-3-Anx3, pages75-76.^ ^ Human Rights W atch, President Zum a Should Be on the Side of Justice in Ivory Coast, 22 February 2 011 , ICC-02/1 l-3-Anx4, page 152.'"" UN Human Rights Council, Report of the High Commissioner for Human Rights on the situation of human rights inCote d'Ivoire, 15 February 2011, ICC-02/1 1-3-AVX3, page 58.~ Amnesty International, "They looked at his identity card and shot him dea d" Six months of post-electoral violence inCte d'Ivoire, May 20 11, AFR 3 1/002/2011, ICC-02/1 l-3-Anx4, page 235.^ ^ Human Rights Watch, Cte d'Ivo ire: Crimes Against Humanity by Gbagbo Forces, 15 March 201 1, ICC-02/11-3-Anx4, page 158.No . ICC -02/11 34/86 3 O cto be r 2011

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Victims' representations81. The Chamber has received representat ions from vict ims concerning instances of

enforced disappearance allegedly committed by pro-Gbagbo forces from 28November 2010 onwards. Two representa t ions refer to an enforced disappearancethat took place in which an individual was al legedly taken away by pro-Gbagboforces.^^^ Oth er re prese ntat ions refer to the enforced disap pear ance by pro-G bag boforces of several individuals in March and April 2011.^^^

Conclusions of the Chamber82 . The Chamber concludes that the available information substantiates the Prosecutor 's

submission that there is a reasonable basis to believe that pro-Gbagbo forcescommitted the crime of enforced disappearance during the period of post-elect ionviolence from 28 No vem ber 2010 onw ards.

V. Other underlying acts not presented by the Prosecutor83. The crime against humanity of torture, as set out in Article 7(l)(f) of the Statute,

requires that the perpetrator infl icted severe physical or mental pain or sufferingupon one or more individuals who are under the custody or cont rol of theperp etrato r, an d i t is necessary th at the pain or suffering did no t arise only from, andwas not inherent to, lawful sanctions. ^^ The crime against humanity of otherinh um an e acts un de r A rticle 7(1 )(k) of the Statute requ ires that the "pe rpetr atorinfl icted great suffering or serious injury to body or to mental or physical health by

^^ ICC-02/11-1 l-Conf-Exp-Anx258, 261 .^'^ ICC-02/11-11-Conf-Exp-Anxl40 and 178.'^' Elements of Crimes, Article 7(l)(f).N o. ICC -02/11 35/86 3 O cto be r 2011

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way of an inhumane act" similar in character to those listed in Article 7(1) of theStatute.128

Materials presented by the Prosecutor84 . The support ing material indicates that acts of torture and other inhumane acts were

committed by pro-Gbagbo forces in the context of widespread and systematic at tacksagainst the civil ian populat ion.

85 . The information provided by the Prosecutor shows that there were reportedly 90cases of torture or abusive treatment between 15 December and 21 December 2010.^^^It also documents daily at tacks by pro-Gbagbo securi ty forces and armed mili t ias,w ho alleged ly b eat foreign resid ents wi th brick s, clubs a nd sticks. ^^^ The m ateria l alsodocu men ts a num ber of other inc idents of tor ture during February an d March 2011.^^^The majority of these at tacks purp orte dly took place in the Yopou gon, Po rt Bout an dCocody neighbourhoods of Abidjan where there were a considerable number of pro-Gb ag bo militias.^^-

Conclusions of the Chamber86. In l ight of the material submitted by the Prosecutor, the Chamber is sat isfied that

there is a reasonable basis to believe that torture and other inhumane acts werecommitted by pro-Gbagbo forces during the period of post-elect ion violence from 28Novem ber 2010 onw ards .

~ Elements of Crimes, Article 7(l)(k).'"^ UN Human Rights Council, Report of the High Commissioner for Human Rights on the situation of human rights inCte d'Ivoire, 15 February 2011, ICC-02/1 l-3-Anx3, page 51 .-"^ Human Rights Watch, Cte d'Ivo ire: Crimes Against Humanity by Gbagbo Forces, 15 March 20 11, ICC-02/11-3-Anx4, pages 154-155. Human Rights Watch, Cte d'Ivoire: Violence Campaign by Security Forces, Militias, 26January 2011, ICC-02/1 l-3-Anx4, pages 146-147.^^ UN Human Rights Council, Report of the United Nations High Commissioner for Human Rights on the situation ofhuman rights in Cte d'Ivoire, A/HRC/17/49, 14 June 2011, ICC-02/1 l-3-Anx3, pages 154-156. ^ Human Rights Watch, Cte d'Ivo ire: Crimes Against Humanity by Gbagbo Forces, 15 March 20 11, ICC-02/11-3-Anx4, page 156.N o. ICC-0 2/11 36/86 3 O cto be r 2011

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Prosecutor indicates that at least one FRCI at tack, on the "Carrefour" neighbourhoodof Du ko u, w as rep orted ly p erpe trated in a systema tic ma nn er (see below).^^^

Materials presented by the Prosecutor94. The support ing material submitted by the Prosecutor indicates that by the end of

January 2011, sup porters of Alassane Ou at tara ha d co mm enced repr isal a t tacks, andthat by February 2011 they had beco me orga nised, an d ha d been reinforced b yin di vi du al s from the Force Nouvelles an d b y FD S defectors. '*^ O n 23 M arch 2011 theForces Nouvelles rep ort edl y lau nc hed a military op eratio n. ^ ^ The inform ationprovided by the Prosecutor indicates that FRCI forces summarily executed and rapedthos e w ho we re pe rceiv ed to be su pp or ter s of La ure nt Gb agb o in Abidjan^" " an d inthe w estern tow ns of Toulepleu, Dok , Blolquin, Du kou a nd Guiglo . ^^ Rep ortsshow that on 29 March 2011 pro-Ouattara forces al legedly kil led many hundreds ofcivil ians in the Carrefour neighbourhood of Dukou, and that individuals of Gureethnic ity w ere partic ular ly targeted. ^^

Conclusions of the Chamber95 . The available information dem ons trates th at there is a reasonable basis to believe that

in the aftermath of the presidential elect ions in Cte d'Ivoire, pro-Ouattara forcescarried out at tacks against the civil ian populat ion, part icularly in the west of the

^^ ICC-02/11-3, paragraphs 152, 153.^ ^ UN Security Council, Twenty-seventh progress report of the Secretary-General on the United Nations Operation inCte d'Ivoire, 30 March 2011, S/2011/211, ICC-02/1 l-3-Anx3, page 19.'" ^ UN Security Council, Twenty-seventh progress report of the Secretary-General on the United Nations Operation inCte d'Ivoire, 30 M arch 2011, S/2011/211, ICC-02/1 l-3-Anx3, page 20.^" Human Rights Watch, Cte d'Ivoire: Gbagbo Forces Tortured Killed in Abidjan, 2 June 2011, ICC-02/11-3-Anx4,pages 179- 190.^ Human R ights Watch, Cte d'Ivoire : Ouattara Forces Kill, Rape Civilians During Offensive, 9 April 20 11, ICC-02/1 l-3-Anx4 , pages 167-176; ONUCI, Rapport sur les violations des droits de l'homm e et du droit internationalhumanitaire comm ises l'Ouest d e la Cte d'Ivoire, 10 May 201 lICC-02/1 l-3-An x3, page 146; ICC-02/11-11-Conf-Exp-Anx3, 5, 22, 39, 51 , 54, 64, 78 - 85, 87, 89 - 93 , 95 - 96, 98, 100 - 101, 103 - 104, 106 - 107, 60 1, 602 , 603 , 604,605, 606, 608, 617, 618, 619, 620, 625, 648, 649, 668, 669, 670, 671, 673, 685."^ Human R ights Watch, Cte d'Ivoire : Ouattara Forces Kill, Rape Civilians During Offensive, 9 April 2011 , ICC-02/1 l-3-Anx4, pages 168 and 172-173.

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cou ntry in March 2011. The material indicates that pro-O uatta ra forces targe tedcivil ians who were perceived to support Laurent Gbagbo, and that the at tacks weredirected against specific ethnic communit ies.

ii. State or organisat ion al policyMaterials presented by the Prosecutor96 . Reports concerning the identi ty of the forces that carried out the kil l ings in Dukou

indicate that the "Dozos" as well as the FRCI were responsible for the crimes.^^^According to a report by Amnesty International over 100 witnesses have indicated"the systematic and targeted nature of the kil l ings committed by uniformed FRCIsold iers and Dozos" aga inst the G ure community. -*^ A Hu m an Righ ts W atch rep ortalso suggests th at after R epublican F orces took control of Du ko u on 29 M arch 2011,hundreds of Gure residents were kil led in Carrefour by soldiers from ForcesNouvelles an d b y Dozo militia members.^^^ Several w itness es d escribe the su m m ar yexecutions of civilians who had not managed to flee before the arrival of the FRCI.^^Pro-Ouattara forces are said to have dragged men out of their homes and executedthem in the street.^^^ Some attackers reportedly threatened "'to kill the Gure until thelast one because of their support for Gbagbo."^^-

97 . A report by Amnesty International indicates that within three days of thecommencement of the FRCI offensive in the west, the FRCI had taken control of

^ '' ONUC I, Rapport sur les violations des droits de l'hom me et du droit international humanitairecommises l'Ouest de la Cte d'Ivoire, 10 May 2011, ICC-02/1 l-3-Anx 3, pages 146 - 147.^^ Amnesty International, "They looked at his identity card and shot him de ad" Six months of post-electoral violence inCte d'Ivoire, May 2011, AFR 3 1/002/2011, ICC-02/1 l-3-Anx4, pages 254-257.'" ^ Human R ights Watch, Cte d'Ivoire : Ouattara Forces Kill, Rape Civilians During Offensive, 9 April 201 1, ICC-02/11-3-Anx4^ pages 172-173. Human Rights Watch, Cte d'Iv oire: Ouattara Forces Kill, Rape Civilians During Offensive, 9 April 2011 , ICC-02/11-3-Anx4, page 168.^^ Human Rights Watch, C te d'Ivoire : Ouattara Forces Kill, Rape Civilians During Offensive, 9 April 201 1, ICC-02/1 l-3-Anx4, pages 168-169.'^-Hum an R ights Watch, Cte d'Ivoire: O uattara Forces Kill, Rape Civilians During Offensive, 9 April 2011 , ICC-02/11-3-Anx4, page 168.N o. ICC-0 2/11 41/86 3 O cto be r 2011

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Victims' Representations113. The Cham ber ha s received representa t ions f rom var ious vic t ims concerning instances

of imprisonment during the period of post-elect ion violence, beginning in 2010.Several individual representat ions al lege that pro-Ouattara forces kidnapped andil legally detained various individuals because of their affi l iat ion with Mr. Gbagbo'spolitical party. ^^ Tw o oth er victim s claim tha t the FRCI allegedly deta ine d civilians inAbidjan bec aus e of their affiliation wit h M r. Gba gb o's p olitical party. ^^ O ne victimclaims that a man was detained and beaten by pro-Ouattara forces in Abidjan.^^^ Twofurther representat ions refer to several men who were al legedly detained by pro-Ouattara forces in May 2011.^^^ Several victims refer to their alleged capture anddete ntio n b y p ro- O ua ttar a forces. ^ ^ Tw o re pre sen tatio ns refer to the allegeddetention and forced imprisonment of several individuals in Abidijan by pro-O ua tt ar a forces . ^

Conclusions of the Chamber114. On the basis of the information presented by the Prosecutor, i t appears that there is a

reasonable basis to believe that the FRCI and other pro-Ouattara forces committedthe crime of imprisonment and that they otherwise severely deprived variouscivilians of their liberty, particularly in the west of Cte d'Ivoire in March 2011.

^^ ICC-02/11-11-Conf-Exp-Anx280, 283, 284, 286 and 366.^^ ICC-02/11-1 l-Conf-Exp-Anx386, 389.' ^ ICC-02/11-1 l-Conf-Exp-Anx574 - ICC-02/11-1 l-Conf-Exp-Anx577 and 581 . ^ ICC-02/11-1 l-Conf-Exp-Anx598 and 599.^ ^ ICC-02/11-11-Conf-Exp-Anx610, 668, 669 and 670No . ICC-02 /11 48/86 3 O ct ob er 2011

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2. War c r imes117. The Prosecutor submits tha t war cr imes were commit ted by pro-Gbagbo and pro-

Ouattara forces in the Republic of Cte d'Ivoire in the context of an armed conflictnot of an international character betwe en 25 Febru ary 2011 and 6 May 2011.^^^

118. Specifically, the Prosecutor submits that there is a reasonable basis to believe that thewar crimes murder (Article 8(2)(c)(i) of the Statute) and attacking civilians (Article8(2)(e)(i) of the Statute) were com mitted. In addit ion, the Pro secutor su bm its that p ro-Gbagbo forces were responsible for the war crimes of at tacking personnel or objectsinvolved in a humanitarian assistance or peacekeeping mission (Article 8(2)(e)(iii) ofthe Statute) and pro-Ouattara forces committed the war crime of rape (Article8(2)(e)(vi) of th e Statute).!^^

a. Contextual Element: Existence of an armed conflict not of an internationalcharacter,

119. A non-intern ational arm ed conflict is defined as "the outbre ak of arm ed h osti li t ies ofa certain level of intensity, exceeding that of internal disturbances and tensions suchas riots, isolated and sporadic acts of violence or other acts of a similar nature andwh ich takes place with in th e confines of a State territory".^^^ The hostilities m ay occur(i) betw een go vern me ntal authori t ies and organise d dissiden t arme d gro up s or (ii)between the lat ter groups. ^^ The Chamber agrees with the approach of Pre-TrialChambers I and II when they decided that "organised armed groups" are groups

186187 ICC-02/11-3, paragraph 134.ICC-02/11-3, paragraph 134.'"' ICC-Ol/05-01/08-424, paragraph 231 .' " ICC-Ol/05-01/08-424, paragraphs 229-231.N o. ICC-02/11 50/86 3 October 2011

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M ay 2011 betw een Pro-G bagbo an d Pro-O uattara forces, in Irobo and Gra nd-Lahou.^^

Conclusions of the Chamber127. In light of the above, the Chamber is satisfied that there is a reasonable basis to

believe that an armed conflict not of an international character existed in Cted'Iv oire from 25 Febru ary 2011 until 6 M ay 2011. On the basis of the ava ilableinform ation, th e Ch am be r finds that the FRCI forces were a sufficiently org anis edarmed group with the abil i ty to plan and carry out mili tary operat ions for aprolonged period of t ime. Furthermore, taking into account the fact that the clashesbetween pro-Gbagbo governmenta l forces and the pro-Ouat tara forces occurred overa period of at least two and a half months, the Chamber concludes that the armedconflict was protracted. Finally, the Chamber takes note that if the investigation isauthorised the Prosecutor intends to assess, among other things, whether the al legedsupport of UNOCI and French Licorne troops to pro-Ouattara forces in order toarres t Mr. Gb agb o re nd ers p art of the conflict international.^^^

b. Underlying ac ts128. The Chamber will f irst analyse the acts al legedly committed by pro-Gbagbo forces

and then tur n to the acts al legedly comm itted by pro-O uattar a forces.Acts a l legedly commit ted by Pro-Gbagbo forces

i . Murder and intentionally direct ing at tacks against the civil ian populat ion129. The war crime of murder, as set out in Article 8(2)(c)(i) of the Statute requires that the

perpetrator kil led one or more individuals and that the person or persons kil led were

- ^ ICC-02/11-1 l-Con f-Exp-Anx25 3, 254, 255.' ^ ICC-02/11-3, paragraph 146.No . ICC -02/11 54/86 3 O cto be r 2011

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are said to have killed several people for being Ouattara supporters.^^^ After the finalFRCI offensive in Yopougon, withdrawing pro-Gbagbo mili t ia and Liberianm erce nar ies r ep or ted ly killed at least 120 civilians wh o w ere ret ur nin g to Liberia. ^"^

Victims' representations133. The Chamber has rece ived representa t ions f rom vic t ims concerning murders

allegedly committed by pro-Gbagbo forces between 25 February 2011 and 6 May2011. Various vict ims claim that people were executed in Abidjan by pro-Gbagboforces in April 2011, bec aus e of their ethnic origin or perc eived political affiliation (itis noted that they asked the victims to show their identity cards).^^^ Three collectiverepresentat ions refer to murders al legedly committed by pro-Gbagbo forces in May2011 in the w es t of th e country. ^^


submission that there is a reasonable basis to believe that between 25 February 2011and 6 May 2011 pro-Gbagbo forces were responsible for murders and intentionallydirect ing at tacks against the civil ian populat ion.

ii. Attacks intentionally directed against personnel or objects involved in ahumani tar ian or peacekeeping mission

135. Article 8(2)(e)(iii) of the Statute refers to the war crime of intentionally directingattacks against personnel, instal lat ions, material , units or vehicles involved in a

^ ^ Amnesty International, "They Looked at his Identity Card and Shot him De ad", Six Months of Post-ElectoralViolence in Cte d'Ivoire, May 2011, ICC-02/1 l-3-Anx4, pages 250-251.' ^ Xinhua, Over 100 people killed in southwest Cte d 'Ivoire, 10 May 20 11, ICC-02/11-3-Anx5 , page 165; Ladpche/AF P, Cte d'Ivo ire: 120 civils tus par les miliciens et mercenaires pro-Gbagbo, 5 May 2 011 , ICC-02/11 -3-Anx5, page 167; UN Human Rights Council, Report of the United Nations High Commissioner for Human Rights onthe situation of human rights in Cte d'Ivoire, A/HRC/17/49, 14 June 2011, ICC-02/1 l-3-Anx 3, pages 200-201.^' ICC-02/11-1 l-Conf-Exp-Anx223, 224, 227, 228, 229, 230, 23 1,23 2, 235, 236, 237, 23 8, 240, 241, 258 and 259.^ ^ ICC-02/11-1 l-Conf-Exp-Anx253, 254, 255.N o. ICC -02/11 56/86 3 O ct ob er 2011

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humanitarian assistance or peacekeeping mission in accordance with the Charter ofthe United Nations, if they were entitled to the protection afforded to civilians orcivilian objects under the international law of armed conflict.

136. This war crime requires i) that the perpetrator directed an attack; ii) the object of theattack was personnel, instal lat ions, material , units or vehicles involved in ahumanitarian assistance or peacekeeping mission in accordance with the Charter ofthe United Nations; and i i i) the personnel, instal lat ions, material , units or vehicleswere entitled to the protection afforded to civilians or civilian objects under theinternational law of armed conflict.^^^

Submissions of the Prosecutor137. The Prosecutor submits that between 27 February 2011 and 2 April 2011, "pro-

Gbagbo forces, including the Young Patriots as well as unidentified elements"committed twelve at tacks on UNOCI personnel, equipment and instal lat ions thatwere enti t led to protect ion under the international law of armed conflict . ^^ TheProsecutor submits that al though only nine out of these twelve incidents can bedirectly linked to pro-Gbagbo forces, it can be inferred that these forces were behind alltw elv e incidents.2^^

Materials presented by the Prosecutor138. The support ing mater ia l demonst ra tes tha t be tween 27 February 2011 and 2 Apri l

2011, twelve attacks against UN staff occurred in, inter alia, Abidjan, Daloa,

' ^ Elements of Crimes, Art. 8(2)(e)(iii).-^^ ICC-02/11-3, paragraphs 159 and 160.-'"^ ICC-02/11-3. paragraph 161.N o. ICC-0 2/11 57/86 3 O cto be r 2011

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Yamoussoukro, and Guiglo.^^^ UN and other reports indicate that the pro-Gbagbo campdirectly incited its forces to use v iolence ag ainst peacekeepers.^^!


submission that there is a reasonable basis to believe that between 27 February 2011and 2 Ap ril 2011, pro-G bagb o forces intentionally directed at tacks against U NO CIpersonnel, equipment, and instal lat ions that were enti t led to protect ion.

iii. Intentionally direct ing at tacks against protected objects140. Article 8(2)(e)(iv) of the Statute encompasses the crime of intentionally directing

attacks against buildings dedicated to rel igion, education, art , science or chari tablepurposes, his tor ic monuments , hospi ta ls and places where the s ick and wounded arecollected, provided they are not mili tary objectives. This war crime requires that theperpetrator directed an at tack and that the object of the at tack was one or more of thebuildings set out above.^^^

Submissions of the Prosecutor

^^UN Security Council Report, ICC-02/11-3-Anx3, pages 4-6; UN Security Council, Twenty-seventh progress reportof the Secretary-General on the United Nations Operation in Cte d'Ivoire, 30 March 2011, S/2011/211, ICC-02/11-3-ArLx3, pages 23-24; UN High Commission for Refugees, Briefing Notes, ICC-02/1 l-3-Anx3, page 43; United Nations,Press Release UNOCI-998, 3 April 2011, ICC-02/11-3-Anx3, page 120; UN Human Rights Council, Report of theUnited Nations High Commissioner for Human Rights on the situation of human rights in Cte d'Ivoire, A/HRC/17/49,14 June 2011, ICC-02/11-3-Anx3, pages 202-203; BBC News, Ivory Coast: UN experts attacked in Yamoussoukro,ICC-02/1 l-3-Anx5, page 30-31; Reliefweb, Cte d'Ivoire: UN peacekeepers wounded in an ambush north of Abidjan,ICC-02/11-3 -Anx5, page 101; UN News Ce ntre, Cte d'Ivoire: Four UN soldiers wounded in another assault byGbagbo's forces, ICC-02/1 l-3-Anx5, page 103.' ^ ICC-02/11-3, paragraph 161; UN Security Council, Twenty-seventh progress report of the Secretary-General on theUnited Nations Operation in Cte d'Ivoire, 30 March 2011, S/2011/211, ICC-02/11-3-Anx3, pages 23-24; AmnestyInternational, "They looked at his identity card and shot him dead" Six months of post-electoral violence in Cted'Ivoire, May 2011, AFR 31/002/2011, ICC-02/1 l-3-Anx4, page 222; Human Rights Watch, Cte d'Ivoire: Pro-GbagboForces Abducting Opponents, 23 December 2010, ICC-02/1 l-3-Anx4, page 143.^ ^ Elements of Crimes, Article 8(2)(e)(iv).No . ICC-02/11 58/86 3 Oc tob er 2011

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iv. Other underlying acts not presented by the Prosecutor144. The definition of rape under Article 8(2)(e)(vi) of the Statute is identical to the

definition of rape in Article 7(1 )(g) of the Statu te set ou t abo ve. ^^145. The war crime of sexual violence as provided for in Article 8(2)(e)(vi) of the Statute

requires that the perpetrator "committed an act of a sexual nature against one ormore persons or caused such person or persons to engage in an act of a sexualnature" and that such "conduct was of a gravity comparable to that of a seriousviolat ion of art icle 3 common to the four Geneva Conventions". The same elements ofconsent as regards rape, described above, apply when acts of sexual violenceconstitute a war crime.^-^

Materials presented by the Prosecutor146. The available information indicates that pro-Gbagbo groups were responsible for

wid esp rea d acts of rape, along with o ther forms of sexual violence, in Cte d'Ivoire inthe context of the post-electoral political and military conflict. ^^ The informationrefers to the rape of individuals who were considered supporters of AlassaneOuat tara by pro-Gbagbo forces . - There are reports tha t women who were de ta ined

"^ Elements of Crimes, Article 8(2)(e)(vi)-l."^ Elements of Crimes, Article 8(2)(e)(vi)-6."^ UN Security Council Report, ICC-02/1 l-3-Anx3, p. 22; Human Rights Watch, My Heart Is Cut", Sexual Violenceby Rebels and Pro-Government Forces in Cte d'Ivoire, Volume 19, No. 11(A), August 2007, ICC-02/11-3-Anx4, page10; UN Human Rights Council, Report of the United Nations High Commissioner for Human Rights on the situation ofhuman rights in Cte d'Ivoire, A/HRC /17/49, 14 June 201 1, ICC-02/1 l-3-Anx 3, pages 200-20 3; UN Human RightsCouncil, Report of the High Commissioner for Human Rights on the situation of human rights in Cte d'Ivoire, 15February 2011, ICC-02/1 l-3-Anx3, page 56."" Human R ights Watch, C te d'Ivoir e: Ouattara Forces Kill, Rape Civilians During Offensive, 9 April 2011 , ICC-02/1 l-3-Anx4 , pages 167-168; Human Rights Watch, Cte d'Ivo ire: Crimes Against Hum anity by Gbagbo Forces, 15March 2011, ICC-02/1 l-3-Anx4, pages 157-158.

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Du k o u . 2 ^ The support ing material further suggests that the at tack against the"Carrefour" quar ter of Du kou was intend ed as a collec tive pun ishm ent against theGu re population.^^^ The ma terial presen ted by the P rosecutor indicates that pr o-Ou attara forces kil led at least 95 un arm ed civilians in Abidjan d uri ng A pril and M ay2011, in what - as i t is reported - was a collect ive punishment of ethnic groupsassoc iated w ith L aur ent G ba gb o's militias.^ ' ^ It ha s additio nally b een s ug ges ted tha tindividuals were killed after being found with weapons at Forces Nouvellesch eck po ints in Abobo. ^^

Victims' Representations156. The Chamber has rece ived representa t ions f rom vic t ims concerning murders

allegedly committed by pro-Ouattara forces between 25 February 2011 and 6 May2011. Various individual vict im representat ions also refer to murders al legedlycommitted by pro-Ouattara forces in Abidjan and several other areas in March andA p ri l 2011.242


submission that there is a reasonable basis to believe that between 25 February 2011and 6 Ma y 2011, pro -Ou attara forces were responsible for the mu rde r of, andintentionally direct ing at tacks against , civil ians.

^ ^ Human R ights Watch, Cte d'Ivoir e: Ouattara Forces Kill, Rape Civilians During Offensive, 9 April 20 11, ICC-02/1 l-3-Anx4, pages 167-173; Amnesty International, "They looked at his identity card and shot him dead" Six monthsof post-electoral violence in Cte d'Ivoire, May 2011, AFR 31/002/2011, ICC-02/11 -3-Anx4, pages 253-262."^ ICC-02/11-3, paragraph 155; Human Rights Watch, Cte d'Ivoire: Ouattara Forces Kill, Rape Civilians DuringOffensive, 9 April 2011, ICC-02/11-3-Anx4, pages 167-173; "Amnesty International, "They looked at his identity cardand shot him dead" Six months of post-electoral violence in Cte d'Ivoire, May 2011, AFR 31/002/2011, ICC-02/11-3-Anx4, pages 253-262.^ ^ Human Rights Watch, Cte d'Ivoire: Gbagbo Forces Tortured, Killed in Abidjan, 2 June 2011, ICC-02/1 l-3-Anx4,pages 179-185.^^^ ICC-02/11-3, paragraph 152; Human Rights Watch, Cte d'Ivoire: Crimes Against Humanity by Gbagbo Forces, 15March 2011, ICC-02/11-3-Anx4, pages 160- 161 .'^- ICC-02/11-1 l-Conf-Exp-Anx332, 385, 422, 479, 480 , 482, 487.No . ICC-02/11 64/86 3 Oc tob er 2011

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ii. RapeSubmissions of the Prosecutor158. The Prosecu tor al leges that in Ma rch 2011, du ring their mili tary offensive in the w est

of Cte d'Iv oire, the FRCI r ap ed at least 23 peo ple, all of Gu re ethnicity.^^^ TheProsecutor submits that pro-Ouattara forces detained dozens of women for a day orlonger and repeatedly raped them.^^^

Materials presented by the Prosecutor159. The support ing material indicates that pro-Ouattara forces al legedly committed acts

of rape on 8 March 2011 in Basobli;2^'on 20 March 2011 in Blolquin;^^^ on 14 March2011 in D ok;24^on 29 an d 31 Ma rch 2011 in Dukou;^-^^ on 13 Ap ril 2011 inDeahouepleu;^-^' and on 3 May in Yopougon in Abidjan.-"^^

Victims' Representations160. The Ch am ber h as received repres entat ion s from vict ims con cerning acts of rape

allegedly committed by pro-Ouattara forces between 25 February 2011 and 6 May2011.231

' -' ICC-02/11-3, paragraph 166." ^ ICC-02/11-3, paragraph 166.Human Rights Watch, Cte d'Ivoire: Ouattara Forces Kill, Rape Civilians During Offensive, 9 April 2011, ICC-02/11-3-Anx4, pages 171-172.'' ^ Human Rights W atch, Cte d 'Ivoire: Ouattara Forces Kill, Rape C ivilians During Offensive, 9 April 20 11, ICC-02/11-3-Anx4, page 172 ^ UN Human Rights Division, UNOCI, Rapport sur les violations des droits de l'homme et du droit internationalhumanitaire commises l'Ouest de la Cte d'Ivoire, UNO CI/HRD/2011/02, May 201 1, ICC-02/1 l-3-Anx 3, page 157.~^ Amnesty International, "They looked at his identity card and shot him dead" Six months of post-electoral violence inCte d'Ivoire, May 2011, AFR 31/002/2011, ICC-02/1 l-3-Anx4, page 263.' ^ UN Hum an Rights Division, U NOCI, Rapport sur les violations des droits de l'homm e et du droit internationalhumanitaire commises l'Ouest de la Cte d'Ivoire, UNO CI/HRD/2011/02, May 2011, ICC-02/1 l-3-Anx3, page 157." ^ UN Human Rights Council, Report of the United Nations High Commissioner for Human Rights on the situation ofhuman rights in Cte d'Ivoire, A/HRC/17/49, 14 June 2011, ICC-02/1 l-3-Anx3, page 201 .'-'' ICC-02/11-1 l-Conf-Exp-Anx486 and 670..No . ICC -02/11 65/86 3 O ct ob er 2011

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in Apr il 2011. 65 Several ind ivid ua ls refer to physica l ab use b y the FR CI wh en theyattacked a village in April 2011.^^^

Conclusions of the Chamber169. On the basis of the information presented by the Prosecutor, the Chamber finds that

there is a reasonable basis to believe that acts of torture and cruel t reatment werecarried out by the FRCI and other pro-Ouattara forces between 25 February and 6May 2011.d. Ne xus betw een the indiv idua l acts and the arm ed conflict

Submissions of the Prosecutor170. The Prosecutor submits that the majori ty of the murders, at tacks against civil ians,

and acts of rape occurred when pro-Ouattara forces launched mili tary operat ions togain control over the south of the country from pro-Gbagbo forces ^^ and thataccordingly a l ink can be established between the al leged war crimes and the armedhostilities.2^"^

Materials presented by the Prosecutor171. The support ing material shows that murders, at tacks against civil ians, and acts of

rape, pil lage, cruel t reatment and torture al legedly committed by pro-Ouattara forcesin the terri tory of Cte d'Ivoire were l inked with the armed conflict between pro-Ouattara and pro-Gbagbo forces. This can be inferred from the information received,namely tha t the perpet ra tors were members of pro-Ouat tara forces and that theunderlying acts were committed in the course of host i l i t ies. Further, the majori ty of

-^' ICC-02/11-1 l-Conf-Exp-Anx378.'^ ICC-02/11-11-Conf-Exp-Anx320, 324, 326, 327, 353, 354, 360, 362, 363, 364, 368, 369.- ^ ICC-02/11-3, paragraphs 17 1- 17 3.' ^ ICC-02/11-3, paragraphs 17 1- 17 3.No . ICC -02/11 69/86 3 O cto be r 2011

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175. Accordingly, the Prosecutor has requested tha t the Chamber authorises aninvest igation into the si tuat ion in the Republic of Cte d'Ivoire in relat ion to theper iod fo llowing 28 N ov em be r 2010. ^2 H ow eve r, the Pros ecuto r also sugg ests tha tonce the Chamber has reviewed the support ing material , i t may conclude that thetemporal scope of the invest iga t ion should be broadened to encompass events tha toccurred between 19 September 2002 and the date of the filing of the Request, i .e. 23June 2011.273

176. In l ight of the matters set out above, the Chamber needs to decide on the period oft ime to be covered by the invest igation, namely, first , whether to authorise aninve stigatio n in to crimes tha t may be co mm itted after th e date of the filing {viz. 23June 2011), and, second, whether to authorise an invest igation into crimes committedbefore 28 November 2010.

1. End date of the invest ig a t ion auth orisa t io n177. In i ts decision authorising the invest igation into the si tuat ion in Kenya, Pre-Trial

Chamber II decided that i t would be erroneous to widen the t ime l imit of theinvestigation to include events following the date of the Prosecutor's Request.^^^ Pre-Trial Chamber II interpreted the reference in Article 53(l)(a) of the Statute to "a crime[which] has been or is being committed" as encompassing only those crimescommitted prior to the date the Prosecutor filed his request.^^"^

178. In this connection, the decision of Pre-Trial Chamber I on the arrest warrant issuedfor Call ixte Mbarushimana for crimes allegedly committed in the North and South

^^'ICC-02/11-3, paragraph 181.' -' ICC-02/11 -3, paragraph 4 2."'' ICC-01/09-19-Corr, paragraph 20 6.-"^ lCC-01/09-19-Corr, paragraph 206.No. ICC-02/11 71/86 3 Oc tob er 2011

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violence including rape, gang rape, egregious sexual assault , forced incest and sexualslavery".289 Go vern me nt forces an d g ove rnm ent-rec ruited me rcenaries are said tohave "frequently executed, detained, and at tacked perceived supporters of the rebelforces based on ethnic, national, religious and political affiliation".2^0 Human RightsWatch further reports that "civil ian mili t ias tolerated or encouraged by state securi tyforces eng age d in wid esp read targeting of the imm igra nt community".2^^ It app earsthat the most egregious acts of sexual violence were committed during the period ofactive hos tilities from Sep tem ber 2002 to mid 2003.2^2 Ac cord ing to the U NO CI themassacres at Diapahi, Guitrozon and Peti t Dukou in 2005 are i l lustrat ive of thedeteriora t ion of inter-com m unity relations.2^3 Acco rding to the sam e repo rt , im pu nityfor serious human rights violat ions was the norm. In addit ion to a general lack ofwill ingness to invest igate and prosecute, the crisis in Cte d'Ivoire has had dramaticconsequences for the judicial system in the country as a whole, in part icular in thewest.2^^

183. In his Request , the Prosecutor suggests that "[u]pon review of the support ingmaterial , the Chamber may conclude that Cte d'Ivoire repeatedly experiencedviolence prior to the 2010 elect ions and therefore broaden the temporal scope of theinvest igations to events that occurred between 19 September 2002 [. . . ] and 23 June2011". 295 The Chamber has received submissions from vict ims concerning crimes

~ ^ Human Rights Watch, My Heart Is Cut", Sexual Violence by Rebels and Pro-Government Forces in Cte d'Ivoire,Volume 19, No. 11(A), August 2007 , ICC-02/1 l-3-Anx 4, page 26.' ^ Human Rights Watch, My Heart Is Cut", Sexual Violence by Rebels and Pro-Government Forces in Cte d'Ivoire,Volume 19, No. 11(A), August 2007, ICC-02/1 l-3-Anx4 , page 26.' ^ Human R ights Watch, M y Heart Is Cut", Sexual Violence by Rebels and Pro-Gove rnment Forces in Cte d 'Ivoire,Volume 19, No. 11(A), August 2007, ICC-02/11-3-Anx4, page 26.' ^ Human Rights Watch, My Heart Is Cut", Sexual Violence by Rebels and Pro-Government Forces in Cte d'Ivoire,Volume 19, No. 11(A), August 2007, ICC-02/1 l-3-Anx4 , page 31 .^^^ See for instance. Opration des Nations Unies en Cte d'Ivoire, Division des Droits de L'Homme, Rapport Sur LeViolations de L'Homme et du droit International Humanitaire Commises L'Ouest de la Cte d'Ivoire, May 2011,ICC-02/ll-3-Anx3,page 132.' ^ Opration des Nations Unies en Cte d'Ivoire, Division des Droits de L'Homme, Rapport Sur Le Violations deL'Hom me et du droit International Humanitaire Comm ises L'Ouest de la Cte d'Ivoire, May 20 11, ICC-02/11-3-Anx3, page 133.^ ^ ICC-02/11-3, paragraph 4 2.No. ICC-02/11 75/86 3 Octob er 2011

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allegedly committed during the crisis in Cte d'Ivoire in the latter part of 2002 and in2003.296 Ho we ve r, th e Pro sec uto r's R equ est do es no t refer to specific incid ents tha tmay have occurred prior to 28 November 2010, and the vast majori ty of thesupport ing materials provided by the Prosecutor focus on the most recent post-electoral crisis.2^^

184. In the absence of sufficient information on specific events, the Chamber is howeverunab le to de termine w hether the reasonable basis threshold has been met wi th regardto any specific crimes. Indeed, the Chamber is of the view that with regard to thispart of his request , the Prosecutor has not provided sufficient support ing material inrelat ion to the contextual elements and underlying acts of the crimes within thejurisdict ion of the Court al legedly committed during that period of t ime.

185. Sufficient information on specific crimes committed between 2002 and 2010 is anessential prerequisi te for the Chamber to be able to assess whether there is areasonable basis to proceed. In accordance with Rule 50(4) of the Rules, theProsecutor is to revert to the Chamber with any addit ional information that isavailable to him on potential ly releva nt crimes com mitted b etwe en 2002 and 2010.

D. JURISDICT ION RATIONE L OCI I JURISDICT ION RATIONE PERSONAL186. In order for a crime to fall within the jurisdiction of the Court for the purpose of

Article 53(l)(a) of the Statute, it must also meet at least one of the conditions that areset out in the alternative in Article 12 of the Statute.

187. The crime must occur in the territory of either a State Party to the Statute or a Statethat has lodged a declaration by virtue of Article 12(3) of the Statute, or a national of

^ ^ ICC-02/11-11-Conf-Exp-Anx 12, 21 , 54, 55, 315, 339-350, 379, 513-544, 546, 548, 549-554, 572.~^ ICC-02/11-3, paragraphs 39 and 41 and supporting materials.No. ICC-02/11 76/86 3 October 2011

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Furthermore, whilst there are 347 representat ions that al lege pil lage and 256 thatconcern m urd er, only 20 represen tat ions refer to rape.^23 ind eed , the R egistry h asnoted in i ts report that i t is not currently in a posit ion to inform the Chamber as towhether the representat ions received could be said to reflect , at least approximately,the pattern of violence that occurred in Cte d'Ivoire.^24 i^ ^^^ result, the Chamberrequests the Registry, pursuant to the principle of non-discrimination enshrined inArticle 21(3) of the Statute and Rule 86 of the Rules, to pay particular attention to theneeds of any potential ly under-represented groups of vict ims, such as vict ims fromother ethnic groups, children, women, and those who suffered sexual violence, whenit carries out i ts general-information campaign amongst the affected communit ies,and including any meet ings tha t are organised wi th vic t ims and vic t ims' groups andother associat ions. It is to be noted that this request extends to those who havealready provided representat ions. The Registry is to report thereafter to the Chamberif i t considers that a group of vict ims or a series of crimes have not been included orreflected sufficiently in the victims' representations received thus far.

V I I I . CO N CL U S I O N212. In l ight of the above considerat ions, the Chamber authorises the commencement of

an invest igation in Cte d'Ivoire with respect to crimes within the jurisdict ion of theCourt committed since 28 November 2010. The invest igation is also authorised withrespect to continuing crimes that may be committed in the future, as set out inparagraph 179 above, insofar as they are part of the context of the ongoing si tuat ionin Cte d'Ivoire.

^ ^ ICC-02/11-11-Red, paragraphs 34, 36 and 38.- ^ ICC-02/11-11-Red, paragraph 76.No. ICC-02/11 85/86 3 October 2011

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213. In accordance with Rule 50(4) of the Rules, the Prosecu tor is to revert to the C ham berwithin one month with any addit ional information that is available to him onpotential ly relevant crimes committed between 2002 and 2010.

A separate and part ial ly dissenting opinion of Judge Silvia Fernandez de Gurmendi willfollow in due course.

Done in both English and French, the English version being authoritat ive.

Jud ge El izabeth Od io Beni to Jud ge Ad rian Fuli^old

Da ted this 3 Octob er 2011At The Hague, The Nether lands

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Sentencia Corte Penal Internacional - 3 de Octubre de 2011

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Transcript of Sentencia Corte Penal Internacional - 3 de Octubre de 2011