Credit: ICC
Last week, the Prosecutor of the International Criminal Court (ICC), Fatou Bensouda, announced the opening of a second investigation into the Central African Republic (CAR), this time with respect to alleged international crimes committed since late 2012. More than 5,000 people have died in recent months due to sectarian fighting in the country. “The list of atrocities is endless. I cannot ignore these alleged crimes,” Prosecutor Bensouda stated in her announcement. [ABC; ICC Press Release]
Having found a “reasonable basis” to believe that sectarian groups on all sides have committed crimes against humanity and war crimes, including “murder, rape, forced displacement, persecution, pillaging, attacks against humanitarian missions and the use of children under fifteen in combat,” the Office of the Prosecutor will now begin collecting evidence so as to identify and prosecute the individuals responsible for the most serious crimes. “Let this be a message to would-be perpetrators in CAR and beyond: such crimes will not be tolerated and will be met with the full force of the law,” Bensouda warned. [ICC Press Release]
Last May, interim CAR President Catherine Samba-Panza referred the situation in CAR to the ICC, requesting that the Office of the Prosecutor investigate alleged crimes within the ICC’s jurisdiction that took place after August 1, 2012. Her referral was the second made by CAR, its first referral having been issued in December 2004. Prosecutor Bensouda noted that this latest referral by CAR authorities “demonstrates a commitment to fight impunity for mass crimes and to bring justice to the victims.” [ICC Press Release]
CAR’s second referral to the Office of the Prosecutor marks the sixth referral in total issued by States parties to the Rome Statute of the International Criminal Court (Rome Statute). See Rome Statute of the International Criminal Court, (adopted 17 July 1998, entered into force 1 July 2002), 2187 U.N.T.S. 3. The Office of the Prosecutor received its other referrals from Uganda (December 2003), Democratic Republic of Congo (April 2004), Mali (July 2012), Comoros (May 2013). [ICC Press Release]
CAR: A Country Plagued by Internal Armed Conflict
One of the poorest countries in the world, CAR has struggled with political instability and armed conflict for decades. [BBC] In 2002, an internal armed conflict erupted when the national armed forces of then-President Ange-Félix Patassé joined combatants from the Mouvement de Libération du Congo (MLC) to confront a rebel movement led by former Chief of Staff of the Central African Armed Forces, Françoise Bozizé. The conflict, which lasted from October 26, 2002 to March 15, 2003, ended when Bozizé ousted Patassé from power. ICC, Office of the Prosecutor, Situation in the Central African Republic II: Article 53(1) Report (2014), paras. 8-9.
Fighting resumed in December 2012, when Séléka, a mainly Muslim rebel group, launched a “major military offensive” to gain territory in CAR. The Economic Community of Central African States (ECCAS) facilitated negotiations for the Libreville Agreements of January 11, 2013, but these agreements ultimately failed to secure lasting peace. By March 2013, Séléka was back on the offensive, taking control of Bangui, CAR’s capital, and forcing President Bozizé into exile. Sectarian attacks between Séléka and anti-Balaka, a mainly Christian militia, are on the rise, with anti-Balaka attacking Muslim civilians and Séléka attacking non-Muslims, regardless of their affiliation with either group. Office of the Prosecutor, Situation in the Central African Republic II, paras. 10-13.
In 2013, the UN Human Rights Council established an Independent Expert on the situation of human rights in the Central African Republic, and the UN Security Council created an International Commission of Inquiry to investigate the situation. [IJRC]
In April 2014, the UN Security Council authorized a peacekeeping mission to CAR, in view of the increase in fighting between Christians and Muslims in the capital Bangui. [UN News Centre] UN Secretary General Ban Ki-moon called attention to the “atrocious human rights violations,” indicating that:
[t]he crisis, which began in December 2012, has left thousands of people dead, and 2.2 million, about half the population of CAR, in need of humanitarian aid. More than 650,000 people are still internally displaced, and over 290,000 have fled to neighbouring countries in search of refuge.
CAR’s History at the ICC
CAR ratified the Rome Statute on October 3, 2001, and the Statute entered into force with respect to CAR on July 1, 2002. In December 2004, CAR made its first referral to former ICC Prosecutor Luis Moreno-Ocampo, informing him that the national justice system would be “unable to carry out the complex proceedings necessary to investigate and prosecute the alleged crimes.” [ICC Press Release: Prosecutor opens investigation] In May 2007, Prosecutor Moreno-Ocampo announced his decision to investigate the most serious crimes that took place in CAR from 2002-2005. See ICC, Background: Situation in the Central African Republic (2007).
The Office of the Prosecutor has initiated two cases relating to the situation in CAR. The first case charged Jean-Pierre Bemba Gombo, President and Commander-in-Chief of the MLC, with committing crimes against humanity (murder and rape) and war crimes (murder, rape, and pillaging). See ICC, The Prosecutor v. Jean-Pierre Bemba Gombo. The second case charged Bemba Gombo and four others with allegedly knowingly presenting false or forged evidence to the Court and corruptly influencing a witness to provide false testimony in the case against Bemba Gombo. See ICC, The Prosecutor v. Bemba Gombo et al.
Investigative Duties of the Office of the Prosecutor
In carrying out her investigative duties with respect to the situation in CAR, Prosecutor Bensouda must be sure to cover all facts relevant to assessing whether there is criminal responsibility. She must also investigate incriminating and exonerating facts equally. See Rome Statute, art. 54(1).
Prosecutor Bensouda may also collect and examine evidence, question persons under investigation, victims, and witnesses, and seek the cooperation of States or intergovernmental organizations. She may even conduct investigations inside CAR, with authorization from the Pre-Trial Chamber or by adhering to with Part 9 of the Rome Statute, concerning international cooperation and judicial assistance. See Rome Statute, arts. 54(3), 54(2), 57(3)(d), Part 9.
Jurisdiction of the International Criminal Court regarding the Situation in CAR
The ICC has jurisdiction with respect to the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. Rome Statute, art. 5. In order for the ICC to try a case, however, it must satisfy one of the following three jurisdictional preconditions:
- A State party referred the situation to the Prosecutor. See Rome Statute, arts. 13(a), 14.
- The Prosecutor initiated a preliminary examination on her own initiative and received authorization from the Pre-Trial Chamber to continue with a full investigation. See Rome Statute, arts. 13(c), 15, 53(1).
- The UN Security Council, acting under Chapter VII of the UN Charter, referred the situation to the Prosecutor. See Rome Statue, art. 13(b).
In both situations involving CAR, the Office of the Prosecutor initiated preliminary examinations, but was not required to seek authorization from the Pre-Trial Chamber to continue because CAR referred the situations to the Prosecutor directly. Nevertheless, Prosecutor Bensouda has made public her Article 53(1) report on the situation in CAR, in which she describes her basis for finding that the Article 53(1) requirements – reasonable suspicion, admissibility, and interests of justice – were satisfied. Office of the Prosecutor, Situation in the Central African Republic II.
For additional information on the International Criminal Court, see IJRC’s Online Resource Hub.