ITCL Update: Chapter 4
On 3 May 2011, the President of Côte d’Ivoire, Alassane Ouattara, wrote to the Prosecutor of the ICC and indicated that he wished the Prosecutor to initiate an investigation into core crimes taking place in that country since 19 September 2002. The Prosecutor’s press briefing can be found here.
There are a couple of unique aspects to this. First, Côte d’Ivoire is not actually a party state to the Rome Statute, but has acceded to the Court’s jurisdiction pursuant to article 12(3). So that was anticipated, but I think it’s still the only state to have done so thus far (except for Uganda’s use of the article to cover a 2-month lapse between the coming into force of the Statute generally and its coming into force for Uganda).
More unusual here is the way the President has framed the matter: this is not a situation where the state is doing a “self-referral” under article 13(a), as was the case with Uganda, the Democratic Republic of the Congo and the Central African Republic. Rather, President Ouattara has asked the Prosecutor to initiate a proprio motu investigation, provided for in article 13(c); his letter invokes article 15, which sets out the Prosecutor’s powers in such a situation.
However, on a close reading, this makes sense. Articles 13 and 14 provide explicitly that a “state party” can refer a situation to the Court, whether it’s in another state or (as we now know) in the referring state itself. As Côte d’Ivoire is not a “state party” strictly speaking, this mechanism was likely not available to it. What this amounts to, it seems to me, is the President throwing up a red flag for the Prosecutor as to the crimes having been committed and indicating (as the letter does) that the government will cooperate fully (which it is bound to do under article 13(3), anyway).
The President’s letter also indicates that the Ivoirien courts are not up to the task of prosecuting these crimes, which is designed to satisfy the admissiblity requirement in article 17(1), i.e. that the state is “unable” to conduct the prosecutions. The Prosecutor is currently drafting its application materials to seek authorization from the Pre-Trial Chamber to pursue the investigation proprio motu. If it’s granted, it will be the next proprio motu investigation after the Kenya situation, albeit a much less controversial one.