identifier: ICC-02/11-01/12 (Warrant of Arrest for Simone Gbagbo)

caseName: The Prosecutor v. Simone Gbagbo

title: Warrant of Arrest for Simone Gbagbo

text: Rome Statute, article 15

text: Rome Statute, article 19

text: Rome Statute, article 25

text: Rome Statute, article 58

text: Rome Statute, article 7

text: the Statute, article 89

text: the Statute, article 91

text: Cour Pénale I n t e r n a t i o n a l e I n t e r n a t i o n a l ^ ^ C r i m i n a l C o u r t

text: Original: English No.: ICC-02/11-01/12 Date: 29 February2012

text: PRE-TRIAL CHAMBER III

text: Before: Judge Silvia Fernandez de Gurmendi, Presiding Judge Judge Elizabeth Odio Benito Judge Adrian Fulf ord

text: SITUATION IN THE REPUBLIC OF COTE DTVOIRE IN THE CASE OF THE PROSECUTOR v. SIMONE GBAGBO UNDER SEAL Ex parte Prosecution and Registry only

text: Warrant of Arrest for Simone Gbagbo

text: No. ICC-02/11-01/12 1/10 29 February 2012

text: Decision to be notified, in accordance with Regulation 31 of the Regulations of the Court, to: Counsel for the Defence The Office of the Prosecutor Mr Luis Moreno-Ocampo Ms Fatou Bensouda Legal Representatives of Victims Legal Representatives of Applicants Unrepresented Victims Unrepresented Applicants for Participation/Reparation

text: The Office of Public Counsel for The Office of Public Counsel for the Victims Defence

text: States' Representatives Amicus Curiae

text: REGISTRY Registrar Detention Section Ms Silvana Arbia Victims and Witnesses Unit Others Victims Participation and Reparations Section

text: No. ICC-02/11-01/12 2/10 29 February 2012

text: On 3 October 2011, Pre-Trial Chamber III ("Chamber") issued a Decision Pursuant to

text: Article 15

text: of the

text: Rome Statute

text: on the Authorisation of an Investigation into the Situation in the Republic of Côte dTvoire, in which it authorised an investigation.

text: On 7 February 2012, the Prosecutor filed an application for a warrant of arrest against Simone Gbagbo ("Ms Gbagbo") for her individual criminal responsibility as regards the crimes against humanity of murder, rape and other forms of sexual violence, persecution and other inhumane acts committed during the post-election crisis from 28 November 2010 onwards by the Ivorian Defence and Security Forces ("FDS"), which were reinforced by youth militias and mercenaries loyal to President Gbagbo ("pro-Gbagbo forces"), in Abidjan, including around the Golf Hotel and elsewhere in the country.

text: The Chamber notes

text: Articles 7

text: and

text: of the

text: Rome Statute

text: ("Statute") and observes that the analysis of the evidence and other information submitted by the Prosecutor will be set out in a decision to be issued hereafter.

text: The Chamber considers, on the basis of the evidence and information submitted by the Prosecutor, and without prejudice to its determination of any future challenge to the admissibility of the case under

text: Articles 19

text: (2)(a) and (b) of

text: the Statute

text: , that the case against Ms Gbagbo falls within the jurisdiction of the Court and is admissible.

text: No. ICC-02/11-01/12 3/10 29 February 2012

text: On the evidence, the Chamber concludes that there are reasonable grounds to believe that in the aftermath of the presidential elections in Côte dTvoire pro- Gbagbo forces attacked the civiUan population in Abidjan and in the west of the country, from 28 November 2010 onwards. They targeted civilians who they believed were supporters of Alassane Ouattara, and the attacks were often directed at specific ethnic or religious communities.

text: The Chamber finds that there are reasonable grounds to believe that these attacks by pro-Gbagbo forces during the post electoral violence were committed pursuant to an organisational policy. Furthermore, they were widespread and systematic, as demonstrated, inter alia, by the extended time period during which crimes were committed (between 28 November 2010 and May 2011), their geographic spread (many of the neighbourhoods of Abidjan and the west of Côte d'Ivoire), the high number of reported victims and the general pattern of the way in which the offences were committed.

text: On the evidence, the Chamber finds that there are reasonable grounds to believe that the crimes against humanity of murder under Article 7(l)(a), rape and other forms of sexual violence under Article 7(l)(g), other inhumane acts under Article 7(l)(k) and persecution under

text: Article 7

text: (l)(h) of

text: the Statute

text: , were committed in Côte dTvoire during the period between 16 December 2010 and 12 April 2011.

text: Furthermore, the Chamber finds that there are reasonable grounds to believe that these acts occurred in the context of a widespread or systematic attack directed against the Côte dTvoire civilian population within the meaning of

text: Article 7

text: (1) of

text: the Statute

text: . No. ICC-02/11-01/12 4/10 29 February 2012

text: The Chamber finds that there are reasonable grounds to believe that Ms Gbagbo bears individual criminal responsibiUty for the crimes charged in this Application, as "an indirect co-perpetrator" pursuant to

text: Article 25

text: (3)(a) of

text: the Statute

text: The Chamber finds, on the basis of the evidence provided by the Prosecutor, that there are reasonable grounds to believe that the plan (and the policy) existed and that Mr Gbagbo's inner circle, to which Ms Gbagbo belonged, met frequently to discuss the implementation and coordination of the plan. Ms Gbagbo was ideologically and professionally very close to her husband, Mr Gbagbo. She participated in all the meetings during the relevant period. Although not elected, Ms Gbagbo acted as an alter ego for her husband, exercising the power to make State decisions. Ms Gbagbo was also close to other members of Mr Gbagbo's inner circle who were involved in the implementation of the Common Plan. Moreover, at meetings or public gatherings during the post-election crisis, Ms Gbagbo expressed her support for the Common Plan, and instructed the pro-Gbagbo forces to commit crimes against individuals who posed a threat to her husband's power.

text: Furthermore the Chamber finds that there are reasonable grounds to believe that Ms Gbagbo and other members of Mr Gbagbo's inner circle were aware that implementing the common plan would, in the ordinary course of events, lead to the commission of the offences set out above.

text: The Chamber finds that there are reasonable grounds to believe that, by implementing the common plan, Ms Gbagbo as a member of Mr Gbagbo's

text: No. ICC-02/11-01/12 5/10 29 February 2012 inner circle exercised joint control over the crimes by having the power to control and give instructions directly to the youth militia who were systematically recruited, armed, trained and integrated into the FDS chain of command with a view to supporting the implementation of the common plan. Throughout the post-election crisis, Ms Gbagbo convened frequent meetings with the most senior FDS generals to discuss, in particular, the situation in Abobo. She also instructed other senior FDS officers regarding measures to dissuade anti-Gbagbo demonstrations, and she asked them to put troops at her disposal to provide security for a Minister. Moreover, The Chamber believes that there is sufficient evidence that Ms Gbagbo ensured that the regular FDS forces were given military equipment.

text: Furthermore, there are reasonable grounds to believe, given the position of Ms Gbagbo as a member of Mr Gbagbo's inner circle and her role as regards the common plan, that she made a coordinated and essential contribution to its realisation. She attended meetings of Mr Gbagbo's inner circle and participated in making decisions on the implementation of the common plan. During one of those meetings, a pro-Gbagbo youth leader proposed attacking members of Mr Ouattara's political party, the Rassemblement des houphouëtistes pour la démocratie et la paix ("RHDP"), and destroying or looting their belongings, so that they would suffer like other Ivorians had suffered because of the actions of Mr Ouattara. During this meeting, Ms Gbagbo openly expressed her agreement with this proposal. Moreover, Ms Gbagbo played a key role in recruiting, arming and integrating thousands of volunteers and enlisting them into the FDS chain of command.

text: No. ICC-02/11-01/12 6/10 29 February 2012

text: The Chamber further finds that there are reasonable grounds to believe that the pro-Gbagbo forces that put the common plan into effect did so by almost automatic compliance with the orders they received from Ms Gbagbo and other members of Mr Gbagbo's irmer circle.

text: The Chamber concludes that there are reasonable grounds to believe that Ms Gbagbo acted with the necessary degree of intent and knowledge by: i) adopting the common plan; ii) being aware of its implementation and the means other members of the irmer circle had at their disposal to implement the common plan; iii) meeting with members of Mr Gbagbo's inner circle to discuss and coordinate the implementation of the common plan; iv) playing a key role in recruiting and instructing the galaxie patriotique, and integrating them into the FDS; and v) being aware of the contribution of other members of Mr Gbagbo's inner circle to the implementation of the common plan. Furthermore, the Chamber is of the view that Ms Gbagbo was fully conscious of the factual circumstances that enabled her and other members of Mr Gbagbo's inner circle to exercise joint control over the crimes.

text: Although the Chamber is satisfied that this substantial test (as proposed by the Prosecution), is made out, it is Ukely that this issue (ie, Ms Gbagbo's suggested liability as an "indirect co-perpetrator" under

text: Article 25

text: (3)(a) of

text: the Statute

text: ) may well need to be revisited in due course with the parties and participants.

text: The Chamber is satisfied that her arrest is necessary to: i) ensure her appearance before the Court; ii) ensure that she does not use her political or

text: No. ICC-02/11-01/12 7/10 29 February 2012 economical resources to obstruct or endanger the investigation; and iii) prevent the commission of further crimes.

text: The Chamber notes that Ms Gbagbo is subject to a travel ban imposed by United Nations Security Council Resolutions 1572 and 1980 and Council of the European Union Decisions 2010/656/CFSP and 2011/18/CFSP.

text: FOR THESE REASONS, THE CHAMBER

text: HEREBY ISSUES a warrant of arrest against Simone Gbagbo, who was bom on 20 June 1949 in Moosou, Grand-Bassam prefecture in Côte d'Ivoire, an Ivorian national and a member of the Akan tribe, for her alleged criminal responsibility within the meaning of

text: Article 25

text: (3)(a) of

text: the Statute

text: for the crimes against humanity of (1) murder under Article 7(l)(a), (2) rape and other forms of sexual violence under Article 7(l)(g), (3) other inhumane acts under Article 7(l)(k) and (4) persecution under

text: Article 7

text: (l)(h) of

text: the Statute

text: committed in the territory of Côte d'Ivoire during the period between 16 December 2010 and 12 April 2011;

text: DECIDES that the warrant of arrest is to remain under seal, ex parte the Prosecution and the Registry only, but in order to effect Ms Gbagbo's transfer to the seat of the Court, it may be communicated as necessary to third parties (such as the authorities in Côte d'Ivoire and any other State or international organisation) in order to implement it. The Chamber will consider in due course the reclassification of the warrant of arrest, upon the surrender of Ms Gbagbo to the ICC; No. ICC-02/11-01/12 8/10 29 February 2012

text: DECIDES that, as soon as practicable, the Registry: (i) shall prepare a request for cooperation seeking the arrest and surrender of Ms Gbagbo and containing the information and documents required by

text: Articles 89

text: (1) and

text: of

text: the Statute

text: , and by Rule 187 of the Rules of Procedure and Evidence ("Rules"); and (ii) shall transmit, in consultation and coordination with the Prosecutor, the request to the competent authorities in the Republic of Côte d'Ivoire in accordance with Rule 176(2) of the Rules;

text: FURTHER DIRECTS tiie Registrar, pursuant to

text: Article 89

text: (3) of

text: the Statute

text: , to prepare and transmit to any relevant State and international organisation any request for transit which may be necessary for the surrender of Ms Gbagbo to the Court;

text: ORDERS the Prosecutor to transmit to the Registry, as far as his confidentiality obligations allow, and to the Chamber all information available to him that may assist in averting any risks to victims or witnesses associated with the transmission of the abovementioned cooperation request;

text: INVITES the Prosecutor to transmit to the Registry, as far as his confidentiality obligations allow, and to the Chamber all information available to him that, in his view, would facilitate the transmission and execution of the above-mentioned cooperation request.

text: INSTRUCTS the Registry to liaise with the Prosecution in order to invite the Republic of Côte d'Ivoire and the Kingdom of The Netherlands to request an exemption from the travel ban imposed by the UN Security Council and the No. ICC-02/11-01/12 9/10 29 February 2012

text: Judge Silvia Fernandez de Gurmendi

text: y\\z:)Xh

text: Dated this 29 February 2012 At The Hague, The Netherlands No. ICC-02/11-01/12 10/10 29 February 2012

title: The Prosecutor v. Simone Gbagbo


court: icc

doctype: arrest-warrant

identifier: ICC-02/11-01/12 (Decision on the "Defence Request for an Extension of Time")

chamber: Pre-Trial Chamber III

decisionType: arrest-warrant

publisher: International Criminal Court

text: Cour

type: stycke

text: Pénale / \ I n t e r n a t i o n a l e I n t e r n a t i o n a l C r i m i n a l

text: Court

text: Original: English No.: ICC-02/11-01/12 Date: 17 December 2013

text: PRE-TRIAL CHAMBER I

type: rubrik

text: Before: Judge Silvia Femandez de Gurmendi Presiding Judge Judge Hans-Peter Kaul Judge Christine Van den Wyngaert

text: SITUATION IN THE REPUBLIC OF COTE D'lVOIRE IN THE CASE OF THE PROSECUTOR v. SIMONE GBAGBO

text: Public Decision on the "Defence Request for an Extension of Time'

text: No. ICC-02/11-01/12 1/7 17 December 2013

text: Decision to be notified, in accordance with Regulation 31 of the Regulations of the Court, to: The Office of the Prosecutor Counsel for the Defence Fatou Bensouda Sylvia Geraghty James Stewart Clédor Ciré Ly

text: Legal Representatives of Victims Legal Representatives of Applicants

text: Unrepresented Victims Unrepresented Applicants for Participation/Reparation

text: The Office of Public Counsel for The Office of Public Counsel for the Victims Defence Paolina Massidda

text: States Representatives Amicus Curiae Jean-Pierre Mignard Jean-Paul Benoit

text: REGISTRY Registrar Herman von Hebel

text: Victims and Witnesses Unit Detention Section

text: Victims Participation and Reparations Others Section

text: No. ICC-02/11-01/12 2/7 17 December 2013

text: Pre-Trial Chamber I ("Chamber") of the International Criminal Court ("Court") issues the following decision on the "Defence Request for an Extension of Time" (the "Request").^ 1. On 29 February 2012, the Chamber issued a warrant of arrest (the "Warrant of Arrest") for Simone Gbagbo ("Ms Gbagbo"), which was made pubUc on 22 November 2012.^

text: On 19 March 2012, the Registrar notified Côte d'Ivoire of the Warrant of Arrest and requested it to arrest and surrender Ms Gbagbo to the Court.^

text: On 1 October 2013, Côte d'Ivoire filed the ''Requête de la République de Côte d'Ivoire sur la recevabilité de l'Affaire Le Procureur c, Simone Gbagbo, et demande de sursis à exécution en vertu des articles 17, 19 et 95 du Statut de Rome" (the "Admissibility Challenge"), challenging the admissibility of the case against Ms Gbagbo before the Court.^

text: On 15 November 2013, the Chamber issued the "Decision on the conduct of the proceedings following Côte d'lvoire's challenge to the admissibility of the case against Simone Gbagbo",^ inter alia inviting the Prosecutor, the Defence and Paolina Massidda from the Office of Public Counsel for victims as legal representative of the victims who have already communicated with the Court in relation to the case against Ms Gbagbo to submit observations on the Admissibility Challenge, if any, by 13 January 2013.^

text: 1ICC-02/11-01/12-16. 2 "Warrant of Arrest for Simone Gbagbo",

text: . See also Pre-Trial Chamber I, "Decision on the Prosecutor's Application Pursuant to Article 58 for a warrant of arrest against Simone Gbagbo", 2 March 2012, ICC-02/ll-01/12-2-Red. 3ICC-02/11-01/12-6. 4 ICC-02/ll-01/12-ll-Conf. A public redacted version is also available (ICC-02/11-01-12-11- Red). 5ICC-02/11-01/12-15. 6 Ibid., p. 9. No. ICC-02/11-01/12 3/7 17 December 2013

text: On 12 December 2013, Ciré Clédor Ly filed in the record of the case, as

text: Counsel for Ms Gbagbo, the "Requête sur Vexercice des droits de la défense de

text: Madame Simone Gbagbo", ^ informing the Chamber that Ms Gbagbo had

text: appointed a new Counsel, while he continued to be retained by Ms Gbagbo as

text: part of the Defence team, and requesting the Chamber to:

text: Autoriser que Madame GBAGBO assure sa défense avec l'équipe qu'elle a constituée par mandat spécial en date du 25 Novembre 2013. 2. Autoriser le Conseil Maitre Ciré Clédor LY de partager avec l'équipe de défense les documents confidentiels visés dans la décision du 15 Novembre 2013 rendue par la chambre préliminaire I ; 3. Faire droit à la demande de prorogation de délai en tenant compte du précédent et tous les impératifs qu'il incombe à la mandataire d'accomplir.^

text: On 13 December 2013, Sylvia Geraghty filed, as newly appointed Counsel

text: for Ms Gbagbo, the Request, seeking an extension of time for the submission

text: of observations on the Admissibility Challenge "by six (6) calendar weeks,

text: until the end of February 2014" .^

text: On 16 December 2013, the Chamber received the "Enregistrement de la

text: désignation de Maître Sylvia Geraghty comme Conseil principal de Mme Simone

text: Gbagbo et précisions sur la composition actuelle de l'équipe de la Défense",^^ filed by

text: the Registrar, informing the Chamber that:

text: l'équipe de la Défense de Mme Simone Gbagbo est actuellement supervisée par Maître Sylvia Geraghty, assistée par Maître Clédor Ciré Ly, conseil inscrit sur la liste de conseils prévue à la règle 21-2 du Règlement de procédure et de preuve ; 2. les deux conseils ont les accès au dossier de l'affaire.^^

text: 7 ICC-02/ll-01/12-21-Conf and confidential Annexes (notified on 13 December 2013). 8 Ibid., p. 17. 9 Request, p. 5. ^0ICC-02/11-01/12-23 and confidential Annexes I-II and public annex III (filed on 13 December 2013). ^^ Ibid,, p. 3. Accordingly, intervention of the Chamber is not necessary with respect to the first two requests raised in the "Requête sur l'exercice des droits de la défense de Madame Simone Gbagbo" as reflected above in paragraph 5.

text: No. ICC-02/11-01/12 4/7 17 December 2013

text: The Chamber notes regulation 35(2), first sentence, of the Regulations of the Court (the "Regulations"), which provides that the Chamber may extend a time limit if good cause is shown. 9. The Chamber notes that the request for extension of the time limit for the submission of the Defence observations on the Admissibility Challenge is advanced both in the "Requête sur l'exercice des droits de la défense de Madame Simone Gbagbo" and in the Request. For the purposes of the present decision, the Chamber, while noting that the two requests do not conflict, will make reference only to the Request, which provides more specific argumentation and specifies the extension of time requested. 10. The Defence describes as follows the grounds militating, in its view, for an extension of time by six weeks: (i) "the specific circumstances at hand, namely the particular nature, importance and possible overall impact of a decision flowing from the consideration of the observations"; (ii) "the financial constraints and limited resources and the complexity, nature and scope of the issues involved"; (iii) the fact that "(new) Lead Counsel has only been in a position to sign the acceptance of Mandate on 12*^ December 2013", (iv) "has not previously met with Ms. Gbagbo", and (v) "is unfamiliar with the case"; (vi) "the likely delay in obtaining a visa to travel, to the Côte d'Ivoire"; (vii) "the intervening Christmas holiday"; (viii) "the foreseeable delay in making the necessary travel arrangements to include possible security arrangements" (ix) the fact that "travelling approximately 1,000 (one thousand) kilometers North West to Odienne" will be needed, in order to (x) "tak[e] instructions over a 9-10 day period", whereupon time will be needed for (x) "travelling back to Ireland", (xi) "consideration of all the pleadings had in the matter to date", and (xii) "drafting and filing observations".^^

text: ^2 Request, para. 16. No. ICC-02/11-01/12 5/7 17 December 2013

text: The Chamber accepts the submission of the Defence that additional time is needed in order for the Defence team to be able to obtain instructions from Ms Gbagbo and prepare observations on the Admissibility Challenge. On this basis, the Chamber considers that the Defence has shown good cause within the meaning of regulation 35(2), first sentence, of the Regulations. As to the scope of the extension, the Chamber considers that the extension by six weeks, as requested, is appropriate in the present circumstances. Finally, the Chamber is of the view that the extension of time as granted will not unduly prejudice the interests of the other parties and participants in the proceedings following the Admissibility Challenge.

text: FOR THESE REASONS, THE CHAMBER GRANTS the Defence until Monday, 24 February 2014 to submit its observations on the Admissibility Challenge.

text: Done in both English and French, the English version being authoritative.

text: f i ^ T / ^

text: ^ d

text: No. ICC-02/11-01/12 6/7 17 December 2013

text: No. ICC-02/11-01/12 7/7 17 December 2013

title: The Prosecutor v. Simone Gbagbo

type: avgorande


doctype: admissibility

identifier: ICC-02/11-01/12 (Decision on Côte d’Ivoire’s challenge to the admissibility of the case against Simone Gbagbo)

chamber: Pre-Trial Chamber I

decisionType: admissibility

title: Decision on Côte d’Ivoire’s challenge to the admissibility of the case against Simone Gbagbo

text: the Statute

text: Rome Statute, article 17

text: Rome Statute, article 19

text: the Statute, article 95

text: Original: English No.: ICC-02/11-01/12 Date: 11 December 2014

text: PRE-TRIAL CHAMBER I

text: Before: Judge Silvia Fernández de Gurmendi, Presiding Judge Judge Ekaterina Trendafilova Judge Christine Van den Wyngaert

text: SITUATION IN THE REPUBLIC OF CÔTE D’IVOIRE IN THE CASE OF THE PROSECUTOR V. SIMONE GBAGBO

text: Public redacted

text: Decision on Côte d’Ivoire’s challenge to the admissibility of the case against Simone Gbagbo

text: No. ICC-02/11-01/12 1/39 11 December 2014

text: Decision to be notified, in accordance with regulation 31 of the Regulations of the Court, to:

text: The Office of the Prosecutor Counsel for Simone Gbagbo

text: Fatou Bensouda, Prosecutor Sylvia Geraghty James Stewart, Deputy Prosecutor

text: Legal Representatives of the Victims Legal Representatives of the Applicants

text: Unrepresented Victims Unrepresented Applicants for Participation/Reparation

text: The Office of Public Counsel for The Office of Public Counsel for the Victims Defence

text: Paolina Massidda

text: States Representatives Amicus Curiae

text: Counsel for Côte d’Ivoire

text: Jean-Pierre Mignard Jean-Paul Benoit

text: Competent authorities of Côte d’Ivoire

text: REGISTRY

text: Registrar Defence Support Section

text: Herman von Hebel

text: Victims and Witnesses Unit Detention Section

text: Victims Participation and Reparations Other Section

text: No. ICC-02/11-01/12 2/39 11 December 2014

text: Pre-Trial Chamber I (the “Chamber”) of the International Criminal Court (the “Court” or the “ICC”) hereby renders its decision under

text: articles 17

text: and

text: of the

text: Rome Statute

text: (the “Statute”) on the challenge to the admissibility of the case against Simone Gbagbo before the Court (the “Admissibility Challenge”) lodged by the Republic of Côte d’Ivoire (“Côte d’Ivoire”).

text: I. PROCEDURAL HISTORY

text: On 29 February 2012, Pre-Trial Chamber III issued a warrant of arrest against Simone Gbagbo (the “Warrant of Arrest”) and, on 2 March 2012, the “Decision on the Prosecutor’s Application Pursuant to Article 58 for a warrant of arrest against Simone Gbagbo” (the “Article 58 Decision”). 2. On 19 March 2012, the Registrar notified Côte d’Ivoire of the Warrant of Arrest and requested its execution. 3. On 30 September 2013, Côte d’Ivoire filed the Admissibility Challenge. 4. On 15 November 2013, the Chamber issued, in accordance with rules 58 and 59 of the Rules of Procedure and Evidence (the “Rules”), the “Decision on the conduct of the proceedings following Côte d’Ivoire’s challenge to the admissibility of the case against Simone Gbagbo”, whereby the Chamber, inter alia, invited the Prosecutor, the Defence of Simone Gbagbo, and Paolina Massidda from the Office of Public Counsel for victims (the “OPCV”) as legal representative of the victims who had communicated with the Court in relation to the case, to submit observations on the Admissibility Challenge, if

text: 1 ICC-02/11-01/12-11-Conf and annexes. A public redacted version of the filing is also available (ICC-02/11-01/12-11-Red). 2 Pre-Trial Chamber III,

text: . 3 Pre-Trial Chamber III,

text: -Red. ICC-02/11-01/12-6. No. ICC-02/11-01/12 4/39 11 December 2014 any, by 13 January 2014. This time limit was subsequently extended to 24

text: February 2014.

text: On 14 February 2014, Côte d’Ivoire requested authorization to

text: complement its Admissibility Challenge with further documentation.

text: On 20 February 2014, Judge Silvia Fernández de Gurmendi, acting as

text: Single Judge in the present case, granted Côte d’Ivoire’s request to submit

text: additional documentation, and extended the time limit for the submission by

text: the Prosecutor, the Defence and the legal representative of victims of their

text: respective observations in relation to the Admissibility Challenge until six

text: weeks after notification of the additional documentation.

text: On 25 February 2014, Côte d’Ivoire submitted its further

text: documentation in support of its Admissibility Challenge.

text: The observations of the Defence on the Admissibility Challenge were

text: 11 12

text: filed on 8 April 2014, while the observations of the Prosecutor and the legal

text: representative of victims were both filed on 9 April 2014.

text: On 28 August 2014, the Chamber issued the “Decision on further

text: submissions on issues related to the admissibility of the case against Simone

text: Pre-Trial Chamber I, ICC-02/11-01/12-15. Pre-Trial Chamber I, “Decision on the ‘Defence Request for an Extension of Time’”, 17 December 2013, ICC-02/11-01/12-24; and id., “Decision on the Prosecutor’s and the OPCV’s requests for extension of time”, 19 December 2013, ICC-02/11-01/12-29. ICC-02/11-01/12-30. Pre-Trial Chamber I, “Décision portant désignation d'un juge unique”, 16 March 2012, ICC- 02/11-01/12-5. Pre-Trial Chamber I, “Decision on Côte d’Ivoire’s request to provide additional documents in support of its challenge to the admissibility of the case against Simone Gbagbo”, 20 February 2014, ICC-02/11-01/12-35. ICC-02/11-01/12-37-Conf and annexes. A public redacted version of the filing is also available (ICC-02/11-01/12-37-Red). ICC-02/11-01/12-39. ICC-02/11-01/12-41-Conf and annex. A public redacted version of the response is also available (ICC-02/11-01/12-41-Red). ICC-02/11-01/12-40-Conf and annexes. A public redacted version of the filing is also available (ICC-02/11-01/12-40-Red).

text: No. ICC-02/11-01/12 5/39 11 December 2014

text: Gbagbo” (the “Decision of 28 August 2014”), wherein it recalled certain relevant aspects of the law applicable to the determination on the admissibility of a case; it also granted Côte d’Ivoire until 10 October 2014 to make further submissions (and provide any evidence in support thereof) relevant to the Admissibility Challenge, including on some issues identified by the Chamber as particularly significant. In the same decision, the Chamber clarified that it would determine the appropriateness of any response to such submissions upon request of the parties and participants after the filing by Côte d’Ivoire. 10. On 10 October 2014, Côte d’Ivoire filed its final submissions with the additional documentation in support of the Admissibility Challenge. 11. On 17 October 2014, the Prosecutor requested leave to file a response to Côte d’Ivoire’s final submissions.

text: II. SUBMISSIONS OF THE PARTIES AND PARTICIPANTS

text: A. Côte d’Ivoire

text: Côte d’Ivoire challenges the admissibility of the case against Simone Gbagbo before the Court on the grounds that the same case is being investigated or prosecuted by its domestic authorities, within the meaning of

text: article 17

text: (1)(a) of

text: the Statute

text: . 13. Côte d’Ivoire submits that domestic proceedings were instituted against Simone Gbagbo on 6 February 2012 and that these proceedings cover allegations similar to those brought before the Court as they relate to the same

text: 14 Pre-Trial Chamber I, ICC-02/11-01/12-44. 15 Ibid., para. 11. 16 ICC-02/11-01/12-45-Conf and annexes. A public redacted of this filing is also available (ICC- 02/11-01/12-45-Red.) 17 ICC-01/11-01/12-46. 18 Admissibility Challenge, paras 1 and 22. 19 Ibid., para. 27. No. ICC-02/11-01/12 6/39 11 December 2014 crimes committed in Cote d’Ivoire after the second round of the presidential election of 28 November 2010. According to Côte d’Ivoire, the judicial investigation is complex due to the broad nature and diversity of the alleged crimes as well as the extension of the area in which they were committed. However, it is currently pursued in an efficient and regular manner. 14. With respect to the criterion of “unwillingness” within the meaning of

text: article 17

text: (2) of

text: the Statute

text: , Côte d’Ivoire essentially argues that the documents provided show the gravity of the charges brought against Simone Gbagbo, and emphasises that the proceedings are not being undertaken for the purpose of shielding Simone Gbagbo from her criminal responsibility. Also, Côte d’Ivoire submits that there has not been an unjustified delay in the investigations against Simone Gbagbo as constant investigative steps have been taken since the three réquisitoires introductifs of 6 February 2012 and that the length of the whole procedure is owed to the complexity and gravity of the case. 15. In relation to the criterion of “inability” within the meaning of

text: article 17

text: (3) of

text: the Statute

text: , Côte d’Ivoire argues that although the functioning of the judicial system was seriously affected by the political crisis unfolding in Côte d’Ivoire since 2002 and, in particular, during the post-electoral crisis of 2010- 2011 there has been a substantial improvement since that time. Indeed, on 30 January 2012 the national courts and judicial institutions were reopened throughout Côte d’Ivoire and the judges resumed their work. Côte d’Ivoire also states that exceptional measures have been taken to ensure prosecution

text: 20 Ibid., para. 38. 21 Ibid., para. 31. 22 ICC-02/11-01/12-37-Conf, paras 19-20. 23 Admissibility Challenge, para. 54. 24 ICC-02/11-01/12-45-Conf, para 11. 25 Admissibility Challenge, para. 43. 26 Ibid., paras 40-43. No. ICC-02/11-01/12 7/39 11 December 2014 for the crimes committed during the post-electoral crisis. In particular, a special investigative unit, “Cellule spéciale d’Enquêtes”, was established in July 2011. In Côte d’Ivoire’s submission, the activities of this unit permitted the institution of the proceedings against Simone Gbagbo.

text: B. The Prosecutor

text: The Prosecutor submits that Côte d’Ivoire has not demonstrated that it is investigating the same case against Simone Gbagbo that is before the Court. The Prosecutor reaches this conclusion on two main grounds. 17. First, the Prosecutor argues that, while “it appears that national criminal investigations and court proceedings against Ms Gbagbo have been initiated” and that “the national proceedings appear to bear broad similarity to the case before the Court”, the information provided by Côte d’Ivoire “is insufficient to establish that the case being investigated in Côte d’Ivoire pertains to the same conduct that is alleged before the ICC”. In particular, according to the Prosecutor, “it remains unclear whether the national offences described in the [Admissibility Challenge] cover all aspects of the offences which are the subject of the case before the Court, such that there continues to be insufficient information and evidence to demonstrate the actual contours of the case at the national level”. Therefore, in the Prosecutor’s submission, “it is not possible to compare with any precision the statement of facts in each case as a basis for identifying the relevant conduct in the proceedings before the ICC set against those at the national level”. 18. Second, the Prosecutor argues that the information provided by Côte d’Ivoire “is clearly insufficient to establish that Ms Gbagbo ‘is being

text: 27 Ibid., para. 45. 28 Ibid. 29 ICC-02/11-01/12-41-Conf, para. 47. 30 Ibid. 31 Ibid. No. ICC-02/11-01/12 8/39 11 December 2014 investigated’ within the terms of Article 17 (1)(a), namely, that [the] national proceedings include concrete and progressive investigative steps directed at ascertaining whether Ms Gbagbo is responsible for the alleged conduct”. 19. Finally, the Prosecutor states that given that “[Côte d’Ivoire] has not demonstrated that it is indeed investigating the same case, there is no need to consider at this stage the issue of genuineness”, as “the unwillingness or inability of a State having jurisdiction over the case becomes relevant only where the first limb of the test has been satisfied”.

text: C. The Defence

text: The Defence submits that as domestic proceedings have been instituted against Simone Gbagbo, “it would not be unreasonable to believe that, on the balance of probability, some investigations should have been carried out”. Nevertheless, the Defence avers that Simone Gbagbo “is insufficiently informed to definitively agree or disagree with the submissions put forward by [Côte d’Ivoire]” and, therefore, “can neither confirm nor deny the existence, nature or scope of any such investigation/s”. 21. In any case, the Defence stresses that it is for Côte d’Ivoire “to provide the Chamber with any specificity and/or probative value it may require to demonstrate the nature and scope of its investigation and/or prosecution of its case against Mme. Gbagbo”.

text: 32 Ibid., para. 55. 33 Ibid., para. 57. 34 ICC-02/11-01/12-39, para. 35. 35 Ibid., para. 30. 36 Ibid., para. 35. 37 Ibid., para. 36. No. ICC-02/11-01/12 9/39 11 December 2014

text: Finally, the Defence submits that, while it neither opposes nor joins the Admissibility Challenge, Simone Gbagbo’s wish is “[to] be tried in public, in full transparency, in her National Jurisdiction of Côte d’Ivoire”.

text: D. The OPCV

text: The OPCV requests the Chamber to reject the Admissibility Challenge. 24. The OPCV submits that the information provided by Côte d’Ivoire in support of the Admissibility Challenge is so unclear, vague and contradictory that it does not permit the identification of the contours of the purported domestic proceedings against Simone Gbagbo and, therefore, does not demonstrate that Côte d’Ivoire is investigating or prosecuting Simone Gbagbo for the same conduct that is alleged in the proceedings before the Court. In particular, according to the OPCV, none of the available documentation contains sufficient information as to the factual allegations, and their temporal and geographic parameters, brought against Simone Gbagbo in the national proceedings instituted against her. 25. In the alternative, and under the hypothesis that the Chamber would find it necessary to examine the criteria of willingness and ability within the meaning of

text: articles 17

text: (1)(a), 17(2) and 17(3) of

text: the Statute

text: , the OPCV submits, inter alia, that: (i) the current judicial system of Côte d’Ivoire is unable to carry out investigations or prosecutions into complex and sensitive cases like the one against Simone Gbagbo, as also demonstrated by the fact that the proceedings against Simone Gbagbo appear “fragmentées, incertaines et approximatives”; and (ii) the release, between December 2012 and August 2013, of several members of the former government of Laurent Gbagbo, the

text: 38 Ibid., para. 37. 39 Ibid., para. 42. 40 ICC-02/11-01/12-40-Conf, para. 49. See also paras 33, 44. 41 Ibid., paras 36-49. 42 Ibid., paras 79-80. No. ICC-02/11-01/12 10/39 11 December 2014 unjustified delay of the national proceedings against Simone Gbagbo and their ambiguous and fragmented nature indicates that Côte d’Ivoire also lacks real and genuine willingness to bring Simone Gbagbo to justice.

text: III. APPLICABLE LAW

text: As recalled above, the Admissibility Challenge is brought by Côte d’Ivoire as a State having jurisdiction over the case against Simone Gbagbo, in accordance with

text: article 19

text: (2)(b) of

text: the Statute

text: , and based on the ground of inadmissibility under

text: article 17

text: (1)(a) of

text: the Statute

text: . This latter provision reads: “the Court shall determine that a case is inadmissible where […] [t]he case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution”. 27. The Appeals Chamber has held that in considering an admissibility challenge brought under

text: article 17

text: (1)(a) of

text: the Statute

text: two questions shall be addressed: (i) whether, at the time of the proceedings in respect of an admissibility challenge, there is an ongoing investigation or prosecution of the case at the national level; and, in case the answer to the first question is in the affirmative, (ii) whether the State is “unwilling” or “unable” to genuinely carry out such investigation or prosecution within the terms further elaborated in

text: articles 17

text: (2) and

text: (3) of

text: the Statute

text: . Accordingly, the first determination to be made by the Chamber is with respect to the existence of an ongoing investigation or prosecution. In this regard, the Appeals Chamber stated that “inaction on the part of a State having jurisdiction (that is, the fact

text: 43 Ibid., para. 93. 44 Appeals Chamber, “Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case”, 25 September 2009,

text: , paras 1, 75-79. No. ICC-02/11-01/12 11/39 11 December 2014 that a State is not investigating or prosecuting, or has not done so) renders a case admissible before the Court”. 28. The Appeals Chamber further clarified that a State challenging the admissibility of a case “bears the burden of proof to show that the case is inadmissible” and that, to discharge this burden, the State must provide the Court with “evidence with a sufficient degree of specificity and probative value” that demonstrates that it is investigating or prosecuting the case. Indeed, “[i]t is not sufficient to merely assert that investigations are ongoing”. Similarly, as previously stated by this Chamber, “a mere assurance that the national ongoing investigation covers the same conduct as the case before the Court cannot be deemed sufficient to discharge [the] burden of proof in this regard”. 29. This Chamber also stated that the evidence that the State is requested to provide in order to demonstrate that the case is being investigated or prosecuted is not only “evidence on the merits of the national case that may have been collected as part of the purported investigation to prove the alleged crimes”, but extends to all material capable of proving that an investigation or prosecution is ongoing, including, for example, “directions, orders and decisions issued by authorities in charge […] as well as internal reports,

text: 45 Ibid., paras 2 and 78. 46 Appeals Chamber, “Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled ‘Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to

text: Article 19

text: (2)(b) of

text: the Statute

text: ’”, 30 August 2011,

text: , paras 2 and 61. 47 Ibid. 48 Pre-Trial Chamber I, “Decision requesting further submissions on issues related to the admissibility of the case against Saif Al-Islam Gaddafi”, 7 December 2012, ICC-01/11-01/11- 239, para. 28. No. ICC-02/11-01/12 12/39 11 December 2014 updates, notifications or submissions contained in the file arising from the [domestic proceedings]”. 30. The expression “the case is being investigated” within the meaning of

text: article 17

text: (1)(a) of

text: the Statute

text: must be understood as requiring the taking of “concrete and progressive investigative steps” to ascertain whether the person is responsible for the conduct alleged against him or her. As held by the Appeals Chamber, these investigative steps may include “interviewing witnesses or suspects, collecting documentary evidence, or carrying out forensic analyses”. Considerations with respect to the quantity and quality of the alleged investigative steps may therefore be relevant to the determination of whether an “investigation” is indeed being conducted, like they may be to the assessment of the genuineness of the concerned investigation in order to establish, as the case may be, whether the State is “unwilling” or “unable” to carry it out. Indeed, as previously held in this regard, the Chamber considers that “the two limbs of the admissibility test, while distinct, are nonetheless intimately and inextricably linked” and that “evidence related, inter alia, to the appropriateness of the investigative measures, the amount and type of resources allocated to the investigation, as

text: 49 Ibid., paras 10 and 11; see also Pre-Trial Chamber I, “Decision on the admissibility of the case against Abdullah Al-Senussi”, 11 October 2013,

text: -Red, para. 66(viii). 50 Appeals Chamber, “Judgment on the appeal of Libya against the decision of Pre-Trial Chamber I of 31 May 2013 entitled ‘Decision on the admissibility of the case against Saif Al- Islam Gaddafi’”, 21 May 2014,

text: -Red, paras 54, 55 and 73. See also Pre- Trial Chamber I, “Decision requesting further submissions on issues related to the admissibility of the case against Saif Al-Islam Gaddafi”, 7 December 2012, ICC-01/11-01/11- 239, para. 11. 51 Appeals Chamber, “Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled ‘Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to

text: Article 19

text: (2)(b) of

text: the Statute

text: ’”, 30 August 2011,

text: , paras 1 and 40. No. ICC-02/11-01/12 13/39 11 December 2014 well as the scope of the investigative powers of the persons in charge of the investigation are relevant for both limbs”. 31. At the same time, the Chamber recalls that, in its analysis on whether the State is investigating or prosecuting the same case that is before the Court, it is not called to determine whether the evidence on the merits of the national case collected by the domestic authorities “is strong enough to establish the [person's] criminal responsibility”. Indeed, a finding that the domestic authorities are taking steps to investigate the person's responsibility in relation to the same case as the one before the Court “would not be negated by the fact that, upon scrutiny, the evidence may be insufficient to support a conviction by the domestic authorities”. 32. In relation to the comparison of the conduct allegedly forming the subject of national investigation and the conduct which forms the subject of proceedings before the Court, the Appeals Chamber clarified that “[i]n assessing admissibility, what is required is a judicial assessment of whether the case that the State is investigating sufficiently mirrors the one that [is before the Court]” and that for this assessment “it will be necessary for a Chamber to know the contours or parameters of the investigation being carried out both by the Prosecutor and by the State”. Only when the terms of reference for the relevant comparison are satisfactorily identified, can the Chamber proceed to the determination of whether there is sufficient overlap

text: 52 Pre-Trial Chamber I, “Decision on the admissibility of the case against Abdullah Al- Senussi”, 11 October 2013,

text: -Red, para. 210. See also ibid., paras 161 and 211. 53 Pre-Trial Chamber I, “Decision requesting further submissions on issues related to the admissibility of the case against Saif Al-Islam Gaddafi”, 7 December 2012, ICC-01/11-01/11- 239, para. 122; id. Pre-Trial Chamber I, “Decision on the admissibility of the case against Abdullah Al-Senussi”, 11 October 2013,

text: -Red, para. 66(vii). 54 Ibid. 55 Appeals Chamber, “Judgment on the appeal of Libya against the decision of Pre-Trial Chamber I of 31 May 2013 entitled ‘Decision on the admissibility of the case against Saif Al- Islam Gaddafi’”, 21 May 2014,

text: -Red, para. 2. No. ICC-02/11-01/12 14/39 11 December 2014 such that the domestic case can be said to be the same as the case before the Court. 33. As far as the parameters of a case before the Court are concerned, the Chamber recalls that a case is defined by: (i) the suspect against whom the proceedings before the Court are being conducted; and (ii) the conduct giving rise to criminal liability under

text: the Statute

text: that is alleged in the proceedings. As stated by the Chamber, “the identification of the conduct that is alleged in the proceedings before the Court cannot be done in the abstract, but is necessarily dependent on the factual parameters of each individual case and requires a case-by-case analysis”. Further, “the parameters of the ‘conduct’ alleged in the proceedings before the Court in each individual case are those set out in the document that is statutorily envisaged as defining the factual allegations against the person at the phase of the proceedings in question”. 34. In relation to the defining parameters of the alleged domestic proceedings, the Chamber notes the Appeals Chamber’s jurisprudence according to which these parameters must be clear even during an investigation and irrespective of its stage. To be successful, a challenge to the admissibility of a case “must be able to show what is being investigated by the State (the contours or parameters of the case)”. Indeed, “[i]f a State is unable to present such parameters to the Court, no assessment of whether the same case is being investigated can be meaningfully made. In such 56 See Pre-Trial Chamber I, “Decision on the admissibility of the case against Abdullah Al- Senussi”, 11 October 2013,

text: -Red, para. 67. 57 See e.g. Appeals Chamber, “Judgment on the appeal of Libya against the decision of Pre- Trial Chamber I of 31 May 2013 entitled ‘Decision on the admissibility of the case against Saif Al-Islam Gaddafi’”, 21 May 2014,

text: -Red, para. 1. 58 Pre-Trial Chamber I, “Decision on the admissibility of the case against Abdullah Al- Senussi”, 11 October 2013,

text: -Red, para. 74. 59 Ibid., para. 66(iii). 60 Appeals Chamber, “Judgment on the appeal of Libya against the decision of Pre-Trial Chamber I of 31 May 2013 entitled ‘Decision on the admissibility of the case against Saif Al- Islam Gaddafi’”, 21 May 2014,

text: -Red, paras 83-84. 61 Ibid., para. 84. No. ICC-02/11-01/12 15/39 11 December 2014 circumstances, it would be unreasonable to suggest that the Court should accept that an investigation, capable of rendering a case inadmissible before the Court, is underway”. 35. Finally, given that the relevant factual situation as to the existence and scope of domestic proceedings “is not necessarily static, but ambulatory” and that “a decision on the admissibility of the case must be based on the circumstances prevailing at the time of its issuance”, for a State to discharge its burden of proof that there is currently no situation of “inaction” at the national level, it needs to substantiate that an investigation or prosecution is in progress at this moment. 36. As explained below, the Chamber is not satisfied that Côte d’Ivoire’s domestic authorities are currently taking tangible, concrete and progressive investigative steps into Simone Gbagbo’s criminal responsibility for the crimes alleged in the proceedings before the Court or that they are prosecuting her for these alleged crimes. Accordingly, it is unnecessary to set out the Chamber’s understanding of the criteria of unwillingness and inability within the meaning of article 17(1)(a) and as detailed in

text: article 17

text: (2) and (3) of

text: the Statute

text: 62 Ibid. 63 Appeals Chamber, “Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case”, 25 September 2009,

text: , para. 56. 64 Pre-Trial Chamber I, “Decision on the OPCD requests in relation to the hearing on the admissibility of the case”, ICC-01/11-01/11-212, para. 9. 65 Pre-Trial Chamber I, “Decision requesting further submissions on issues related to the admissibility of the case against Saif Al-Islam Gaddafi”, 7 December 2012, ICC-01/11-01/11- 239, para. 14. No. ICC-02/11-01/12 16/39 11 December 2014

text: IV. ANALYSIS

text: A. Preliminary matter: the Prosecutor’s request for leave to respond

text: At the outset, the Chamber addresses the Prosecutor’s request for leave to file a response to Côte d’Ivoire’s submissions and additional documentation filed on 10 October 2014. The Prosecutor anticipates that her response “will provide submissions on why the evidence currently on record, including the additional evidence recently submitted by Côte d’Ivoire, is still insufficient” to identify the actual contours of the national case against Simone Gbagbo and to discharge Côte d’Ivoire’s burden to prove that the domestic authorities are currently investigating the case. 38. The Chamber recognizes that under rule 58(3) of the Rules the Prosecutor has the right to submit observations on a challenge to the admissibility of a case before the Court. In principle, this extends to all the evidence provided in support of the challenge, irrespective of whether it was filed together with the challenge or submitted thereafter in the course of the admissibility proceedings. However, in the specific circumstances of the present case, the Chamber is of the view that receiving submissions by the Prosecutor on the additional evidence provided by Côte d’Ivoire on 10 October 2014 is not necessary to ensure the fairness of the present admissibility proceedings nor would it otherwise be of assistance to the final disposal of the Admissibility Challenge. The Chamber reaches this conclusion in light of the fact that on 10 October 2014 Côte d’Ivoire provided limited information and documentation in addition to that which had been filed previously and on which the Prosecutor had submitted her observations in April 2014. In this respect, the Prosecutor anticipates that in her response she would reiterate, on the same grounds, the arguments already made in her

text: 66 ICC-02/11-01/12-46. 67 Ibid., para. 4. No. ICC-02/11-01/12 17/39 11 December 2014 previous observations. This makes it all the more unnecessary to authorise the Prosecutor to file a response to Côte d’Ivoire’s final submissions and further prolong the present proceedings. Accordingly, the Prosecutor’s request must be rejected.

text: B. Significant features of Côte d’Ivoire’s criminal procedure law

text: As part of the consideration of the merits of the Admissibility Challenge, the Chamber considers it important to take into account the basic features of the relevant procedural law applicable in the purported national proceedings against Simone Gbagbo as set out in the Ivorian Code de Procédure Pénale, the relevant part of which were filed by Côte d’Ivoire with the Admissibility Challenge. In light of Côte d’Ivoire’s claim concerning the allegations brought against Simone Gbagbo at the national level and the stage purportedly reached by the domestic proceedings, the Chamber considers that certain aspects of the Ivorian criminal procedure are of particular significance for the purposes of the present decision. They are succinctly summarised hereunder. 40. An investigation by a juge d’instruction (“instruction préparatoire”) is mandatory for certain offences, including those of the nature alleged against Simone Gbagbo, (“crimes”), while for certain others (“délits”) such an investigation is, in ordinary circumstances, discretionary. The juge d’instruction may open an investigation only when the facts are referred to him or her by a request (“réquisitoire introductif”) from the Procureur de la République, which also sets the factual scope of the investigation. The juge d’instruction cannot expand the investigation unless another request, adding

text: 68 Annex 17 to the Admissibility Challenge. 69 Article 77 of the Code de procédure pénale. 70 Article 78-1 of the Code de procédure pénale; the juge d’instruction may also open an investigation at the request of a victim in accordance with articles 78-6, 85 and 86 of the Code de procédure pénale. No. ICC-02/11-01/12 18/39 11 December 2014 additional facts, (“réquisitoire supplétif”) is submitted by the Procureur to the juge d’instruction. The juge d’instruction is in charge of the investigation and may perform all investigative activities that he or she deems useful for the determination of the truth. Also, the juge d’instruction may make a request (“commission rogatoire”) for another juge d’instruction or an officier de police judiciaire to proceed with those acts subject of the jurisdiction of the latter that are necessary to progress with the investigation of the facts mentioned in either the réquisitoire introductif or the réquisitoire supplétif. 41. When appearing before the juge d’instruction for the first time (“première comparution”), the juge d’instruction notes the identity of the suspect, informs him or her of the facts alleged against him or her and receives his or her “déclarations”. As the case may be, the juge d’instruction can issue a warrant ordering that the suspect be placed under detention (“mandat de dépôt”). 42. Upon completion of the investigation, and on the basis of its results, the juge d’instruction may discontinue the proceedings (“ordonnance de nonlieu”), or refer the case to the Procureur Général of the Cour d’Appel, when offences qualified as “crimes” are alleged to have been committed, in order for him or her to seize the Chambre d’Accusation. The Chambre d'Accusation, together with its other functions related to the review of decisions of the juge d’instruction, determines whether there is sufficient evidence for the case to

text: 71 Article 78-5 of the Code de procédure pénale. 72 Article 79-1 of the Code de procédure pénale. 73 Article 151-1 and 151-3 of the Code de procédure pénale. 74 Article 112-1 of the Code de procédure pénale. 75 Article 120-1 and 120-4 of the Code de procédure pénale. 76 Article 177-1 of the Code de procédure pénale. 77 Article 181-1 of the Code de procédure pénale. No. ICC-02/11-01/12 19/39 11 December 2014

text: 78 79 proceed to trial. It may either discontinue the case or refer the case to the Cour d’Assises in order for it to conduct a trial.

text: C. Whether the same case against Simone Gbagbo that is before the Court is being investigated or prosecuted by Côte d’Ivoire

text: As recalled above, the first step in entertaining the Admissibility Challenge is to determine whether Côte d’Ivoire has sufficiently demonstrated that its domestic authorities are currently investigating or prosecuting Simone Gbagbo for the same case that is before the Court. 44. As already clarified in the Decision of 28 August 2014, the conduct alleged in the case against Simone Gbagbo before the Court is set out in the Warrant of Arrest, read with the Article 58 Decision and, by way of incorporation into the latter, the relevant parts of the “Decision on the Prosecutor’s Application Pursuant to Article 58 for a warrant of arrest against Laurent Koudou Gbagbo”. More specifically, the present case concerns the individual criminal responsibility of Simone Gbagbo for the commission, jointly with Laurent Gbagbo and his inner circle and through the Ivorian Defence and Security Forces (FDS), who were reinforced by youth militias and mercenaries, of the crimes of murder, rape and other forms of sexual violence, inhumane acts and persecution committed: (i) in the context of the march on the Radiodiffusion Télévision Ivoirienne (RTI) building on 16 December 2010; (ii) in the context of the women’s march in Abobo on 3 March 2011; (iii) in the context of the Abobo market shelling on 17 March 2011; and (iv) in relation to the Yopougon massacre on 12 April 2011. This is the relevant conduct alleged in the proceedings before the Court that must be covered by

text: 78 Article 211-1 of the Code de procédure pénale 79 Article 212-1 of the Code de procédure pénale. 80 Article 214-1 of the Code de procédure pénale. 81 Pre-Trial Chamber III, “Decision on the Prosecutor’s Application Pursuant to Article 58 for a warrant of arrest against Laurent Koudou Gbagbo”, 30 November 2011,

text: - Red. No. ICC-02/11-01/12 20/39 11 December 2014 the ongoing purported domestic proceedings in Côte d’Ivoire in order for the Admissibility Challenge to succeed. 45. At this juncture, the Chamber will proceed to analyse the national proceedings instituted against Simone Gbagbo, on the basis of the documentation made available by Côte d’Ivoire; it, thereafter, will provide its determination as to whether this documentation sufficiently demonstrates that the same case against Simone Gbagbo that is before the Court is currently being investigated or prosecuted by the competent Ivorian authorities. 1. The national proceedings against Simone Gbagbo according to the documents provided to the Chamber 46. The documentation provided by Côte d’Ivoire indicates that, after Simone Gbagbo’s arrest in April 2011, several proceedings were instituted against her before the juges d’instruction of the 8ème, 9ème and 10ème Cabinet d’Instruction of the Tribunal de Première Instance d’Abidjan-Plateau. In particular, it appears that three sets of proceedings, running in parallel, were opened before these juges d’instructions. 47. First, in a set of proceedings Simone Gbagbo is accused of having committed economic crimes, namely the proceedings referred to as RI-09/2012, RI-33/2012 and RI-04/2012. The conduct alleged against Simone Gbagbo in these proceedings is clearly of a different nature to that giving rise to her criminal responsibility as alleged in the case before the Court. Documents from the record of these proceedings are therefore irrelevant for the purpose of the present decision, as they are unable to substantiate that the

text: 82 More specifically, Simone Gbagbo is accused of s” as well as ” (See Annex 8 to the Admissibility Challenge, p. 8). No. ICC-02/11-01/12 21/39 11 December 2014 case against Simone Gbagbo is “being investigated or prosecuted” at the national level within the meaning of

text: article 17

text: (1)(a) of

text: the Statute

text: . 48. Second, proceedings have also been opened for alleged crimes against the State, in particular, in case RI-01/2011 instituted before the juge d’instruction du 10ème Cabinet d’Instruction. The proceedings in this case have reached the Chambre d’Accusation which, on 10 July 2013, confirmed certain charges against Simone Gbagbo and other 89 individuals and referred the case for trial to the Cour d’Assises d’Abidjan. As indicated in the decision of the Chambre d’Accusation, Simone Gbagbo is essentially accused, and committed to trial, for

text: . There are also references to, inter alia, the allegations of . 49. The Chamber notes that the provisions criminalising this alleged conduct, as mentioned in the decision of the Chambre d’Accusation, fall within the “Livre II, Titre I, Chapitre 2” of the Ivorian Criminal Code entitled “Crimes et délits contre la sûreté de l’Etat, la défense nationale et la sécurité publique”. The factual description of the allegations against Simone Gbagbo as well as their legal characterisation make clear that the scope of the alleged conduct covers

text: 83 In this case, Simone Gbagbo is accused of “

text: ” (See Annexes 5, p. 9, and 10, p. 17, to the Admissibility Challenge). 84 Annex 10 the Admissibility Challenge. 85 Ibid., pp. 47-50. 86 Ibid., pp. 67-69 and 77. 87 The Chamber considers that, while the assessment of the subject-matter of the domestic proceedings in the context of an admissibility challenge must focus on the alleged conduct and not on its legal characterisation (see Pre-Trial Chamber I, “Decision on the admissibility No. ICC-02/11-01/12 22/39 11 December 2014 only . Killings, rapes or acts causing great suffering or serious injury to individuals, as alleged in the case before the Court, are not covered by these proceedings. Accordingly, these proceedings – in which a determination could only be made on whether Simone Gbagbo’s actions – do not cover the same conduct that is alleged in the case before the Court and, as such, do not give rise to a conflict of jurisdictions between the Court and Côte d’Ivoire under

text: article 17

text: (1)(a) of

text: the Statute

text: . 50. Finally, a third set of proceedings instituted against Simone Gbagbo concern crimes against individuals. Since these are crimes of the same nature as those alleged in the case before the Court, this set of proceedings must be considered in further detail. The documentation that Côte d’Ivoire made available to the Chamber indicates that in these proceedings the competent domestic authorities undertook a number of activities, of both a procedural and investigative nature. 51. On 6 February 2012, the Procureur de la République transmitted three réquisitoires introductifs to the juges d’instruction of the 8ème, 9ème and 10ème Cabinet d’Instruction of the Tribunal de Première Instance d’Abidjan-Plateau, competent for the areas of , respectively. The three réquisitoires introductifs describe the relevant allegations against Simone Gbagbo (and at least another 16 individuals, including ) as follows: “présomptions graves de

text: of the case against Saif Al-Islam Gaddafi”, 31 May 2013,

text: -Red, para. 85), in the present instance the legal characterisation of the acts alleged against Simone Gbagbo constitutes a significant indicator of the actual subject-matter of the domestic proceedings under consideration. 88 Annex 2 to the Admissibility Challenge. No. ICC-02/11-01/12 23/39 11 December 2014

text: ”. As a result, three proceedings were opened against Simone Gbagbo (and others) on these allegations: proceedings RI-08/2012 before the juge d’instruction of the 8ème Cabinet; proceedings RI-32/2012 before the juge d’instruction of the 9ème Cabinet; and proceedings RI-03/2012 before the juge d’instruction of the 10ème Cabinet. Also, on 16 May 2012, the Prosecutor transmitted to the juge d’instruction of the 10ème Cabinet a réquisitoire supplétif, which was registered in the case RI-03/2012, and by which additional allegations against Simone Gbagbo (namely “chefs de

text: ”) were added to those identified in the original réquisitoire introductif of 6 February 2012. 52. After the opening of the respective proceedings, Simone Gbagbo appeared on at least four occasions at premières comparutions before the juge d’instruction of the Section de Tribunal d’Odienné acting in execution of commissions rogatoires issued by the competent juge d’instruction. In particular, first appearances took place: (i) on 29 February 2012, in the case RI- 08/2012, in execution of a request by the juge d’instruction of the 8ème Cabinet; (ii) on 20 April 2012, in the case RI-32/2012, in execution of a request by the

text: 89 Annex 4 to the Admissibility Challenge. The Chamber notes that the official minutes of the première comparution of 3 December 2012 in the case RI-32/2012 before the juge d’instruction of the 9ème Cabinet, make reference to allegations of (ICC- 02/11-01/12-37-Conf-Anx14). It is therefore likely that, between 20 April 2012 and 3 December 2012, there was a réquisitoire supplétif adding these additional allegations also in case RI- 32/2012. No such document was however provided to the Chamber. 90 The Chamber notes that the juge d’instruction had to conduct the première comparution of Simone Gbagbo given that the Procureur de la République had presented a réquisitoire introductif against identified persons (“réquisitoire introductif contre personne dénommée”, within the meaning of article 78-3 of the Code de procédure pénale), including Simone Gbagbo. The only other option for the juge d’instruction would have been to take a decision declining to open an investigation against her. 91 ICC-02/11-01/12-37-Conf-Anx12. No. ICC-02/11-01/12 24/39 11 December 2014 juge d’instruction of the 9ème Cabinet; (iii) on 13 November 2012, in the case

text: RI-03/2012, in execution of a request by the juge d’instruction of the 10ème

text: Cabinet; and (iv) on 3 December 2012, again in the case RI-32/2012, pursuant

text: to another request by the juge d’instruction of the 9ème Cabinet.

text: The official minutes (procès-verbaux) of these first appearances indicate

text: that Simone Gbagbo was informed of the allegations against her in the

text: respective proceedings, that are essentially of

text: 95 96

text: , as well as .

text: The timeframe of the alleged crimes is indicated as “courant années 2010 et

text: 2011”, and the location as Abidjan.

text: The mandats de dépôt for the allegations indicated at these first

text: appearances that are available to the Chamber were issued by the competent

text: 98 99

text: juges d’instruction on 20 April 2012, 13 November 2012 and 3 December

text: Annex 6 to the Admissibility Challenge. ICC-02/11-01/12-37-Conf-Anx13. The commission rogatoire by the juge d’instruction of the 10ème Cabinet dated 8 November 2012 is also available to the Chamber as included at Annex 5 to the Admissibility Challenge, pp. 11-12. ICC-02/11-01/12-37-Conf-Anx14. ICC-02/11-01/12-37-Conf-Anx12; Annex 6 to the Admissibility Challenge; ICC-02/11-01/12- 37-Conf-Anx13. ICC-02/11-01/12-37-Conf-Anx13; ICC-02/11-01/12-37-Conf-Anx14. In case RI-08/2012 before the juge d’instruction of the 8ème Cabinet, reference is made more specifically to . Annex 7 to the Admissibility Challenge. The detention of Simone Gbagbo pursuant to this mandat de dépôt was subsequently extended on 14 August 2012 (ICC-02/11-01/12-37-Conf- Anx7), 26 November 2012 (ICC-02/11-01/12-37-Conf-Anx9) and 18 March 2013 (ICC-02/11- 01/12-37-Conf-Anx11). ICC-02/11-01/12-37-Conf-Anx2.

text: No. ICC-02/11-01/12 25/39 11 December 2014

text: 2012, respectively. They all refer to the same alleged crimes and the same incriminating provisions mentioned in the respective initial appearances. 55. The different dossiers opened for crimes against individuals before the three juges d’instruction were subsequently reassigned to the juge d’instruction of the 8ème Cabinet by virtue of a decision of the Chambre d’Accusation of the Court of Appeal of Abidjan dated 13 February 2013, which recognised the inextricable links between the alleged facts. 56. Together with these activities of a procedural nature, the documentation provided by Côte d’Ivoire indicates that the competent domestic authorities undertook also certain investigative activities with a view to collecting information relevant to determine Simone Gbagbo’s responsibility for the alleged crimes. These investigative steps are summarised hereunder. 57. On 11 May 2012, the juge d’instruction of the 8ème Cabinet ordered a site visit . The Prosecutor of the Court contends that

text: . 58. On 12 November 2012, the juge d’instruction of the 9ème Cabinet

text: 100 ICC-02/11-01/12-37-Conf-Anx4. 101 Annex 8 to the Admissibility Challenge. 102 ICC-02/11-01/12-37-Conf-Anx20. See also ICC-02/11-01/12-37-Conf-Anx21. 103 ICC-02/11-01/12-41-Conf, para. 53. No. ICC-02/11-01/12 26/39 11 December 2014

text: . 59. On 7 December 2012, Simone Gbagbo appeared before the juge d’instruction of the 9ème Cabinet for the purposes of being questioned on the merits (interrogatoire au fond) in case RI-32/2012. As

text: , the planned questioning did not take place on this occasion. 60. On 23 January 2013, a partie civile was heard by the juge d’instruction of the 9ème Cabinet in relation to certain discrete events that had occurred on and that allegedly involved Simone Gbagbo. While certain discrete aspects referred to by the partie civile may be relevant to determine Simone Gbagbo’s conduct in the context of the 2010-2011 post-electoral crisis, these specific events are not, in themselves, covered by the case against Simone Gbagbo before the Court. Also, this interview is recorded as having taken place in proceedings RI-38/2012, which, in light of the information available to the Chamber, does not appear to be one of those proceedings instituted against Simone Gbagbo. Nevertheless, the Chamber cannot exclude that information gathered for the purposes of one case may be taken into consideration and relied on in another case. Indeed, in an interview dated 9 September 2014, Simone Gbagbo .

text: 104 Annex 5 to the Admissibility Challenge, at pp. 2-3. 105 Ibid., at p. 5. 106 ICC-02/11-01/12-37-Conf-Anx15. 107 ICC-02/11-01/12-37-Conf-Anx18. 108 ICC-02/11-01/12-45-Conf-Anx1, pp. 11-12. No. ICC-02/11-01/12 27/39 11 December 2014

text: The available documentation does not indicate any investigative step of potential relevance to the allegations of crimes against individuals from January 2013 up until, at least, February 2014. Similarly, and as recalled above, the only procedural steps taken in this period are the issuance, in February 2013, of the decision by the Chambre d’Accusation reassigning the different dossiers to a single juge d’instruction, and the prolongation, on 18 March 2013, of Simone Gbagbo’s state of detention originally ordered pursuant to the mandat de dépôt of 20 April 2012. 62. On 4 and 5 February 2014, Simone Gbagbo appeared before the juge d’instruction of the 8ème Cabinet, in order for the judge to conduct a questioning on the merits for the purposes of proceedings RI-03/2012, RI- 08/2012 and RI-32/2012. Also on this occasion, Simone Gbagbo’s appearance was finally limited to mere procedural aspects

text: . 63. The questioning on the merits in case RI-08/2012 eventually took place 112 113 114 on 9 and 10 September 2014, and 2 and 3 October 2014. During these appearances before the juge d’instruction, Simone Gbagbo was asked, and she briefly responded to, broad questions in relation to, inter alia, her activities

text: 109 Annex 8 to the Admissibility Challenge. 110 See ICC-02/11-01/12-37-Conf-Anx11. 111 ICC-02/11-01/12-37-Conf-Anx16 and ICC-02/11-01/12-37-Conf-Anx17. 112 ICC-02/11-01/12-45-Conf-Anx1 and ICC-02/11-01/12-45-Conf-Anx2, respectively. This particular questioning was held also for proceedings RI-03/2011, for which the Chamber is unable to determine whether they concern allegations of economic crimes or of crimes against individuals. 113 ICC-02/11-01/12-45-Conf-Anx3. 114 ICC-02/11-01/12-45-Conf-Anx4. No. ICC-02/11-01/12 28/39 11 December 2014

text: , as well as her knowledge of: (i) ; (ii) ; (iii)

text: ; and (iv) . During the interview of 10 September 2014, she was also asked whether she knew about and what her reaction to this event had been at that time. No answer on the merits was, however, given by Simone Gbagbo on this particular issue, which was not addressed any further by the juge d’instruction. 64. Finally, the Chamber notes that, among the documents provided by Côte d’Ivoire, there is also a constitution de partie civile that was received by the office of the juge d’instruction of the 8ème Cabinet on 24 April 2012. The list of

text: . However, this document is a claim by individuals who assert themselves as victims of certain crimes and who

text: 115 ICC-02/11-01/12-45-Conf-Anx1, pp. 8, 9; 11, ICC-02/11-01/12-45-Conf-Anx2, pp. 7, 8, ICC- 02/11-01/12-45-Conf-Anx3, pp. 4, 5, 6 and 7; ICC-02/11-01/12-45-Conf-Anx4, p. 6, 7, 8. 116 ICC-02/11-01/12-45-Conf-Anx2, pp. 3-5, 7. 117 ICC-02/11-01/12-45-Conf-Anx2, pp. 5-7; ICC-02/11-01/12-45-Conf-Anx4, pp, 7-8. 118 ICC-02/11-01/12-45-Conf-Anx3, pp. 4-6, 9-10. 119 ICC-02/11-01/12-45-Conf-Anx2, pp. 10-11. 120 ICC-02/11-01/12-45-Conf-Anx2, p. 9. 121 ICC-02/11-01/12-37-Conf-Anx19. No. ICC-02/11-01/12 29/39 11 December 2014 exercise their procedural rights under article 87 of the Code de procédure pénale. In itself, it neither indicates any procedural step on the part of the national authorities nor does it demonstrate that the competent authorities are actually investigating these alleged crimes. Equally this document provides no concrete information as to the actual subject-matter of the domestic investigations. 2. The Chamber’s determination on the admissibility of the case against Simone Gbagbo 65. The available documentation shows that national proceedings in which Simone Gbagbo is accused of crimes against individuals have been initiated in Côte d’Ivoire in 2012 and, to date, remain before the competent juge d’instruction, who is yet to make a determination on whether to dismiss the case or refer it to the Procureur Général for seizing the Chambre d’Accusation. However, the initiation of these proceedings, still formally opened, and the fact that Simone Gbagbo was placed and maintained in detention and informed of the accusations against her are not sufficient per se to demonstrate that the case against her “is being investigated” within the meaning of

text: article 17

text: (1)(a) of

text: the Statute

text: . Indeed, for the Admissibility Challenge to succeed, it must be established that tangible, concrete and progressive investigative steps are being undertaken in order to ascertain whether Simone Gbagbo is criminally responsible for the conduct alleged in the proceedings before the Court. Yet, from the documentation provided by Côte d’Ivoire, it appears that the investigative activities undertaken by the domestic authorities are not tangible, concrete and progressive, but, on the contrary, sparse and disparate.

text: 122 Article 85 of the Ivorian Code de Procédure Pénale reads: “Toute personne qui se prétend lésée par un crime ou un délit peut en portant plainte se constituer partie civile devant le juge d; Instruction compétent” (Annex 17 to the Admissibility Challenge). 123 See para. 30 above. No. ICC-02/11-01/12 30/39 11 December 2014

text: In the 32 months between the réquisitoires introductifs of 6 February 2012 and Côte d’Ivoire’s most recent filing of 10 October 2014, the relevant investigative activities conducted by the national authorities appear, from the documentation available to the Chamber, to have been limited to: (i) ; (ii) the in November 2012; (iii) the hearing of a partie civile of 23 January 2013, and (iv) the questioning of Simone Gbagbo. 67. The “Inventaire des pièces des procédure instruites à la requête du Ministère public” submitted by Côte d’Ivoire together with the Admissibility Challenge on 30 September 2013 which covers both the allegations of crimes against individuals and economic crimes indicates no further activity taken by the competent authorities in the proceedings against Simone Gbagbo in addition to those recalled in the present decision. More specifically, the section “cote information” – which in a case of the breadth as that of the purported domestic case against Simone Gbagbo would reasonably be expected to be extensive – essentially lists only Simone Gbagbo’s appearance at several premières comparutions and at the questioning of 7 December 2012, and in November 2012. In this regard, the Chamber notes that, while the juge d’instruction may proceed to any

text: 124 The Chamber notes that the commission rogatoire of 8 November 2012 contains the sentence “ ” (Annex 5 to the Admissibility Challenge, p. 12). In the absence of any further information or documentation in this respect, the Chamber is, however, unable to make any use of this reference for the purpose of the present decision. 125 ICC-02/11-01/12-37-Conf-Anx20 and ICC-02/11-01/12-37-Conf-Anx21. 126 Annex 5 to the Admissibility Challenge, pp. 2 to 6. 127 ICC-02/11-01/12-37-Conf-Anx18. 128 ICC-02/11-01/12-37-Conf-Anx15; ICC-02/11-01/12-37-Conf-Anx16; ICC-02/11-01/12-37- Conf-Anx17; ICC-02/11-01/12-45-Conf-Anx1; ICC-02/11-01/12-45-Conf-Anx2; ICC-02/11-01/12- 45-Conf-Anx3; ICC-02/11-01/12-45-Conf-Anx4. 129 Annex 9 to the Admissibility Challenge. 130 Ibid., p. 2. No. ICC-02/11-01/12 31/39 11 December 2014 investigative activity which he or she finds useful to determine the truth, including taking of witness testimonies, ordering confrontations between the suspect and the witnesses or between the suspect and the parties civiles, or ordering any necessary forensic or other expertise concerning the crimes committed, the documentation available to the Chamber does not show that any investigative step of these kinds was ordered by the juge d’instruction, whether on his own motion or at the request of the Procureur de la République, in the proceedings against Simone Gbagbo. This is so despite the fact that the national investigative authorities have direct access to any relevant evidence on their territory. 68. Furthermore, the Chamber considers significant that no investigative (or procedural) step in the proceedings for allegations of crimes against individuals appears to have been undertaken since several months before the filing of the Admissibility Challenge on 30 September 2013. In particular, at that time, no activity to collect relevant evidence had been undertaken by the domestic authorities since at least 23 January 2013, and would not be attempted until at least 4 February 2014 69. Also, the Chamber observes that in the last 20 months of investigations, between 23 January 2013 and 10 October 2014, the steps directed at determining Simone Gbagbo’s responsibility for the alleged crimes appear to be limited to one single activity: the questioning of Simone Gbagbo. The Chamber also notes that the interviews of 9 and 10 September 2014 and 2 and 3 October 2014 (the only questioning during which the juge d’instruction

text: 131 Article 101 of the Code de procédure pénale. The juge d’instruction could also delegate, in accordance with article 151 of the Code de procédure pénale, by way of a commission rogatoire the taking of witness testimonies to an officier de police judiciaire. 132 Article 115 of the Code de procédure pénale. 133 Article 156 of the Code de procédure pénale. 134 ICC-02/11-01/12-45-Conf-Anx1 and ICC-02/11-01/12-45-Conf-Anx2. 135 ICC-02/11-01/12-45-Conf-Anx3 and ICC-02/11-01/12-45-Conf-Anx4. No. ICC-02/11-01/12 32/39 11 December 2014 achieved to elicit from Simone Gbagbo some limited information after the 136 137 failed attempts of December 2012 and February 2014 ) were conducted after the Chamber’s Decision of 28 August 2014 authorising Côte d’Ivoire to provide, by 10 October 2014, further evidence in support of the Admissibility Challenge. 70. The investigative steps into Simone Gbagbo’s criminal responsibility are not only scarce in quantity and lacking in progression. They also appear disparate in nature and purpose to the extent that the overall factual contours of the alleged domestic investigations (as part of which these individual investigative steps were undertaken) remain indiscernible. In this sense, the Chamber is unable to establish whether these limited steps undertaken at the national level are together directed at ascertaining Simone Gbagbo’s criminal responsibility for the same conduct as that alleged in the proceedings before the Court. 71. Indeed, the documentation available to the Chamber only contains generic descriptions of the crimes alleged and provides extremely vague information as to the factual parameters of the purported investigations. In essence, the only information available to the Chamber is that the opened investigations concern crimes against individuals allegedly committed by Simone Gbagbo and others in the time frame and context of the 2010-2011 post-electoral violence in Abidjan. However, the facts underpinning the charges against her and the underlying criminal acts that the national authorities have purportedly investigated since 6 February 2012 remain unclear and undefined. 72. The documents related to the discrete investigative activities undertaken in the domestic proceedings indeed do not assist in identifying 136 ICC-02/11-01/12-37-Conf-Anx15. 137 ICC-02/11-01/12-37-Conf-Anx16 and ICC-02/11-01/12-37-Conf-Anx17. No. ICC-02/11-01/12 33/39 11 December 2014 the defining parameters of the national investigations. More specifically, the “Ordonnance de Transport sur le lieux” and the subsequent procès-verbal of the reveal an attempt to collect evidence relevant to the alleged economic crimes and crimes against individuals, but contain no further information, including on the factual allegations brought against Simone Gbagbo that are subject to the investigations; the procès-verbal of the hearing of the partie civile indicates that a purported victim was heard with respect to discrete, distinct events that allegedly occurred on (in any case not forming part of the case before the Court), without revealing the general breadth of the factual case against Simone Gbagbo that is allegedly being investigated in Côte d’Ivoire; and

text: , does not provide any information as to the factual scope of the domestic case against Simone Gbagbo. 73. In relation to the official minutes of the questioning of September and October 2014, the Chamber recognizes that the questioning did address some relevant aspects of the factual case against Simone Gbagbo that is before the Court and that the questions posed indicate an attempt by the domestic authorities to elicit relevant information on the events occurred between the second round of the presidential elections on 28 November 2010 and Laurent Gbagbo’s arrest on 11 April 2011. However, as far as the subject-matter of the proceedings against Simone Gbagbo is concerned, the minutes do not provide real assistance in discerning the factual criminal conduct attributed to her or the facts underlying the accusations that are purportedly being investigated. 138 ICC-02/11-01/12-37-Conf-Anx20. 139 ICC-02/11-01/12-37-Conf-Anx21. No. ICC-02/11-01/12 34/39 11 December 2014

text: Rather, the broad and generic questions posed to her largely relate to

text: . In this sense, these procès-verbaux merely indicate that the purported domestic proceedings concern the alleged commission by Simone Gbagbo (and others) of crimes against individuals in the context of the 2010-2011 post-electoral violence in Abidjan. 74. The documents that refer to procedural activities by the domestic authorities do not provide any further information as to the defining factual parameters of the domestic investigations. Indeed, they essentially list, or quote in full, the relevant provisions of the Ivorian Criminal Code: in 140 141 particular, this is the case of the réquisitoires introductifs and supplétif, the different procès-verbaux de première comparution, the mandats de dépôt and the ordonnances de détention préventive, and the decision of the Chambre d’Accusation reassigning the different proceedings to a single juge d’instruction. 75. In addition, the information available to the Chamber on the scope of the national proceedings against Simone Gbagbo is also unclear with respect to the crimes that are allegedly being pursued. For example, the decision of the Chambre d’Accusation of February 2013 reassigning the dossiers to a single juge d’instruction lists the allegations against Simone Gbagbo in the different

text: 140 Annex 2 to the Admissibility Challenge. 141 Annex 4 to the Admissibility Challenge. 142 Annex 6 to the Admissibility Challenge; ICC-02/11-01/12-37-Conf-Anx12; ICC-02/11-01/12- 37-Conf-Anx13; ICC-02/11-01/12-37-Conf-Anx14. 143 Annex 7 to the Admissibility Challenge; ICC-02/11-01/12-37-Conf-Anx3; ICC-02/11-01/12- 37-Conf-Anx3; ICC-02/11-01/12-37-Conf-Anx4; ICC-02/11-01/12-37-Conf-Anx6; ICC-02/11- 01/12-37-Conf-Anx7; ICC-02/11-01/12-37-Conf-Anx8; ICC-02/11-01/12-37-Conf-Anx9; ICC- 02/11-01/12-37-Conf-Anx10; ICC-02/11-01/12-37-Conf-Anx11. 144 Annex 8 to the Admissibility Challenge. No. ICC-02/11-01/12 35/39 11 December 2014 proceedings, but makes no reference to the allegations of which had been the object of the réquisitoire supplétif of May 146 147 2012 and were mentioned at the premières comparutions of 13 November and 3 December 2012 in the proceedings before both the juge d’instruction of the 9ème Cabinet and the juge d’instruction of the 10ème Cabinet. It is therefore unclear whether these allegations were still being pursued when the Chambre d’Accusation issued its decision on 13 February 2013. 76. Therefore, even considering the different documents altogether, the Chamber is not in a position to discern, with sufficient clarity, the subject-matter of the limited, discrete investigative steps undertaken by the domestic authorities, as well as, more in general, the overall factual scope of Côte d’Ivoire’s purported investigations. In this regard, the Chamber recalls that, according to the jurisprudence of the Appeals Chamber, the State challenging the admissibility of a case, even when the alleged domestic proceedings are still at an early stage of investigation, must be able to show the contours or parameters of that investigation in order to determine the subject-matter of the national investigation. If a State is unable to clearly indicate the contours of its national investigation, the State cannot assert that there exists a conflict of jurisdictions with the Court. 77. The Chamber also recalls that it is for the State challenging admissibility to provide, together with its challenge, sufficient evidence to substantiate that the case before the Court is being investigated or prosecuted

text: 145 Annex 8 to the Admissibility Challenge, p. 8. 146 Annex 4 to the Admissibility Challenge. 147 ICC-02/11-01/12-37-Conf-Anx13. 148 ICC-02/11-01/12-37-Conf-Anx14. 149 Appeals Chamber, “Judgment on the appeal of Libya against the decision of Pre-Trial Chamber I of 31 May 2013 entitled ‘Decision on the admissibility of the case against Saif Al- Islam Gaddafi’”, 21 May 2014,

text: -Red, paras 83-84. No. ICC-02/11-01/12 36/39 11 December 2014 at the national level. In the view of the Chamber, Côte d’Ivoire has been accorded sufficient opportunities to substantiate its claim that the competent national authorities are investigating Simone Gbagbo for the same conduct that is alleged in the proceedings before the Court. In particular, on 28 August 2014, upon review of the documentation initially submitted by Cote d’Ivoire, the Chamber drew its attention to the need to: (i) substantiate that domestic proceedings against Simone Gbagbo were in progress; and (ii) provide further evidence indicating the defining factual parameters of such proceedings, including in relation to Simone Gbagbo’s conduct allegedly being investigated by the domestic authorities and on whether, and to what extent, the anticipated case at the national level covered fully or in part Simone Gbagbo’s responsibility for acts of murder, rape and other forms of sexual violence inhumane acts and persecution committed within the context of the march on the RTI building on 16 December 2010, the women’s march in Abobo on 3 March 2011, the Abobo market shelling on 17 March 2011, and the Yopougon massacre on 12 April 2011. The Chamber granted Côte d’Ivoire an additional opportunity to complement its Admissibility Challenge in particular in respect of these issues. 78. However, the documentation provided as part of, and in addition to, the Admissibility Challenge does not demonstrate that concrete, tangible and progressive investigative steps are being undertaken by the domestic authorities of Côte d’Ivoire in order to ascertain Simone Gbagbo’s criminal responsibility for the same conduct as that alleged in the proceedings before 150 See e.g., Appeals Chamber, “Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled ‘Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to

text: Article 19

text: (2)(b) of

text: the Statute

text: ’”, 30 August 2011,

text: , para. 98; and id., “Judgment on the appeal of Libya against the decision of Pre-Trial Chamber I of 31 May 2013 entitled ‘Decision on the admissibility of the case against Saif Al-Islam Gaddafi’”, 21 May 2014, ICC-01/11-01/11- 547-Red, para. 198. 151 Pre-Trial Chamber I, “Decision on further submissions on issues related to the admissibility of the case against Simone Gbagbo”, 28 August 2014, ICC-02/11-01/12-44. No. ICC-02/11-01/12 37/39 11 December 2014 the Court. Nor does this documentation indicate that Simone Gbagbo is currently being prosecuted by Côte d’Ivoire for the same conduct attributed to her in the case before the Court.

text: V. CONCLUSION

text: In light of the above, the Chamber concludes that Côte d’Ivoire has not demonstrated that the case against Simone Gbagbo alleged in the proceedings before the Court is currently subject to domestic proceedings within the meaning of

text: article 17

text: (1)(a) of

text: the Statute

text: . Accordingly, the Chamber finds that the present case is admissible before the Court. 80. The present decision disposing of the Admissibility Challenge results in the termination of the effects of

text: article 95

text: of

text: the Statute

text: , which, as of the filing of the Admissibility Challenge on 30 September 2013, had allowed Côte d’Ivoire to postpone the execution of the request for the surrender of Simone Gbagbo to the Court. Côte d’Ivoire shall therefore proceed to surrender Simone Gbagbo to the Court without delay.

text: FOR THESE REASONS, THE CHAMBER

text: REJECTS the Prosecutor’s request for leave to respond; REJECTS Côte d’Ivoire’s challenge to the admissibility of the case against Simone Gbagbo before the Court; and REMINDS Côte d’Ivoire of its obligation to surrender Simone Gbagbo to the Court without delay.

text: 152 See Pre-Trial Chamber I, “Decision on the conduct of the proceedings following Côte d’Ivoire’s challenge to the admissibility of the case against Simone Gbagbo”, 15 November 2013, ICC-02/11-01/12-15. No. ICC-02/11-01/12 38/39 11 December 2014

text: Judge Silvia Fernández de Gurmendi Presiding Judge

text: ____________________________ _______________________________

text: Judge Ekaterina Trendafilova Judge Christine Van den Wyngaert

text: Dated this 11 December 2014 At The Hague, The Netherlands

text: No. ICC-02/11-01/12 39/39 11 December 2014

title: The Prosecutor v. Simone Gbagbo