doctype: admissibility

identifier: ICC-01/14-01/18 (Decision on the Yekatom Defence's Admissibility Challenge)

decisionType: admissibility

title: Decision on the Yekatom Defence's Admissibility Challenge

text: the Statute

text: Rome Statute, article 17

text: Rome Statute, article 19

text: the Statute, article 37

text: Rome Statute, article 64

text: Rome Statute, article 68

text: Original: English No. ICC-01/14-01/18 Date: 28 April 2020

text: TRIAL CHAMBER V

text: Before: Judge Bertram Schmitt, Presiding Judge Judge Péter Kovács Judge Chang-ho Chung

text: SITUATION IN THE CENTRAL AFRICAN REPUBLIC II

text: IN THE CASE OF THE PROSECUTOR v. ALFRED YEKATOM AND PATRICE-EDOUARD NGAÏSSONA

text: Public

text: Decision on the Yekatom Defence’s Admissibility Challenge

text: No: ICC-01/14-01/18 1/12 28 April 2020

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

text: The Office of the Prosecutor Counsel for the Alfred Yekatom

text: Fatou Bensouda Mylène Dimitri James Stewart Peter Robinson Kweku Vanderpuye

text: Counsel for Patrice-Edouard Ngaïssona

text: Geert-Jan Alexander Knoops

text: Legal Representatives of Victims Legal Representatives of Applicants

text: Abdou Dangabo Moussa Elisabeth Rabesandratana Yaré Fall Marie-Edith Douzima-Lawson Paolina Massidda Dmytro Suprun

text: Unrepresented Victims Unrepresented Applicants for Participation/Reparations

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

text: States Representatives Amicus Curiae

text: Central African Republic

text: REGISTRY Registrar Counsel Support Section

text: Peter Lewis

text: Victims and Witnesses Unit Detention Section

text: Victims Participation and Reparations Other Section

text: No: ICC-01/14-01/18 2/12 28 April 2020

text: TRIAL CHAMBER V of the International Criminal Court, in the case of The

text: Prosecutor v. Alfred Yekatom and Patrice-Edouard Ngaïssona, having regard to

text: Articles 17

text: (2) and

text: of the

text: Rome Statute

text: (the ‘Statute’), issues this ‘Decision

text: on the Yekatom Defence’s Admissibility Challenge’.

text: I. Procedural history and submissions

text: On 30 May 2014, the Central African Republic (the ‘CAR’) referred the

text: situation in the CAR since 1 August 2012 to the Office of the Prosecutor (the

text: ‘Prosecution’).

text: On 11 November 2018, Pre-Trial Chamber II (the ‘PTC II’) issued a warrant of

text: arrest against Mr Yekatom. On 17 November 2018, the CAR authorities

text: surrendered him to the Court. On 23 November 2018, Mr Yekatom made his 4 initial appearance before PTC II.

text: On 11 December 2019, PTC II confirmed several charges against Mr Yekatom 5 (the ‘Confirmation Decision’).

text: On 17 March 2020, the Registry transmitted the record of the proceedings to

text: this Chamber, including the Confirmation Decision.

text: On the same day, the Yekatom Defence (the ‘Defence’) challenged the

text: admissibility of the case against Mr Yekatom (the ‘Admissibility Challenge’

text: and ‘Mr Yekatom’s Case’, respectively). In essence, the Defence requests that

text: 1 Presidency, Annex 1 to the Decision Assigning the Situation in the Central African Republic II to Pre-Trial Chamber II, 18 June 2014, ICC-01/14-1-Anx1 (the ‘Referral’). 2 Warrant of Arrest for Alfred Yekatom,

text: -Conf-Exp, confidential ex parte, only available to the Prosecution and the Yekatom Defence (public redacted version notified on 17 November 2018). See Decision on the confirmation of charges against Alfred Yekatom and Patrice-Edouard Ngaïssona 11 December 2019,

text: -Conf (public redacted version notified on 20 December 2019,

text: -Red), para. 3. 4 See transcript of hearing, ICC-01/14-01/18-T-001-ENG. 5 Confirmation Decision,

text: -Red. 6 Transmission to Trial Chamber V of the record of the proceedings, including the Decision on the confirmation of charges against Alfred Yekatom and Patrice-Edouard Ngaïssona, ICC-01/14-01/18-455 (with Annex 1, under seal ex parte, only available to the Registry; and Annexes 2 and 3, confidential ex parte, only available to the Registry). 7 Yekatom Defence’s Admissibility Challenge – Complementarity, ICC-01/14-01/18-456.

text: No: ICC-01/14-01/18 3/12 28 April 2020 the Chamber declare Mr Yekatom’s Case inadmissible on the grounds that the CAR authorities are ‘now capable to prosecute him in their own Special Criminal Court’ (the ‘SCC’). At the same time, the Defence requests that the Chamber take a step-by-step approach by (i) inviting ‘written submissions from the CAR authorities addressing whether, notwithstanding the OTP’s invocation of Article 37 [of the CAR’s Organic Law 15/003 (the ‘Organic Law’) ], it would be willing and able to investigate and prosecute Mr. Yekatom’s case if given the opportunity to do so’; (ii) ‘if the answer is in the affirmative, giv[ing] the CAR authorities a fixed period of time to open an investigation and/or commence a prosecution of Mr. Yekatom and encourage the OTP to share the results of its investigation with the SCC to enable it to act expeditiously’ and (iii) ‘if an active investigation and/or prosecution has been commenced during this period, declar[ing] Mr. Yekatom’s case inadmissible and order his transfer 10 to the custody of the CAR authorities’ (the ‘Sequential Approach’).

text: The Defence further submits that (i) the SCC is now operational; (ii) the Chamber should give the CAR authorities the opportunity to open an investigation and prosecution, in accordance with the so-called ‘qualified deference approach’; (iii) States have the primary responsibility to exercise criminal jurisdiction in line with the complementarity principle; (iv) the Appeals Chamber’s established ‘inactivity test’ (the ‘Inactivity Test’) has been criticised as ‘insufficiently encouraging State capacity’; (v) finding the case inadmissible could ‘remove the impediment to an investigation and prosecution of Mr. Yekatom by the SCC imposed by Article 37’ of the CAR’s Organic Law, which gives primacy to the ICC; (vi) Article 37 of the Organic Law might be irreconcilable with the principle of complementarity; (vii) Mr Yekatom’s

text: 8 Admissibility Challenge, ICC-01/14-01/18-456, para. 1. 9 Loi organique n. 15/003 portant création, organisation et fonctionnement de la Cour Pénale Spéciale, https://cps-rca.com/documents/Loi_Cour_penale_speciale_.pdf (last accessed on 28 April 2020). 10 Admissibility Challenge, ICC-01/14-01/18-456, paras 60-63. See also paras 38-41. 11 Admissibility Challenge, ICC-01/14-01/18-456, para. 11. 12 Admissibility Challenge, ICC-01/14-01/18-456, paras 14-15, 34-37. 13 Admissibility Challenge, ICC-01/14-01/18-456, paras 16-23. 14 See para. 17 below. 15 Admissibility Challenge, ICC-01/14-01/18-456, paras 26-27. 16 Admissibility Challenge, ICC-01/14-01/18-456, para. 31. 17 Admissibility Challenge, ICC-01/14-01/18-456, paras 27-30.

text: No: ICC-01/14-01/18 4/12 28 April 2020 prosecution at the SCC together with other lower level zone commanders would avoid ‘vertical impunity’ between those most responsible and those who are not; and (viii) Mr Yekatom’s transfer to the Court should not serve as an impediment to his transfer to the SCC.

text: Nonetheless, the Defence acknowledges that there are currently no active investigations or prosecutions against Mr Yekatom for the events for which he is being prosecuted at the Court and that the Inactivity Test is thus currently not satisfied. The Defence, however, argues that this absence of investigations and prosecutions in the CAR results from the fact that the SCC did not exist at the time the Prosecution opened its investigations and that by the time it did exist, Article 37 of the Organic Law precluded it from investigating cases due to 22 the Court’s primacy.

text: On 30 March 2020, the Prosecution filed its response to the Admissibility 23 Challenge. The Prosecution requests that the Chamber reject the Admissibility Challenge for the following reasons: (i) the case is admissible as a matter of fact and law; and (ii) the Admissibility Challenge ‘effectively amounts to a request for the Chamber to defer its proper exercise of jurisdiction in favour of “promoting” a theoretical and presently non-existent investigation or prosecution of his alleged crimes in the [CAR].’

text: In the Prosecution’s submission (i) the Defence’s concession that there are presently no active investigations or prosecutions is ‘fatal to [its] article 17 challenge’ and the Defence fails to meet this provision’s ‘clear and unambiguous’ test; (ii) the Defence’s Admissibility Challenge represents merely a policy recommendation; (iii) that finding the case inadmissible on the

text: 18 Admissibility Challenge, ICC-01/14-01/18-456, para. 44. See also paras 51-52. 19 Admissibility Challenge, ICC-01/14-01/18-456, para. 55. 20 Admissibility Challenge, ICC-01/14-01/18-456, paras 13, 32. 21 Admissibility Challenge, ICC-01/14-01/18-456, para. 33. 22 Admissibility Challenge, ICC-01/14-01/18-456, para. 32. 23 Prosecution’s Response to the “Yekatom Defence’s Admissibility Challenge – Complementarity”, ICC-01/14-01/18-466 (the ‘Prosecution Response’). 24 Prosecution Response, ICC-01/14-01/18-466, para. 1. 25 Prosecution Response, ICC-01/14-01/18-466, para. 1. 26 Prosecution Response, ICC-01/14-01/18-466, paras 2, 4. See also para. 6. 27 Prosecution Response, ICC-01/14-01/18-466, para. 6.

text: No: ICC-01/14-01/18 5/12 28 April 2020 basis of a theoretical possibility that a domestic jurisdiction may eventually investigate and prosecute ‘risks impunity, rather than combats it’. With regard to the Defence’s submissions on Article 37 of the Organic Law, the Prosecution argues that (i) the Court should not assess the validity of the CAR’s national legislation; (ii) the Court cannot force a State that has chosen to relinquish its jurisdiction to pursue a case in lieu of the Court; and (iii) any conflict between

text: Article 37

text: of the Organic Law and

text: Article 17

text: of

text: the Statute

text: only arises where national authorities wish to exercise their rights, which is presently not the case.

text: On 17 April 2020, after an extension of deadlines, the Common Legal Representatives of the Former Child Soldiers and the Common Legal Representatives of the Victims of Other Crimes (jointly, the ‘CLRV’) submitted 33 their response to the Admissibility Challenge. The CLRV request that the Admissibility Challenge be rejected due to the absence of any active investigation or prosecution against Mr Yekatom in the CAR. In this regard, the CLRV recall the Appeals Chamber’s ‘settled case law’ on the Inactivity Test, and its two-step analysis, according to which the Chamber must first assess whether there are ongoing investigations or prosecutions and, only if the answer is in the affirmative, address the question of unwillingness or inability.

text: Nonetheless, the CLRV submit that the CAR authorities are unwilling and that the SCC is unable to conduct investigations or prosecutions against Mr Yekatom. Notably, the CLRV submit that (i) by adopting Article 37 of the Organic Law, the CAR authorities expressed their will to defer cases falling

text: 28 Prosecution Response, ICC-01/14-01/18-466, para. 11. 29 Prosecution Response, ICC-01/14-01/18-466, paras 16-17. 30 Prosecution Response, ICC-01/14-01/18-466, paras 18-19. 31 Prosecution Response, ICC-01/14-01/18-466, para. 20. 32 Email from the Chamber to the CLRV, the Prosecution, the Yekatom and the Ngaissona Defence, 25 March 2020, at 18:18. 33 Common Legal Representatives’ Joint Observations on the “Yekatom Defence’s Admissibility Challenge – Complementarity”, ICC-01/14-01/18-482-Conf (public redacted version notified the same day, ICC-01/14-01/18-482-Red) (the ‘CLRV Response’). 34 CLRV Response, ICC-01/14-01/18-482-Red, paras 23-25, 44. 35 CLRV Response, ICC-01/14-01/18-482-Red, paras 54-62. See also para. 17 below. 36 CLRV Response, ICC-01/14-01/18-482-Red, paras 20-22. 37 CLRV Response, ICC-01/14-01/18-482-Red, paras 27-45. 38 CLRV Response, ICC-01/14-01/18-482-Red, paras 47-52.

text: No: ICC-01/14-01/18 6/12 28 April 2020 under both jurisdictions to the Court; (ii) the CAR authorities have expressed

text: their preference for Mr Yekatom being tried before the Court; (iii) the CAR

text: has never challenged the admissibility Mr Yekatom’s Case; and (iv) the SCC

text: does presently not have an operational structure in place to assist and protect

text: hundreds and possibly thousands of victims and witnesses.

text: Moreover, the CLRV argue that the Defence’s proposed Sequential Approach is

text: impracticable and unacceptable for the victims, inter alia, because: (i) given

text: the advanced stage of proceedings and the Court’s finite resources, the Chamber

text: should not serve as a monitoring body to national authorities; (ii) the CAR

text: does not have the resources to investigate and prosecute Mr Yekatom and the

text: 45 SCC is struggling financially; (iii) Mr Yekatom’s prosecution in the CAR

text: 46 might be hindered by his parliamentary immunity; and (iv) the Sequential

text: Approach would delay the proceedings and not be in the victim’s interests, who

text: 47 have been awaiting justice for over six years.

text: Finally, the CLRV present the following victims’ views of and concerns: (i) the

text: victims are concerned that the late timing of the Admissibility Challenge will

text: delay the proceedings; (ii) the victims consider the national jurisdiction unable

text: to investigate and prosecute Mr Yekatom and fear that the SCC would not take

text: the rights afforded to them by the Court’s framework into account, in

text: particular with respect to their protection; (iii) the victims believe that

text: Mr Yekatom may still have some influence over armed Anti-Balaka elements;

text: (iv) the victims fear that their right to reparations would be lessened if the SCC

text: 39 CLRV Response, ICC-01/14-01/18-482-Red, paras 3, 28. 40 CLRV Response, ICC-01/14-01/18-482-Red, paras 3, 30. 41 CLRV Response, ICC-01/14-01/18-482-Red, paras 3, 36. 42 CLRV Response, ICC-01/14-01/18-482-Red, para. 50. 43 CLRV Response, ICC-01/14-01/18-482-Red, paras 63-71. 44 CLRV Response, ICC-01/14-01/18-482-Red, para. 67. 45 CLRV Response, ICC-01/14-01/18-482-Red, para. 68. 46 CLRV Response, ICC-01/14-01/18-482-Red, para. 69. 47 CLRV Response, ICC-01/14-01/18-482-Red, para. 70. See also para 85. 48 CLRV Response, ICC-01/14-01/18-482-Red, paras 5, 73. 49 CLRV Response, ICC-01/14-01/18-482-Red, paras 5, 76, 78. 50 CLRV Response, ICC-01/14-01/18-482-Red, para. 80. 51 CLRV Response, ICC-01/14-01/18-482-Red, para. 76.

text: No: ICC-01/14-01/18 7/12 28 April 2020 tried Mr Yekatom; and (v) they fear that Mr Yekatom’s presence in Bangui 53 54 will endanger their safety and well-being, and that he may evade detention.

text: II. Analysis

text: The Chamber notes at the outset that it is not entirely discernible from the

text: Defence’s Admissibility Challenge whether the requested relief at this point is

text: to find the case inadmissible (the ‘Inadmissibility Request’), or that the

text: Chamber adopt the proposed Sequential Approach (the ‘Sequential Approach

text: Request’). However, the Chamber interprets the Admissibility Challenge to

text: contain two alternative requests and will therefore address them separately in

text: the following.

text: A. Inadmissibility Request

text: Article 19

text: (1) of

text: the Statute

text: mandates the Court to ‘satisfy itself that it has

text: jurisdiction in any case brought before it.’

text: Article 17

text: (1) of

text: the Statute

text: provides in its relevant part that:

text: […] the Court shall determine that a case is inadmissible where: (a) The 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; (b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute; […]

text: The Chamber recalls that the Appeals Chamber has repeatedly applied the

text: Inactivity Test in its admissibility assessments. According to this test, a

text: 52 CLRV Response, ICC-01/14-01/18-482-Red, para. 79. 53 CLRV Response, ICC-01/14-01/18-482-Red, paras 5, 81. 54 CLRV Response, ICC-01/14-01/18-482-Red, para. 84. 55 Admissibility Challenge, ICC-01/14-01/18-456, paras. 1 and 65. 56 Admissibility Challenge, ICC-01/14-01/18-456, paras in 38-41, 60-63. 57 The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, 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: (the ‘Katanga Appeals Judgment’), paras 74- 80; The Prosecutor v. William Somoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, 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: (the ‘Ruto

text: No: ICC-01/14-01/18 8/12 28 April 2020

text: Chamber must ask (i) whether there are ongoing investigations or prosecutions,

text: or (ii) whether there have been investigations in the past, and the State having

text: jurisdiction has decided not to prosecute the person concerned. Only if the

text: answers to these questions are in the affirmative, does the question of

text: unwillingness or inability of a State become relevant. The assessment of

text: unwillingness or inability therefore necessarily depends on investigative and

text: prosecutorial activities by the State. Consequently, in the case of inactivity,

text: the question of unwillingness and inability does not arise. This assessment

text: must be made ‘on the basis of the facts as they exist at the time of the

text: proceedings concerning the admissibility challenge.’

text: The Chamber agrees with the Appeals Chamber that a different interpretation of

text: Article 17

text: (1) of

text: the Statute

text: would be irreconcilable with the wording of the

text: provision and the overarching aim of

text: the Statute

text: to ‘put an end to impunity’ and

text: ensure that ‘the most serious crimes of concern to the international community

text: et al. Appeals Judgment’), para. 44; The Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, 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: (the ‘Kenyatta et al. Admissibility Judgment’), para. 40; The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, 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 (the ‘Gaddafi Appeals Judgment’), para. 213; The Prosecutor v. Simone Gbagbo, Judgment on the appeal of Côte d’Ivoire against the decision of Pre-Trial Chamber I of 11 December 2014 entitled “Decision on Côte d’Ivoire’s challenge to the admissibility of the case against Simone Gbagbo”, 27 May 2015, ICC- 02/11-01/12-75-Conf (public redacted version notified the same day,

text: -Red) (the ‘Simone Gbagbo Appeals Judgment’), paras 58-59. Katanga Appeals Judgment,

text: , para. 78; Gaddafi Appeals Judgment, ICC- 01/11-01/11-547-Red, para. 213. Katanga Appeals Judgment,

text: , paras 75-76; Kenyatta et al. Admissibility Judgment,

text: , para. 40; Gaddafi Appeals Judgment,

text: -Red, para. 213. Katanga Appeals Judgment,

text: , paras 56, 76. Katanga Appeals Judgment,

text: , para. 78. See also Pre-Trial Chamber II, The Prosecutor v. Joseph Kony et al., Decision on the admissibility of the case under

text: article 19

text: (1) of

text: the Statute

text: , 10 March 2009,

text: , para. 52 (the ‘Kony et al. Admissibility Decision’). Katanga Appeals Judgment,

text: , paras 56, 80; Pre-Trial Chamber I, The Prosecutor v. Saif Al-Islam Gaddafi, Decision on the ‘Admissibility Challenge by Dr. Saif Al-Islam Gad[d]afi pursuant to

text: Articles 17

text: (1)(c), 19 and 20(3) of the

text: Rome Statute

text: , 5 April 2019, ICC-01/1- 01/11-662, para. 56. See also Ruto et al. Appeals Judgment,

text: , para. 44; Kenyatta et al. Admissibility Judgment’,

text: , para. 40; Simone Gbagbo Appeals Judgment,

text: -Red, para. 59; Kony et al. Admissibility Decision,

text: , para. 52.

text: No: ICC-01/14-01/18 9/12 28 April 2020 as a whole must not go unpunished.’ These aims would be jeopardised if, ‘despite the inaction of a State, a case would be inadmissible before the Court, unless that State is unwilling or unable to open investigations’. As pointed out by the Appeals Chamber, this would result in a situation, where the ‘Court would be unable to exercise its jurisdiction over a case as long as the State is theoretically willing and able to investigate and to prosecute the case, even though that State has no intention of doing so.’

text: With regard to Mr Yekatom’s Case, the Chamber notes, firstly, that the Defence itself concedes that there are presently no investigations or prosecutions against Mr Yekatom at the SCC and that the Inactivity Test is currently not satisfied.

text: Second, there is no indication that the CAR authorities have any intention to investigate or prosecute Mr Yekatom. Notably, the Chamber recalls that the CAR authorities not only referred the situation in its territory since 1 August 67 2012 to the Court, but subsequently implemented the Court’s warrant of arrest against Mr Yekatom by transferring him to the Court and have up to this date not challenged the Court’s jurisdiction. Moreover, the Chamber notes that nothing in the recent CAR observations indicates that the CAR authorities intend to challenge the Court’s jurisdiction or to investigate or prosecute Mr Yekatom in the future.

text: In light of the above, the Chamber concludes that the CAR authorities, including the SCC, are presently inactive insofar as Mr Yekatom’s Case is concerned. For this reason alone, and irrespective of the CAR authorities’ hypothetical willingness or ability to investigate and prosecute, the Chamber is

text: 63 Katanga Appeals Judgement,

text: , para. 79, referring to the fourth and fifth paragraphs of the Preamble of

text: the Statute

text: . 64 Katanga Appeals Judgement,

text: , para. 79. 65 Katanga Appeals Judgement,

text: , para. 79. 66 Admissibility Challenge, ICC-01/14-01/18-456, paras 13, 32-33. 67 Referral, ICC-01/14-1-Anx1. See also Admissibility Challenge, ICC-01/14-01/18-456, para. 6. 68 Confirmation Decision,

text: -Red, para. 3. 69 Annex II to the Transmission of observations from the Kingdom of the Netherlands and the Central African Republic on interim release of Alfred Yekatom, 14 April 2020, ICC-01/14-01/18-478-Conf- AnxII.

text: No: ICC-01/14-01/18 10/12 28 April 2020 of the view that the case against Mr Yekatom is admissible. Consequently, the Chamber will not address the question of willingness and ability.

text: B. Sequential Approach Request

text: While the Chamber is mindful of the complementarity principle, it also stresses that increasing or encouraging State capacity for the investigation and prosecution of the most serious international crimes is not within the Chamber’s purview. On the contrary, the Chamber must limit its decisions to the judicial matters at hand. In this regard, the Chamber also recalls the findings by the Bureau on Complementarity that ‘[i]ssues arising from the admissibility of cases before the Court under

text: article 17

text: of the

text: Rome Statute

text: all remain a judicial 73 matter to be addressed by the judges of the Court.’

text: Additionally, the Chamber notes that

text: Articles 64

text: (2) and

text: of

text: the Statute

text: mandate the Chamber to ensure that the trial is expeditious, with full respect for the rights of the accused and due regard to the protection of victims and witnesses.

text: Accordingly, the Defence’s Sequential Approach Request is rejected.

text: Lastly, as regards the Defence’s submission that other Chambers have sought observations from States on admissibility before ruling on the challenge, the Chamber notes that in light of the Defence’s concession that there are currently no proceedings against Mr Yekatom and the other reasons listed above, no further observations were required to adjudicate the present Admissibility Challenge.

text: 70 See also Katanga Appeals Judgement,

text: , para. 80. 71 See also Assembly of States Parties, Report of the Bureau on complementarity, ICC-ASP/17/34, para. 23 (IV. Views of the Court); Assembly of States Parties, Report of the Bureau on complementarity, ICC-ASP/18/25, para. 27 (IV. Views of the Court). 72 See also Assembly of States Parties, Report of the Bureau on complementarity, ICC-ASP/17/34, para. 16 (II. General findings), para. 23 (IV. Views by the Court); Assembly of States Parties, Report of the Bureau on complementarity, ICC-ASP/18/25, para. 27 (IV. Views of the Court). 73 See also Assembly of States Parties, Report of the Bureau on complementarity, ICC-ASP/17/34, para. 16 (II. General findings). 74 Admissibility Challenge, ICC-01/14-01/18-456, para. 38.

text: No: ICC-01/14-01/18 11/12 28 April 2020

text: FOR THESE REASONS, THE CHAMBER HEREBY

text: REJECTS the Inadmissibility Request, and

text: REJECTS the Sequential Approach Request.

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

text: Judge Bertram Schmitt

text: Presiding Judge

text: _________________________ _______________________

text: Judge Péter Kovács Judge Chang-ho Chung

text: Dated this Tuesday, 28 April 2020 At The Hague, The Netherlands

text: No: ICC-01/14-01/18 12/12 28 April 2020


court: icc

doctype: appeal-interlocutory

identifier: ICC-01/14-01/18 (Public redacted version of ‘Judgment on Mr Yekatom’s appeal against Trial Chamber V’s “Decision on the Yekatom Defence’s Admissibility Challenge”’, 9 October 2020, ICC-01/14-01/18-678-Conf)

caseName: The Prosecutor v. Alfred Yekatom and Patrice-Edouard Ngaïssona

chamber: Appeals Chamber

decisionType: appeal-interlocutory

publisher: International Criminal Court

text: the Statute

text: the Statute, article 14

text: the Statute, article 17

text: the Statute, article 18

text: the Statute, article 19

text: the Statute, article 21

text: the Statute, article 53

text: the Statute, article 64

text: the Statute, article 68

text: the Statute, article 82

text: the Statute, article 83

text: Original: English No. ICC-01/14-01/18 OA Date of Public Redacted Version: 11 February 2021

type: stycke

text: THE APPEALS CHAMBER

type: rubrik

text: Before: Judge Solomy Balungi Bossa, Presiding Judge Judge Chile Eboe-Osuji Judge Howard Morrison Judge Piotr Hofmański Judge Luz del Carmen Ibáñez Carranza

text: SITUATION IN THE CENTRAL AFRICAN REPUBLIC II

text: IN THE CASE OF THE

text: PROSECUTOR v. ALFRED YEKATOM AND PATRICE-EDOUARD NGAЇSSONA

text: Public redacted version of ‘Judgment on Mr Yekatom’s appeal against Trial Chamber V’s “Decision on the

text: Yekatom Defence’s Admissibility Challenge”’, 9 October 2020,

text: No: ICC-01/14-01/18 OA 1/18

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

text: The Office of the Prosecutor Counsel for Mr Alfred Yekatom

text: Ms Fatou Bensouda, Prosecutor Ms Mylène Dimitri Ms Helen Brady

text: Legal Representatives of Victims

text: Mr Abdou Dangabo Moussa Ms Elisabeth Rabesandratana Mr Yaré Fall Ms Marie-Edith Douzima-Lawson Ms Paolina Massidda Mr Dmytro Suprun

text: States Representatives Counsel for Mr Patrice-Edouard Ngaїssona

text: Central African Republic Mr Geert-Jan Alexander Knoops

text: REGISTRY Registrar

text: Mr Peter Lewis

text: No: ICC-01/14-01/18 OA 2/18

text: The Appeals Chamber of the International Criminal Court, In the appeal of Mr Alfred Yekatom against the decision of Trial Chamber V entitled ‘Decision on the Yekatom Defence’s Admissibility Challenge’ of 28 April 2020 (ICC- 01/14-01/18-493), After deliberation, Unanimously, Delivers the following

text: JUDGMENT

text: Trial Chamber V’s ‘Decision on the Yekatom Defence’s Admissibility Challenge’ is confirmed.

text: REASONS

text: I. KEY FINDINGS

text: Chambers dealing with admissibility challenges brought by an accused person based on the argument that a State having jurisdiction over the case may be willing and able to investigate and/or prosecute that person must invite that State to submit its views.

text: II. PROCEDURAL HISTORY

text: A. Proceedings before the Trial Chamber

text: On 30 May 2014, the Central African Republic (the ‘CAR’) referred the situation in its country to the Court.

text: 1 ICC-01/14-1-Anx1. No: ICC-01/14-01/18 OA 3/18

text: On 11 November 2018, Pre-Trial Chamber II issued the Warrant of Arrest for Mr Alfred Rombot Yekatom (‘Mr Yekatom’).

text: On 17 November 2018, the CAR surrendered Mr Yekatom to the Court.

text: On 11 December 2019, Pre-Trial Chamber II confirmed charges against Mr Yekatom.

text: On 17 March 2020, the case against Mr Yekatom and Mr Ngaïssona was transferred to Trial Chamber V (‘Trial Chamber’).

text: On 17 March 2020, Mr Yekatom challenged the admissibility of the case against him (‘Admissibility Challenge’) on the grounds that pursuant to

text: article 19

text: (2)(a) of

text: the Statute

text: , the CAR authorities were now able to prosecute him in their own Special Criminal Court (the ‘SCC’). Mr Yekatom acknowledged that there were no ongoing investigations against him before the SCC at the time of filing the admissibility challenge. However, he argued that according to the so-called principle of ‘qualified deference’, the Chamber should give the CAR an opportunity to commence an investigation against Mr Yekatom by adopting a step-by-step approach whereby the Trial Chamber would: (i) ‘invite written submissions from the CAR authorities addressing whether, notwithstanding the OTP’s invocation of Article 37 [of the CAR’s Organic Law 15/003], it would be willing and able to investigate and prosecute Mr. Yekatom’s case if given the opportunity to do so’; (ii) ‘if the answer is in the affirmative, give the CAR authorities a fixed period of time to open an investigation and/or commence a prosecution of Mr. Yekatom and encourage the OTP to share the

text: 2 ‘Warrant of Arrest for Alfred Yekatom’, 11 November 2018,

text: -Conf-Exp; Public redacted version of ‘Warrant of Arrest for Alfred Yekatom’, 17 November 2018,

text: - Red. 3 ‘Decision on the confirmation of charges against Alfred Yekatom and Patrice-Edouard Ngaïssona’, 11 December 2019,

text: ; Public redacted version of ‘Decision on the confirmation of charges against Alfred Yekatom and Patrice-Edouard Ngaïssona’, 20 December 2019, ICC-01/14-01/18- 403-Red. ‘Transmission to Trial Chamber V of the record of the proceedings, including the Decision on the confirmation of charges against Alfred Yekatom and Patrice-Edouard Ngïssona’17 March 2020, ICC- 01/14-01/18-455; ‘Decision constituting Trial Chamber V and referring to it the case of The Prosecutor v. Alfred Yekatom and Patrice-Edouard Ngaïssona’ 16 March 2020, ICC-01/14-01/18-451. 5 ‘Yekatom Defence’s Admissibility Challenge – Complementarity’, 17 March 2020, ICC-01/14-01/18- 456 (with Public Annex A), paras 1, 6-12. 6 Admissibility Challenge, paras 13, 32. 7 Admissibility Challenge, para. 61.

text: No: ICC-01/14-01/18 OA 4/18 results of its investigation with the SCC to enable it to act expeditiously’; and (iii) ‘if an active investigation and/or prosecution has been commenced during this period, declare Mr. Yekatom’s case inadmissible and order his transfer to the custody of the CAR authorities’ (the ‘Sequential Approach’). If the CAR were to seize this opportunity and actually commence a genuine investigation/prosecution within a prescribed period of time, the Chamber would then have to declare the case inadmissible. 8. On 30 March 2020, the Prosecutor responded to Mr Yekatom’s Admissibility Challenge.

text: On 17 April 2020, the victims participating in the proceedings (‘Victims’) filed observations on Mr Yekatom’s Admissibility Challenge.

text: On 28 April 2020, Trial Chamber V issued its decision on Mr Yekatom’s Admissibility Challenge, rejecting the challenge on the basis of the inactivity test (‘Impugned Decision’).

text: B. Proceedings before the Appeals Chamber

text: On 29 April 2020, Mr Yekatom filed a notice of appeal against the Impugned Decision.

text: On 19 May 2020, Mr Yekatom filed his appeal brief (‘Appeal Brief’).

text: On 10 June 2020, the Prosecutor and the Victims filed responses to the Appeal Brief (‘Prosecutor’s Response’ and ‘Victims’ Joint Response’ respectively).

text: 8 Admissibility Challenge, para. 62. 9 Admissibility Challenge, para. 63. 10 ‘Prosecution’s Response to the “Yekatom Defence’s Admissibility Challenge – Complementarity”’, 30 March 2020, ICC-01/14-01/18-466. 11 ‘Common Legal Representatives’ Joint Observations on the “Yekatom Defence’s Admissibility Challenge — Complementarity”’, 17 April 2020, ICC-01/14-01/18-482-Conf; Public redacted version of ‘Common Legal Representatives’ Joint Observations on the “Yekatom Defence’s Admissibility Challenge — Complementarity”’, 17 April 2020, ICC-01/14-01/18-482-Red. 12 ‘Decision on the Yekatom Defence’s Admissibility Challenge’, 28 April 2020,

text: . 13 ‘Yekatom Defence Appeal Against Admissibility Decision’, 29 April 2020, ICC-01/14-01/18-499. 14 ‘Yekatom Defence Appeal Brief’, 19 May 2020, ICC-01/14-01/18-523. 15 ‘Prosecution Response to “Yekatom Defence Appeal Brief – Admissibility”’, 10 June 2020, ICC- 01/14-01/18-548-Conf; Public redacted version of ‘Prosecution Response to “Yekatom Defence Appeal Brief – Admissibility”’, 10 June 2020, ICC-01/14-01/18-548-Red; ‘Common Legal Representatives’

text: No: ICC-01/14-01/18 OA 5/18

text: On 15 June 2020, the Appeals Chamber issued an order inviting the Central

text: African Republic to submit observations and giving the parties an opportunity to

text: respond to the Victims’ observations and the submissions of the CAR.

text: On 3 August 2020, the Central African Republic filed its observations (the ‘CAR

text: 17 18

text: Observations’) [REDACTED].

text: On 5 August 2020, Mr Yekatom filed a response to the CAR Observations (‘Mr

text: Yekatom’s Response to CAR Observations’). Mr Yekatom observes that the CAR

text: Observations [REDACTED].

text: On 6 August 2020, the Prosecutor filed her response to the CAR Observations (‘Prosecutor’s Response to CAR Observations’). The Prosecutor submits, inter alia,

text: that [REDACTED]. The Prosecutor therefore requests that the Appeals Chamber

text: dismiss Mr Yekatom’s appeal and confirm the Impugned Decision.

text: On 28 August 2020, following consultations with the CAR authorities concerning

text: its amenity to reclassify the CAR Observations as public, the Registrar filed a report

text: indicating that the CAR wished to maintain its filing as confidential (‘Registrar’s Report’).

text: Joint Response to the “Yekatom Defence Appeal Brief – Admissibility” (ICC-01/14-01/18-523)’, 10 June 2020, ICC-01/14-01/18-547. ‘Order on the filing of observations by the Central African Republic’, 15 June 2020, ICC-01/14-01/18- 552. ‘Observations de la République Centrafricaine sur la possibilité de mener un enquête ou d’engager des poursuites contre YEKATOM Alfred Rombhot pour les crimes de guerre et contre l’humanité par la Cour Pénale Spéciale’, 30 July 2020, ICC-01/14-01/18-610-Conf-Anx annexed to ‘Transmission of Observations from the Central African Republic pursuant to Appeals Chamber Order ICC-01/14-01/18- 552 of 15 June 2020’, 3 August 2020, ICC-01/14-01/18-610. CAR Observations, p.2, para. 3; CAR Observations, p.4, para. 5. ‘Yekatom Defence Response to Observations of Government of the Central African Republic’, ICC- 01/14-01/18-613-Conf; ‘Public redacted version of “Yekatom Defence Response to Observations of Government of the Central African Republic”, 5 August 2020’, 5 August 2020, ICC-01/14-01/18-613- Red. Mr Yekatom’s Response to CAR Observations, para. 5. ‘Prosecution Response to “Observations from the Central African Republic pursuant to Appeals Chamber Order ICC-01/14-01/18-552 of 15 June 2020” (ICC-01/14-01/18-610-Conf-Anx)’, ICC-01/14- 01/18-614-Conf. Prosecutor’s Response to CAR Observations, para. 1. Prosecutor’s Response to CAR Observations, para. 7. ‘Registry Report on the Confidentiality of the Observations of the Central African Republic submitted on 3 August 2020’, 28 August 2020, ICC-01/14-01/18-637-Conf.

text: No: ICC-01/14-01/18 OA 6/18

text: On 31 August 2020, Mr Yekatom responded to the Registrar’s Report (‘Mr Yekatom’s response to Registrar’s Report’), requesting, inter alia, that the Appeals Chamber invite the Central African Republic ‘to reclassify its observations from confidential to public, submit a public redacted version, or state the factual or legal basis for maintaining its observations fully confidential’.

text: On 28 September 2020, the CAR authorities had not yet been able to file its reasons for maintaining its observations fully confidential. For this reason, this Judgment is currently rendered confidentially. The Appeals Chamber will revisit this aspect as soon as the CAR authorities have had an opportunity to submit their views. A public version of this Judgment, possibly with redactions, will be issued in due course.

text: III. MERITS

text: A. Ground of appeal

text: Mr Yekatom raises one ground of appeal:

text: The Trial Chamber erred when denying the Defence’s admissibility challenge without first seeking observations from CAR authorities.

text: Relevant part of the Impugned Decision

text: In the Impugned Decision, the Trial Chamber considered that the Admissibility Challenge comprised two alternative requests: namely a request to find the case inadmissible on the grounds that the CAR authorities were now able to prosecute him in their own Special Criminal Court or, in the alternative, to adopt a sequential approach, based on the so-called principle of ‘qualified deference’.

text: The Trial Chamber recalled that, according to the jurisprudence of the Appeals Chamber, the question of whether a State was willing or able to investigate or prosecute arose only if there are or were investigative or prosecutorial activities by a State having jurisdiction and that, in the absence of any such activities, a case was admissible before

text: 25 ‘Yekatom Defence Response to Registry Report on the Confidentiality of the Observations of Government of Central African Republic’, ICC-01/14-01/18-641-Conf. 26 Mr Yekatom’s Response to Registrar’s Report, paras 1, 13. 27 Appeal Brief, para. 10. 28 Impugned Decision, para. 14.

text: No: ICC-01/14-01/18 OA 7/18 the Court (‘inactivity test’). Consequently, the Trial Chamber rejected the admissibility challenge proper, because it was uncontested that the authorities of the CAR were not investigating and/or prosecuting Mr Yekatom at the time that he filed his Admissibility Challenge. 24. As regards Mr Yekatom’s specific request that the Trial Chamber invite the CAR to make observations, the Trial Chamber determined that there was no need for further observations in order to decide the Admissibility Challenge. The Trial Chamber based its decision on the following factors: (i) that the Defence itself conceded that there are currently no proceedings against Mr Yekatom before the SCC, and (ii) that based on the information before it there was no indication that the CAR authorities have any intention to investigate or prosecute Mr Yekatom. With regard to the latter factor, the Trial Chamber noted that since referring the situation in its territory to the Court and subsequently implementing the Court’s warrant of arrest against Mr Yekatom, the CAR have to date not challenged the Court’s jurisdiction. In addition, the Trial Chamber noted that in the context of the recent interim release proceedings in which the CAR had made observations, nothing therein ‘indicate[d] that the CAR authorities intend to challenge the Court’s jurisdiction or to investigate or prosecute Mr Yekatom in the future’.

text: On Mr Yekatom’s request for a proposed Sequential Approach, the Trial Chamber determined that it was mindful of the complementarity principle but limited its decision to the issues of admissibility in accordance with

text: article 17

text: of

text: the Statute

text: . The Trial Chamber considered that it was not within its purview to encourage State capacity for the investigation and prosecution of international crimes. In addition, the Trial Chamber noted that

text: articles 64

text: (2) and

text: of

text: the Statute

text: mandate that it ensure that the ‘trial is expeditious, with full respect for the rights of the accused and due regard to

text: 29 Impugned Decision, paras 17-18. 30 Impugned Decision, para. 21. 31 Impugned Decision, para. 25. 32 Impugned Decision, para. 20. 33 Impugned Decision, para. 20. 34 Impugned Decision, para. 20. 35 Impugned Decision, para. 22

text: No: ICC-01/14-01/18 OA 8/18 the protection of victims and witnesses’. Accordingly, the Trial Chamber rejected the request for a Sequential Approach.

text: Submissions of the parties and participants

text: (a) Mr Yekatom

text: In essence, Mr Yekatom argues that the Trial Chamber’s failure to seek observations from Central African Republic constitutes an error because the Court’s complementarity regime requires that a State always be consulted when an issue of complementarity is before the Court. In particular, Mr Yekatom claims that, by applying the ‘inactivity test’ before seeking observations from the CAR, the Trial Chamber ‘precluded the possibility that the State could overcome the inactivity test at the time of the Chamber’s determination on the complementarity challenge if given the opportunity to do so’.

text: Mr Yekatom claims that the Trial Chamber’s obligation to seek observations from a State with jurisdiction prior to ruling on an admissibility challenge by a suspect or accused is confirmed by the Court’s ‘uniform practice’. He also seems to argue that such an obligation is implied by the requirement contained in rule 58(2) of the Rules of Procedure and Evidence (‘Rules’), which requires Chambers to determine the applicable procedure for dealing with admissibility challenges.

text: Mr Yekatom disputes that the Trial Chamber could dispense with the purported need to seek observations from the CAR on grounds of expeditiousness of the proceedings, considering that the case is still at a very early stage. He further argues that it was wrong for the Trial Chamber to infer the CAR’s present position from its referral of the case, transfer of the suspect, failure to bring its own admissibility challenge, and failure to object to admissibility when submitting observations on interim release.

text: 36 Impugned Decision, para. 23. 37 Impugned Decision, para. 24. 38 Appeal Brief, paras 34-46. 39 Appeal Brief, paras 58. 40 Appeal Brief, paras 25-33. 41 Appeal Brief, paras 41-46. 42 Appeal Brief, paras 76-84. 43 Appeal Brief, paras 66-75.

text: No: ICC-01/14-01/18 OA 9/18

text: (b) Prosecutor

text: The Prosecutor claims that the Court’s legal framework does not oblige a Chamber to request observations from concerned States to decide an admissibility challenge based on complementarity, arguing that this falls within the Chamber’s discretion. 30. In relation to Mr Yekatom’s claim that in all previous cases the relevant States were invited to make submissions, the Prosecutor points out that Mr Yekatom’s request is distinguishable from previous admissibility challenges since he does not rely on any of the grounds in article 17(1)(a) to (c) and concedes that there were no (and never had been) domestic proceedings against him at the time of filing the Admissibility Challenge. 31. As far as the idea of ‘qualified deference’ and the sequential approach proposed by Mr Yekatom are concerned, the Prosecutor is of the view that they are inconsistent with the Court’s complementarity regime.

text: The Prosecutor further suggests that rule 58(2) of the Rules does not require Chambers to request observations from States that may have jurisdiction over the case. However, the Prosecutor acknowledges that, as the referring entity, the Central African Republic was entitled, pursuant to

text: article 19

text: (3) of

text: the Statute

text: and rule 59 of the Rules, to make representations to the Trial Chamber if it so wished. The Prosecutor points out, in this regard, that the Registry failed to inform the Central African Republic of Mr Yekatom’s Admissibility Challenge. Nevertheless, the Prosecutor is of the view that the lack of timely notification does not invalidate the Impugned Decision, given that it was not disputed that the inactivity criterion was met and that

text: the Statute

text: does not prescribe the so-called ‘sequential approach’. The Prosecutor stresses that the complementarity regime only gives States the right to challenge admissibility, it does not impose an obligation on the Court to ascertain the views of all States who might

text: 44 Prosecutor’s Response, para. 4. 45 Prosecutor’s Response, paras 4, 15-19. 46 Prosecutor’s Response, paras 4, 27-29. 47 Prosecutor’s Response, para. 21. 48 Prosecutor’s Response, para. 22.

text: No: ICC-01/14-01/18 OA 10/18 potentially be able to exercise jurisdiction over a case before rendering an admissibility decision.

text: The Prosecutor also points out that the burden to substantiate the admissibility challenge rested upon Mr Yekatom and that the Trial Chamber had no obligation to conduct preliminary inquiries on his behalf.

text: The Prosecutor is further of the view that the Trial Chamber reasonably concluded from the information on the record that there was no evidence indicating that the Central African Republic’s authorities intended to investigate or prosecute Mr Yekatom or to challenge the admissibility of the case against him.

text: Finally, the Prosecutor claims that any purported error by the Trial Chamber did not materially affect the Impugned Decision.

text: (c) Victims

text: Like the Prosecutor, the Victims are of the view that the sequential approach proposed by Mr Yekatom is not envisioned by the Court’s statutory provisions. Instead, the Impugned Decision was correctly based on the inactivity test.

text: The Victims also argue that it was proper for the Trial Chamber to infer the Central African Republic’s unwillingness from its inaction in terms of investigating and prosecuting Mr Yekatom.

text: The Victims further argue that rule 58(2) of the Rules does not create any obligation for (Pre-)Trial Chambers dealing with admissibility challenges, but simply gives them wide discretion to organise the proceedings as they see fit.

text: 49 Prosecutor’s Response, paras 24-29. 50 Prosecutor’s Response, paras 23, 30-31. 51 Prosecutor’s Response, paras 32-37. 52 Prosecutor’s Response, paras 49-51. 53 Victims' Joint Response, paras 18-19. 54 Victims' Joint Response, para. 21 55 Victims' Joint Response, paras 43-45. 56 Victims' Joint Response, paras 32-34.

text: No: ICC-01/14-01/18 OA 11/18

text: Determination by the Appeals Chamber

text: Mr Yekatom’s sole ground of appeal alleges that the Trial Chamber erred when denying the Admissibility Challenge without first seeking observations from the CAR’s authorities.

text: It is not disputed that the Trial Chamber declined to seek observations from the CAR. What is disputed is whether or not the Trial Chamber was under an obligation to do so, in the circumstances of this case. Two questions arise in this regard. Primarily, whether the CAR had to be invited to make submissions because it was a State Party with jurisdiction over Mr Yekatom’s case. Subsidiarily, whether the CAR had to be invited to make submissions because it was the referring entity under

text: article 14

text: of

text: the Statute

text: . The Appeals Chamber will address each question in turn.

text: (a) Do Chambers have a general obligation to seek submissions from States that have jurisdiction over the case?

text: The main issue that arises from Mr Yekatom’s appeal is whether the Trial Chamber had an obligation to proactively invite the CAR – as a State having jurisdiction over the case – to state on the record whether it intended to investigate or prosecute Mr Yekatom domestically, given that Mr Yekatom was arguing that the CAR might be willing and able to do so. For the reasons that follow, the Appeals Chamber concludes that Chambers have a general duty to invite the State(s) having jurisdiction whose (lack of) genuine investigatory or prosecutorial activity is under scrutiny to make submissions.

text: The central premise of the Court’s exercise of jurisdiction is its contingency upon the failure of States to genuinely investigate and, where warranted, prosecute those that are suspected of having committed or having been complicit in crimes listed in

text: the Statute

text: . As the sixth recital of the Preamble to the

text: Rome Statute

text: emphasises, States have the primary duty to exercise their criminal jurisdiction over such persons. As long as States comply with that responsibility, the Court will not intervene. Every time the Prosecutor brings a case, she is thus necessarily alleging that none of the States that would have jurisdiction over a particular suspect or accused are actually making

text: 57 Appeal Brief, para. 10.

text: No: ICC-01/14-01/18 OA 12/18 genuine efforts to bring that person to justice. Depending on the circumstances, this could be seen as a serious reproach and no State should have to face the prospect of being found wanting in this regard without at least being given an opportunity to explain itself. This is why

text: articles 18

text: and

text: of

text: the Statute

text: provide several procedural avenues for States to correct the Prosecutor’s assessment of their domestic efforts to pursue criminal investigations and/or prosecutions.

text: Nevertheless, although

text: article 19

text: (1) of

text: the Statute

text: imposes an obligation on the Court to always satisfy itself that it has jurisdiction over any case brought before it, there is no similar obligation in relation to admissibility. Chambers are entitled to rely on the presumption that the Prosecutor has made an earnest and objective assessment of the domestic situation before launching a criminal investigation into a particular case. Accordingly, unless the admissibility of a case is challenged by a State, an accused, or a person for whom a warrant of arrest or summons to appear has been issued, Chambers are allowed to proceed without considering the admissibility of the case before them.

text: When a suspect or accused person challenges admissibility on the basis of complementarity, that persons bears the burden of demonstrating that the case is inadmissible and is expected to identify which State or States may be genuinely exercising their jurisdiction.

text: In such circumstances, the Chamber must invite that State to make submissions. This is because a finding that a State has remained inactive in the face of the need to ‘exercise its criminal jurisdiction over those responsible for international crimes’ could be seen as having failed to discharge ‘the duty’ to exercise that jurisdiction, as described in the sixth recital of the preamble to the

text: Rome Statute

text: . That being the case, any decision of the Trial Chamber that might imply or express a finding that a State Party has failed to discharge its obligation under the

text: Rome Statute

text: , engages an obligation on the part of the Trial Chamber to give that State a reasonable opportunity to make submission before that decision is rendered. 46. The Chamber’s duty to invite the views of States Parties whose compliance with their obligations under the

text: Rome Statute

text: is in issue follows from the general principle of law that those who will be affected by a decision must be provided with an

text: Articles 53

text: (1)(b) and (2)(b) of

text: the Statute

text: . No: ICC-01/14-01/18 OA 13/18 opportunity to present their views and to be heard (audi alteram partem).This principle also applies when, as in the present case, the subject matter of a decision cannot be resolved fairly without entering findings that may implicate the good faith of a State that is not (yet) involved in the proceedings in the fulfilment of its duties and obligations under

text: the Statute

text: The State that is alleged to be exercising its jurisdiction must thus be given a reasonable opportunity to make whatever submissions it sees fit to make that may throw the light of good faith — whenever possible — on its inactivity, with the view to discharging the obligation of exercising jurisdiction that international law places upon it. In this regard, it must always be kept in mind that the overarching concern of the drafters of the

text: Rome Statute

text: was to ensure that justice is done — preferably at the national level.

text: Regarding the CAR’s Organic Law 15/003 (the ‘Organic Law’), Mr Yekatom is correct that domestic law ‘cannot infringe on the balance of powers among the organs of the Court or the rights of an accused’. The Court is only bound to apply the sources of law mentioned in

text: article 21

text: of

text: the Statute

text: and the fact that the Organic Law appears to grant primacy to the Prosecutor cannot trump the principle of complementarity. Indeed, the existence of article 37 of the Organic Law does not affect the CAR authorities’ ability, under international law, to prosecute Mr Yekatom domestically. Mr Yekatom is, however, mistaken when he suggests that ‘[b]y failing to seek observations from CAR authorities, the Trial Chamber allowed the [Organic Law] to be interpreted in such a way as to automatically make the case admissible.’ The Trial Chamber’s failure to invite the CAR to submit observations was predicated upon the fact that no domestic investigations were ongoing in the CAR. This approach therefore neither depended upon nor implied any particular interpretation of special significance to the Organic Law.

text: 59 Organic Law for the Creation, Organisation and Functioning of the Special Criminal Court, 3 June 2015. 60 Appeal Brief, para. 50. 61 Prosecutor’s Response, para. 48. 62 Appeal Brief, para. 51. 63 Impugned Decision, paras 19-21.

text: No: ICC-01/14-01/18 OA 14/18

text: The Appeals Chamber notes that Mr Yekatom also argues that ‘the Trial Chamber […] justified its decision not to seek observations from CAR authorities on the grounds that it needed to ensure that the trial is expeditious’. However, it is clear from paragraphs 23 and 24 of the Impugned Decision that the Trial Chamber only relied upon this argument to reject the proposed Sequential Approach. Since the question of the Sequential Approach is not on appeal, there is no need for the Appeals Chamber to address Mr Yekatom’s argument in this regard.

text: In sum, when an admissibility challenge is brought by a suspect or accused person, on the ground that a State is or may be investigating or prosecuting the same case or is willing or able to do so, Chambers must always invite the State concerned to submit observations. The State in question is free to decline the invitation and waive its entitlement to be heard. In that case, the Chamber can decide the matter without receiving submissions from the State. In light of this finding, Trial Chamber V committed a procedural error in rendering the Impugned Decision without giving the CAR a meaningful opportunity to make submissions.

text: (b) Whether the Trial Chamber has an obligation to give a referring State an opportunity to submit observations

text: The Appeals Chamber already concluded that the Trial Chamber erred by declining to seek the views of the CAR as a State with potential jurisdiction over Mr Yekatom’s case. This question is separate from the question of whether the Trial Chamber erred by not providing the CAR, as the State Party having referred the situation to the Court, with a reasonable opportunity to submit observations.

text: The Appeals Chamber observes that, when a situation has been referred to the Court by the Security Council or a State Party, where issues of jurisdiction or admissibility arise, the referring entity may, pursuant to

text: article 19

text: (3) of

text: the Statute

text: ‘submit observations to the Court’. Rule 59 of the Rules, in relevant part, provides:

text: For the purpose of article 19, paragraph 3, the Registrar shall inform the following of any question or challenge of jurisdiction or admissibility which has arisen pursuant to article 19, paragraphs 1, 2, and 3: (a) Those who have referred a situation pursuant to article 13;

text: 64 Appeal Brief, para. 76. No: ICC-01/14-01/18 OA 15/18

text: […] 3. Those receiving the information, as provided for in sub-rule 1, may make representation in writing to the competent Chamber within such time limit as it considers appropriate. 53. The Appeals Chamber considers that by the plain terms of rule 59 of the Rules, the Registrar is obliged to take procedural steps that prompt the referring entity’s participation in admissibility or jurisdiction proceedings. The Appeals Chamber finds the Registry’s failure to inform the CAR of Mr Yekatom’s admissibility challenge in accordance with rule 59(1)(a) most concerning. Under the terms of this provision, the Registry had a clear and unambiguous obligation to inform the CAR as the referring entity. The Trial Chamber as well as the parties must be able to rely on the Registry to carry out its duties, without having to verify compliance every step of the way.

text: Nevertheless, Chambers are the ultimate guardians of the procedural rights of all parties and participants, including the referring entity. Although no specific obligation is imposed on Chambers dealing with issues of jurisdiction or admissibility, the Appeals Chamber considers that it is incumbent upon them to ensure that referring entities have a reasonable opportunity to exercise their prerogative under

text: article 19

text: (3) of

text: the Statute

text: to submit observations. As rule 58 of the Rules makes plain, and as confirmed by previous decisions of this Chamber, Chambers have wide discretion in this regard. However, this discretion does not extend to Chambers taking no measures whatsoever. Accordingly, Trial Chamber V erred by failing to take any steps to either ascertain whether the CAR, as the referring entity, wished to submit observations, or to provide it with a meaningful opportunity for doing so.

text: (c) Immateriality of the errors

text: In the specific circumstances of this case, the errors of Trial Chamber V were not material. Before the Appeals Chamber, [REDACTED]. There is thus no indication that

text: 65 Appeals Chamber, Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, ‘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, ICC-01/09- 02/11-274, para. 87; Appeals Chamber, Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, ‘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: the Statute

text: ’”’ 30 August 2011,

text: , para. 89.

text: No: ICC-01/14-01/18 OA 16/18

text: Trial Chamber V’s failure to invite observations from the CAR had any influence on the correctness of the outcome of the Impugned Decision. 56. Moreover, the omission to provide the CAR as the referring entity with a meaningful opportunity to submit observations did not affect the rights and interests of Mr Yekatom. In order for Mr Yekatom to be able to rely on this error to challenge the Impugned Decision, he would have to demonstrate that he was prejudiced by it. Mr Yekatom has failed to do so. Accordingly, the Appeals Chamber finds that neither the Registrar’s failure nor the Chamber’s error affected Mr Yekatom’s rights or interests; nor did they affect the outcome of the Impugned Decision.

text: No: ICC-01/14-01/18 OA 17/18

text: B. Overall conclusion

text: For the reasons stated above, the Appeals Chamber considers that the Trial Chamber erred when it did not invite submissions from the CAR as a State having jurisdiction over the case whose willingness and ability to investigate and/or prosecute the case against Mr Yekatom was being disputed, given the arguments raised by Mr Yekatom in support of his challenge to the admissibility of the case. The Chamber also erred by failing to ensure that the CAR as the referring entity had a meaningful opportunity to submit observations. However, neither error materially affected the Impugned Decision.

text: IV. APPROPRIATE RELIEF

text: On an appeal pursuant to

text: article 82

text: (1)(a) of

text: the Statute

text: , the Appeals Chamber may confirm, reverse or amend the decision appealed (rule 158(1) of the Rules of Procedure and Evidence). In the present case, the Appeal Chamber finds it appropriate to confirm the Impugned Decision because neither of the errors the Appeals Chamber has identified had a material effect upon it.

text: While Judge Ibáñez agrees with this judgment, she is of the view that it ought to have been delivered in open court pursuant to

text: article 83

text: (4) of

text: the Statute

text: , with appropriate measures to maintain confidentiality where necessary.

text: _____________________________ Judge Solomy Balungi Bossa

text: Presiding

text: th Dated this 11 day of February 2021 At The Hague, The Netherlands

text: No: ICC-01/14-01/18 OA 18/18

title: The Prosecutor v. Alfred Yekatom and Patrice-Edouard Ngaïssona