Central African Republic Refers Patasse and Bemba to ICC

An appeals court in the Central African Republic has referred Ange Felix Patasse, the country’s former president, and Jean-Pierre Bamba, the Democratic Republic of Congo’s current vice-president, to the ICC. Security forces controlled by Patasse and backed by soldiers from Bemba’s then-rebel army are accused of executing and raping civilians after they staved off an attempted coup in 2002. The coup was led by Francois Bozize, CAR’s current president, who successfully deposed Patasse — widely regarded as the country’s first democratically-elected president — the following year.

In referring the case, the appeals court concluded that it simply was not equipped to handle a case involving allegations of war crimes and crimes against humanity:

“I have asked on behalf of the state that a distinction be made between the economic crimes they are accused of and the crimes that fall under the competence of the International Criminal Court,” said Goungaye Wanfiyo, head of the country’s Human Rights League, who is advising the state on the case. “There is a part of the charges which relates to war crimes, crimes against humanity, genocide. The judge in Central African Republic is not equipped to deal with this.”

Referrals to the ICC are governed by Article 14 of the Rome Statute, which provides:

A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes.

Once a situation is referred by a State Party — CAR ratified the Rome Statute in 2001, ironically while Patasse was still president — the Prosecutor must then determine whether there is a “reasonable basis” for an investigation. In the context of a self-referral, as is the case with Patasse, that determination centers on the gravity of the alleged crimes — Art. 17(1)(d) provides that a case is inadmissible if “[t]he case is not of sufficient gravity to justify further action by the Court.”

Bemba’s situation is more complicated. Should the Prosecutor determine that an investigation is warranted and that charges against Bemba are appropriate, the DRC would have the opportunity to challenge admissibility on the ground that, inter alia, it intends to investigate his case itself. If it did, Art. 17 would require the ICC to defer to the DRC unless it concluded that “the State [was] unwilling or unable genuinely to carry out the investigation” — i.e., was only asserting jurisdiction in order to shield Bemba from criminal responsibility. Given that Bemba is the DRC’s vice-president and is currently running for president, it is quite possible that the DRC would challenge the admissibility of his case. (Which would be particularly interesting, given that the DRC has already asked the ICC to investigate whether international crimes were committed during its own internal conflict!)

Note also that State Parties can only refer “situations” to the ICC — not specific individuals. So if the Prosecutor does proceed with the investigation, he could bring charges against anyone involved in the rapes and murders, not just Patasse and Bemba.