IN THE NEWS: Central African Republic Becomes Third Country To Refer Own Situation To ICC

On January 7, 2005, the International Criminal Court (ICC) Office of the Prosecutor announced it had received a letter from the government of the Central African Republic (CAR) asking the Prosecutor to open an investigation into the situation in the CAR. This is the third time that a country has asked the ICC to investigate allegations of crimes on its own territory; the Court has also receive referrals and initiated investigations into the situations in Uganda and the Democratic Republic of Congo.

The CAR referral asks the ICC to investigate any crimes that fall under the ICC’s jurisdiction that may have occurred on the territory of the CAR since July 1, 2002 – the date the treaty that created the ICC came into force. The Office of the Prosecutor is now conducting an analysis of the situation in the CAR to determine whether the ICC should initiate a formal investigation. 

The Office of the Prosecutor (OTP) is not obliged to open an investigation into every situation that is referred to it by an ICC member state. Rather, the OTP first conducts an evaluation of the evidence to determine whether the ICC should open a formal investigation. In making that determination, the Prosecutor will weigh the gravity of the alleged crimes, the interests of justice, and whether or not the CAR is already investigating or prosecuting those crimes.

There are several reasons why the Prosecutor might not recommend a formal investigation. The ICC is meant to complement national legal systems, not supplant them. If the CAR is making a credible effort to investigate and prosecute the alleged crimes, then the Prosecutor will recommend against opening a formal investigation. The ICC is also intended to be a court of last resort for “the most serious crimes of concern to the international community as a whole.” Consequently, if the crimes that have occurred are not sufficiently grave to be of serious international concern, the ICC will not open a formal investigation.

Although the ICC has not commented on what incidents the CAR mentioned in its referral, the most obvious candidate is the events in late 2002 and early 2003 that led up to the ouster of the government of President Patasse. After several months of civil unrest, on March 15, 2003, President Patasse was deposed by the former leader of the CAR’s army, General Francois Bozize. While there was violence associated with the coup, the level of violence does not seem to have approached that in other African countries that have suffered similar upheavals in recent years, like Sudan, Uganda, the Democratic Republic of the Congo, or Sierra Leone.

While it is difficult to be certain given the lack of publicly available information, the Prosecutor may conclude that whatever crimes have occurred are not of sufficient gravity to warrant an ICC investigation. In addition, the CAR’s judiciary has begun criminal prosecutions arising out of some of the events that led up to the coup, which also may lead the Prosecutor to recommend against an ICC investigation. On the other hand, FIDH, a well-known French human rights organization, has alleged that the national courts are not sufficiently effective or independent to carry out meaningful prosecutions. FIDH has called for a formal ICC investigation. Ultimately, it is impossible to predict at this stage whether the Prosecutor will open an investigation into the situation in CAR.

If the OTP opens a formal investigation of the CAR, it would be the third investigation initiated by the ICC. The ICC is currently investigating situations in Uganda and the Democratic Republic of the Congo, both of which also asked the ICC to step in. There have also been calls for the Security Council to refer the situation in the Darfur region of Sudan to the ICC.  Click here for more information about the situation in Darfur.

Updated January 24, 2005