2011-10-26, The Hague, The Netherlands. The Pre-Trial Chamber of the International Criminal Court rejected the Defence challenge to the jurisdiction of the ICC. The defence argued that the original referral by the DRC government only covered crimes committed in the Ituri region prior to the referral. As a result, according to the defence, the Court did not have jurisdiction to prosecute the accused for crimes allegedly committed in Kivus region after the date of the referral.
The Chamber held that a member state cannot refer the situation in the whole country on a permanent basis to the Court, since this would effectively abdicate the state’s law enforcement responsibilities in the country, and would contradict the concept of complimentarity. However, the Chamber reiterated its earlier decision that “crimes committed after the time of a referral may also fall within the jurisdiction of the Court, provided only that they are sufficiently linked to the situation of crisis which was ongoing at the time of the referral and was the subject of the referral. It is the existence, or non-existence, of such link, and not the particular timing of the events underlying an alleged crime, that is critical in determining whether that crime may or may not fall within the scope of the referral.”
In determining whether such link existed, the Chamber considered the text of the original referral, oral submissions of the parties in other cases, correspondence between the OTP and the DRC government, a speech of the DRC President at the UNGA, numerous UN documents. The Chamber pointed out that in many of these documents there are references not only to Ituri region but to DRC in general and, in addition, many of the documents also mention both regions as a subject of concern.
The Chamber also rejected two other arguments put forward by the Defence, namely, (a) that the events in the Kivus at the time of the Referral “lacked the objective criteria necessary to be incorporated in the Referral” and (b) that failure by the Prosecutor to allege that Mr. Mbarushimana’s involvement in crimes dates back to the time of the Referral, should entail that the case against him falls outside the scope of the Court’s jurisdiction. The Chamber reasoned that “by its very nature, the link required for an event to be encompassed in the scope of a situation can stretch over a number of years; and, [therefore,] it cannot be required that the person targeted by the Prosecutor’s investigation be active throughout the duration of the relevant time-frame.”
The Chamber further rejected the Defence argument that the issue of jurisdiction is the essential part of the OTP’s case and therefore should be proven by the OTP on the ‘beyond reasonable doubt’ standard of proof. The Chamber interpreted the wording of rule 58(1) – that requires the party making a request to provide “the basis for it” – as imposing the burden on the defence to set out the basis for its jurisdictional challenge. Furthermore, the Chamber pointed to the “the widely-accepted legal principle that the party raising a motion before a court should provide the proof upon which his/her motion is based.”