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Cour Pénale Internationale International Criminal Court Original: English No.: ICC-02/05-02/09 Date: 7 May 2009 PRE-TRIAL CHAMB

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Cour Pénale Internationale International Criminal Court Original: English No.: ICC-02/05-02/09 Date: 7 May 2009 PRE-TRIAL CHAMB ICC-02/05-02/09-1 17-05-2009 1/22 SL PT ICC-02/05-02/09-15-US-AnxA 15-05-2009 2/23 VW PT En application de la Décision ICC-02/05-02/09-15-Conf, datée du 15-05-2009, ce document est rendu public Cour Pénale Internationale International Criminal Court Original: English No.: ICC-02/05-02/09 Date: 7 May 2009 PRE-TRIAL CHAMBER I Before: Judge Sylvia Steiner, Presiding Judge Judge Sanji Mmasenono Monageng Judge Cuno Tarfusser SITUATION IN DARFUR, SUDAN IN THE CASE OF THE PROSECUTOR V. BAHR IDRISS ABU GARDA Public Redacted Version Decision on the Prosecutor's Application under Article 58 No. ICC-02/05-02/09 1/22 7 May 2009 ICC-02/05-02/09-1 17-05-2009 2/22 SL PT ICC-02/05-02/09-15-US-AnxA 15-05-2009 3/23 VW PT En application de la Décision ICC-02/05-02/09-15-Conf, datée du 15-05-2009, ce document est rendu public Document to be notified, in accordance with regulation 31 of the Regulations of the Court, to: The Office of the Prosecutor Counsel for the Defence Mr Luis Moreno-Ocampo, Prosecutor Mr Essa Faal, Senior Trial Lawyer Legal Representatives of Victims Legal Representatives of Applicants Unrepresented Victims Unrepresented Applicants for Participation/Reparation The Office of Public Counsel for The Office of Public Counsel for the Victims Defence States Representatives Amicus Curiae REGISTRY Registrar Defence Support Section Ms Silvana Arbia Victims and Witnesses Unit Detention Section Victims Participation and Reparations Other Section No. ICC-02/05-02/09 2/22 7 May 2009 ICC-02/05-02/09-1 17-05-2009 3/22 SL PT ICC-02/05-02/09-15-US-AnxA 15-05-2009 4/23 VW PT En application de la Décision ICC-02/05-02/09-15-Conf, datée du 15-05-2009, ce document est rendu public PRE-TRIAL CHAMBER I of the International Criminal Court (the "Chamber" and the "Court" respectively); NOTING the "Prosecutor's Application under article 58" (the "Application"),1 filed on 20 November 2008 pursuant to article 58 of the Statute of the Court in the investigation of the Situation in Darfur, Sudan, whereby it requested the Chamber to issue warrants of arrest or, alternatively, summonses to appear for Bahr Idriss Abu Garda ("Abu Garda"), [REDACTED], on a confidential and ex parte basis; NOTING all the supporting material and information submitted by the Prosecutor;^ NOTING, in particular, the "Submission of information on the Prosecutor's Application Pursuant to Article 58 and request for summonses to appear",3 filed by the Prosecutor on 23 February 2009, whereby, inter alia, he requested the Chamber to issue a summons to appear against Abu Garda, partially modifying his original Application; 1 ICC-02/05-163-Conf-Exp + Anxsl-5.38-19. 2 ICC-02/05-165-Conf-Exp and ICC-02/05-165-Conf-Exp-Anxsl-8; 1CC-02/05-172 and ICC-02/05- 172-Conf-Exp-AnxsA-B24; ICC-02/05-173 and ICC-02/05-173-Conf-Exp-AnxsB25-B26; ICC- 02/05-203 and ICC-02/05-203-Conf-Exp-Anxl; ICC-02/05-211-Conf-Exp and ICC-02/05-211- Conf-Exp-Anxsl-2; ICC-02/05-212-Conf-Exp; ICC-02/05-214-Conf-Exp and ICC-02/05-214-Conf- Exp-Anxl; ICC-02/05-216-Conf-Exp; ICC-02/05-221-Conf-Exp and ICC-02/05-221-Conf-Exp- Anx. 3 ICC-02/05-194-Conf-Exp; ICC-02/05-194-Conf-Exp-Anxl. No. ICC-02/05-02/09 3/22 7 May 2009 ICC-02/05-02/09-1 17-05-2009 4/22 SL PT ICC-02/05-02/09-15-US-AnxA 15-05-2009 5/23 VW PT En application de la Décision ICC-02/05-02/09-15-Conf, datée du 15-05-2009, ce document est rendu public CONSIDERING that, based upon the Application, the evidence and other information submitted by the Prosecutor, it is appropriate, for the sake of expeditiousness and taking due account of the confidentiality issues, to decide only on the Prosecutor's request to issue a summons to appear for Abu Garda at this stage; HEREBY RENDERS THIS DECISION: Jurisdiction and admissibility (article 19 of the Statute) 1. Article 19(1) of the Statute requires the Chamber to satisfy itself that it has jurisdiction in any case brought before it. As the Chamber has previously held: [...] a case arising from the investigation of a situation will fall within the jurisdiction of the Court only if the specific crimes of the case do not exceed the territorial, temporal and possibly personal parameters defining the situation under investigation and fall within the jurisdiction of the Court.4 2. The Chamber notes that (i) regarding the jurisdiction ratione loci, although the events forming the subject of the Prosecutor's Application took place in Sudan, which is not a State Party to the Statute, the Situation in Darfur, Sudan, was referred to the Court by the Security Council under article 13(b) of the Statute;^ (ii) in relation to the jurisdiction ratione temporis, the allegations contained in the Application relate to conduct which allegedly occurred on 29 September 2007 and, therefore, after 1 July 2002, date of entry into force of the 4 ICC-01/04-01/07-4, para. 9. 5 ICC-02/05-01/07-l-Corr, para. 16. No. ICC-02/05-02/09 4/22 7 May 2009 ICC-02/05-02/09-1 17-05-2009 5/22 SL PT ICC-02/05-02/09-15-US-AnxA 15-05-2009 6/23 VW PT En application de la Décision ICC-02/05-02/09-15-Conf, datée du 15-05-2009, ce document est rendu public Statute;^ and (iii) regarding the jurisdiction ratione materiae, the factual allegations contained in the Application, if proven, would give rise to criminal responsibility for war crimes punishable under article 8(2)(c)(i) (violence to life), article 8(2)(e)(iii) (attack on a peacekeeping mission) and article 8(2)(e)(v) (pillaging) of the Statute. 3. On this basis, and without prejudice to any subsequent determination under article 19 of the Statute, the Chamber is satisfied that the present case falls within the jurisdiction of the Court. 4. With regard to the admissibility of the case, the Chamber notes, firstly, that the instant application was made on a confidential and ex parte basis. Particularly since the Prosecutor has indicated that there are no national proceedings in relation to the case,7 the Chamber sees no ostensible cause or self-evident factor compelling it to exercise its discretion to review the admissibility of the case proprio motu at the instant stage of the proceedings. As a result, the Chamber declines to use its discretionary proprio motu power to determine the admissibility of the case against Abu Garda at this stage. Whether there are reasonable grounds to believe that at least one of the crimes described in the Prosecutor's Application has been committed 5. In its Application, the Prosecutor alleges that the African Union Mission in Sudan ("AMIS") personnel and property stationed at the Military Group Site 6 The Application, para. 3. No. ICC-02/05-02/09 5/22 7 May 2009 ICC-02/05-02/09-1 17-05-2009 6/22 SL PT ICC-02/05-02/09-15-US-AnxA 15-05-2009 7/23 VW PT En application de la Décision ICC-02/05-02/09-15-Conf, datée du 15-05-2009, ce document est rendu public Haskanita (Sector 8) ("MGS Haskanita"), Umm Kadada Locality, North Darfur were attacked on 29 September 2007,8 an(j that during the attack, twelve AMIS personnel were killed and eight were severely wounded.9 According to the Prosecutor, the attackers also appropriated certain property, including vehicles, refrigerators, computers, mobile phones, boots, uniforms, fuel and money during and after the attack.10 These acts, in the Prosecutor's view, constitute war crimes under articles 8(2)(c) and 8(2)(e) of the Statute.!! 6. Since the definition of every crime within the jurisdiction of the Court includes both contextual and specific elements, the Chamber will first consider whether there are reasonable grounds to believe that the contextual elements of at least one crime within the jurisdiction of the Court are present. The Chamber will then analyse whether there are reasonable grounds to believe that the specific elements of any such crime are also met. 7. The Prosecutor submits that the alleged attack on the MGS Haskanita took place in the context of an armed conflict not of an international character which occurred in Darfur, Sudan from approximately August 2002 to the filing date of the Application on 20 November 2008, between the Government of Sudan ("GoS") and various armed groups, including the Justice and Equality Movement ("the JEM"). 12 Specifically, the Prosecutor submits that the attack on 7 The Application, para. 8. 8 The Application, para. 3. 9 Ibid., paras. 71 and 91. 10 Ibid, para. 72. 11 Ibid, para. 1. 12 Ibid, para. 34. No. ICC-02/05-02/09 6/22 7 May 2009 ICC-02/05-02/09-1 17-05-2009 7/22 SL PT ICC-02/05-02/09-15-US-AnxA 15-05-2009 8/23 VW PT En application de la Décision ICC-02/05-02/09-15-Conf, datée du 15-05-2009, ce document est rendu public the MGS Haskanita was committed by a joint group of forces which had broken away from, inter alia, the JEM.13 8.
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