ICC-02/05-03/09-1-Conf 28-08-2009 1/22 CB PT ICC-02/05-03/09-1-US 28-08-2009 1/22 CB PT Pursuant to PTC I's instructions, dated 28/08/2009, this document is reclassified as Under Seal ICC-02/05-03/09-1 15-06-2010 1/22 SL PT Pursuant to Decision ICC-02/05-03/09-43 dated 15/06/2010, this document is reclassified as public Cour Pénale Internationale / \ International m Criminal Court Original English No.: ICC-02/05-03/09 Date. 27 August 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. ABDALLAH BANDA ABAKAER NOURAIN AND SALEH MOHAMMED JERBO JAMUS Confidential Second Decision on the Prosecutor's Application under Article 58 No. ICC-02/05-03/09 1/22 27 August 2009 ICC-02/05-03/09-1-Conf 28-08-2009 2/22 CB PT ICC-02/05-03/09-1-US 28-08-2009 2/22 CB PT Pursuant to PTC I's instructions, dated 28/08/2009, this document is reclassified as Under Seal ICC-02/05-03/09-1 15-06-2010 2/22 SL PT Pursuant to Decision ICC-02/05-03/09-43 dated 15/06/2010, this document is reclassified as public Doaiment to be nohfied, in accordance with regulation 31 of the Regulations of the Court, to- The Office of the Prosecutor Counsel for the Defence Mr Luis Vforeno-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-02/05-03/09 1/22 27 August 2009 ICC-02/05-03/09-1-Conf 28-08-2009 3/22 CB PT ICC-02/05-03/09-1-US 28-08-2009 3/22 CB PT Pursuant to PTC I's instructions, dated 28/08/2009, this document is reclassified as Under Seal ICC-02/05-03/09-1 15-06-2010 3/22 SL PT Pursuant to Decision ICC-02/05-03/09-43 dated 15/06/2010, this document is reclassified as public PRE-TRIAL CHAMBER 1 of the Internahonjl Cnmmal Court (the "Chamber" and the "Court" respechvely), NOTING the "Prosecutor's Apphcahon under arhcle 58" (the "Application"),^ filed on 20 November 2008 pursuant to article 58 of the Statute of the Court in the mveshgahon of the Situahon m Darfur, Sudan, whereby it requested the Chamber to issue warrants of arrest or, alternahvely, summonses to appear for Bahar Idriss Abu Garda ("Abu Garda"), Abdallah Banda Abakaer Nourain ("Banda") and Saleh Mohammed Jerbo Jamus ("Jerbo"), on a conhdential and ex parte basis,i NOTING all the supporting material and mformation submitted by the Prosecutor,^ NOTING, in particular, the "Submission of information on the Prosecutor's Apphcahon Pursuant to Article 58 and request for summonses to appear",^' filed by the Prosecutor on 23 February 2009, whereby, inter alia, he requested the Chamber to issue a summons to appear agamst Abu Garda, Banda and Jerbo, parhally modifying his original Application, 1 ICC-02/05-163-Conf-Lxp + Anx'ïl-S 38 2 ICC-02/05-165-Conf-F\p and ICC-02/05-l65-Cont-E\p-Anxsl-8, lCC-02/05-172 and ICC-Ü2/05- 172-Cont-Eîxp-An\sA-B24, fCC-Ü2/05-173 and ICC-Ü2/05-173-Conf-Exp-An\sB25-tï2ó, ICC- 02/05-203 and ICC-ü2/05-203-Cont-l-\p~Anxl, 100-02/05-211-Conf-I-xp and ICC-02/05-211- Conf-IIxp-Anxsl-2, ICC-02/05-212-C(mf-I'xp, ICC-02/05-214-Cont-bxp and lCC-02/a5-214-Conf- Cxp-Anxl, ICC-02/05-21ö-Conf-Exp, ICC-02/05-229 and ICC-02/05-229-Conf.E\p-AnxsA-B == ICC-02/03-194-C()nf-Exp, ICC-02/05-194-Conf-h\p-An\l No ICC-02/05-03/09 3/22 27 August 2009 ICC-02/05-03/09-1-Conf 28-08-2009 4/22 CB PT ICC-02/05-03/09-1-US 28-08-2009 4/22 CB PT Pursuant to PTC I's instructions, dated 28/08/2009, this document is reclassified as Under Seal ICC-02/05-03/09-1 15-06-2010 4/22 SL PT Pursuant to Decision ICC-02/05-03/09-43 dated 15/06/2010, this document is reclassified as public NOTING the "Decision on the Prosecutor's Apphcahon under Arhcle 58",-^ issued by the Chamber on 7 May 2009, wherein the Chamber found that there were reasonable grounds to believe that Abu Garda was criminally responsible for w^ar crimes under article 8(2)(c)(i), arhcle 8(2)(e)(iii) and arhcle 8(2)(c)(v) of tlie Statute, 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 m any case brought before it As the Chamber has previously held I 1 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 "* 2 The Chamber notes that (i) regarding the jurisdiction ratione loci, although the events forming the subject of the Prosecutor's Apphcahon took place in Sudan, which is not a State Party to the Statute, the Situahon m Darfur, Sudan, w^as referred to the Court by the Scairit}^ Council under article 13(b) of the Statute,'' (ii) in relahon to the junsdichon ratione temporis, the allegahons contained in the Applicahon relate to conduct which allegedly occurred on 29 September 2007 and, therefore, after 1 July 2002, date of entry mto force of the •* rCC-02/05-02/ü9-I-L'S-Exp 5 ICC-01/04-01/07-4, para 9 ^ICC-02/05-01/07-l-Corr, para 16 No. ICC-02/05-03/09 4/22 27 August 2009 ICC-02/05-03/09-1-Conf 28-08-2009 5/22 CB PT ICC-02/05-03/09-1-US 28-08-2009 5/22 CB PT Pursuant to PTC I's instructions, dated 28/08/2009, this document is reclassified as Under Seal ICC-02/05-03/09-1 15-06-2010 5/22 SL PT Pursuant to Decision ICC-02/05-03/09-43 dated 15/06/2010, this document is reclassified as public Statute,'' and (m) regarding the jurisdiction ratione matenae, the tactual allegahcms contained in the Application, if proven, w^ould give rise to criminal responsibility for war crimes punishable under article 8(2)(c)(i) (violence to life), article 8(2)(e)(iu) (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 withm the jurisdiction of the Court 4 With regard to the admissibihty of the case, the Chamber notes, firstly, that the Applicahon was made on a confidenhal and ex parte basis Particularly since the Prosecutor has indicated that there are no nahonal proceedings in relahon to the case,** 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 current stage of the proceedings As a result, the Chamber declines to use its discretionary proprio ynotu power to determine the admissibility of the case against Banda and Jerbo 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 stahoned at the Military Group Site Haskanita (Sector 8) ("MGS Haskanita"), Umm Kadada Locality, North Darfur "The Apphcation, para 3 ^ Und, para 8 No. lCO-02/05-03/09 5/22 27 August 2009 ICC-02/05-03/09-1-Conf 28-08-2009 6/22 CB PT ICC-02/05-03/09-1-US 28-08-2009 6/22 CB PT Pursuant to PTC I's instructions, dated 28/08/2009, this document is reclassified as Under Seal ICC-02/05-03/09-1 15-06-2010 6/22 SL PT Pursuant to Decision ICC-02/05-03/09-43 dated 15/06/2010, this document is reclassified as public were attacked on 29 September 2007,•* and that during the attack, twelve AMIS personnel were killed and eight were severely w\:)unded ^^ According to the Prosecutor, the attackers also appropriated certam property, includmg vehicles, refrigerators, computers, mobile phones, boots, uniforms, fuel and money during and after the attack " These acts, m the Proseaitor's view, constitute war crimes under arhcles 8(2)(c) and 8(2)(e) ot the Statute.'^ 6 Smce 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 belie\'c that the contextual elements ot at least one crime wnthin the jurisdiction of the Court are present The Chamber will then analyse whether there are reasonable grounds to beheve that the specific elements of any such crime are also met 7.