ICC Prosecutor Seeks to Open Investigation into Situation in Cote d’Ivoire

The ICC Prosecutor has announced that he intends to request permission from a Pre-Trial Chamber to open investigations into the situation in Cote d’Ivoire since 28 Nov. 2010. Assuming permission is granted, this will be second situation (after Kenya) in which the Prosecutor will have begun investigation into a situation in the exercise of his powers to act propio motu. It will also be the 7th situation before the Court. Importantly, it will be the first situation in which the Court seeks to exercise jurisdiction over a non-party who has accepted the Court’s jurisdiction under Article 12(3) of the Court’s Statute. Cote d’Ivoire accepted the jurisdiction of the Court under Art. 12(3) in 2002 and this has been reconfirmed (twice) by the newly elected (and newly seated) president Alassane Outtara.

It is not clear to me why Cote d’Ivoire does not just ratify the Statute rather than use accceptance under Art. 12(3). If anyone knows please do add a comment below.

All seven situation countries in which the ICC is conducting investigations and prosecutions are in Africa. This has given rise to tensions between some African leaders, the African Union and the Court (see here and here). There have been  allegations that the Court is somehow acting unfairly against Africa in its selection of situations. The addition of Cote d’Ivoire will fuel these allegations. However, it ought not to given that the leaders in  Cote d’Ivoire seem to have been rather keen on ICC action. The country is not a party and could have abstained from accepting the Court’s jurisdiction or even revoked that acceptance after having first made it in 2003. Instead the acceptance has been confirmed twice in the last 5 months. It is not quite a self referral (and it is not clear to me if a non-party can refer a situation to the ICC) but it is as close as it gets. This means that four of the seven situations before the ICC have been initiated by the African countries concerned and even the Kenyan situation originated from a Kenyan domestic process.