Gender Report Card on the International Criminal ... - YWCA Canada

OTP Situations and Cases
Dissenting opinion of
Judge Fernández de Gurmendi
Presiding Judge Fernández de Gurmendi, in a separate
and partially dissenting opinion, agreed with the
majority of the Chamber on the decision to authorise
the commencement of the investigation, but disagreed
with the majority with respect to the analysis on
jurisdiction and the temporal scope of the authorised
investigation. 1086
Judge Fernández de Gurmendi stated that Article
15 of the Rome Statute provided for the Prosecutor
to request the Pre-Trial Chamber’s authorisation to
start an investigation, thus granting a supervisory
role to the Pre-Trial Chamber, intended as ‘a judicial
safeguard against frivolous or politically-motivated
charges’. 1087 Judge Fernández de Gurmendi pointed out
that the Chamber’s examination of the requirements
of Article 53(1) 1088 ‘should not become a duplication
of the preliminary examination conducted by the
Prosecutor’, 1089 but rather a review of the Prosecutor’s
request and material presented. 1090 Judge Fernández
de Gurmendi found that the Pre-Trial Chamber was not
an investigative chamber, 1091 but rather functioned to
ascertain the Prosecutor’s ‘accuracy of the statement
of facts and reasons of law […] with regard to crimes
and incidents identified in his own request’, and then
decided whether the requirements of Article 53 of the
Statute were fulfilled. 1092 She thus disagreed with the
Chamber’s own establishing of facts and acts as well
as its further conclusions on criminal responsibility. 1093
She stated that ‘through a search of the material
accompanying the request’, the Chamber for example
identified incidents of torture and inhumane treatment
under the heading ‘other underlying acts not presented
by the Prosecutor’ 1094 or other war crimes, such as rape
and sexual violence, not presented by the Prosecutor. 1095
Judge Fernández de Gurmendi concluded that the
Pre-Trial Chamber had exceeded its supervisory role
under Article 15 of the Statute and acted contrary
to its neutrality role to ‘maintain with regard to the
selection by the Prosecutor of persons and acts to be
addressed in the investigation’. 1096 With respect to
victims’ representations, she disagreed ‘with the “nonrestrictive
manner” in which the majority decided to
consider the victims’ submissions’ and with its use of
specific submissions ‘as a source to identify alleged
criminal acts and suspects’. 1097
As to the temporal scope of the investigation, Judge
Fernández de Gurmendi stated that the starting date
of the investigation should have been expanded to
crimes committed since 2002, and disagreed with
the Chamber’s order to the Prosecutor to present
it with additional information within a month. 1098
With respect to the end date of the investigation, the
dissent stated that ‘the limitation of jurisdiction to
“continuing crimes” has no statutory basis and may
unduly restrict the ability of the Prosecutor to conduct
investigations into future crimes arising from the
same ongoing situation of crisis’ in Côte d’Ivoire’. 1099
1086 ICC-02/11-15-Corr, paras 5-6.
1087 ICC-02/11-15-Corr, para 16.
1088 The Chamber must consider if the requirements set
forth in Article 53(1)(a)-(c) of the Statute are fulfilled
and therefore has to examine the material available to
it before authorising an investigation, see ICC-02/11-14,
para 21 and ICC-02/11-15-Corr, paras 13-14.
1089 ICC-02/11-15-Corr, para 15.
1090 ICC-02/11-15-Corr, para 16.
1091 ICC-02/11-15-Corr, para 20.
1092 ICC-02/11-15-Corr, para 28.
1093 ICC-02/11-15-Corr, para 38.
1094 ICC-02/11-15-Corr, paras 38-39.
1095 ICC-02/11-15-Corr, para 40.
1096 ICC-02/11-15-Corr, para 45.
1097 ICC-02/11-15-Corr, para 52.
1098 ICC-02/11-15-Corr, paras 6, 56, 58.
1099 ICC-02/11-15-Corr, paras 6, 62-73.
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