Introduction
On March 11, 2026, the Appeals Chamber of the International Criminal Court (ICC) upheld a decision of the Pre-Trial Chamber (PTC) finding that a case against Edmond Beina for crimes committed in the Central African Republic (CAR) was inadmissible (Appeal Decision).Footnote 1 The Appeal Decision rests on the ICC’s principle of complementarity, whereby the ICC grants primacy to national courts; it will not pursue a case if a national court is genuinely pursing the same individual(s) for substantially the same conduct. Rome Statute Article 17 lays out the factors underlying such a determination, which have previously been interpreted by the Appeals Chamber in cases such as Katanga and Al-Senussi.Footnote 2
Although the Appeals Chamber applies this prior admissibility jurisprudence in its decision here, other aspects of the Appeal Decision elevate its novelty. This is the first ICC decision to find a case inadmissible in favor of a hybrid court, in this case the Special Criminal Court in the Central African Republic (CPS).Footnote 3 In addition, the Appeals Chamber’s analysis of the timeliness of the CAR’s admissibility challenge provides important guidance concerning what constitutes the “earliest opportunity” for such a filing pursuant to Rome Statute Article 19(5), particularly when different governmental organs within a state might have varying levels of information relevant to the claim. And while not part of the Appeal Decision, the underlying decision from the PTC clarified the CPS’s primacy over the ICC under the circumstances, even in the face of a provision of the CPS’s constitutive law that itself granted primacy to the ICC. The Appeal Decision is thus a noteworthy addition to the complementarity jurisprudence of the ICC.
Background
The ICC Beina investigation came out of the CAR referring itself to the ICC in 2014 concerning violence that began in 2012. This was the second CAR self-referral (CAR II); the first came in 2004 regarding the 2002–03 conflict (CAR I). The renewed violence in 2012 was exemplified by the exchange of hostilities between the primarily Muslim rebels called “Séléka” and primarily Christian militia called “Anti-Balaka.”
In December 2022, the ICC Office of the Prosecutor (OTP) announced the conclusion of the investigative phases in both CAR I and CAR II.Footnote 4 From CAR II have come the Yekatom and Ngaïssona, Said, and Mokom cases, the last of which was terminated after the OTP withdrew all charges for lack of evidence.Footnote 5
Beina, according to the ICC arrest warrant confirmed by the PTC in December 2018, is alleged to be the leader of an Anti-Balaka group that attacked the village of Guen in Mambéré-Kadéï Prefecture from February to April 2014. In the process, he and others killed at least sixty-four civilians, including the elderly and children, and injured, raped, and/or forced scores of others to flee, resulting in war crimes and crimes against humanity.Footnote 6 Within months of the PTC issuing the Beina arrest warrant under seal, the CPS would also be looking into Beina’s actions.
A brief treatment of the CPS’s background: following the outbreak of violence in 2012, the UN Security Council created a Commission of Inquiry for CAR (CoI) in 2013Footnote 7 and created a peacekeeping mission there in April 2014 (MINUSCA).Footnote 8 In August 2014, the CAR and MINUSCA signed a memorandum of understanding requiring the government to establish a special criminal court.Footnote 9
By promulgation of Organic Law No. 15-003, the CAR established the CPS in 2015 as a national court operating withing the CAR justice system, with both national and international staff.Footnote 10 The CPS has jurisdiction over the investigation and prosecution of serious human rights violations and violations of international humanitarian law committed in the CAR since January 1, 2003, as defined by the CAR Penal Code and by international law, including genocide, war crimes, and crimes against humanity.Footnote 11 Significantly for the present purposes, one provision of the Organic Law granted primacy to the ICC.Footnote 12
The ICC and CPS have cooperated on CAR investigations, and both courts were investigating events in Guen.Footnote 13 The timing of CAR’s knowledge of the details of the ICC’s case concerning Beina would later be important for the resolution of the admissibility challenge. The ICC had at different times shared with the CPS Prosecutor or other CAR governmental bodies diverse information regarding the nature of its investigations that might concern Beina. Eventually, the CPS Prosecutor requested to suspend his Guen preliminary investigation in light of the ongoing ICC investigations, but the CPS judiciary rejected that request. In January 2020, the CPS Prosecutor brought a formal application to open an investigation concerning offences committed in Guen and other locations, mentioning Beina.
The CPS issued an arrest warrant against Beina in May 2022.Footnote 14 Beina was arrested in CAR in June 2024, and the day after his arrest was charged before the CPS with crimes against humanity and war crimes in, inter alia, Guen. In August 2024, the CPS Prosecutor was informed of the content of the Beina ICC warrant, and then informed the CAR government of the existence of both the ICC and CPS arrest warrants against Beina for similar conduct.
In October 2024, the CAR challenged the admissibility of the case against Beina before the ICC.Footnote 15 The challenge was based on Rome Statute Article 19(2)(b), which allows a state to bring a jurisdictional challenge based on the principle of complementarity described in Article 17, wherein a case is inadmissible if it is “being investigated or prosecuted by a State which has jurisdiction over it, unless the state is unwilling or unable genuinely to carry out the investigation or prosecution.” This inadmissibility rule, the CAR argued in its challenge, applied to Beina because a case against him was before the CPS.
Beina—apparently preferring the ICC—argued that the case was admissible because 1) CAR’s admissibility challenge was untimely under Rome Statute Article 19(5), and 2) the CAR proceedings were not being conducted independently and impartially within the meaning of Article 17(2)(c), and would not be able to guarantee Beina’s fair trial rights.Footnote 16
The ICC’s Office of the Public Counsel for Victims (OPCV) supported a finding of inadmissibility. It stated that victims have expressed trust in the CPS and would prefer prosecution before that court in order to be able to follow proceedings more closely and to travel to the proceedings if required.Footnote 17
The OTP, for its part, took no position on admissibility, while confirming that the CPS proceedings against Beina involved “substantially the same conduct as alleged in the case pending against him at the ICC” and raising some procedural points.Footnote 18
The PTC’s decision first held that the CAR challenge to admissibility satisfied Article 19(5)’s requirement of filing “at the earliest opportunity.” While faulting the CPS for not having been more proactive earlier in determining whether the ICC’s case against Beina overlapped with that of the CPS, and in conveying information to the CAR governmental authorities, the PTC nevertheless declined to impute the CPS’s knowledge to the CAR governmental authorities as a whole. It thus held that the CAR authorities were not sufficiently informed of the overlap between the two proceedings until August 2024, and filed their admissibility challenge within a reasonable timeframe subsequent to that.Footnote 19
As to the merits, the PTC first had to grapple with the dueling deference provisions, wherein the ICC deferred to national courts, and the CPS deferred to the ICC.Footnote 20 The Court resolved this by holding that where national law grants primacy to the ICC, it is for national courts to interpret and apply that law as to whether national courts retain jurisdiction, whereas the ICC can only evaluate its jurisdiction on the basis of ICC law.Footnote 21 Because the CPS had indicated its jurisdiction by proceeding with the case against Beina, the PTC held that the issue was resolved.
The PTC then moved to the substance of the jurisdictional challenge under Article 17 and held, in short, that because CAR was genuinely proceeding against Beina through the CPS, his case was inadmissible before the ICC.
The Appeals Chamber Decision
Beina appealed the PTC’s decision, challenging the “earliest possible opportunity” finding on the basis that the PTC impermissibly disaggregated organs of the CAR government, and that CAR should instead be considered to have been on notice of the overlapping investigations at least when the CPS issued its arrest warrant against Beina in May 2022. Beina also challenged the substantive inadmissibility finding, claiming that the PTC had improperly disregarded information Beina had put forward that purportedly showed the CAR judicial system, including the CPS, was not independent and impartial.Footnote 22
The OTP took no decision on the merits of the appeal.Footnote 23 The OPCV urged the Appeals Chamber to reject Beina’s arguments. It included in its submissions the assertion that victims “consistently expressed their confidence in the [CPS] and their strong interest in proceedings being conducted by the CAR,” and that “[a]ccepting the Defence’s claims would unjustifiably undermine domestic accountability efforts and frustrate Victims’ right to justice.”Footnote 24
CAR argued that the PTC’s decision should be upheld, noting that the CPS might be able to carry out justice more effectively “given its better knowledge of the situation on the ground, readier access to witnesses and evidence and greater legitimacy in the eyes of local communities.”Footnote 25
The Appeals Chamber first held that the PTC had not erred in concluding that CAR had filed its admissibility challenge within Article 19(5)’s “earliest opportunity” requirement, noting underlying principles applicable to admissibility challenges that caution against filing prematurely. More specifically, the court observed that a state should not challenge admissibility until it is actually in a position to substantiate its claim, and should normally only make a single filing supporting the substance of its claim once it has the relevant information.Footnote 26
Second, the Appeals Chamber rejected Beina’s arguments that the Pre-Trial Chamber had erroneously disregarded evidence concerning alleged flaws in the CAR judicial system in its assessment of whether CAR was “unable” or “unwilling” to genuinely carry out proceedings against Beina pursuant to Article 17. Although due process considerations are an element of Article 17 analysis, the Appeals Chamber noted that this was with an eye towards ensuring that the principle of complementarity was not being abused by the state to avoid jurisdiction before the ICC.Footnote 27 Further, although in extreme cases it may be that violations of a suspect’s rights are so egregious that the process cannot be considered any form of genuine justice, the ICC will not generally sit in judgment “over domestic legal systems to ensure that they are compliant with international standards of human rights.”Footnote 28
The Appeals Chamber held that allegations against a state’s judicial system as a whole or in relation to other cases were not relevant for the Article 17 analysis. Instead, the ICC uses a case specific approach, and evidence must support the claim that Beina’s proceedings in particular were not being conducted independently or impartially, but Beina provided no such evidence.Footnote 29 Indeed, the Court credited the PTC’s findings that there was no evidence suggesting that witnesses in Beina’s case would be “deliberately exposed to, or intentionally left unprotected from reprisals”.Footnote 30 It therefore rejected Beina’s appeal.
Conclusion
The case against Beina will now proceed at the CPS, alongside others accused of crimes in Guen and elsewhere.Footnote 31 By demonstrating that complementarity also extends to national courts with an international component, such as the CPS, the Appeal Decision points to a path forward for a state that may want some international involvement in pursuing accountability for atrocity crimes, but would prefer to avoid the ICC. This could be for a number of reasons, including to demonstrate to the state’s populace that it is capable of seeking justice domestically, to ensure that perpetrators are prosecuted in the context of others involved in the same acts (or additional crimes/crime sites) that the ICC may not pursue, to ensure proceedings remain accessible to victims, or to obtain the benefit of knowledge transfer by having international staff work within the domestic system and thereby build local capacity. Patience Guerengbo, a jurist at the CPS, has stated that, “[b]y investigating and prosecuting those responsible for these crimes, the [CPS] sends a strong message that these acts will no longer go unpunished, which may deter future violence.”Footnote 32 Particularly with the CAR investigations now closed at the ICC, the CPS’s role in this regard becomes even more important.
Original: English
No. ICC-01/14 OA
Date: 11 March 2026
THE APPEALS CHAMBER
Before: Judge Gocha Lordkipanidze, Presiding
Judge Tomoko Akane
Judge Luz del Carmen Ibáñez Carranza
Judge Solomy Balungi Bossa
Judge Erdenebalsuren Damdin
SITUATION IN THE CENTRAL AFRICAN REPUBLIC II
Public document
Judgment
on the appeal of Mr Edmond Beina against the decision of Pre-Trial Chamber II entitled “Decision on the Central African Republic’s challenge to the admissibility of the case against Edmond Beina”
The Appeals Chamber of the International Criminal Court,
In the appeal of Mr Edmond Beina against the decision of Pre-Trial Chamber II entitled “Decision on the Central African Republic’s challenge to the admissibility of the case against Edmond Beina” of 12 September 2025 (ICC-01/14-217-Red),
After deliberation,
Delivers the following
JUDGMENT
The decision of Pre-Trial Chamber II entitled “Decision on the Central African Republic’s challenge to the admissibility of the case against Edmond Beina” of 12 September 2025 (ICC-01/14-217-Red) is confirmed.
REASONS
I. INTRODUCTION
1. This judgment is with respect to the appeal of Mr Edmond Beina against the “Decision on the Central African Republic’s challenge to the admissibility of the case against Edmond Beina”, rendered on 12 September 2025 (hereinafter: “Impugned Decision”).Footnote 1 In the Impugned Decision, Pre-Trial Chamber II (hereinafter: “Pre-Trial Chamber”) assessed the challenge of the Central African Republic (hereinafter: “CAR”) to the admissibility of the case against Mr Beina under article 19(2)(b) of the Statute (hereinafter: “Admissibility Challenge”), and determined that the case against Mr Beina is inadmissible under article 17(1)(a) of the Statute.Footnote 2
2. The Pre-Trial Chamber found, inter alia, that it had not been demonstrated that the CAR did not bring its Admissibility Challenge “at the earliest opportunity”, in accordance with article 19(5) of the Statute,Footnote 3 and considered irrelevant and/or unsubstantiated the submissions of the Defence for Mr Beina (hereinafter: “Appellant”) concerning the independence and impartiality of the CAR’s judicial system as a whole and other cases.Footnote 4 The Appellant contests these findings on appeal.
II. PROCEDURAL HISTORY
3. On 30 May 2014, the government of the CAR referred the situation in the CAR since 1 August 2012 to the Court.Footnote 5
4. On 7 December 2018, the Pre-Trial Chamber issued a warrant of arrest against Mr Beina for crimes against humanity and war crimes allegedly committed in Guen between at least 1 February to early April 2014 (hereinafter: “ICC Arrest Warrant”).Footnote 6
5. On 28 August 2019, the Registry notified the CAR authorities of the ICC Arrest Warrant and a request to cooperate in the arrest and surrender of Mr Beina.Footnote 7
6. On 3 May 2022, the “Cour pénale spéciale” in the CAR (hereinafter: “CPS”) issued a warrant for the arrest of Mr Beina (hereinafter: “CPS Arrest Warrant”), which “substantially mirrors” the ICC Arrest Warrant.Footnote 8
7. On 16 June 2024, Mr Beina was arrested in the CAR with the support of the Court.Footnote 9
8. On 28 October 2024, the Registry transmitted to the Pre-Trial Chamber the Admissibility Challenge submitted by the CAR authorities on 22 October 2024, and on 30 and 31 October 2024, the material submitted in support thereof.Footnote 10
9. On 12 September 2025, the Pre-Trial Chamber issued the Impugned Decision.Footnote 11
10. On 19 September 2025, the Appellant filed a notice of appeal against the Impugned Decision.Footnote 12
11. On 6 October 2025, the Appellant filed the appeal brief (hereinafter: “Appeal Brief”).Footnote 13 The Appellant requests that the Appeals Chamber reverse the Impugned Decision and either: (i) reject the Admissibility Challenge and find the case against Mr Beina to be admissible before the Court; or, in the alternative, (ii) remand the matter back to the Pre-Trial Chamber for a new determination of the Admissibility Challenge following the Appeals Chamber’s instructions.Footnote 14
12. On 21 October 2025, an ad hoc Presidency denied, by majority, the request of Judge Tomoko Akane to be excused from her functions as a judge of the Appeals Chamber in respect of the present appeal.Footnote 15
13. On 24 October 2025, the Appeals Chamber decided on Judge Gocha Lordkipanidze as the Presiding Judge in the appeal against the Impugned Decision.Footnote 16
14. On 28 October 2025, the Deputy Prosecutor (hereinafter: “Prosecutor”) filed his response to the Appeal Brief (hereinafter: “Prosecutor’s Response”).Footnote 17 The Prosecutor submits that he “takes no position on the merits of the [a]ppeal as it concerns the correct interpretation of the [Impugned Decision], the impact of any alleged error of law, or the relevant facts in dispute in this matter”.Footnote 18
15. On the same day, the Office of Public Counsel for Victims (hereinafter: “OPCV”) filed its response to the Appeal Brief (hereinafter: “OPCV’s Response”).Footnote 19 The OPCV submits that the appeal should be dismissed as the Appellant has failed to identify any error of law, fact or procedure, or any abuse of discretion that materially affected the Impugned Decision.Footnote 20 Reiterating the victims’ preference and “strong interest” in proceedings being conducted in the CAR, the OPCV further submits that granting the Appellant’s appeal “would risk […] frustrating [v]ictims’ access to justice”.Footnote 21
16. On 14 November 2025, the Registry informed the Appeals Chamber that the CAR authorities were notified of the Appeal Brief on 3 November 2025, and transmitted to the Appeals Chamber the CAR authorities’ response to the Appeal Brief.Footnote 22 The CAR authorities submit that the appeal should be dismissed and the Impugned Decision be upheld.Footnote 23
17. On 17 November 2025, the Appeals Chamber issued an order, directing the CAR authorities to file a public redacted version of the CAR’s Response or to request its reclassification as public.Footnote 24
III. STANDARD OF REVIEW
18. In the present appeal, the Appellant alleges errors of law and abuse of discretion.
19. Regarding errors of law, the Appeals Chamber has previously held that it
will not defer to the relevant Chamber’s interpretation of the law, but will arrive at its own conclusions as to the appropriate law and determine whether or not the first instance Chamber misinterpreted the law.Footnote 25
20. If the relevant chamber committed such an error, the Appeals Chamber will only intervene if the error materially affected the decision impugned on appeal.Footnote 26 A decision is “materially affected by an error of law” if the chamber “would have rendered a [decision] that is substantially different from the decision that was affected by the error, if it had not made the error”.Footnote 27
21. Regarding errors in a chamber’s exercise of its discretion, the Appeals Chamber has stated that:
[A]n abuse of discretion occurs when the impugned decision is so unfair or unreasonable as to “force the conclusion that the Chamber failed to exercise its discretion judiciously”. The Appeals Chamber will also consider whether the first instance Chamber gave weight to extraneous or irrelevant considerations or failed to give weight or sufficient weight to relevant considerations in exercising its discretion.Footnote 28
22. The appellant is obliged to set out all the alleged errors in the appeal brief and “indicate, with sufficient precision, how [the] alleged error would have materially affected the impugned decision”.Footnote 29
23. Lastly, the Appeals Chamber has held that its function in respect of appeals brought under article 82(1)(a) of the Statute is “not to decide anew on the admissibility of the case”.Footnote 30 Instead, it is “to determine whether the determination [by the Pre-Trial Chamber] on the admissibility of the case […] was in accord with the law”.Footnote 31
24. The above standard of review will guide the analysis of the Appeals Chamber.
IV. MERITS
A. First ground of appeal
1. Relevant part of the Impugned Decision
25. The Pre-Trial Chamber held that, in line with past decisions of the Court,
“the earliest opportunity” for a State to file an admissibility challenge within the meaning of article 19(5) of the Statute is construed around several factors: (i) the rationale behind article 19(5), namely that admissibility challenges should not be used by States as mechanisms to unduly delay or hinder the Court’s proceedings; (ii) a challenge should be submitted as soon as a State considers itself in a position to assert a conflict of jurisdiction and demonstrate the inadmissibility of a case before the Court; (iii) bar exceptional circumstances, the State has only one chance to challenge the admissibility of a case, and thus should refrain from premature challenges; and (iv) the circumstances of the individual case must be taken into account with a view to determining whether the challenge was filed in an untimely manner.Footnote 32
26. The Pre-Trial Chamber concluded that “it was only upon receiving notification of the CPS Arrest Warrant in August 2024 that the contours of the cases against Mr Beina before the Court and the CPS became sufficiently clear to [the CAR authorities] so as to enable them to submit an admissibility challenge”, which was then submitted “within a reasonably short timeframe thereafter”.Footnote 33
2. Summary of the submissions
a. Appellant’s submissions
27. The Appellant submits that the Pre-Trial Chamber committed an error of law when determining that the CAR brought the Admissibility Challenge “at the earliest opportunity”, in accordance with article 19(5) of the Statute.Footnote 34 Specifically, the Appellant argues that the Pre-Trial Chamber “erroneously distinguished between different organs of the CAR as a State”, instead of assessing when the CAR “as the ‘State’ became aware of [the jurisdictional] conflict”, given the ordinary meaning of the term “State” as used in article 19(2)(b) and (5) of the Statute.Footnote 35 According to the Appellant, this error materially affected the Impugned Decision since without the alleged error, the Pre-Trial Chamber “would have found cause to dismiss the Admissibility Challenge [in limine] as filed in non-compliance with [a]rticle 19(5) of the Statute”.Footnote 36
b. State’s submissions
28. The CAR authorities do not submit any arguments in response to the first ground of appeal.
c. OPCV’s submissions
29. The OPCV submits that the first ground of appeal should be “dismissed”, as the Appellant merely repeats its previous arguments which were dismissed by the Pre-Trial Chamber.Footnote 37 In its view, the Pre-Trial Chamber did not err in focusing on when the “competent Ministry” of the CAR became aware of the jurisdictional conflict in its assessment under article 19(5) of the Statute.Footnote 38 The OPCV argues that the Appellant’s interpretation of article 19(5) of the Statute is “overly rigid”, contrary to the purpose of the provision and the relevant jurisprudence of the Court,Footnote 39 as well as “the broader framework of article 17 [of the Statute]”.Footnote 40
3. Determination by the Appeals Chamber
30. The Appellant submits that the Pre-Trial Chamber erred by distinguishing between different organs of the CAR in its assessment of whether the CAR, as “a State” within the meaning of article 19(2)(b) of the Statute, brought its Admissibility Challenge “at the earliest opportunity”, in accordance with article 19(5) of the Statute.Footnote 41
31. The Appeals Chamber recalls its consistent jurisprudence that “[a]rticle 19(5) of the Statute requires a State to challenge admissibility as soon as possible once it is in a position to actually assert a conflict of jurisdictions”.Footnote 42 It has also stated that “[t]he State cannot expect to be allowed to amend an admissibility challenge or to submit additional supporting evidence just because the State made the challenge prematurely”.Footnote 43 Indeed, “a State should, as a general rule, not challenge the admissibility of a case until it is in a position to substantiate that challenge”.Footnote 44 The Appeals Chamber has emphasised that:
[A]dmissibility proceedings should not be used as a mechanism or process through which a State may gradually inform the Court, over time and as its investigation progresses, as to the steps it is taking to investigate a case. Admissibility proceedings should rather only be triggered when a State is ready and able, in its view, to fully demonstrate a conflict of jurisdiction on the basis that the requirements set out in article 17 are met.Footnote 45
32. In the present situation, the Appellant submits that the Pre-Trial Chamber erroneously assessed “the respective awareness of different internal organs of the CAR”, instead of interpreting the term “State” within the meaning of article 19 of the Statute as a collective legal entity with international legal personality.Footnote 46 The Appeals Chamber notes that, in fact, it is the Appellant which interprets the term “State” in a fragmented manner by arguing that the earliest opportunity for the CAR to assert a conflict of jurisdictions would have been “on or about May 2022, when the CPS Arrest Warrant was issued”.Footnote 47 In the view of the Appeals Chamber, the Appellant, in essence, equates one of the internal organs of a State being in possession of partial information to the State, as a whole, being in the position to actually and fully demonstrate that there was a jurisdictional conflict for purposes of a challenge under article 19(2) of the Statute.
33. In this regard, the Appeals Chamber notes that the Pre-Trial Chamber, in line with the aforementioned jurisprudence and based on the submissions before it, carried out a holistic examination of the timeline of relevant events, noting in particular: (i) that the CPS special prosecutor was informed of the existence of, but not the content of, the ICC Arrest Warrant in March 2024;Footnote 48 and that (ii) on 8 August 2024, following communication of the content of the ICC Arrest Warrant, the CPS special prosecutor notified the competent Ministry of the CAR of the existence of both the ICC Arrest Warrant and the CPS Arrest Warrant.Footnote 49 It is on this basis that the Pre-Trial Chamber concluded that, prior to August 2024, the State was not in a position to determine that there was a conflict of jurisdiction, nor could it have sought to demonstrate the inadmissibility of the case before the Court at an earlier juncture.Footnote 50
34. The Appeals Chamber emphasises that, as correctly assessed by the Pre-Trial Chamber, what matters is at which point in time, taking a comprehensive view on the question of “State” for the above purposes, the CAR was in a position to actually and fully demonstrate the jurisdictional conflict. Contrary to the Appellant’s claim, it is clear from the reasoning of the Pre-Trial Chamber that the CAR would not have been in such position in May 2022.
35. In light of the foregoing, the Appeals Chamber finds that the Appellant has failed to demonstrate any error in the Pre-Trial Chamber’s determination in this context, and thus rejects the first ground of appeal.
B. Second, third, fourth and fifth grounds of appeal
36. Under its second, third, fourth and fifth grounds of appeal, the Appellant submits that the Pre-Trial Chamber erroneously disregarded as irrelevant and/or unsubstantiated its submissions relating to the CAR’s judicial system as a whole and other “comparable cases”,Footnote 51 including the information provided by an individual with knowledge of the CAR judicial system which the Appellant submitted in an annex to its observations (hereinafter: “Annex to Appellant’s Observations”).Footnote 52 The Appeals Chamber notes that the Appellant’s arguments under these four grounds of appeal relate to the question of whether the Pre-Trial Chamber erred in law or abused its discretion in its assessment of whether the CAR is “unwilling” or “unable” genuinely to carry out the proceedings against Mr Beina within the meaning of article 17 of the Statute. In the interests of clarity and a proper determination of the arguments raised, the Appeals Chamber deems it appropriate to consider these grounds of appeal together and in the order set out below.
1. Relevant part of the Impugned Decision
37. The Pre-Trial Chamber held that it was satisfied, on the basis of the material before it, “that the case against Mr Beina is currently being prosecuted by a State which has jurisdiction over it within the meaning of article 17(1)(a) of the Statute”.Footnote 53
38. In determining whether the CAR, being that State, was “unwilling” or “unable” genuinely to carry out such proceedings within the meaning of article 17(2) and (3) of the Statute, the Pre-Trial Chamber noted that the Appellant’s submissions “focus solely on the CAR’s judicial system as a whole and fail to substantiate how the specific proceedings against Mr Beina would be affected by the alleged lack of independence and impartiality of the CAR’s judicial system”.Footnote 54 It further noted that “the manner in which other criminal proceedings are conducted in the CAR is, in itself, irrelevant for the purpose of establishing the first criterion under article 17(2)(c) of the Statute”.Footnote 55
39. The Pre-Trial Chamber concluded that “[g]iven that it has not been established that the proceedings against Mr Beina before the CPS are not being conducted independently or impartially […], it is not necessary to assess whether [other] proceedings are or have been conducted in a manner which is inconsistent with an intent to bring the person to justice”.Footnote 56 In this context, the Pre-Trial Chamber did not deem it “relevant nor appropriate” for its determination to rely upon the information provided in the Annex to Appellant’s Observations, noting that it “lacks concrete information specific to the proceedings against Mr Beina”, and that “the CAR has not been privy to it”.Footnote 57
40. With respect to the Appellant’s submissions concerning Mr Beina’s right to obtain the attendance and examination of witnesses “under the same conditions as witnesses against him”, the Pre-Trial Chamber found the Appellant’s arguments in this regard to be speculative since “none of [the] alleged instances concern proceedings involving Mr Beina”.Footnote 58 Noting the absence of any information indicating that “witnesses in the proceedings against Mr Beina would be deliberately exposed to, or intentionally left unprotected from reprisals”,Footnote 59 the Pre-Trial Chamber concluded that “it has not been demonstrated that Mr Beina’s right to obtain the attendance and examination of witnesses is being violated, let alone established that such an alleged violation would be so egregious as to render the proceedings incapable of providing any genuine form of justice”.Footnote 60
2. Summary of the submissions
a. Appellant’s submissions
41. Under the second ground of appeal, the Appellant submits that the Pre-Trial Chamber’s dismissal of its submissions concerning the independence and impartiality of the CAR judiciary and witness protection mechanisms is “tantamount to a reversal of the CAR’s burden of proof”.Footnote 61
42. Under the third ground of appeal, the Appellant submits that the Pre-Trial Chamber erred when finding the information provided in the Annex to Appellant’s Observations as not relevant to its determinations, and abused its discretion when refusing to consider such information on the basis of the CAR not having been privy to it.Footnote 62 According to the Appellant, this refusal “infringed on Mr Beina’s right to legal certainty”, as it is “directly contradictory” to a previous email decision of the Pre-Trial Chamber in which it determined, inter alia, that the Annex to Appellant’s Observations was justifiably withheld from the CAR authorities.Footnote 63
43. Under the fourth ground of appeal, the Appellant submits that the Pre-Trial Chamber took “a legally incorrect approach to the admissibility assessment under [a]rticle 17(2)(c) of the Statute” when it dismissed the Appellant’s submissions on “a lack of independence and impartiality of the CAR’s judicial system as a whole and/or a lack of independence and impartiality with respect to other high-profile cases”.Footnote 64 In its view, the Pre-Trial Chamber erred in finding such information irrelevant to the assessment of the admissibility of the case against Mr Beina before the Court.Footnote 65
44. Under the fifth ground of appeal, the Appellant submits that the Pre-Trial Chamber erred in “focusing squarely on whether the [Appellant’s] submissions concern[ed] the case of Mr Beina specifically”, as its arguments regarding witness protection and security in other “comparable cases” are “relevant to the assessment of whether Mr Beina would enjoy the right to obtain attendance of [his] witnesses under the same conditions as Prosecution witnesses in the CAR”.Footnote 66
45. With regard to these four grounds appeal, the Appellant argues that the alleged errors materially affected the Impugned Decision since the Pre-Trial Chamber, without these errors, would have found that the CAR failed to meet its burden of proving the inadmissibility of the case.Footnote 67
b. State’s submissions
46. In relation to the fourth and fifth grounds of appeal, the CAR authorities submit that in line with the principle of complementarity, the CPS should take precedence to prosecute Mr Beina.Footnote 68 In support of their submission, the CAR authorities contend, inter alia, that: (i) the effective operation of the CPS demonstrates the willingness and capacity of the State to prosecute serious crimes;Footnote 69 and that (ii) the CPS may be able to bring justice closer to the victims, given its better knowledge of the situation on the ground, readier access to witnesses and evidence and greater legitimacy in the eyes of local communities.Footnote 70 The CAR authorities also provide that the CPS has already held pre-trial conferences and commenced public hearings during which the defence for Mr Beina raised preliminary objections and the summary of the indictments was read.Footnote 71
c. OPCV’s submissions
47. With respect to the second ground of appeal, the OPCV submits that it should be “dismissed”, as the Appellant merely disagrees with “how the [Pre-Trial] Chamber weighed the evidence”.Footnote 72 The OPCV contends that “no burden-shifting occurred”, since the Pre-Trial Chamber expressly and carefully assessed the Appellant’s submissions alleging the lack of impartiality in the CAR’s judiciary, and found them to be unsubstantiated and not linked to the specific case against Mr Beina.Footnote 73
48. As regards the third, fourth and fifth grounds of appeal, the OPCV submits that these grounds of appeal, which “share a common factual and legal foundation – namely the alleged inability or unwillingness of the CAR judiciary to conduct genuine proceedings”, should be “dismissed in their entirety”, because, in its view, the Appellant “attempts to reframe its dissatisfaction with the [Pre-Trial] Chamber’s evidentiary assessment as separate ‘errors of law’”.Footnote 74 The OPCV avers that the Pre-Trial Chamber duly considered the Appellant’s arguments in this regard, namely the submissions pertaining to the Annex to Appellant’s Observations, judicial partiality and witness availability, and correctly found them to be irrelevant, speculative, unsubstantiated or insufficiently case-specific.Footnote 75
3. Determination by the Appeals Chamber
49. The Appellant submits that the Pre-Trial Chamber erred in its assessment under article 17(2)(c) of the Statute by considering as irrelevant or unsubstantiated certain submissions of the Appellant which allege the “unwillingness” of the CAR genuinely to carry out the proceedings against Mr Beina.
50. At the outset, the Appeals Chamber notes that the principle of complementarity, according to which the Court “shall be complementary to national jurisdictions”,Footnote 76 is “the cornerstone of the Statute and of the functioning of the Court”.Footnote 77 Accordingly, “States have the primary responsibility to exercise criminal jurisdiction and the Court does not replace, but complements them in that respect”.Footnote 78 This understanding of the principle is reflected in a number of statutory provisions, including the Preamble of the Statute and articles 17, 18 and 19 of the Statute.
51. Article 19(2)(b) of the Statute provides that “[c]hallenges to the admissibility of a case on the grounds referred to in article 17 […] may be made by […] [a] State which has jurisdiction over a case, on the ground that it is investigating or prosecuting the case or has investigated or prosecuted”. The Appeals Chamber recalls that article 17 of the Statute “gives effect to the principle of complementarity”, by stipulating “the substantive conditions under which a case is inadmissible before the Court”,Footnote 79 and that “the purpose of an admissibility challenge under article 17 (1) of the Statute is to resolve existing conflicts between competing jurisdictions – the Court’s on the one hand, and a national jurisdiction on the other hand”.Footnote 80
52. The Appeals Chamber has held that article 17(1)(a) of the Statute entails a two-step analysis to determine whether a case is inadmissible:
[I]n considering whether a case is inadmissible under article 17 (1) (a) and (b) of the Statute, the initial questions to ask are (1) whether there are ongoing investigations or prosecutions, or (2) whether there have been investigations in the past, and the State having jurisdiction has decided not to prosecute the person concerned. It is only when the answers to these questions are in the affirmative that one has to look to the second halves of sub-paragraphs (a) and (b) and to examine the question of unwillingness and inability. To do otherwise would be to put the cart before the horse.Footnote 81
53. Article 17(2)(c) of the Statute provides that “[i]n order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law”, whether “[t]he proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice”. The Appeals Chamber has noted that the purpose of this provision is to ensure that
the principle of complementarity […] is not abused, so that it would be contrary to the overall purpose of the Statute, which is to put an end to impunity for the perpetrators of the most serious crimes of concern to the international community as a whole.Footnote 82
54. In the instant situation, the Appellant appears to contend that the case against Mr Beina should be admissible before the Court because domestic proceedings of the CAR do not fully respect the due process rights of suspects in general. In this respect, the Appeals Chamber notes the Appellant’s arguments concerning: (i) a lack of independence and impartiality of the CAR’s judicial system as a whole; (ii) the same with respect to other “comparable cases”; and (iii) the operation of witness protection mechanisms in other cases before the CPS.Footnote 83
55. Turning first to the fourth and fifth grounds of appeal, the Appeals Chamber recalls that while “human rights standards may assist the Court in its assessment of whether the proceedings are or were conducted ‘independently or impartially’ within the meaning of article 17 (2) (c) of the Statute”,Footnote 84 this Court “was not established to be an international court of human rights, sitting in judgment over domestic legal systems to ensure that they are compliant with international standards of human rights”.Footnote 85 In this regard, the Appeals Chamber has regarded as significant that the text of article 17(2)(c) of the Statute “itself does not contain an express requirement for the Court to consider whether the domestic proceedings fully respect the due process rights of a suspect”, especially given that “this was the subject of a specific proposal during the course of the negotiations of this provisions”.Footnote 86 It follows that it is not for the Court to pass judgment “generally on the internal functioning of the domestic legal systems of States in relation to individual guarantees of due process”.Footnote 87
56. The Appeals Chamber further recalls that “unwillingness” within the meaning of article 17(2)(c) of the Statute is “primarily concerned with a situation in which proceedings are conducted in a manner which would lead to a suspect evading justice as a result of a State not being willing genuinely to investigate or prosecute”.Footnote 88 As such, “the notions of independence and impartiality [under this provision] must be seen in that light”.Footnote 89 The Appeals Chamber has clarified that:
Taking into account the text, context, object and purpose of the provision, this determination is not one that involves an assessment of whether the due process rights of a suspect have been breached per se. In particular, the concept of proceedings “being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice” should generally be understood as referring to proceedings which will lead to [a] suspect evading justice, in the sense of not appropriately being tried genuinely to establish his or her criminal responsibility, in the equivalent of sham proceedings that are concerned with that person’s protection.
However, there may be circumstances, depending on the facts of the individual case, whereby violations of the rights of the suspect are so egregious that the proceedings can no longer be regarded as being capable of providing any genuine form of justice to the suspect so that they should be deemed, in those circumstances, to be “inconsistent with an intent to bring that person to justice”.Footnote 90
57. In the situation at hand, the Appeals Chamber notes that the Pre-Trial Chamber, in accordance with the above-mentioned established jurisprudence of the Court, found that it did not need to assess whether the proceedings against Mr Beina before the CPS are or have been conducted in a manner which is inconsistent with an intent to bring the person to justice, given that it had not been established that these proceedings “are not being conducted independently or impartially”.Footnote 91
58. In this regard, the Appeals Chamber considers that the Appellant misrepresents the relevant jurisprudence in challenging the Pre-Trial Chamber’s case-specific approach of examining whether the information concerning other cases and the independence and impartiality of the CAR’s judicial system as a whole demonstrates that the State is unwilling genuinely to carry out the proceedings against Mr Beina.
59. First, the Appellant misstates a finding of Pre-Trial Chamber I in the case of Al-Senussi. The Appellant contends as follows, adding that “[t]he Appeals Chamber endorsed this approach”:Footnote 92
PTCI considered that [] ‘a systemic lack of independence and impartiality of the judiciary such that would demonstrate, alone or in combination with other relevant circumstances, that the proceedings against [the suspect]’ may demonstrate that the Second Limb [of the test under article 17(2)(c) of the Statute] is not met.Footnote 93
60. However, the Appeals Chamber notes that Pre-Trial Chamber I found as follows:
[T]he Chamber is not persuaded that the information provided by the Defence and the OPCV indicates a systemic lack of independence and impartiality of the judiciary such that would demonstrate, alone or in combination with other relevant circumstances, that the proceedings against Mr Al-Senussi “are not being conducted independently or impartially and they […] are being conducted in a manner which, in the circumstances is inconsistent with an intent to bring [Mr Al-Senussi] to justice”, within the meaning of article 17(2)(c) of the Statute.Footnote 94
61. It is clear from the aforementioned finding that Pre-Trial Chamber I assessed whether the information before it demonstrated that, due to the alleged systemic lack of independence and impartiality of the judiciary at issue, the specific proceedings against Mr Al-Senussi were not being conducted independently and impartially or were being conducted in a manner in which was inconsistent with an intent to bring Mr Al-Senussi to justice. In other words, the above reasoning of Pre-Trial Chamber I, contrary to what the Appellant appears to imply, did not comprise of a general statement about systemic lack of independent and impartiality, but rather an assessment of the information before it in the context of the specific case under consideration. The Appeals Chamber, in the Al-Senussi OA6 Judgment, observed generally that this approach was “careful and considered”.Footnote 95
62. Second, the Appeals Chamber notes that the Appellant’s reliance upon the Al-Senussi OA6 Judgment is misplaced. In that case, the Appeals Chamber found relevant the information concerning “other senior members of the former regime, at least one of whom [was] being held in the same prison as Mr Al-Senussi, and whose cases are joined to and part of the same case as that against Mr Al-Senussi”.Footnote 96 In the present situation, however, the Appellant does not provide relevant examples in respect of the independence and impartiality of the CAR judiciary which sufficiently establish how the specific proceedings against Mr Beina may be affected. In fact, the Pre-Trial Chamber carefully addressed the Appellant’s submissions and noted that they concern only the “instances whereby individuals or witnesses who were associated with or provided information to defence teams representing ‘political opponents’ of the CAR government, would have been the subject of reprisals or expressed fears of retaliation”, and “none of these alleged instances concern proceedings involving Mr Beina”.Footnote 97 Moreover, the Pre-Trial Chamber held that:
[I]t has not been demonstrated that Mr Beina’s right to obtain the attendance and examination of witnesses is being violated, let alone established that such an alleged violation would be so egregious so as to render the proceedings incapable of providing any genuine form of justice so that they should be deemed to be “inconsistent with an intent to bring the person concerned to justice”.Footnote 98
63. Therefore, the Appeals Chamber considers that the Appellant has failed to show that the Pre-Trial Chamber erred when finding that the Appellant’s arguments in this regard were speculative.
64. The Appeals Chamber notes in this respect the Appellant’s claim that the consideration of evidence relating to the circumstances of witnesses and the operation of witness protection mechanisms in other comparable cases is “the most appropriate metho[d] to assess whether Mr Beina will enjoy the relevant fair trial rights”.Footnote 99 The Appeals Chamber is not persuaded. It considers that such approach, in the absence of any specific information about the prospective witnesses of Mr Beina at his trial before the CPS, would have required the Pre-Trial Chamber to engage in a general and improper assessment of the domestic legal system of the CAR.
65. Furthermore, the Appeals Chamber notes that the Pre-Trial Chamber considered that the CPS has a witness protection mechanism,Footnote 100 and duly assessed the Appellant’s submissions concerning the “individuals and witnesses in other cases who were associated with or provided information to defence teams representing ‘political opponents’ of the CAR government”.Footnote 101 On this basis, the Pre-Trial Chamber found that “there is no information before the Chamber suggesting that witnesses in the proceedings against Mr Beina would be deliberately exposed to, or intentionally left unprotected from reprisals”.Footnote 102
66. In this regard, the Appeals Chamber further notes in particular the State’s assurances that the CPS adheres to the international standards of independence, impartiality and due process,Footnote 103 and that the CPS proceedings against Mr Beina are being carried out in a manner that respects his fair trial rights.Footnote 104
67. In light of the above, the Appeals Chamber finds that the Appellant has failed to show any error in the Pre-Trial Chamber’s assessment of whether the proceedings against Mr Beina before the CPS are being or have been conducted independently or impartially, or in a manner inconsistent with an intent to bring Mr Beina to justice. Concretely, the Pre-Trial Chamber found the Appellant’s submissions concerning other criminal proceedings in the CAR and the judicial system of the State as a whole to be irrelevant on the basis of the Appellant not providing sufficient substantiation in respect of potential consequences on the specific proceedings against Mr Beina. Similarly, the Pre-Trial Chamber found it not demonstrated that Mr Beina’s right to obtain the attendance and examination is being violated.
68. Accordingly, the Appeals Chamber finds that the Appellant has failed to establish any error of the Pre-Trial Chamber in this regard. Therefore, the Appeals Chamber rejects the fourth and fifth grounds of appeal.
69. Consequently, and noting the Appellant’s submission that the third ground of appeal is “fund[amentally] linked with” the fourth ground of appeal,Footnote 105 the Appeals Chamber deems it unnecessary to entertain the Appellant’s arguments under the third ground of appeal which concern the Pre-Trial Chamber’s determination on the relevance of the information provided in the Annex to Appellant’s Observations pertaining to the alleged lack of independence of the CPS, without any concrete information specific to the proceedings against Mr Beina.
70. This notwithstanding, the Appeals Chamber notes that the Appellant appears to have miscomprehended the Pre-Trial Chamber’s email decision of 2 June 2025 which, in its view, “constitutes res judicata with respect to the present proceedings”.Footnote 106 However, the email decision concerned whether the non-disclosure to the CAR authorities of the Annex to Appellant’s Observations would affect the CAR authorities’ assessment of whether the State may challenge the admissibility of the case against Mr Beina before the Court,Footnote 107 rather than the Pre-Trial Chamber’s adjudication of the Admissibility Challenge. Accordingly, the Appeals Chamber dismisses the third ground of appeal.
71. Lastly, the Appeals Chamber notes the Appellant’s contention under the second ground of appeal that the Pre-Trial Chamber, in essence, reversed the CAR’s burden of proof to show that the case against Mr Beina before the Court is inadmissible when it dismissed the Appellant’s submissions alleging a lack of independence and impartiality of the CAR judiciary and an absence of effective witness protection mechanisms in the CAR.Footnote 108
72. In this respect, the Appeals Chamber recalls that “a State that challenges the admissibility of a case bears the burden of proof to show that the case is inadmissible”.Footnote 109 The Appeals Chamber has held that to discharge this burden, the State must provide the Court “with evidence of a sufficient degree of specificity and probative value” which demonstrates that “it is conducting a genuine investigation or prosecution”, and that “[i]t is not sufficient merely to assert that investigations are ongoing”.Footnote 110 The Appeals Chamber notes that this was also the approach adopted by the Pre-Trial Chamber.Footnote 111
73. The above-mentioned jurisprudence illustrates that the State bears the burden to prove inadmissibility before the Court when challenging the admissibility of a case in accordance with article 19(2) of the Statute. In the view of the Appeals Chamber, the Appellant fails to demonstrate that the Pre-Trial Chamber erred in this assessment. Contrary to the Appellant’s submissions, rather than putting on the Appellant the burden of proving admissibility of the case against Mr Beina before the Court, the Pre-Trial Chamber assessed the two-limb test under article 17(1)(a) of the Statute on the basis of the information provided by the CAR authorities and in light of the Appellant’s submissions. This is to be distinguished from finding that the Appellant failed to substantiate how the general information it provided concretely impacts the proceedings against Mr Beina. In this regard, the Appeals Chamber recalls that “it is an essential tenet of the rule of law that judicial decisions must be based on facts established by evidence” and, crucially, that “[p]roviding evidence to substantiate an allegation is a hallmark of judicial proceedings”.Footnote 112 Accordingly, the Appeals Chamber finds that the Appellant has not demonstrated any error in the approach or findings of the Pre-Trial Chamber. Therefore, the Appeals Chamber rejects the second ground of appeal.
74. Having rejected or dismissed all of the Appellant’s arguments thereunder, the Appeals Chamber rejects the second, third, fourth and fifth grounds of appeal in their entirety.
V. APPROPRIATE RELIEF
75. In an appeal pursuant to article 82(1)(a) of the Statute, the Appeals Chamber may confirm, reverse or amend the decision appealed.Footnote 113 In the present case it is appropriate to confirm the Impugned Decision.
Done in both English and French, the English version being authoritative.
[Signatures]
Dated this 11th day of March 2026
At The Hague, The Netherlands
