By Susan Kendi
lawyers told the International Criminal Court (ICC) that the prosecution was
wrong to say Trial Chamber I failed to set and apply a standard of proof when
they dismissed the evidence against former Ivory Coast President Laurent Gbagbo
and former Cabinet Minister Charles Blé Goudé and acquitted
defence teams of Gbagbo and Blé Goudé told the Appeals Chamber on Tuesday that Trial
Chamber I gave the prosecution enough time during the no case to answer
proceedings to show how strong its evidence was irrespective of any standard of
proof the chamber determined applied during such proceedings.
Lawyers for Gbagbo and Blé Goudé made these submissions as they argued against the second ground of the prosecution’s appeal opposing the January 15, 2019 acquittal of their clients.
no case to answer proceedings the defence referred to on Tuesday took place
during the trial of Gbagbo and Blé Goudé after the prosecution had
concluded its case against them. The two defence teams filed submissions
arguing the evidence the prosecution presented against their clients was weak.
In their no case to answer motions filed in July 2018 and August 2018 they
asked Trial Chamber I to dismiss the four counts of crimes against humanity
Gbagbo and Blé Goudé each had been charged with for their alleged role in the
violence that erupted after the November 2010 presidential election in Ivory
Chamber I’s Presiding Judge, Cuno Tarfusser, and Judge Geoffrey Henderson agreed
with the defence and acquitted their clients. Judge Olga Herrara Carbuccia
dissented from that January 15, 2019 acquittal. Six months later, the judges
rendered on July 16, 2019 the written reasons for the majority decision to
acquit and the dissenting opinion.
Monday, prosecution lawyer Priya Narayanan argued the prosecution’s second
ground of appeal. Narayanan, who spoke at the end of Monday’s hearing, said the
prosecution was appealing against the majority decision of Trial Chamber I
because the chamber failed to set a standard of proof for the no case to answer
motions the defence filed. Narayanan also said that part of the prosecution’s
second ground of appeal was Judges Tarfusser and Henderson used different
standards of proof while reaching their majority decision to acquit Gbagbo and
Tuesday, Dov Jacobs, one of the lawyers for Gbagbo, said the prosecution was
able to present a 582-page mid-trial brief and a 1,057-page response to the no
case to answer motions the defence filed. Jacobs said the prosecution was also
able to make oral submissions before Trial Chamber I in October and November
2018, “to explain just how solid, reliable, authentic and corroborated its
is why the prosecution is incapable of answering a very simple question put by
the defence since the outset of this appeal, namely, how would communicating a
specific no case to answer standard of proof to the prosecution beforehand have
changed the manner in which the prosecution presented its evidence during
trial? Or the manner in which it defended its evidence during the no case to
answer?” said Jacobs.
Knoops, Blé Goudé’s lead lawyer, argued it was wrong for the
prosecution to claim the majority of Trial Chamber I failed to be clear about
the standard of proof they applied in the no case to answer motions. He
disagreed with the prosecution that the trial chamber should have provided what
he described as “an evidentiary menu”.
“Nowhere in the prosecution’s submissions do we see
the affirmation that its evidence at the close of its case was capable at all
of proving that Charles Blé Goudé was guilty beyond a reasonable doubt,” said
“For this an evidentiary menu, as apparently required
based on the submission of the prosecution, is not necessary,” argued Knoops.
Tuesday’s hearing began, Paolina Massidda, the lawyer representing victims in
the case of Gbagbo and Blé Goudé, was the first to maker her arguments on the
prosecution’s second ground of appeal. She said the trial chamber erred in law
when it failed to identify a standard of proof it would use in the no case to
reading the three annexes supposed to form the basis for the 15 January 2019
oral decision, it is clear that the three judges failed to agree on a common
applicable standard. In fact, in the written reasons, the three judges made no
secret that they looked at the evidence against three different thresholds,”
such fractured views are acceptable between the majority and the dissenting
judge, a disagreement of this magnitude within the majority itself is
inadmissible. The majority cannot simply agree on the outcome of the
proceedings, an acquittal, in this case, without agreeing on the reasons why
the two defendants are to be acquitted and how to reach such a conclusion,”
her submissions on Tuesday, Massidda also argued why, in her view, Judge
Henderson did not properly analyse the evidence the prosecution presented to
Trial Chamber I.
noted with deep regret that the (acquittal) decision did not even mention their
targeting, sufferings and the dramatic consequences of the crimes on them,
their families and their communities,” said Massidda.
the different legal teams made their submissions on the prosecution’s second
ground of appeal, Presiding Judge Chile Eboe-Osuji and Judge Luz del Carmen Ibáñez
Carranza asked them questions on different legal issues. The questions the
judges asked the lawyers on Tuesday were in addition to the ones the Appeals
Chamber asked the lawyers to make submissions on in an April 30 decision.
Eboe-Osuji and Ibáñez asked all lawyers for their
views on whether the Rome Statute provided for no case to answer proceedings.
Judge Ibáñez’s question focussed on the principle of legality in relation to no
case to answer proceedings at the ICC. Judge Eboe-Osuji’s question focused on how provisions in
Articles 64, 66 and 67 applied to no case to answer proceedings.
the judges concluded their questions the hearing adjourned.