ICC Appeals Chamber adjourns to consider submissions on the acquittal of Gbagbo and Blé Goudé

By Millicent Zighe

The prosecution has asked the International Criminal Court (ICC) to reverse the acquittal of former Ivory Coast President Laurent Gbagbo and his former Cabinet Minister Charles Blé Goudé and declare a mistrial.

Lawyers for Gbagbo and Blé Goudé argued before the Appeals Chamber on Wednesday that they should not grant the prosecution’s proposed remedy of a mistrial because the prosecution’s appeal against their client’s acquittal was not about the facts or evidence presented at trial.

The defence teams of Gbagbo and Blé Goudé argued that the prosecution’s appeal was about procedural and legal errors and declaring a mistrial was not a suitable remedy for such errors.

Trial Chamber I acquitted Gbagbo and Blé Goudé in a 2-1 decision on January 15, 2019. Six months later, on July 16, 2019, the trial chamber rendered the written reasons for the majority decision and the dissenting opinion. Judges Cuno Tarfusser, Geoffrey Henderson and Olga Herrara Carbuccia formed Trial Chamber I.

Judges Tarfusser and Henderson are the ones who decided to acquit Gbagbo and Blé Goudé, each of whom had been charged with four counts of crimes against humanity for their alleged roles in the violence that followed the November 2010 presidential election.

Senior appeals lawyer Helen Brady said the prosecution was asking the chamber to, “reverse the (acquittal) decision, declare a mistrial, (and) turn the case over to the prosecution.”

She said if the Appeals Chamber were to grant this remedy then the prosecution would consider whether to seek a retrial.

“To clarify, we are not asking the Appeals Chamber to order a retrial. However, you could do so if you determine that to be the correct remedy,” said Brady.

The prosecution, the defence and lawyer for victims all made submissions on Wednesday on the remedy the prosecution proposed in its appeal. They also made their sum-up arguments at the end of the day’s hearing.

Wednesday was the third day of hearings the Appeals Chamber held to hear arguments on the prosecution’s appeal. The hearings began on Monday when the different lawyers presented their arguments on the prosecution’s first ground of appeal. On Tuesday, they made their submissions on the prosecution’s second ground of appeal and answered questions from the judges.

The prosecution has appealed against the January 15, 2019 acquittal of Gbagbo and Blé Goudé arguing Trial Chamber I used the wrong provision of the Rome Statute, the ICC’s founding law, when deciding to acquit the two Ivorian politicians. This is the prosecution’s first ground of appeal.

The prosecution’s second ground of appeal is the trial judges did not set a standard of proof when they received submissions on whether Gbagbo and Blé Goudé had a case to answer at the end of the prosecution’s case. It is on the basis of those submissions, and hearings on the issue of whether Gbagbo and Blé Goudé had a case to answer, that the majority of Trial Chamber I decided to acquit the two men.

On Wednesday, Paolina Massidda, the lawyer for victims in the case of Gbagbo and Blé Goudé, told the court that the victims wanted their acquittal reversed.

“Given the gravity of the identified errors and their impact on the overall fairness of the proceedings, the declaration of a mistrial in our submissions is the most appropriate remedy,” said Massidda.

Lawyers for Gbagbo and Blé Goudé told the Appeals Chamber that courts may declare a mistrial when prosecution witnesses have been threatened or the prosecution’s evidence has been tampered with. They argued that in the trial of Gbagbo and Blé Goudé the prosecution was able to present evidence and witnesses without any hinderance but the prosecution ended up presenting a weak case that could not lead to a conviction.

“The general findings of the (trial) chamber have not been challenged neither has the standard of proof or general conclusions of the (trial) chamber. The fact the prosecutor is formally challenging the acquittal, does not mean to say she is challenging it on merit because she’s not talking about any factual errors,” said Dov Jacobs, a lawyer for Gbagbo.

When he made his summing-up submissions, Geert-Jan Alexander Knoops, Blé Goudé’s lead lawyer, argued that during trial the evidence presented against his client was circumstantial and did not tie him to the crimes he was alleged to have committed.

“This case was totally built on inferences. There was no direct evidence whatsoever. So then of course in a halfway stage a chamber is confronted with the question of whether, based on inferences, there is a case to answer,” said Knoops.

In his summing-up arguments, Emmanuel Altit, Gbagbo’s lead lawyer, said the prosecution’s appeal was “unfocussed”. He said the prosecution had asked for a mistrial so as to blame the acquittal on the majority of Trial Chamber I.

“In other words, the notion of a mistrial seems here to be used by the prosecutor to save face for her, for her to give the impression to the outside world that the acquittal was not her fault. That the acquittal was not because of a botched investigation,” said Altit.

Brady told the Appeals Chamber the prosecution refuted the assertion the defence made that it was seeking a declaration of mistrial so that the chamber could vacate the charges and open the way for the prosecution to bring new charges without having to go through a fresh pre-trial process before going to trial.

“The fact is if you declare a mistrial the charges will be vacated, the fact is we will have to go through that process again (a pre-trial confirmation of charges process before a trial),” said Brady as she made her summing-up submissions.

She said that if the appeal was granted and the prosecution decided to seek a retrial then a decision may be made to narrow the charges.

“I can say today that would be on the basis of the facts and circumstances of the charges found by Judge Carbuccia (in her dissenting opinion),” said Brady.

After hearing the summing-up arguments of all lawyers, the Appeals Chamber adjourned to consider their submissions. The Appeals Chamber has up to 10 months to render its written judgment, according to the fourth edition of the Chambers Practice Manual of the ICC.