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
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
“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
“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.