ICC prosecution asks Appeals Chamber to overturn the acquittal of Gbagbo and Blé Goudé

By Journalists for Justice

The prosecution has asked the Appeals Chamber to overturn the acquittal of former Ivory Coast President Laurent Gbagbo and former Ivorian Cabinet Minister Charles Blé Goudé because, the prosecution has argued, the trial judges applied the wrong legal provision when making the acquittal.

Prosecution lawyers Helen Brady and Reinhold Gallmetzer made this argument on Monday, the first of three days of hearings the Appeals Chamber of the International Criminal Court (ICC) called for to listen to arguments on the prosecution’s appeal against the acquittal of Gbagbo and Blé Goudé.

On January 15, 2019, Trial Chamber I, in a 2-1 majority decision, acquitted Gbagbo and Blé Goudé of all four counts of crimes against humanity they had each been charged with for their alleged role in violence that followed the November 2010 presidential election in Ivory Coast. Gbagbo had sought re-election at the time.

On Monday, Brady and Gallmetzer argued the prosecution’s first ground of appeal, that the majority of Trial Chamber I should have followed Article 74 of the Rome Statute, the ICC’s founding law, when they acquitted Gbagbo and Blé Goudé. They argued Article 74(5) was the only provision in the Rome Statute that set out how trial judges should issue an acquittal.

“It was an acquittal decision under Article 74 … By its nature the appealed decision is an acquittal,” said Gallmetzer.

The defence teams of Gbagbo and Blé Goudé told the Appeals Chamber on Monday that the majority of Trial Chamber I were correct in using their discretion as trial judges because they were not acquitting the two men at the end of their trial. The defence lawyers argued that Article 74(5) set out how to proceed when rendering an acquittal at the end of a trial.

The defence lawyers of Gbagbo and Blé Goudé said that their acquittal came after the trial judges considered a no case to answer motion they had filed. The defence lawyers said the Rome Statute does not have any specific provisions for no case to answer proceedings.

“The no case to answer (motion) is made at the half way stage based on the exceptional weakness of the (prosecution’s) evidence, i.e. when the evidence is not capable of belief,” said Geert-Jan Knoops, Blé Goudé’s lead lawyer.

Gbagbo’s legal team filed a request for an acquittal judgment in July 2018. Blé Goudé’s legal team filed a no case to answer motion in August 2018. They did this after Trial Chamber I declared the prosecution’s presentation of evidence closed in June 2018.

The chamber had allowed the defence to file such applications once the prosecution case concluded if the defence believed there was no need for them to put up a defence, or “answer the case”, because the evidence against their clients was weak. This is what throughout Monday’s hearing was being referred to as a no case to answer motion.

Trial Chamber I held hearings in October and November 2018 to listen to arguments on the no case to answer motions after receiving the defence submissions and responses from the prosecution and victims’ lawyer.

On January 15, 2019, Presiding Judge Cuno Tarfusser and Judge Geoffrey Henderson made an oral decision to acquit Gbagbo and Blé Goudé. They issued their written reasons for the acquittal six months later on June 16, 2019. Judge Olga Herrara Carbuccia was the dissenting judge of Trial Chamber I.

She was also one of the three judges who received and determined in April 2016 the first no case to answer motion at the ICC. This was in the trial of Kenya’s Deputy President William Samoei Ruto and former journalist Joshua arap Sang. In that trial, Judge Carbuccia dissented from the majority decision to terminate the case. Judge Chile Eboe-Osuji was the presiding judge of that trial chamber, Trial Chamber V(a). He is currently the presiding judge in the prosecution’s appeal against the Gbagbo and Blé Goudé acquittal.

On Monday, Knoop, Blé Goudé’s lead lawyer, argued in his submissions against the prosecution’s first ground of appeal that not all decisions that bring a trial to an end at the ICC are governed by the Rome Statute’s Article 74. He gave the example of an accused person who admitted their guilt. How a trial chamber proceeds in such a case is provided for in Article 65 of the Rome Statute.

Knoop also referred to the dissenting opinion of Judge Carbuccia. Knoops said Judge Carbuccia had said Article 74 could not apply when considering a no case to answer motion because it required “a higher evidential standard,” of beyond reasonable doubt. Knoops argued that for a no case to answer motion to succeed the standard of proof was lower.

On Monday, prosecution lawyers Brady and Gallmetzer made further arguments in support the prosecution’s first ground of appeal.

They argued that if the majority of Trial Chamber I had followed Article 74(5) they would not have made their oral decision to acquit Gbagbo and Blé Goudé in January last year and then issue their written reasons six months later. Brady and Gallmetzer said if the majority had followed Article 74(5) they would have acquitted Gbagbo and Blé Goudé on the same day they issued their written reasons for doing so.

Dov Jacobs, one of Gbagbo’s lawyers, argued the January 15, 2019 oral decision was made with his client’s fair trial rights in mind and that decision was also in the spirit of the Rome Statute.

“What justice would there have been in keeping an individual in detention for six months just to give them (the judges) enough time to finalise their written reasons? On the contrary, it would have been an injustice to proceed in this manner,” argued Jacobs.

Paolina Massidda, who represents victims in the case of Gbagbo and Blé Goudé, told the Appeals Chamber on Monday she fully supported and endorsed the prosecution’s first ground of appeal. Massidda said Article 74 was the only provision in the Rome Statute that laid out how a trial chamber should render an acquittal.

Massidda argued that the oral decision Judges Tarfusser and Henderson issued in January 2019 did not meet the requirements of Article 74(5).

She said the oral decision, “did not even provide a summary of the manner in which it (the majority of Trial Chamber I) reached its decision; how it assessed the evidence and which facts it found relevant to reach its decision.”

Prosecution lawyer Priya Narayanan spoke on the second ground of appeal the prosecution has filed. She 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 motion. Narayanan also said Judges Tarfusser and Henderson applied different standards of proof while reaching their majority decision to acquit Gbagbo and Blé Goudé.

“There should be one standard of proof governing no case to answer motions throughout this court. It should not vary from chamber to chamber. This ensures that all proceedings are guided by the same fundamental rules and are predictable,” argued Narayanan.

She argued this was the case in confirmation of charges proceedings at the ICC where a single standard of proof applied. Narayanan also argued this was the case when a trial chamber decided whether to convict an accused person.

When Narayanan concluded her submissions, the court adjourned for the day.

During Monday’s hearing, the lawyers also answered questions the Appeals Chamber had asked on the prosecution’s grounds of appeal. The Appeals Chamber had asked the questions in an April 30 decision and asked the lawyers to file written responses by May 22.

While holding Monday’s hearing, the Appeals Chamber followed social distancing rules that The Netherlands government has in place to prevent the spread of Covid-19. The ICC is based in The Hague, the administrative centre of Netherlands. Five judges are hearing the prosecution’s appeal against the acquittal of Gbagbo and Blé Goudé but only three of them were in Courtroom I. The judges who were in the courtroom were Presiding Judge Chile Eboe-Osuji and Judges Howard Morrison and Luz del Carmen Ibáñez Carranza. Judges Piotr Hofmanski and Solomy Balungi Bossa were following the proceedings via video seated elsewhere in the ICC premises.

The prosecution team were not in the courtroom. Brady, Gallmetzer and Narayanan were either elsewhere in the ICC premises or located outside the ICC premises. Gbagbo’s defence team was also not in the courtroom. Gbagbo’s lead lawyer, Emmanuel Altit, Jacobs and other lawyers were in France or Belgium and participated via video link. Gbagbo also participated in Monday’s proceedings via video link from Belgium. Blé Goudé and his lawyers were the only defence team in the courtroom.