By Thomas Verfuss
The acquittal of Laurent Gbagbo, 73, former president of Cote d’Ivoire, and his former youth minister Charles Blé Goudé has stirred up lots of conflicting emotions and comments, in The Hague (seat of the International Criminal Court), around the world.
Some see it as a confirmation of a statement by John Bolton, an advisor to US President Donald Trump, that “the ICC is already dead”. Others, like the defence lawyers, praise it as a “victory for the ICC” that has proven to have independent and professional judges who decide based on law and facts, as they should.
As far as the death argument is concerned: it is certainly true for the Office of the Prosecutor’s trials against high political leaders. The acquittal of Gbagbo, the only former head of state ever on trial at the ICC, follows the acquittal of former vice-president Jean-Pierre Bemba of the DR Congo in 2018. The trial in the case of Kenya’s president, Uhuru Kenyatta, did not start. The trial of his deputy, William Ruto, was terminated mid-way, like Gbagbo’s after prosecutors presented their evidence. The trial of President Omar el-Bashir of Sudan, who has been a fugitive from international justice for years, is yet to begin because he has not been brought to court.
The acquittals of Bemba and Gbagbo have been a particular disappointment for victims’ communities, as hope for justice and reparations nourished by many years of proceedings was crushed. After the Bemba acquittal, the Trust Fund for Victims immediately announced help for victims in the Central African Republic under its assistance mandate, which does not require a conviction. Notably, the US5 million reparations ordered by the judges had fallen out of reach with the acquittal.
After the Gbagbo acquittal, Mama Koité Doumbia, the Malian member of the board of directors of the Trust Fund, assured Journalists For Justice that in the case of Cote d’Ivoire, such an immediate announcement was not necessary, as the work of the Fund in that country is already much more advanced than in CAR.
As for the “victory for the ICC”, the defence is right when it insists how important it is that the ICC judges show that they are independent and professional, deciding based on the law and the facts – especially in the light of an opinion often expressed by some African leaders that the ICC is a neocolonial court used by European powers to control them.
If Gbagbo’s and Blé Goudé’s acquittal is a victory for the ICC, it certainly is not for the Office of the Prosecutor. The OTP has not succeeded in obtaining the conviction of a high-level political or military leader. There have been only three convictions of regional or local leaders for war crimes and crimes against humanity since the court started its work in 2002. One of these three convictions was not obtained because the prosecutor presented strong evidence, but because the suspect pleaded guilty.
So first of all, there is the problem of the weak evidence. It looks like, especially in the early years, the OTP asked for arrest warrants for potential suspects it could get (mostly because they were already in custody in a national system), irrespective of whether it had sufficient evidence or not. The policy seemed to be: “Arrest first, investigate later.” This has been criticized as an “opportunistic” prosecutorial policy.
Gbagbo is a good illustration of this problem. The OTP asked judges for an ICC arrest warrant in 2011, after Gbagbo had already been arrested at home months earlier. In 2013, the Pre-Trial Chamber tasked with confirming the charges against Gbagbo declined and noted:
“The Chamber notes with serious concern that in this case the Prosecutor relied heavily on NGO reports and press articles with regard to key elements of the case, including the contextual elements of crimes against humanity. Such pieces of evidence cannot in any way be presented as the fruits of a full and proper investigation by the Prosecutor in accordance with article 54(l)(a) of the Statute. Even though NGO reports and press articles may be a useful introduction to the historical context of a conflict situation, they do not usually constitute a valid substitute for the type of evidence that is required to meet the evidentiary threshold for the confirmation of charges.”
The OTP was, however, given a “second chance” to properly investigate. Some wondered at the time if Gbagbo had to stay in custody at all costs, a question that fanned conspiracy theories. The Gbagbo charges were finally confirmed by the judges in 2014. The trial did not start until January 2016, more than four years after Gbagbo came into ICC custody.
Questions have been raised about whether this course of events is compatible with the accused’s basic right to an expeditious trial. Certainly, this was not the only case where the first ICC chief prosecutor Luis Moreno Ocampo asked for an arrest warrant without having the necessary evidence to obtain a conviction at the trial stage.
His successor, Fatou Bensouda, in one of her very first declarations to the press after she assumed office in 2012, said she had learnt a lesson: she would only ask for arrest warrants once she had enough evidence for a conviction. – But Gbagbo, whom she had taken over from her predecessor, was already in the dock.
Apart from the issue of evidence, a second problem seems to haunt the OTP: Which kind of suspects to target? Sure, the founders of the Rome Statute meant to set up a court that could have prosecuted the likes of Chile’s Augusto Pinochet and Uganda’s Idi Amin, if it had existed at the time of their atrocities.
And it is true that a trial before an international court in The Hague is expensive, so it seems logical to “reserve” the ICC for the highest political and military leaders and leave mid-level perpetrators and “small fish” to national courts.
This debate on the task of international criminal courts and tribunals is older than the ICC. When concurrent international criminal justice started at the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993, some of the judges would have liked the Prosecutor to immediately indict Radovan Karadzic and Ratko Mladic, the political and military leaders of the Bosnian Serbs respectively. But the OTP chose to indict a concentration camp commander — the first ICTY trial was against a village policeman.
The first trials allowed the OTP’s so-called “crime base” evidence to be tested at trial under cross-examination by the defence. Based on convictions against lower and mid-level perpetrators, the ICTY could later obtain convictions in the trials against the highest-ranking leaders, President Karadzic and General Mladic.
As far as Gbagbo is concerned, there is no doubt that more than 3,000 people (on both sides) were killed during the post-election violence after the 2010 presidential poll. Demonstrators were certainly killed by army or police or party militia. But in order to obtain a conviction for crimes against humanity, the prosecution needed to prove that these killings were the result of a common criminal plan to attack the civilian population – and not just the result of some police officers or soldiers panicking when faced with an aggressive crowd.
Lack of evidence of a common plan for a widespread or systematic attack on the civilian population was explicitly cited by the judges as reason for the acquittal.
A trial against a military or police commander closer to the facts on the ground – if ending with a conviction — could have helped the OTP to build a case against Gbagbo; more than NGO reports and newspaper articles. A rethink of the OTP strategy might lead it to target relevant mid-level perpetrators first and win those trials before aiming for the top leaders.