ICC Credibility and the Case against Laurent Gbagbo

When former Ivorian leader Laurent Gbagbo stepped into court on Tuesday, February 19, he became the first head of state to appear before the International Criminal Court (ICC) in The Hague. Gbagbo is only one of three former heads of state to become a subject of an ICC arrest warrant and proceedings (see our briefing paper on the background to the case here). The court issued arrest warrants for Sudan’s Omar Al-Bashir in 2009, and for Muammar Qaddafi, then president of Libya, in 2011. With Al-Bashir yet to be arrested and Qaddafi killed by a Libyan mob, Gbagbo became the first head of state to be brought into the court’s custody.

The proceedings against Gbagbo come at an important stage in the development of the ICC, which has now been in existence for 10 years, and which now has a new team of prosecutors, led by Fatou Bensouda. The court is also reviewing its performance during its first decade, which produced only two verdicts: one of them a conviction following a trial that was marked by missteps, the other an acquittal.

In its first case, that of Congolese warlord Thomas Lubanga Dyilo, judges threatened to release the accused on two different occasions. He was eventually convicted and sentenced to a 14-year jail term. Another Congolese warlord Mathieu Ngudjolo Chui was recently acquitted and released, after a trial that lasted three years.

Other prosecutions have also faced challenges. In early 2012, judges confirmed charges against only four out of six prominent Kenyans, including the country’s deputy prime minister and current presidential candidate Uhuru Kenyatta. Several challenges have delayed the commencement of trials for two warlords from Darfur; former Congolese Vice President Jean-Pierre Bemba’s trial is still in progress.

Against this background, it is extremely important for the court to get it right in the Gbagbo case, which brings with it its own challenges.

So far, only one faction in the Ivorian conflict (Gbagbo and his wife) have become subjects of ICC arrest warrants. However, Human Rights Watch (HRW) documented massacres and atrocities carried out by the forces of current President Alassane Ouattara in March, 2011, in the campaign that eventually led to Gbagbo being pushed out of power with the assitance of the French military. These attrocities included a massacre in western town of Duékoué, where HRW says “pro-Ouattara forces committed horrific abuses, killing several hundred people.” These abuses have yet to be properly investigated or prosecuted in Ivory Coast.

The court’s previous prosecutor, Luis Moreno Ocampo, indicated publicly that his office was investigating all sides to the conflict, and that arrest warrants would be issued in a sequential order. This, he explained, meant going after different factions and individuals at different times. While there might be legitimate reasons for applying sequencing in the Ivory Coast situation, such an open-ended sequencing, coupled with a failure to effectively explain this process to affected communities in Ivory Coast, will create the perception that the court’s investigations are one-sided.

This criticism is one that the court must work to avoid.

The new prosecutor, Fatou Bensouda, has indicated on numerous occasions that she will only be led by the evidence. Beyond Laurent and Simone Gbagbo, if her investigations lead her to others who are alleged to have been involved in the commission of serious crimes, irrespective of the sides they took in the conflict, they must be made to account for their actions before a credible judicial process. The prosecutor should only be prevented in this regard if there are credible efforts to ensure there is accountability at the domestic level.

As with the trial of Charles Taylor at the Special Court for Sierra Leone, credible proceedings in Gbagbo’s case will reaffirm that leaders, however powerful, can be brought to account if they are accused of being involved in the commission of serious crimes.

We are providing coverage in French and English of the confirmation of charges hearings of Laurent Gbagbo on this website, as part of our war crimes trial monitoring project. Our monitor, Olivier Kambala wa Kambala, is an international lawyer with 15 years’ experience and is an expert in international criminal law, transitional justice, human rights, peace processes, and capacity-building of civil society. He will be monitoring the hearing from the ICC in The Hague, the Netherlands.

9 Comments

I was Kofi Annan' s SRSG in CdI 2005-2007 and I follow events over there with concern. I would like to communicate with you regarding the trial.
Best regards,
Pierre Schori,

The ICC must convince the world that it's establishment was a good idea. Gbagbo and all his accomplices must be made to face the consequences of their atrocities.

I agree with you that it is important that the ICC be strengthened and that its powers be used to bring Justice to perpetrators of war crimes and crimes acc to the ICC statute.
However I do have reservations about a statement like that "they need to get it right this time" - Jurisdiction of int tribunals is a far too difficult matter that the legal idea and or fiction of the "one right solution or outcome of such new jurisdiction" could be realized. The sometimes strange results of the other courts - ICTY, and the one on Lockerbie are testimony to that.
It is not the aim of legal proceedings to "get it right", there is the process aspect; human beings fail and different Judges come to different results. Everybody knows that.
Also - that other members of other factions in the Ivory Coast matter have not been accused yet is no real argument - in a perfect world every crime would be punished. We are far from that perfect world.

D.Cramer

Dear D. Cramer,
Thanks a lot for your comment and the points made on specific aspects of the blog. I'd like clarify a couple of things here. With reference to the line that "they [ICC] need to get it right this time," my point is that the Court needs to learn from the challenges that have come up in the previous or current cases/situations. This is not to mean that accused persons must be convicted at all costs. There is much more to enhancing the Court's credibility than just getting convictions. For example, in the Lubanga case, which was the Court's first case, Lubanga was almost released on two occasions for reasons that could have been avoided. Now it is for the Court to ensure that the same reasons do not come up in the Gbagbo case. If you take the Banda and Jerbo case in the Sudan situation, we have waited years for the trial to commence but for various logistical reasons, including issues of translation, we still do not have a trial date. Concerns were expressed by victims and civil society groups in Kenya after charges were not confirmed against two out of six suspects. An accused person in the DRC case has been acquitted while judges want to re-characterize facts relating to mode of liability in the Katanga case. This only came up when the parties were awaiting judgment. For same reasons of re-characterization of facts, the Bemba trial has been suspended during the conduct of the defense case. It will resume by end of this month. There is a need to provide more resources for outreach in all of these situations. The challenges in ensuring victims' participation were many in the other cases. Elsewhere, the Court has been accused of being used for political reasons. Now these are all challenges that the Court must learn from and make sure that the Gbagbo case is done right. That is the only way that the Court can enhance its responsibility. The investigations in Ivory Coast should be directed at the conduct of all parties to the conflict. Failure to do so will affect the Court's credibility in the eyes of many, including the victims of atrocities in Ivory Coast. Already, there are accusations that the accountability process in Ivory Coast is one sided. If the Court does not investigate all sides as it is supposed to do, then what stops Ivorians from accusing the Court of embarking on one sided justice as well? These are important issues that the Court must address especially with the case involving the first former head of state to be tried by the ICC. I hope that this response addresses some of your concerns.

Regards,
Alpha

Good to see you, my friend, Donald!

GENOCIDE IS GENOCIDE. IT SHOULD BE PROSECUTE IN A LAWFULL COURT AND ICC IS ONLY OF IT'S KIND. AS A HUMAN RIGHTS ADVOCATE ACTIVIST I PROPOSE GBAGBO MUST HANG TO DEATH FOR ALL HIS CRIME
AGAINST HUMANITY GENOCIDE.

The "sequencing" of interventions by the ICC Prosecutor must indeed be fully explained to the victims to avert fears that such steps support political expediency of suspects before the Court. In this sense I agree that the ICC needs to get it right this time and in other cases before it, notably the Kenya cases.

Ogbu and Imam, you are jocking too much.Stop nonsenses. FREE PRESIDENT GBAGBO!!!!

C'est un non sens pour une juridiction et pour un procureur qui se rend a plusieurs reprises dans un pays de n'enquêter qu'a charge ! Si le procureur fait correctement son travail il enquête a charge et a décharge ce qui n'a pas été le cas ni pour Luis Moreno Ocampo, qui une fois relevé de ses fonctions est venu féliciter Guillaume Soro pour son accession au fauteuil de présidnt de l'Assemblée Nationale, ni pour Fatou Bensouda qui a rendu plusieurs fois visite a Alassane Dramane Ouattara (sans doute pour prendre ses ordres et ses instructions).

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