Gbagbo case puts ICC in a bind

The protracted case against the former leader of Côte d’Ivoire, Laurent Gbagbo, and his Youth Minister has exposed the frailties of the ICC, an institution meant to deal with international justice, as it now finds itself embroiled in complicated legalese. Report by Desmond Davies.

In June 2013, judges at the International Criminal Court (ICC) in The Hague bent over backwards to assist the Office of the Prosecutor (OTP) in its case against the former President of Côte d’Ivoire, Laurent Gbagbo, who was accused of committing crimes against humanity between 2010 and 2011 during the country’s civil war.

At the time, the judges in the pre-trial chamber themselves said the Prosecutor, Fatou Bensouda from The Gambia, had not presented evidence solid enough to prosecute Gbagbo.

In normal circumstances, according to legal experts, the case should have been dismissed and Gbagbo freed. But the judges gave the OTP an extra five months to look for evidence that would nail not just Gbagbo but also his Youth Minister, Charles Blé Goudé.

Former South African President Thabo Mbeki, speaking in 2015, noted: “Any normal judge would have declared Gbagbo free and released him.”

However, on 15 January this year, the ICC’s Trial Chamber acquitted both men of all charges because the OTP failed to deliver. The judges said the OTP’s case was “exceptionally weak,” clearly making it obvious that an appeal would not succeed.

But this highly politically-charged case took a turn for the worse, legally speaking, three days later. Instead of releasing Gbagbo and Blé Goudé, judges in the Appeals Chamber voted 3-2 on 18 January to keep both men in detention until an appeal by the OTP was heard on 1 February. It was another sop to the OTP, which legal experts said was unprecedented.

Charles Taku from Cameroon, who is President of the ICC Bar Association, said on Twitter: “The order of detention of acquitted persons casts a slur on the image and integrity of the Court. It is an affront to the international rule of law.

“The detention adds to a catalogue of challenges the Court is facing. I am afraid that the outcome of the hearing tomorrow may not redress the damage caused to the image of the Court. The unfortunate precedent may be pointed to by states and persons disaffected by the Court, as one more compelling reason for forsaking the Rome Statute and the Court. Yet, I honestly believe that the precedent is not justified under the Rome Statute,” Taku added.

Thijs Bouwknegt, a Dutch historian and former journalist, who has, since 2006, attended and covered all ICC (pre-)trials in The Hague, also took a swipe at the ICC. Writing for justiceinfo.net on 31 January, he said of the Gbagbo and Blé Goudé case: “From the beginning, the Prosecution had built its crimes against humanity case on anonymous hearsay evidence from NGO reports and press articles.

“Such pieces of evidence may serve as first drafts of history, sketch context and provide leads, but they cannot, wrote the pre-trial chamber in June 2013, ‘in any way be presented as the fruits of a full and proper investigation,’ ” he wrote.

Thus, on 1 February, the Appeals Chamber freed Gbagbo and Blé Goudé but with strict conditions that have kept them still fettered to the ICC. For starters, Gbagbo was sent to live in Belgium, while Blé Goudé has stayed in Holland, stopping them from returning to Côte d’Ivoire while the OTP considers its next move. The judges ruled that both men should “surrender all identity documents, particularly their passports, to the Registry”.

They were also to “report weekly to the law enforcement authorities of the receiving state or the Registry”. Another condition was that Gbagbo and Blé Goudé were “not to make public statements, directly or through any other person, about the case or be in contact with the public or speak to the press concerning the case”.

The judges added: “Should Mr Gbagbo or Mr Blé Goudé not comply with the above conditions, the Appeals Chamber will revisit the matter.”

The OTP said that it had been “amenable” to the release of the two men “with a set of conditions attached”. The OTP said “these conditions would be to ensure” that Gbagbo and Blé Goudé “would be available before the Court should the trial proceedings against them continue”.

The conditions have been placed on the two men by the ICC because the OTP said it might decide to appeal against the 15 January decision to acquit Gbagbo and Blé Goudé. “At this point, the Prosecution team is still waiting for the judges of Trial Chamber I to provide their written decision detailing the legal reasons for their decision to acquit,” Prosecutor Bensouda said in a statement.

“Only after we have had the opportunity to carefully examine and analyse their reasoning will my office make a decision on whether to appeal.” Legal experts believe that the OTP is just trying to save face after yet another poor performance.

Judges disagree with each other

The Gbagbo case has placed the ICC in a bind. It has also polarised the judges. For instance, having voted in favour of keeping Gbagbo and Blé Goudé in detention, Judge Luz Del Carmen Ibáñez Carranza from Peru, on 18 January, seemed to have had a change of heart and issued a dissenting opinion on the procedures of the Appeals Chamber.

She was of the view that the Presiding Judge who is also President of the Court, Chile Eboe-Osuji from Nigeria, who assigned himself to preside over what many see as a politically charged case, should not have done so. Judge Ibáñez argued that Judge Eboe-Osuji’s presence could undermine the rights of the two men to due process and fair trial.

“I am of the firm view that there should be clear and transparent procedures in place in the Appeals Chamber for the designation of a Presiding Judge for each appeal,” she wrote.

“Those procedures, once in place, must be respected and followed in order to ensure fairness, predictability and transparency of proceedings and, fundamentally, the rights of the parties to have a pre-established judge in proceedings before the Appeals Chamber, and more generally, the Court.”

She noted that three judges of the Appeals Chamber were already “presiding over important pending appeals” when two other judges, who were not so engaged could have been asked to sit in the case.  Judge Ibáñez said this was “despite the uncontroversial fact that all judges in the Appeals Division have the required expertise to preside over any appeal”.

She went on: “The foregoing demonstrates that the designation of the Presiding Judge in the present case results in an imbalanced distribution of workload, thereby negatively impacting upon the fair and expeditious conduct of the proceedings.”

On 22 January, Judge Eboe-Osuji and Judge Piotr Hofmański from Poland, President of the Appeals Division, countered by saying that they regretted Judge Ibáñez’s dissenting opinion because “we were not afforded the opportunity of previewing the dissent before it was filed, as such a procedure might have made this joint declaration unnecessary”.

The two judges said that “the election of the Presiding Judge in this case followed both the letter and spirit” of the relevant sections of the Appeals Division Practice Manual. “And nothing alleged as a fact in our esteemed colleague’s dissenting opinion suggests otherwise,” they added.

Judge Ibáñez said her dissenting vote was “based on legal reasons and was rendered in the exercise of my judicial independence”.

She said that such independence “forms part of the fundamental guarantee of due process of law, the proper administration of justice, and the highest democratic principles universally recognised in the exercise of judicial functions”.

Judge Ibáñez concluded: “We, judges, are accountable before the international community as a whole and, as such, we should…serve as an example of the importance of observing democratic practices within our institutions.”

Gbagbo was transferred to the ICC in 2011 while Charles Blé Goudé went to The Hague in March 2014. Their joint trial began in 2016.

The OTP itself is in a difficult situation, having already seen the release of the former Vice President of the Democratic Republic of Congo (DRC), Jean-Pierre Bemba.

A legal expert told New African about the Gbagbo case: “This was the weakest case that went to trial. After the prosecution presented its case, the majority of judges decided that they’d heard enough nonsense and decided to acquit. They did not even wait for the defence to present its case.

“This appears to be a politically motivated trial. How embarrassing for the prosecutor.”

Gbagbo and Blé Goudé are now in limbo as they await the next move from a weakened OTP. Until then, they will have to stay away from Côte d’Ivoire. This is even more significant because President Alassane Ouattara will not be standing in the 2020 elections. Will the ICC be able to keep Gbagbo away from Côte d’Ivoire – where there appears to be a resurgence of political support for him – if it cannot come up with sound legal arguments for doing so? NA