Proceeding with the former Ivorian president, Laurent Gbagbo’s trial could undermine the International Criminal Court’s legitimacy in Africa, write Tim Zwart and Alexander Knoops.
The relations the International Criminal Court (ICC) enjoys with states in Africa are testy. Already, the African Union has called on its member states not to cooperate with the ICC’s prosecutor regarding the case of President Omar al-Bashir of Sudan. African leaders are openly defying the Court by offering hospitality to President Bashir, despite the indictment that has been brought against him.
By recently electing Uhuru Kenyatta as their president, Kenyans have rallied behind him in opposition to the Court. The ICC should therefore watch its step in order not to lose its legitimacy in Africa. The proceedings brought against the former Ivorian president, Laurent Gbagbo, who is currently standing trial in The Hague, charged with crimes against humanity, will serve as a test case in this regard.
When Gbagbo was still being detained in Côte d’Ivoire, prior to being transferred to The Hague, he suffered ill-treatment at the hands of his guards. Such a breach of fundamental rights should normally have led to termination of proceedings against him, but the Court proved unwilling to go down that road. The Court made it clear that since it had no responsibility for his detention in Côte d’Ivoire, such violations of Gbagbo’s rights could not be attributed to it.
This position is difficult to maintain, since the prosecutor at that stage was already cooperating with the Ivorian authorities to secure his transfer to the ICC. The ill-treatment to which Gbagbo was subjected, resulted in a deterioration of his health. According to medical experts hired by the Court, Gbagbo suffers from posttraumatic stress disorder, which would render him unfit to stand trial. But again the Court did not regard this as a valid reason to discontinue the proceedings.
This raises the question why the Court is so eager to push for a trial, and some will undoubtedly assume that politics plays a part. This is hardly surprising, as President Gbagbo is well-known for standing his ground in relation to Western powers, in particular Europe and the USA, which has earned him credit among his supporters and leaders in the region.
Now he is facing a court, which, as David Hoile, an author of a hard-hitting book on the ICC, has explained previously in this magazine, is mainly financed by EU countries, the same countries he has withstood during his term in office. This may create the impression of settling a score or getting rid of a nuisance. It is also highly questionable whether the Court should assume jurisdiction to try the Gbagbo case at all. It is relying on a declaration made by Côte d’Ivoire in 2003. On the face of it the declaration only covers events preceding its submission, and not acts which took place some 7 years after it was made.
But the Court was undeterred. Being safe rather than sorry, Côte d’Ivoire’s current government, headed by President Alassane Ouattara, has also submitted a declaration, which the ICC considers to be further evidence that the country had accepted the Court’s jurisdiction to try this case. However, by accepting this declaration as being valid, the Court may also have created the image of it being a tool of victor’s justice, since President Ouattara clearly benefits from having his opponent and former rival under lock and key in The Hague.
In this case, the ICC has made the point that it will not allow states to use the Court opportunistically to serve their political purposes. If taken seriously, this position should lead to discontinuation of the Gbagbo case. Underlying prosecutorial policy, especially in cases initiated by the ICC prosecutor Fatou Bensouda herself, is the principle of evenhandedness, under which members of both parties to a conflict ought to be prosecuted. This happened in the Kenya case, in which members of both political camps allegedly involved in ethnic violence are to stand trial. The principle of even-handedness was also reconfirmed in the Côte d’Ivoire case when the prosecutor stated that Gbagbo was only the first, and that others will follow, regardless of their political persuasion. However, to date no arrest warrant has been issued involving members of the Ouattara camp. This is surprising, since the evidence against Ouattara’s associates is mounting.
NGOs like Human Rights Watch have issued reports containing evidence indicating that the Ouattara side may have engaged in serious crimes. This evidence is backed up by academic assessments and also a report submitted by the Ivorian government-initiated Commission on Post-Electoral Violence, referred to as the Badjo Report, which implicates people on both sides of the political divide. Thus, by issuing an arrest warrant for Gbagbo’s wife, Simone, while leaving the other side untouched, the ICC has done its legitimacy a disservice.
The Court has also denied President Gbagbo’s request for interim release, while taking the objections of the prosecutor into account. Fatou Bensouda opposed interim release because in her view Gbagbo continues to maintain his claim over the presidency and has a desire to return to power when released. She submitted that at the time, Gbagbo still had national and international contacts and ties, which he could mobilise to abscond. These, of course, are not legal but political considerations.
As these observations show, so many political aspects are connected to the case that trying it would be a challenge to any Court. However, it is particularly risky for a prosecutor and a Court who claim to be motivated by legal considerations only, and who should take care to keep the African states on board. Most courts use a safety valve to stay out of political cases which may undermine their long-term legitimacy. If such a case comes up, the court will declare it to be non-justiciable, ie, unfit for judicial resolution.
Since ‘not only must justice be done, it must also be seen to be done’, the ICC should take the high road by using this safety valve, and release President Gbagbo from custody. This may be a tough call for the Court, but is a sacrifice worth making, to safeguard its legitimacy as a court of law in Africa. Of course, the ICC will not be out of the woods simply by discontinuing the Gbagbo case. In order to increase the Court’s legitimacy in Africa, it will have to do more to honour the African sense of justice and to give room to it wherever it can. The Rome Statute, under which the Court operates, provides ample opportunity to give precedence to African criminal law notions like restorative justice, reconciliation, peace as an integral part of justice, and respect for local culture. If the Court succeeds in showing that it takes these elements of African justice seriously, its legitimacy will increase, and so will the compliance with its rulings. That is why a group of legal academics from Africa and the North, led by ourselves, is mapping a way out of the current quagmire which links more respect for African justice on the part of the ICC to increased cooperation on the African side. A discontinuation of the Gbagbo case would clearly give impetus to this initiative.
(Alexander Knoops is a professor of criminal law at Utrecht University in the Netherlands and a practising attorney. Tom Zwart is a professor of human rights at Utrecht University)