The ICC and Côte d’Ivoire: Is Justice Being Dispatched?

In December 2010, Luis Moreno-Ocampo, then Prosecutor of the International Criminal Court (ICC), warned protagonists of the post-election crisis in Côte d’Ivoire that “[t]hose leaders who are planning violence will end up in The Hague.” In November 2011, Laurent Gbagbo arrived in The Hague, his transfer to the ICC seen as diffusing tensions after his arrest in April by forces loyal to the internationally recognized winner Alassane Ouattara. Gbagbo was joined by his Minister of Youth, Charles Blé Goudé, in 2014. Having fled to Ghana, Blé Goudé was extradited to Côte d’Ivoire, which sent him to the ICC. At the time, Côte d’Ivoire was not party to the Rome Statute but the country accepted the ICC’s jurisdiction through an Article 12 (3) declaration, reconfirmed in 2010.

Yet, by the time the trial commenced in January 2016, the Ivorian justice system was functioning. Ouattara declared no more Ivorians would be sent to the ICC, insisting on trying Simone Gbagbo at home despite losing an admissibility challenge before the Pre-Trial Chamber, upheld by the Appeals Chamber.

The acquittal of Laurent Gbagbo and Blé Goudé in the ruling on no case to answer of 15 January 2019 spotlights the OTP’s investigation in the Côte d’Ivoire situation. As a written decision is forthcoming, this article will not examine the trial. Rather, it looks at the perception of the ICC at the local level and how it compares to and impacts national justice processes. 

During my research in Côte d’Ivoire, I had the privilege to interview Ivorians from different parts of the country, including victims, witnesses, judges, prosecutors, defense counsel and civil society. Views about the ICC and domestic accountability efforts are polarized. Some strongly support the ICC and maintain high expectations that may now be impossible to meet, while others are adamant Ivorians should be tried by Ivorians, however imperfect the justice.

For many, the ICC has lost credibility. Those who followed the Gbagbo and Blé Goudé trial share concerns as to how it was conducted, from procedural changes, to the OTP’s witnesses turning hostile, suffering memory loss or providing hearsay evidence with low probative weight. Further, the OTP’s sequenced approach­––necessary for securing state co-operation given the limitations of the Part 9 regime––with as yet no public arrest warrants released against supporters of Ouattara who are also suspected of committing crimes during the crisis, has increased the perception of the Court as an instrument for victor’s justice. This credibility deficit has weakened its impact. Early positive developments included domestication of the Rome Statute, with the incorporation of crimes against humanity, war crimes and genocide into the Ivorian Penal Code in 2015. However, as public perception decreased, related reforms important for local accountability efforts stalled, in particular, a law on witness protection; fortunately, it was passed by the National Assembly in early 2018 but is still to enter into force.

Unfortunately, there has been inadequate reverse co-operation, with requests to the ICC for the exchange of evidence to facilitate domestic investigations substantively unanswered. Further, Côte d’Ivoire lacks technical capacity for DNA and ballistics analysis, with resource limitations among the factors delaying further exhumations. While the OTP has lent some assistance, it would be mutually beneficial to go further. Domestic inquiries are also hampered by witness fatigue, with some witnesses reluctant to co-operate with a Special Investigation Unit (CSEI) after already giving testimony to the ICC and other domestic transitional justice mechanisms previously operating in parallel, including the National Commission of Inquiry (CNE), Commission for Dialogue, Truth and Reconciliation (CDVR), and National Commission for Reconciliation and Reparation of Victims (CONARIV). Other ICC witnesses declined to testify in local trials to avoid media exposure.

On 6 August 2018, President Ouattara issued an Amnesty Decree, announcing that 800 perpetrators would be pardoned––rightly contested by FIDH, MIDH and LIDHO as an affront to victims. Until then, the national judicial authorities were––after a slow start––making demonstrable progress in efforts to hold both sides accountable at the local level. Most human rights advocates, however, would assert the opposite. Much progress was not visible to the public or international community because of inadequate outreach and community sensitization, including on the length of complex investigations. This is coupled with intentional investigative secrecy and good faith efforts to protect victims and witnesses at risk of harm in the absence of formal protection measures as those accused of crimes remain in proximity and sometimes, official positions.

When the Amnesty was announced, it was declared that members of the military and armed groups accused of blood crimes would be excluded. While the military and members of armed groups are explicitly excluded in the written Amnesty Decree, there is concern such persons and others suspected of blood crimes, including crimes against humanity, are being included in practice. The acquittal of Simone Gbagbo in a domestic trial mirroring that of the ICC was overturned by the Supreme Court, which ordered her re-trial just days before the Amnesty. There is no requirement for a judicial finding or acceptance of guilt for amnesty. While the Amnesty was presented as an effort to build bridges for national reconciliation, its application to the pro-Ouattara may indicate a different motive. The fear is that impunity will lead to a repetition of violence at the 2020 election.

Though acquittals show the Rule of Law in action, exemplifying respect for the fair trial rights of the accused, there is a risk that the Gbagbo and Blé Goudé result may also weaken the ICC’s impact as a deterrent. This is because some Ivorians view the acquittal as proof that even a court at the international level, with comparatively more resources, cannot succeed in holding the most powerful to account.    

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