LAURENT GBAGBO TRIAL: Justice Denied: The Reality of the International Criminal Court (67) “Imagi

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Justice Denied: The Reality of the International Criminal Court (67)

“Imagine if there were a criminal court in Britain which only ever tried black people, which ignored crimes committed by whites and Asians and only took an interest in crimes committed by blacks. We would consider that racist, right? And yet there is an International Criminal Court which only ever tries black people, African black people to be precise, and it is treated as perfectly normal. In fact the court is lauded by many radical activists as a good and decent institution, despite the fact that no non-black person has ever been brought before it to answer for his crimes. It is remarkable that in an era when liberal observers see racism everywhere, in every thoughtless aside or crude joke, they fail to see it in an institution which focuses exclusively on the criminal antics of dark-skinned people from the ‘Dark Continent’…. Liberal sensitivity towards issues of racism completely evaporates when it comes to the ICC, which they will defend tooth and nail, despite the fact that it is quite clearly, by any objective measurement, racist, in the sense that it treats one race of people differently to all others.
Chapter Twenty-three

The Court and the Ivory Coast

“Laurent Gbagbo’s confirmation of charges hearing at The Hague started today. However, the ICC runs the risk of producing one-sided justice.”
Think Africa Press


The Ivory Coast has experienced considerable political unrest in its history, most notably an armed conflict in 2002–03, fought between the rebel-controlled north and the government-controlled south, a schism that re-emerged after the 2010 presidential election. The Ivory Coast, also known as Côte d’Ivoire, ratified the Rome Statute on 15 February 2013. Although it had not ratified the treaty at that time, in April 2003 the government of Côte d’Ivoire under then President Laurent Gbagbo submitted a declaration under Article 12(3) of the Rome Statute accepting the ICC’s jurisdiction beginning 19 September 2002. President Gbagbo called on the ICC to open an investigation into the grave abuses committed by then rebel leader Alassane Ouattara’s Forces Nouvelles insurgents back in 2003. The court visited Côte d’Ivoire in 2006 but took no further action, possibly because Ouattara was seen to be close to the French government. On 14 December 2010, the Western-supported and Western-proclaimed President of Côte d’Ivoire Alassane Ouattara sent a letter to the OTP reaffirming the Côte d’Ivoire government’s acceptance of the court’s jurisdiction. On 3 May 2011,
President Ouattara reiterated his wish that the court open an investigation into the situation in the Ivory Coast. There are clear indications that the court is once again being manipulated by participants in the situation, not least of which in its decision that the human rights abuses from 2002–10, abuses which would have implicated Ouattara, did not warrant further action.
The Prosecutor v. Laurent Gbagbo Former President Laurent Gbagbo was taken into ICC custody on 30 November 2011 facing charges of four counts of crimes against humanity: murder, rape and other forms of sexual violence, other inhumane acts, and persecution. The crimes were allegedly committed by forces under his control during post-election violence in Côte d’Ivoire, between 28 November 2010 and mid-May 2011. He has been charged as being responsible for these crimes as an indirect co-perpetrator or, in the alternative, because he contributed to the commission or attempted commission of crimes “by a group of persons acting with a common purpose”. In November 2010, following bitterly contested elections, Gbagbo refused to step down when the Independent Electoral Commission and international observers proclaimed his rival, Alassane Ouattara, the putative winner of the presidential runoff election on 28 November 2010. Italian journalist and filmmaker Nicoletta Fagiolo has pointed out the irregularities surrounding the declaration by Youssouf Bakayoko, the Head of the
Independent Electoral Commission (IEC), that Ouattara was the winner of the national elections. She noted that according to the Ivorian constitution, this commission is allowed to declare only the provisional results. Ouattara’s victory was declared at Ouattara’s election campaign headquarters — “in the absence, and therefore without the approval of the Constitutional Council, which is responsible, according to the Ivorian constitution, for declaring final election results… . Thus the provisional results, unapproved by all IEC members and without the presence of the representatives of the respective candidates, were declared as final election results.”The Gbagbo coalition, La majorité présidentielle (the presidential majority), called for an annulment of the vote. They noted that observers in a number of Ouattara-dominated areas had reported death threats, murders, intimidations, physical violence, kidnappings of personnel and aggression against Gbagbo activists. Fagiolo states that “It is still a mystery who actually won the elections in the run-off on 28 November 2010.” Thabo Mbeki, the former South African President, who had worked as a mediator from 2004 onwards, and who had visited Côte d’Ivoire from 5–7 December 2010, concluded in his mission report that the elections could not be considered valid. Nonetheless, the questionable results were approved by the Special Representative of the United Nations for Côte d’Ivoire, Choi Young-Jin, although this was outside his mandate.
Nicoletta Fagiolo observed: What followed were four months of crisis that saw two presidents and two governments, where the UN and the European Union, breaching their mandates of political impartiality, had decided to support Ouattara. From December 2010 to March 2011, the UN, the EU, France and the United States carried out a policy of diplomatic and financial asphyxia against the Gbagbo government – which included an embargo on medicinal supplies, cocoa, international mandates, freezing of private funds and property and the closure of the local branches of French and American banks – followed in April 2011 by what the political scientist Michel Galy called a French-UN coup d’état. Violence between followers of the presidential candidates ensued and lasted until mid- May 2011.
As international pressure increased on Gbagbo to step down, the violence intensified. In March 2011, in a move clearly coordinated with the French government, Ouattara’s Forces Nouvelles militias launched an offensive from the north and occupied the capital Abidjan. The French air force then bombed the presidential palace and other targets in April 2011. Gbagbo was subsequently arrested. India denounced the “regime change” policies of the UN peacekeepers in Ivory Coast; Russia denounced the illegality of French and UN military actions. At least 3,000 people were said to have been killed by armed forces on both sides along political, ethnic, and religious lines during the fighting. Hundreds of people from both sides were killed in the Ivorian capital, Abidjan, and the far west of the country between February and April 2011. Gbagbo has been charged as being responsible for a series of alleged war crimes and crimes against humanity that were carried out during the post-electoral period. Pro-Ouattara forces were also accused of grave abuses of human rights after they began a military offensive in March 2011 to seize control of the country. In village after village in the far west, Ouattara militias killed civilians from ethnic groups associated with Gbagbo and burned villages to the ground. In Duékoué, Ouattara forces and militias massacred several hundred people, including unarmed men from pro Gbagbo ethnic groups. The Inner City Press reported in April 2011 that forces loyal to Alassane Ouattara were reported to have killed hundreds of civilians in Duékoué. Caritas put the death toll at 1,000, and the Red Cross at 800.1734 Ouattara forces were also accused of executing and torturing men from ethnic groups aligned with Gbagbo when they seized Abidjan.
By the conflict’s end, several human-rights groups had documented war crimes and likely crimes against humanity by both sides. A UN-mandated international commission of inquiry presented a report to the UN Human Rights Council in mid-June 2011 that found that both pro-Gbagbo and pro-Ouattara forces committed war crimes and likely crimes against humanity. In August 2012, a national commission established by President
Ouattara released a report that also documented serious abuses of human rights committed by forces on both sides. It said the Côte d’Ivoire Republican Forces rebels were responsible for 727 deaths while Gbagbo’s forces killed 1,452 people.1 The then ICC Prosecutor Moreno Ocampo engaged in his characteristic assault on presumption of innocence. Although duty bound to be impartial, as early as 21 December 2010 Ocampo was seen to be taking sides, citing Blé Goudé, the Youth Minister in the Gbagbo government, as an ICC target. On 8 April 2011 – before he announced his intention to investigate events in Côte d’Ivoire – he stated “in December we put Gbagbo and others at notice”. He was criticised at the time for undermining attempts to negotiate a resolution to the crisis.
After announcing that he had conducted a preliminary examination of the situation in Côte d’Ivoire, the Prosecutor concluded that there was a reasonable basis to believe that crimes within the jurisdiction of the court had been committed in Côte d’Ivoire since 28 November 2010. On 23 June 2011, the Prosecutor requested authorisation from ICC judges to open an investigation in Côte d’Ivoire in relation to war crimes and crimes against humanity allegedly committed following the disputed presidential election of 28 November 2010. On 3 October 2011, Pre-Trial Chamber III granted the Prosecutor’s request for authorisation to open investigations proprio motu into the situation in Côte d’Ivoire with respect to alleged crimes within the jurisdiction of the court committed since 28 November 2010, as well as with regard to crimes that may be committed in the future in the context of this situation. On 23 November 2011, Pre-Trial Chamber III issued a warrant of arrest under seal for Gbagbo in the case of The Prosecutor v. Laurent Gbagbo for four counts of crimes against humanity. The arrest warrant against Gbagbo was unsealed on 30 November 2011, and he was transferred to the court’s detention centre in The Hague by the Ivorian authorities. On 5 December 2011, Pre-Trial Chamber III held an initial appearance hearing.
The Ivory Coast became the seventh situation under investigation by the OTP. Pre- Trial Chamber III asked the Prosecutor to revert to the chamber with any additional relevant information that was available to him on potential crimes committed between 2002 and 2010 in Côte d’Ivoire, which the Prosecutor did on 3 November 2011. On 22 February 2012, ICC judges extended the authorisation for the Côte d’Ivoire investigation to include crimes within the jurisdiction of the court allegedly committed between 19 September 2002 and 28 November 2010. All were to be considered as a single situation. Gbagbo appeared before Pre-Trial Chamber III on 5 December 2011 at which time the chamber verified his identity, informed him of the charges he was facing and his rights under the Rome Statute.
On 12 June 2012, Pre-Trial Chamber I postponed the commencement of a confirmation of charges hearing to 13 August 2012. On 3 August, the hearing was postponed for a second time to allow a medical evaluation of Gbagbo’s fitness to take part in the case. On 2 November, judges ruled that he was fit to take part in the proceedings and the hearing would be rescheduled. Following a case status hearing on 11 December 2012, pre-trial judges decided on a key confirmation-of-charges hearing to decide whether the case against Gbagbo would begin in February 2013. Professors Tim Zwart, a human rights expert, and Alexander Knoops, a criminal law specialist, have challenged the attitude and actions taken by the court:
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.
Zwart and Knoops reported that “[a]ccording to medical experts hired by the Court, Gbagbo suffers from post-traumatic 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.” The pre-trial hearing opened on 19 February 2013. The evidence produced by the new Chief Prosecutor Fatou Bensouda as usual relied heavily on NGO and UN reports, as well as newspaper articles and hearsay witness testimonies – the sort of “evidence” that has compromised almost every other ICC investigation. Gbagbo stated that during the previous fifteen months, the Prosecutor did not once call upon him to ask his point of view on the charges he was facing. Gbagbo pointed out at the pre-trial hearing that such an exchange would have given the trial a “fluidity of reasoning”, allowing for a focus on what is essential, and leaving out simple errors on which some of the charges were based. The hearing revealed a number of basic errors on the part of the Prosecutor.
Gbagbo’s defence claimed that the Prosecutor had “blamed Gbagbo for misdoing of his adversaries”. One example they cited was a handwritten document seized in Gbagbo’s residence saying that on 29 May 2010 a minister was given 1,000,000 FCA francs to recruit forty Liberian mercenaries. The reality actually exonerated him. The defence established at the pre-trial hearing that this minister was in fact a pro-Ouattara minister appointed in the 2005 coalition government. False evidence was also included in the Prosecutor’s evidence list. The defence also established that a video claimed to have been of a massacre, the fourth charge against Gbagbo, said to have been carried out in Youpougon, a suburb of Abidjan, in May 2011, was actually filmed in Kenya – something that should have been evident to the Prosecutor’s investigators given that the people in it were in fact speaking Swahili. Quite how that simple fact escaped the supposedly professional investigators in the OTP was not addressed by the court. Despite the fact that the “witness” provided a clearly faked video as his evidence to the court, the Prosecutor stated that “The authenticity of this video…has no bearing on the credibility of this witness and on the probative value of the rest of his evidence.” Fagiolo challenged the Prosecutor’s most basic claims: When reading the Prosecutors final Document Containing the Charges (DCC) in the brief statement of facts – exposé des faits – one is baffled by the sloppiness in describing the historical events in the first few pages: for example in the very first paragraph it states that Laurent Gbagbo made no effort to investigate into the crimes committed during the post-electoral crisis. Yet a UN Human Rights report dated February 2011 specifies that Gbagbo called as early as the 20 of December 2010 for a national regional and international evaluation commission into the post electoral crisis and on 7 January 2011 Gbagbo, by presidential Decree No. 2011-06, established an international commission of inquiry with a mandate to investigate human rights violations related to the post electoral crisis.
When the defence pointed out simple factual inaccuracies in the ICC’s account of events, ICC OTP official Pascal Turlan was asked if he had changed his mind about the court’s claims. He responded that “the Prosecutors’ office stands to what they wrote in their DCC, we are not here to write history that is up to historians”. The question left answered is who writes the history? It is perhaps worth noting Edward Said’s comment that “history is made by men and women, just as it can also be unmade and rewritten, always with various silences and elisions”.
Human Rights Watch reported that Ivorian civilian and military prosecutors have together charged more than 150 people from the Gbagbo camp with crimes committed during the post-election crisis. It noted: “No member of the pro-Ouattara forces has been charged with such crimes.” Human Rights Watch added: Many defendants from the Gbagbo camp have been in detention for nearly two years. Côte d’Ivoire’s civilian prosecutor initially charged the civilian detainees – primarily the political elite from the Gbagbo camp, including Gbagbo’s wife, Simone – with economic crimes and crimes against the state. Violent crimes (crimes de sang) have been added to the charge sheets of at least 55 defendants, including a number of people, among them Simone, who have been charged with genocide. The Ivorian government has indicated that other civilian defendants will likewise face charges of violent crimes related to the post-election crisis.