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  • February 11, 2022
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Côte d’Ivoire​​

Laurent Gbagbo was elected President of Côte d’Ivoire in October 2000. He rose to prominence in the tumultuous decade that followed the death, after 33 years in office, of Côte d’Ivoire’s first president, Félix Houphouet-Boigny. Opposition groups boycotted the election that put Gbagbo in office due to a constitutional provision that prohibited Alassane Ouattara from running for office based on claims that his father was a Burkinabe. 

This exclusion contributed to Alassane Ouattara’s standing as champion of Ivorians of northern descent; a population long economically and politically marginalised in a country where wealth and power are concentrated in the South.

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Political violence marred the 2000 election and the first years of Gbagbo’s presidency, culminating in a rebellion led by Ouattara supporters in September 2002. Although the rebels failed to overturn the regime, they occupied the northern half of the country, leading to a UN monitored partition that would endure for the next decade. That period was marked by intermittent eruptions of fighting and grave human rights violations committed by state actors, rebels, and civilians during intercommunal fighting. Militant youth movements grew in this context, with the Jeunes Patriotes — a pro-Gbagbo youth movement led by Charles Blé Goudé — notable amongst them. 

In 2010, the longstanding protracted conflict erupted into intense fighting in the wake of Côte d’Ivoire’s first presidential election since Gbagbo took power. While the United Nations certified the results in favour of Alassane Ouattara, Gbagbo and his supporters contested the win and refused to concede power. Three months of intense fighting followed. Both sides committed atrocities in Abidjan and in regions newly occupied by rebel forces, most notably in the western town of Duékoué and the surrounding area.  

Domestic Accountability

Priorities and challenges for strengthening domestic criminal accountability processes

Côte d’Ivoire has opened numerous domestic investigations into grave breaches of international law and human rights committed during the 2010-2011 post-electoral violence. A decade on, only a small number of those cases have reached the trial phase. Progress on investigations has been slow and marred by operational challenges. In some instances, investigations were terminated by an executive decree granting release of detainees or amnesty for the accused.

The establishment of the Special Investigative Cell (CSEI) in 2011 was seen as a chance to rehabilitate the Ivorian justice system after years of tumult and neglect. The Special Cell was also a way to demonstrate to onlookers, both in the country and abroad, that prosecuting grave crimes was a priority to the Ouattara government.1 

Once established, the legitimacy of Special Cell investigations was hampered by an overly broad mandate, inefficient operations, and an apparent lack of judicial independence. This has undermined the credibility of domestic trials that followed from the Cell’s work.2  

High hopes that a culture of impunity in Côte d’Ivoire would be overcome in the post conflict era have so far remained unfulfilled. In 2016, Freedom House assessed the Ivorian judiciary as ‘not independent’, having determined that its judges were highly susceptible to external interference and bribes.

To date, domestic trials against those most responsible for serious crimes remain one-sided, further undermining confidence in the regime’s commitment to credible and impartial justice. 

The Cellule Spéciale d’Enquête et d’Instruction (CSEI)

The CSEI is charged with investigation and judicial instruction relating to crimes committed at the time of the post-electoral crisis in 2010-2011 and any offenses connected to those crimes.

The Cell is a specialized body within the Ivorian justice system created to investigate and gather evidence, including taking statements from victims and witnesses. While it is tasked with determining whether a case should proceed to criminal trial, it does not itself conduct trials. Under the supervision of an investigating judge, the Cell prepares cases for trial before the Ivorian civilian criminal courts.

The Special Cell applies Ivorian law and procedures, and includes no special regulations related to investigating or prosecuting international crimes.The 

Citations & References

1: Human Rights Watch (2016) “Justice Re-establishes Balance: Delivering Accountability for Serious Abuses in Côte d’Ivoire”

2: ICTJ 2016 “Disappointed Hope: Judicial Handling of Post-Election Violence in Côte d’Ivoire”  

Côte d’Ivoire: Domestic Accountability Timeline

Priorities and challenges for strengthening domestic criminal accountability processes in Côte d’Ivoire

FOLLOW THE TIMELINE BY CLICKING ON THE ARROWS
2001 - 2010
Gbagbo’s Presidency
May 2011
President Ouattara Inaugurated

President Ouattara vows to end impunity for the worst crimes.

June 2011
Establishement of Cellule Spêciale d’Enquête relative à la crise post-électorale
September 2011
Dialogue, Truth, and Reconciliation Commission

CDVR is launched with a mandate to build reconciliation and forge unity.

December 2013
Cellule Spêciale d’Enquête et d’Instruction (CSEI)

CSEI replaces CSE. Earlier in the month, Ouattara announced the Special Cell was no longer needed. Under pressure from national and international actors, the government backtracked and instead extended the Cell’s mandate to create the CSEI.

December 26, 2014
Trial of Simone Gbagbo + 82 Opens

Simone Gbagbo and 82 co-accused opens at the Court of Assizes in Abidjan. The trial concerned both alleged militants and militiamen who supported Gbagbo, as well as members of Laurent Gbagbo’s last government. It dealt with crimes against the state (“atteine à la surete de l’etat”) and not conduct amounting to international crimes. Human rights groups criticised the proceedings, contending defense attorneys did not have access to their clients' files, unreliable witnesses, lack of witness protection and incomplete investigations (OIDH 2015).

July 2014
Trials in Connection with National Commission of Inquiry

20 individuals were reportedly prosecuted in connection with the CNE’s report. The investigations include crimes committed by all sides and led to the indictment of eight pro-Ouattara militaries (ICTJ:2016). The indicted supporters of Ouattara remained in government posts and, as of 2020, had not faced trial.

March 2015
Trials in the Military Justice System

Military prosecutors were forced to discontinue the prosecution of two pro-Gbagbo commanders for their role in the indiscriminate shelling of residential areas of Abobo in March 2011, after failing to produce sufficient evidence. The military justice system has tried a handful of cases involving pro-Gbagbo officers and soldiers implicated in killing civilians during the crisis, but has been criticized by international and local human rights groups for the lack of rigor with which it is pursuing these cases.

March 10 2015
Ruling Given in Trial of Simone Gbagbo + 82 Opens

The verdicts varied. Simone Gbagbo was given 20 years in prison, twice the amount requested by the prosecutor. Civil society observers found the verdicts severe given gaps in investigation and weakness of evidence. Charges of war crimes were added to the trial, in light of ICC arrest warrant issue against Simone Gbagbo.

March 2015
Creation of CONARIV Reparations Commission

CONARIV was created by presidential ordinance to carry out the victims’ reparation process alongside the PNCS (programme National de Cohésion Sociale). CONARIV’s mandate is to produce a consolidated single list of all victims of the Ivorian crisis and supervise the implementation of the reparations program.

June 2015
Investigations Closing

Human rights organizations again reacted to what they considered to be credible information that some of the investigations were to be closed, sending a public letter to President Ouattara appealing to him to allow the cases to continue.

July 20, 2016
CSEI Expanded to include Terrorism

Government communiqué announced the decision of the Council of Ministers to adopt a decree expanding the mandate of the CSEI to include terrorism.

20 October, 2016
Côte d’Ivoire adopts a new Constitution
December 2016
UN Independent Expert Report on Status of Trials

The report found, as of December 2016, 17 cases linked to the post-electoral crisis were still pending before the courts, while 31 out of 66 cases had already been tried, 29 had been brought before the Indictment Division, and six were before the Court of Appeal.

13 April, 2017
Trial of General Dogbo Blé

Sentenced to 18 months in prison for illegal arrests and detentions, assassination, forced disappearances and removal of bodies.

18 July, 2017
Trial of Genernal Assoa Adou

Sentenced to four years in prison and a 200,000CFA fine for disruption to the peace, under article 169 of the criminal court. The court added this charge, which did not exist in the original charges.

March 18 2017 & July 2017
Simone Gbagbo Acquitted & Acquittal Overturned

In March 2017, Simone Gbagbo was acquittal and on July 2017 that decision was overturned. Fair trial concerns were raised; notably, her lawyers suspended their participation when the president of the court refused to call witnesses considered crucial to her defense, namely five senior public officials, one of them the president of the National Assembly.

August 6, 2018
Amnesty Declaration

The Amnesty declaration included the former First Lady Simone Ehivet Gbagbo, Mr. Souleymane Kamaraté, Director of Protocol of the President of the National Assembly and many other people close to former President Laurent Gbagbo including former Ministers Assoa Adou and Lida Kouassi Moïse. The declaration excluded 60 persons under investigations for ‘crimes du sang’ without specifying who. Many more than 60 persons were accused of these crimes, raising confusion about where the amnesty did and did not apply.

April 2020
Soro Guillaume Trial in Absentia

Former rebel leader Soro Guillaume was tried in absentia and sentenced to 20 years in prison and deprivation of civil rights for embezzlement of public funds and money laundering. This was the first trial and conviction of an alleged perpetrator of grave crimes from Ouattara’s supporters. The charges against him were not related to the conflict.

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Political will 

Is there political will for criminal accountability for international crimes in Côte d’Ivoire?

The political climate in Côte d’Ivoire since President Ouattara took power remains tense. This means stakes are high for the fair adjudication of grave crimes committed in the period before and after the 2010 elections. Despite a promise that those most responsible for crimes on both sides would face justice, very few investigations have focused on members of the Ouattara camp, and thus far only defendants from Gbagbo’s side have faced trial. 

Beyond accusations of ‘victor’s’ justice’, the Ouattara government has shown a general reluctance to support prosecutions of international crimes committed by either camp. The case against Simone Gbagbo and 82 co-defendants is the highest profile case brought to trial thus far. The accused faced charges of crimes against the state (crimes contre l’Etat) rather than grave crimes against civilians (crimes du sang), leading to criticism that the government prioritised political concerns over victims’ rights.3  Ouattara’s government has also shown diminishing support for the Special Cell, leaving it with inadequate staff and funds.4 

Citing the need to foster reconciliation, prisoners in pre-trial detention are regularly released by executive order, sometimes years into ongoing investigations or proceedings. Most notably, a presidential ordinance in 2018 granted amnesty to eight hundred individuals accused of crimes related to post-electoral violence.  Notwithstanding the importance of reconciliation in the polarised political climate of contemporary Côte d’Ivoire, the release of alleged perpetrators has inhibited the search for the truth and undermined victim’s right to redress.

Play Video

Investigations and prosecutions in Côte d’Ivoire: progress and challenges

Drissa Traoré, Honorary President of the Ivorian Human Rights Movement (MIDH), discusses the domestic prosecution of crimes related to the post-election violence in Côte d’Ivoire. He analyses the consequences of the 2008 amnesty law and highlights the challenges facing the Ivorian judicial institutions. Traoré also looks back at the trial of Gbagbo and Blé Goudé before the International Criminal Court.

 

Citations & References

3:  OIDH (2015) “Rapport de suivi des procès la crise post-électorale 2010 en Côte d’Ivoire”

4:  Human Rights Watch (2016) “Justice Re-establishes Balance: Delivering Accountability for Serious Abuses in Côte d’Ivoire”

Commentary & Reports

Observatoire Ivoirien des droits de l’homme (2015) “Rapport de suivi des process la crise postelectorale 2010 en Côte d’Ivoire”

This report documents the monitoring work of the Ivorian NGO OIDH during the trial of Simone Gbagbo and 82 co-accused at the Court of Assizes in Abidjan. The report includes insights into the trial, its challenges and civil society’s critiques of the process. The authors emphasise irregularities in the proceedings that undermined the rights of the defendants to a fair trial.

Human Rights Watch (2016) “Justice Re-establishes Balance: Delivering Accountability for Serious Abuses in Côte d’Ivoire” (EN/FR)

The report reviews political and practical obstacles to independent and impartial judicial processes in the Ivorian domestic justice system.

Amnesties 

How have amnesties impacted on domestic efforts to hold those responsible for international crimes to account in Côte d’Ivoire?

President Alassane Ouattara announced on August 6, 2018 that he would grant amnesties to 800 people accused or convicted of crimes related to the 2010-11 crisis or subsequent acts of ‘anti-state’ violence. The declaration created confusion regarding who would face justice. Although the President specified that amnesty would not apply to “the 60 military members and members of armed groups who committed blood crimes” (crimes du sang) during post-election violence, far more than 60 people were indicted or convicted for serious crimes. Those granted amnesty ultimately included individuals implicated in serious human rights violations, with former First Lady, Simone Gbagbo, amongst them.5

The amnesty declaration helped to ease a tense and polarised political climate, where accountability efforts had often deepened resentment by appearing one-sided. The declaration was also in line with the Ivorian criminal code, which contains clauses allowing immunity based on official capacity as well as the possibility of presidential pardon. That said, major cases were ongoing when the amnesty ordinance was given, some of them for many years. Allowing those proceedings to continue would have advanced the search for the truth and countered a culture of impunity for serious crimes.6 

 
Play Video

Violences post-électorales en Côte d’Ivoire: poursuites, réconciliation et réparations

Bamba Brahima, a human rights lawyer, consultant and expert in transitional justice, looks back at efforts to combat impunity in Côte d’Ivoire. He analyses the impact of the International Criminal Court on Ivorian society and on the country’s judicial institutions. He underlines the importance of fair, transparent and accessible justice for all, in order to support the peace and justice efforts in Côte d’Ivoire.

Citations & References

5:  International Federation for Human Rights “Côte d’Ivoire: No Amnesty for Serious Crimes of 2010-11 Crisis! Should not Include War Crime, Crimes Against Humanity” (August 8, 2018)

6: Observatoire Ivoririen des droits de l’homme (2018) “Amnistie en faveur des détenus politiques en Côte d’Ivoire: l’OIDH craint la répétition des erreurs du passé“

Commentary & Reports

Observatoire Ivoirien des droits de l’homme (2018) “Communiqué de presse OIDH : Amnistie en faveur des détenus politiques : l’OIDH craint la répétition des erreurs du passé”

This OIDH press release lays out the NGO’s reservations about the presidential order granting amnesties. Given the seriousness of the crimes involved – namely, war crimes and crimes against humanity – the report contends that the public deserved more input and clarity on the process. 

OIDH finds that the amnesty law should have passed before parliament, allowing the public to hear arguments on both sides and have some influence on the decision through their elected representatives. 

Statement from a coalition of 11 national and international human rights groups (07 August 2018) “Côte d’Ivoire: No Amnesty for Serious Crimes of 2010-11 Crisis” (EN/FR)

The amnesty ordinance created confusion regarding who would face justice. While the President specified that amnesty would not apply to those who committed “crimes du sang”, only 60 people were officially excluded, whereas responsibility for grave crimes extended well beyond those individuals.

Ensuring Fair Trials 

What are the main obstacles to ensuring fair trials for those responsible for international crimes in Côte d’Ivoire?

The fairness and credibility of judicial proceedings are important factors in ensuring the Ivorian public understands criminal prosecutions as an effort to end impunity rather than a further source of division in an already polarised country. 

The establishment and later expansion of the CSEI was a positive sign toward strengthening the judiciary in Côte d’Ivoire. However, in practice, the CSEI has experienced many operational difficulties. Civil society have criticized the CSEI for leaving gaps in its investigations, for at times lacking independence, for failing to make use of certain evidence in its possession, and for inconsistency in the charges it brought forward.7  Failure to consistently respect defendant rights, including access to defense lawyers, has further undermined the legitimacy of domestic trials.8  

The Office of the Public Prosecutor has shown no apparent prosecutorial strategy in its efforts to bring those responsible for international crimes to trial. The Prosecutor’s Office did not base its work on a mapping of the gravest crimes committed and investigations were not prioritized based on the seriousness or strategic relevance of the case. This, in conjunction with an overly broad mandate, insufficient budget and enormous workload added to chaotic and often inefficient operations at CSEI.9  

Citations & References

7: Open Society Justice Initiative (2017) “Annex 1: Mechanisms in Africa” in Options for Justice: A Handbook for Designing Accountability Mechanisms for Grave Crimes

8: International Center for Transitional Justice (2016) “Disappointed Hope: Judicial Handling of Post-Election Violence in Cote d’Ivoire” 

9: International Center for Transitional Justice (2016) “Disappointed Hope: Judicial Handling of Post-Election Violence in Cote d’Ivoire” 

Commentary & Reports

Open Society Justice Initiative (2017) “Côte d’Ivoire Special Investigative Cell” in Options for Justice

The Special Cell appeared to be vulnerable to external political influence and experienced various operational difficulties. Its investigations are also heavily tilted against supporters of Laurent Gbagbo. 

In 2014, out of 150 persons implicated in attacks on civilians, only two came from the pro-Ouattara camp. The Cell also prioritized investigation into crimes against the state rather than crimes that had targeted civilians, creating the impression that political considerations took precedence over justice for victims. 

International Center for Transitional Justice (2016) “Disappointed Hope: Judicial Handling of Post-Election Violence in Côte d’Ivoire” 

The report examines the legal and political challenges to domestic proceedings, and suggests possible solutions. It is based in large part on interviews conducted with key actors from Côte d’Ivoire’s judicial system. The findings of those interviews include details that call into question the independence and impartiality of the judiciary. 

International Justice

Priorities and challenges for international criminal accountability efforts

In 2011, former ICC Prosecutor, Luis Moreno Ocampo, sought to open an investigation into crimes committed during the post-electoral crisis proprio motu (‘upon his own volition’). On 3 December 2011, the request was accepted by the Pre-Trial Chamber and the Prosecutor subsequently launched an official investigation into “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.” In February 2012, the Court expanded the scope of the Prosecutor’s investigation to include any alleged crimes under the ICC’s jurisdiction committed between 19 September 2002 and 28 November 2010 as well. 

Just two days after the investigation was authorised, President Laurent Gbagbo first appeared before the ICC facing four charges of crimes against humanity. The trial of Blé Goudé, former head of the militant pro-Gbagbo youth movement, Jeunes Patriotes, was joined with Gbagbo’s in 2015. After seven-years of proceedings, both men were acquitted in January 2019.

ICC investigations into international crimes committed in Côte d’Ivoire have led to two cases thus far: the joint case of former President Laurent Gbagbo and Charles Blé Goudé, and the case against former First Lady, Simone Gbagbo. The latter remains in the pre-trial phase due to an ongoing dispute between the ICC and the Ivorian government over the admissibility of the ICC’s case against Simone Gbagbo. Thus far, no cases have been brought against members or supporters of the current regime.

BACKGROUND RESOURCES​

Decision of Trial Chamber 1 Judges in the case of Laurent Gbagbo and Charles Blé Goudé. Case summary & full decision.

International Criminal Court Case Information Sheet: The Prosecutor v. Simone Gbagbo (April 2018)

Côte d’Ivoire: International Accountability Timeline

Priorities & challenges for strengthening international criminal accountability processes in Côte d’Ivoire

FOLLOW THE TIMELINE BY CLICKING ON THE ARROWS
July 23, 2000
New Constitution

Cote d’Ivoire adopted a new constitution that gives international treaties and agreements legal authority above domestic laws. Once ratified, an international treaty is integrated into the domestic legal system without the need for any further action for its provisions to be enforceable in domestic law.

April 18, 2003
Gbagbo Recognizes ICC

President Laurent Gbagbo recognized the ad hoc jurisdiction of the ICC, permitting a possible investigation into alleged crimes committed by his regime.

April 11, 2011
Simone and Laurent Gbagbo Arrested

The presidential couple were arrested in their residences by a coalition of Ivorian Forces républicaines de Côte d'Ivoire (FRCI) and French forces.

October 3, 2011
Prosecutor’s Office Opens Investigation

ICC prosecutor opened an investigation relating to the situation in Côte d’Ivoire
after obtaining authorization from a Pre-trial Chamber of the Court. The investigation could have covered crimes committed from September 19, 2002, onward, but instead focused on alleged crimes against humanity committed during the 2010–2011 post-electoral violence.

November 11, 2011
Gbagbo surrendered to the ICC by Ivorian authorities
December 5, 2011
Gbagbo makes his initial appearance before the ICC.
February 29, 2012
Arrest Warrant for Simone Gbagbo

The Pre-Trial Chamber III issued an arrest warrant for Simone Gbagbo.

February 15, 2013
Rome Statute Ratification

Cote d’Ivoire ratified the Rome Statute, thereby making its provisions directly applicable in Cote d’Ivoire.

December 11, 2014
ICC Rejects Côte d’Ivoire’s Admissibility Challenge in the case of Simone Gbagbo

Pre-Trial Chamber I rejected Cote d’Ivoire’s admissibility challenge, claiming that Simone Gbagbo could not be tried at the ICC because she was facing trial for crimes committed during the election violence in 2010-2011. The Chamber found that Côte d'Ivoire's domestic authorities were not taking tangible, concrete and progressive steps aimed at ascertaining whether Simone Gbagbo is criminally responsible for the same conduct that is alleged in the case before the Court. 

ICC Decision Rejection of Simone Gbagbo Admissibility Case

March 22 2015
Blé Goudé surrendered to the ICC by Ivorian authorities
March 27, 2014
Blé Goudé makes his initial appearance before the ICC.
June 12, 2014
Charges confirmed against Laurent Gbagbo

Pre-Trial Chamber I confirmed the charges of crimes against humanity, including murder, rape, and other inhumane acts, against Gbagbo.

December 11, 2014
Confirmation of charges against Blé Goudé

Pre-Trial Chamber I confirms charges of crimes against humanity, including murder, rape, and other inhumane acts, against Blé Goudé.

March 11, 2015
Gbagbo and Blé cases are joined

Trial Chamber I grants the prosecution’s request for joinder of the Gbagbo and Blé Goudé cases, reasoning that the charges in both cases were sufficiently similar, that joinder does not pose a serious prejudice to the accused, and that it is in the interest of justice.

January 28, 2016
Trial of Goudé and Gbagbo

The joint trial of Gbagbo and Blé Goudé is scheduled to begin before ICC Trial Chamber I in The Hague. The Prosecutor presented evidence over 231 days of hearings.

23 July & 3 August 2018
The defense files a ‘no case to answer motion”

The defense files a ‘no case to answer motion”

In July and August, the defense for Gbagbo and Blé filed motions for immediate acquittal. 

Document: Requete de la defense de Gbabgo afin qu’un jugement d’aquittment

Document : « No case to answer motion »

15 January 2019
Gbagbo and Blé Acquitted

A majority of judges acquit Gbagbo and Blé before the defence team presents their arguments.

5 February 2019
Release of Laurent Gbabgo and Blé Goudé
September 2019
Prosecutor Appeals Aquittal

A majority of judges acquit Gbagbo and Blé before the defence team presents their arguments.

Download This Timeline in PDF Format

The Role of the ICC in Côte d’Ivoire 

What are the lessons from the ICC’s Côte d’Ivoire investigation for the future work of the Court?

Laurent Gbagbo’s trial was the first time that a former Head of State appeared before the ICC. In January 2019, after seven years of proceedings, the trial of former President Laurent Gbagbo ended with an acquittal. The ruling was notable in that the acquittal came during the middle of the trial, before the court heard the defense’s case. Observers described the ruling as a significant setback for the Prosecutor’s office, which has secured only eight convictions since its creation a decade ago, and at the cost of nearly one billion US dollars.10 

The acquittal was not, however, a verdict of innocence. More than proving Gbagbo and Goudé had not committed grave acts of wrongdoing, their trial illustrates how difficult it is to meet the standard of proof required to convict high level officials for crimes against humanity. In their decision, the judges did not look at the question of whether crimes against civilians had been committed by armed forces under the command of Gbagbo and Blé Goudé during the incidents of post-election violence that were investigated. 

The judges’ decision was instead based on their majority view that the Prosecutor failed to demonstrate the existence of a policy of attacking civilians or a “common plan” to keep Gbagbo in power that had resulted in those attacks on civilians. In the charges made against Gbagbo and Goudé, the elements of a common plan or policy were core to the claim that those attacks constituted crimes against humanity. In the absence of evidence proving they had indeed committed crimes against humanity or other crimes covered in the Rome Statute, the presiding judge acquitted both defendants. 

BACKGROUND RESOURCES​

10: Maxence Peniguet and Thierry Cruvellier “Acquittal of Gbagbo and Blé Goude: A Hammering of the Prosecutor’s Office” (JusticeInfo: Jan 15 2019). The figure of eight convictions is that given by the International Criminal Court, “Facts and Figures” (accessed December 2020).

Commentary & Reports

Maxence Peniguet and Thierry Cruvellier “Acquittal of Gbagbo and Blé Goude: A Hammering of the Prosecutor’s Office” (JusticeInfo: 15 January 2019)

The acquittal of Gbagbo and Blé is a major setback for the Office of the Prosecutor. This is particularly true in light of only three convictions secured to date by the Court, and those against mid-level actors. The acquittal, on the other hand, adds to a growing number in recent years at the Court.

Ben Batros “ICC Acquittal of Gbagbo: What Next for Crimes Against Humanity?” (Just Security: 18 January 2019)

Reflecting on the acquittal of Gbagbo and Blé Goudé, this piece questions a prosecutorial strategy at the ICC that focused on the top of the chain of command in Côte d’Ivoire. A ‘no case to answer’ decision is usually only applied if the judges believe no reasonable court would find the accused guilty based on the evidence presented. While it is unclear what standard was applied in the Gbagbo/Goudé trial, the decision has led to criticism of the Prosecutor’s office for failing to bring a convincing case before the Court. The article further discusses the complications of proving a ‘crimes against humanity’ charge.

Human Rights Watch (2015) “Making Justice Count: Lessons from ICC’s Work in Côte d’Ivoire” (EN/FR)

ICC officials have a mandate to ensure the ICC’s delivery of justice is accessible, meaningful, and perceived as legitimate. Based on interview research, the report finds that the court had yet to make the most of opportunities to increase the impact of its proceedings in Côte d’Ivoire.

Roland Adjovi “Acquittal, Innocence and Lessons from Côte d’Ivoire” (JusticeInfo: 15 February 2019)

This article puts the acquittal of Gbagbo and Blé into context, emphasizing that the ruling does not signify their innocence, but instead highlights operational and procedural challenges of the court. 

Complementarity 

What are the implications of Côte d’Ivoire’s admissibility challenge to the ICC’s Simone Gbagbo case?

In February 2012, the ICC issued an arrest warrant for the former Ivorian First Lady, Simone Gbagbo, on charges of four counts of crimes against humanity. Côte d’Ivoire filed an admissibility challenge saying that, pursuant to the ICC’s complementarity principle, the International Court did not have jurisdiction to try Ms. Gbagbo. The challenge contended that Côte d’Ivoire had already instituted proceedings against Ms. Gbagbo for similar crimes as those she would face before the ICC, thus demonstrating the national judiciary was both willing and able to prosecute her at home (see Articles 17, 19 and 95 of the Rome Statute).

In December 2014, the ICC Pre-Trial Chamber rejected Côte d’Ivoire’s admissibility challenge. In reaching this decision, the Chamber did not analyse the criteria of ‘unwillingness’ or ‘inability’ to prosecute. The Chamber’s decision was based on an assessment that no investigations of the same crimes were ongoing in Côte d’Ivoire. Although Côte d’Ivoire’s judicial system allows direct application of the Rome Statute, Ivorian judges primarily relied on the National Criminal Code and other domestic legislation. In Ms. Gbagbo’s case, the definition of crimes she was charged with only partially reflected the crimes defined under the Rome Statute. The ICC Pre-Trial Chamber decision was also motivated by the assessment that, despite a 20-month investigation, the work of Ivorian investigators appeared limited to the single activity of questioning Ms. Gbagbo and civil parties. 

Ms. Gbagbo’s case illustrates the ICC’s sequenced decision-making process when determining whether the complementary requirement is met at the national level. In the case of Simone Gbagbo, the Court first asked whether the same crimes were committed before assessing willingness and ability (see the ‘ICTJ Complementarity Handbook’ 2016 for a detailed explanation of this decision process). Article 17 of the Rome Statute was constructed with this sequenced approach to render it impossible for accused perpetrators to avoid charges of international crimes simply because a national court demonstrates ‘willingness and ability’ to prosecute the same individual for other, less grave crimes. The Article is also designed to prevent situations where prolonging national proceedings without completing a case can be used as a strategy to obstruct an ICC investigation.

Commentary & Reports

Hanna Kuczynska “The Scope of Appeal on Complementarity Issues before the ICC: On the Example of the Appeal of Côte d’Ivoire against the Decision of Pre-Trial Chamber I in the Simone Gbagbo case” (The Law and Practice of International Courts and Tribunals: 2016) 

In its decision to reject Côte d’Ivoire’s admissibility case, the Pre-Trial Chamber determined that the domestic case against Simone Gbagbo did not meet the standard in Article 17 to be “real”. The admissibility decision set a precedent at the ICC by demonstrating that the rules providing whether or not national proceedings can be recognized as the ‘same case’ are quite rigid, once put into practice.

Paul Seils, Complementarity Handbook (International Center for Transitional Justice: 2016). (EN/FR)

This resource includes a detailed case study of the Simone Gbagbo admissibility decision. Seils uses the case to illustrate how complementarity works in practice and to demonstrate the phased process used by the Pre-Trial Chamber to determine ICC jurisdiction. The Handbook provides a non-technical introduction to the concept of complementarity and what it means for national legal systems.

Impact and Efficacy of the ICC 

What is the impact of the ICC investigation on the political context in Côte d’Ivoire?

Both ICC cases pertaining to the Ivorian situation focus on crimes allegedly committed by Gbagbo and his associates. Although the Prosecutor has committed to a sequential approach that will eventually indict actors on both sides of the conflict, after a decade of investigations, no cases against perpetrators from Ouattara’s camp have thus far been opened. This has contributed to a feeling amongst Gbagbo’s still substantial support base, and amongst domestic and international civil society organisations, that justice is one-sided. 

The Prosecutor’s ‘sequential’ strategy in the Ivorian case reveals a tension between a ‘legalist’ and a ‘political’ interpretation of judicial impartiality.11 An impartial legal procedure does not necessarily give the appearance of political neutrality. 

Said differently, an impartial and procedurally fair legal process might follow a prosecutorial strategy that is not politically neutral, in perception or in fact. In an effort to use resources efficiently and to increase the chances of securing redress for victims, the Prosecutor has discretion to select cases where a conviction is most likely. While independent in its investigation, the prosecutor nonetheless depends on a state’s cooperation to collect evidence and arrest individuals. In Côte d’Ivoire, this tension has translated into a sequenced approach, with the Prosecutor first bringing charges against the highest authorities of Gbagbo’s camp – individuals who lost power to the current regime.  

As the Ivorian case illustrates, the pace and requirements of legal procedure at the ICC may exist in tension with the political realities surrounding international crimes. While the Prosecutor’s sequential strategy is sensible from the perspective of the Court and its judges, the political climate remains tense in Côte d’Ivoire and Gbagbo retains significant support in the country. From the perspective of those in the Ivorian opposition, the perception of one-sided international prosecutions has exacerbated tensions in a country still struggling, a decade after the transition, to reconcile and move beyond political divides. 

Citations & References

11: Sophie Rosenberg “The ICC in Côte d’Ivoire: Impartiality at Stake” (Journal of International Criminal Justice: 2017)

Commentary & Reports

Mohamed Suma “En Côte d’Ivoire la justice piétine sur la crise post-électorale de 2010-2011” (Le Monde: 18 August 2016)

The three persons accused to date by the ICC are from the Gbagbo camp. Political leaders in Côte d’Ivoire have manipulated the ethno-regional divisions in the country for decades. 

Some fear that the ICC’s current prosecution strategy could exacerbate this tension. In July 2015, the CSEI reportedly indicted military officers close to the government. But a year later, the accused have never been brought to trial.

Sophie Rosenberg “The ICC in Côte d’Ivoire: Impartiality at Stake” (Journal of International Criminal Justice: 2017)

The article provides a critical assessment of the OTP’s sequenced prosecutorial strategy. 

Rosenberg analyses the disconnect between legal and procedural requirements of the Court, and the tense political context in Côte d’Ivoire. 

Marco Boccehere “Can Prosecuting Guillaume Soro Redeem the ICC?” (Justiceinfo.net: 19 May 2020)

Does Soro Guillaume’s political fall within Côte d’Ivoire give the ICC a second chance to deliver justice? 

Soro’s persecution at the ICC would appeal to Ouattara, now that the President is at odds with his former prodigy and military leader. For the Court, bringing Soro to trial would help address the perception of the ICC’s lack of impartiality in the Côte d’Ivoire case, while still preserving cooperation from the Ouattara regime.  

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