From Abidjan to The Hague: A Tale of Two Cities
On 15 January 2019, Trial Chamber I of the International Criminal Court (‘ICC’ or ‘the Court’) acquitted Côte d’Ivoire President Laurent Gbagbo and former Minister for Sports and Youth Charles Blé Goudé. On 1 February 2019, the Court ordered the conditional release of Mr Gbagbo and Mr Blé Goudé, having identified Belgium as a State willing to accept the individuals on its territory and to enforce the conditions set by the Court. The two were accused of committing crimes against humanity during the political crisis that followed the Ivorian presidential election of 2010, which left over 3,000 people dead. According to the majority of the judges, the prosecutor failed to give sufficient evidence of constitutive elements of crimes against humanity, such as the alleged common plan to keep Mr Gbagbo in power and the existence of the alleged policy to attack a civilian population.
This post explores the debate over the ICC’s performance, which emerged following Mr Gbagbo’s acquittal. It examines the ICC’s record of selective and ineffective prosecutions and reflects on whether convictions, or their lack thereof, should be a criterion for assessing the performance of a criminal tribunal. It concludes that the ICC bears a political function in addition to its legal nature, which should be fully acknowledged and considered to be better fulfilled.
Hard Times: A Record of Selectivity and of Crimes that Go Unpunished
Mr Gbagbo was the first former head of state to stand trial before the ICC. His acquittal follows the overturn of the conviction of Democratic Republic of Congo’s former Vice President Jean-Pierre Bemba, in June 2018, after 10 years of detention, and the failed prosecution of Kenya’s President Uhuru Kenyatta and his Deputy William Ruto in March 2015. The case of Sudan’s President Al Bashir, accused inter alia of genocide, does not have realistic possibilities to develop into a prosecution. So far the Court has convicted three individuals—Mr Lubanga, Mr Katanga and Mr Al-Mahdi—who were members of rebel groups. Regarding the Côte d’Ivoire, the prosecutor only focused on crimes allegedly committed by forces allied with Mr Gbagbo, even though various enquires, conducted at the national level and by the United Nations (UN), reported crimes committed by his adversaries, allied with current Ivorian President Ouattara. While the ICC prosecutor has consistently claimed the duty to deal with all the groups and parties involved in a situation, the selectivity by which prosecution is conducted in practice may suggest that the Court disproportionately focuses on non-state actors. In so doing, the ICC runs the risk of appearing as an institution ‘where only rebels can be and will be successfully prosecuted’.
The issue of one-sided selectivity within a situation is possibly more complex, as it appears that the Court, in the case of State and Security Council referrals, regularly joins the side of the body referring the situation. As a result, situations referred to the Court by the UN Security Council reveal a focus on State agents. So far as Darfur and Libya, indeed, prosecutions disregarded crimes perpetrated against government officials. In Darfur, no charges were brought for crimes committed against Sudanese troops; the only rebels who were indicted were charged with attacking Peacekeepers. In Libya, the prosecution targeted only Libyan officials.
No Thoroughfare: Evaluating the Performance of an International Tribunal
For the record of the Court, the number of individuals acquitted (four) currently exceeds the number of convictions (three). This begs the question on the relevance of acquittals and convictions in the evaluation of the performance of the Court. The main authorities of international criminal justice agree on the importance of acquittals in determining the credibility and the fairness of an international tribunal. Richard Goldstone, former prosecutor of the International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda, when commenting Mr Gbagbo’s acquittal, declared the following: ‘That the decisions are an embarrassment for the ICC cannot be doubted. Far more important, however, is that the majority judges were not prepared to base their decision on any factor other than the fair trial rights of the defendant. That they had no other motive cannot be doubted. And that is much to their credit.’ Theodor Meron, president of the ICTY from 2003 to 2005, stated: ‘[W]hat we mean by ensuring accountability is observing the rule of law. I believe that acquittals, just as convictions, show the health of the system. Would a single one of us want to live in a society where there would be a perfect record—a 100 percent record—of convictions? I’m sure none of us would.’ Even Robert Jackson, prosecutor of the International Military Tribunal of Nuremberg, in his opening statement of the trial of the Nazi leaders, stressed the importance of ‘distinguish[ing] between the demand for a just and measured retribution, and the unthinking cry for vengeance which arises from the anguish of war. It is our task, so far as humanly possible, to, draw the line between the two. We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.’
Admittedly, from a legal perspective, an international tribunal shall be evaluated on the basis of judicial criteria. In its reports on the development of performance indicators, the ICC identifies those criteria as (a) expeditious, fair and transparent proceedings; (b) effective leadership and management; (c) adequate security for its work and for those involved with the Court; and (d) access to victims. The Court, however, has a broader function that originates in its establishing treaty. The Rome Statute indeed contextualises the judicial institution in the UN system and entrusts the Court to respond to the expectation of the international community to end impunity for mass crimes.
Pictures from Italy: The Rome Statute and the Function of the ICC
The Preamble of the Rome Statute, after ‘affirming that the most serious crimes of concern to the international community as a whole must not go unpunished’, mentions the determination ‘to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes’. Moreover, Art. 13 (b) of the Statute grants the Security Council the power to refer a situation to the prosecutor, acting under Chapter VII of the UN Charter.
These are examples of the political role of the Court, which is expected to punish international crimes—and thus to contribute to their prevention—and to serve, quoting the UN Charter, as a measure to restore international peace and security. This means that the ICC holds great expectations from a variety of actors: the judicial parties expecting a fair trial procedure, the victims who suffered the international crimes, the society that needs to heal its victims and even, as mentioned in the Preamble, the conscience of humanity. Far from being taken for granted, a growing body of academic research is questioning the capability of international justice to prevent crimes and to reconcile a society. Yet, statutory provisions entrust the Court with an ambitious political role.
While Mr Gbagbo’s acquittal can be interpreted as a demonstration of a functioning, independent tribunal (despite having received criticisms from a legal perspective), it might even have a positive diplomatic impact and thus a political bearing. Indeed, the acquittal contradicts, as Stahn affirmed, the claim ‘that the ICC is biased against Africa. It is demonstration of the application of high fairness standards towards the defendants’, and it makes ‘impossible to uphold the claim that the ICC seeks convict African leaders and warlords who have fallen out of power’.
However, the Court recognized in the 2010 post-electoral Cote d’Ivoire a situation of political violence where international crimes appeared to have been committed. Among the organs of the Court, the Office of the Prosecutor is responsible for having failed to build a successful prosecution of those crimes, revealing that the strategy for the selection of situations and cases and the means of investigations have broad margins to improve their performance. If the international crimes perpetrated in Côte d’Ivoire are considered to remain unpunished, then the ICC accused and prosecuted the wrong people or failed to collect sufficient evidence. The judicial process could be ultimately correct, but the Court did not achieve its purpose to end impunity for mass crimes.
The acquittal of Mr Gbagbo and Mr Blé Goudé is arguably the most correct outcome of the judicial proceedings before the ICC. The performance of any criminal tribunal is not to be evaluated on the conviction of the accused but on due process, with a fair, expeditious and transparent trial. Still, the ICC has a broader role in the international community, and its performance is inevitably evaluated using a wide range of criteria, including the impact on the societies where it intervenes. The failure of a prosecution may demonstrate a rigorous work of the organs of the ICC, with full respect of the rights of the accused. However, the absence of successful prosecutions, which is not limited to the situation of the Côte d’Ivoire, demonstrates a structural difficulty for the Court in achieving its statutory mandate.