Like Courtside Justice with Mark Kersten
Thursday, May 12, 2016 - 13:47

By Mark Kersten

Unless there are any delays – and let’s face it, there are almost always delays – the trial of Ivory Coast’s former First Lady will begin at the end of this month. Simone Gbagbo faces charges of crimes against humanity as a result of her involvement in the 2010/11 post-election violence, and the episode of unrest that resulted in her husband, former President Laurent Gbagbo, being deposed from power.

At the same time, Simone Gbagbo faces allegations of crimes against humanity at the International Criminal Court (ICC), where an arrest warrant was issued for her in February 2012. The Court’s judges –along with advocates of the ICC – have insisted that she should be surrendered to The Hague. But, with a much larger battle between the current government of Alassane Ouattara and the ICC on the horizon, it seems unwise for the Court to fight over Mrs. Gbagbo.

This isn’t the first time that Simone Gbagbo has faced charges stemming from the 2010/11 violence. In March 2015, she was found guilty by a Ivory Coast court and sentenced to 20 years in prison for a crop of crimes, including: undermining state security, forming and organizing armed gangs and disturbing the peace. Consequently, Ivorian officials asked the ICC to refrain from its efforts to force her surrender. They issued an admissibility challenge claiming that because the Ivorian government was willing and able to prosecute Mrs. Gbagbo domestically, the Hague-based court, under the principle of complementarity, had to allow them to prosecute her. Yet, dissatisfied that Mrs. Gbagbo had not been prosecuted for the same crimes for which the ICC indicted her, the Court’s judges rejected Ivory Coast’s admissibility challenge, and insisted that she be surrendered to The Hague. The Ivorian government subsequently initiated new proceedings against the former Ivorian First Lady for crimes against humanity – the same category of crimes for which the ICC wished to indict her.

The ICC and its proponents shouldn’t press Ivory Coast

This should be a good story for the ICC. As its most senior officials regularly insist, the ICC is a “court of last resort” and the institution’s ultimate goal is to galvanize governments to prosecute international crimes themselves, rather than relying on international tribunals. This policy of “positive complementarity” has been heralded by ICC proponents as a means to promote the global rule of law and to bring justice for international crimes closer to victims and survivors of mass atrocities. And, this seems to be exactly what happened in Ivory Coast: as a result of the ICC’s prodding, the government moved to prosecute Mrs. Gbagbo not only for domestic crimes but also for crimes against humanity.

Nonetheless, just this week, Amnesty International insisted that Ivory Coast surrender Gbagbo to the ICC. Gaëtan Mootoo, West Africa researcher for Amnesty International, declared that: “Unless Cote d’Ivore applies to the International Criminal Court to again challenge the admissibility of her case they must immediately surrender Simone Gbagbo to the ICC.” Procedurally, this is understandable; Ivorian authorities should issue a new admissibility challenge citing the new charges of crimes against humanity levied against Gbagbo. But good arguments exist for ICC, and its proponents, not to put Ivory Coast under pressure – especially now.

Kevin Jon Heller took this issue up even before Simone Gbagbo faced charges of crimes against humanity, comparing the severity of her sentence to that of individuals previously convicted at the ICC:

[W]hat would the ICC gain by insisting that Cote d’Ivoire surrender Gbagbo to the Court to face a second prosecution? After all, 20 years is hardly an insignificant sentence – five years longer than [Thomas] Lubanga’s, and eight years longer than [Germain] Katanga’s. Should the ICC really waste precious (and overstretched) OTP resources to obtain another conviction of Gbagbo, even though – if the past sentencing practice by international tribunals is any guide – she is very unlikely to receive a longer sentence from the ICC than she has already received from Cote d’Ivoire? My answer is simple: the ICC would gain nothing, so it shouldn’t.

At the time Heller published his articles, a possible counter-argument could have been that victims of crimes against humanity wouldn’t see justice unless they were also victims of, as in Gbagbo’s case, disturbing the peace and undermining state security. However, it is important to remember that ICC justice is also riddled with blind spots. To take but one example, the victims of atrocities perpetrated by the so-called M23 rebellion in eastern Democratic Republic of Congo won’t receive any attention during the ICC trial of M23 leader Bosco Ntaganda, because prosecutors have chosen to only focus on the crimes he committed a decade earlier.

Moreover, in Gbagbo’s case, it truly bears bludgeoning the point: the argument that the ICC should step off the gas in this instance is even stronger today given the fact that Gbagbo faces the same classification of crimes in Ivory Coast as she faces at the ICC.

In a more recent and important article on the subject, Heller has in fact argued for what he calls “radical complementarity”, whereby “as long as a state is making a genuine effort to bring a suspect to justice, the ICC should find his or her case inadmissible regardless of the prosecutorial strategy the state pursues, regardless of the conduct the state investigates, and regardless of the crimes the state charges.”

There is, however, another reason why the Hague-based court and its champions should avoid confronting Ivory Coast over Simone Gbagbo. The ICC has given numerous indications that it will finally seek to prosecute crimes committed during the 2011 violence by individuals allied to President Ouattara. If previous ICC interventions are any indication, doing so will be extremely difficult and will likely cause a great deal of acrimony between the Ivorian authorities and the Court. Here, it is worth remembering that the case against Mrs. Gbagbo was built under former ICC Chief Prosecutor Luis Moreno-Ocampo, whose record of successful case-construction is abysmal — as attested to by the collapse of all of the cases relating to post-election violence in Kenya. All indications are that, the ICC won’t be able to depend on cooperation from the Ivorian officials. President Ouattara has been clear: no one else from Ivory Coast will end up at the ICC.

Let’s face it. The biggest problem regarding justice and accountability for post-election violence in Ivory Coast isn’t related to Simone Gbagbo. It is the reality that, five years on, not a single member of the Ouattara camp has been prosecuted for international crimes – domestically or at the ICC. Some insiders believe that the days of victor’s justice in Ivory Coast are numbered and that the ICC is on the verge of issuing warrants for alleged perpetrators close to Ouattara. If that is the case, and many hope it is, ICC prosecutors and the Court’s proponents need to consider which fights they want to pick. Perhaps it’s better to support the Ivoirians in their trial of Mrs. Gbagbo now, and plan for the eventuality of a much more vociferous fight in the coming months. 

Courtside Justice is a bi-monthly column by Mark Kersten, the creator of Justice in Conflict, looking into the politics and dilemmas of international justice.

Jotham Kinyua

On the Ivory Coast's cases ,the ICC took off on the wrong foot - biased. I wouldn't expect justice in such a case.. How did they settle on one side of the warring factions? Why do they want to have the former first lady in their hands even after the Ivory Coast' Court sentence?

Monday, May 16, 2016 - 09:24
kiprono langat

kenya is an example

Sunday, May 15, 2016 - 20:07
kiprono langat

codivore case is complex it should have a home grown solution

Sunday, May 15, 2016 - 20:06
Asare Y. Nelson..

The ICC should be fair in this trial because it seems they are a bit biased because persecution ,allegation and litigation is only and only based on Gbagbo whilst there is another party who who intruded into Ivorian peace ..ICC PLEASE BE FAIR SO THAT JUSTICE WILL TAKE IT COURSE. THANKS

Sunday, May 15, 2016 - 18:29
justus yiaile

May law take its cause

Saturday, May 14, 2016 - 16:48
Evangelist Ilona Henry Afamefuna
Evangelist Ilon...

If the ICC wants to prosecute Laurent Gbagbo & his wife, they should go ahead. But they should remember that one person does no commit crimes alone, the two sides fought for a cause, each one therefore should be held responsible.

Thursday, May 12, 2016 - 20:42