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  • Nicoletta Fagiolo

What is Human Rights Watch watching?

In what looks increasingly like a “criminalization of international justice”[i], the International Criminal Court (ICC) is currently holding a trial against two non-violent and democratic pan-Africanist leaders from the West African country Cote d’Ivoire: former Ivorian President Laurent Gbagbo and youth leader Charles Blé Goudé. It is a trial that even in its nascent, pre-trial phase, was deemed so lacking in incriminating evidence that former Mozambique president Joaquim Chissano stated that it should never have taken place[ii].

It is also a trial that has put a spotlight on the validity of testimonies called on by the court and especially those of human rights organizations that are heralded as beacons of justice. Namely Human Rights Watch (HRW) in this case.

Emphatically, Chissano spoke on behalf of the Africa Forum in 2015 and called on the ICC Prosecutor Fatou Bensouda to immediately release Gbagbo. Through Gbagbo’s release a peaceful resolution could be reached in Cote D’Ivoire.

One of the court’s list of criminal offenses by Gbagbo was that he was the driving force behind the country’s conflict and perpetrator of ‘crimes against humanity’.

Indeed, Gbagbo did openly engage in conflict — one in which there were civilian victims. Yet his battle was against well-structured rebel forces, the Forces Nouvelles, which were behind attempts to destabilize Cote d’Ivoire. As early as 1999 a coup was organized against President Henrie Konan Bedié. Then a series of aborted coups from September 2000, January 2001 were carried out until the definitive September 2002 coup split the country in two. Gbagbo’s government, elected in 2000, lasted a mere two years. Subsequently, however, he was forced to reckon with the rebel occupation for the following eight years. Today many of the former rebels who truly carried out violent acts and aggression have been promoted under the Ouattara regime to major security positions.

Elections that were originally slated for 2005 were delayed several times by the rebels’ unwillingness to disarm, despite the fact that this was a major requirement defined in all eight peace accords spanning almost a decade.

During the November 2010 elections severe human rights violations were documented by the Gbagbo coalition. Many of these breeches of citizens’ rights were carried out by the Force Nouvelles rebel group, lead by the opposition candidate Ouattara. Monitors supported by incumbent President Gbagbo worked to document the violence in the north and west of the country that had fallen under rebel grasp since 2002. Five complaints were filed to the Constitutional Council to be deliberated on. Ouattara’s coalition, on the other hand, filed no complaints for any violations.

The Ivorian Constitutional Council, following due process, declared Gbagbo the winner on 3 December 2010. Ouattara’s camp, claiming they had won, and supported by the United States and France which lobbied the UN Security Council, took up arms and began nation wide attacks targeting Gbagbo’s security forces and civilian sympathizers as early as 16 December 2010.

In the case against Gbagbo and Blé Goudé, the crimes that the charges hinge on were allegedly carried out during the five-month period following the country’s contested November 2010 elections. The prosecution accuses both Gbagbo and Blé Goudé of four counts of crimes against humanity, including ordering murder and rape. These charges carry terms of life imprisonment. Gbagbo and Blé Goudé have pleaded not guilty to the accusations of orchestrating “unspeakable violence.”

During a three-day trial hearing, from 17 - 19 May 2016, former HRW researcher Matthew Wells was called on to testify. As a voice from one of the largest and most influential human rights organizations he was asked to appear as the 8th witness in this high-level trial, which began on 28 January 2016 in the Hague.

A motion by Gbagbo’s defence argued that Wells was not qualified to testify as an “expert” witness — a motion that the judge accepted. The reason being that Wells’ stay in Cote d’Ivoire was too limited (five brief field missions) and he was not a direct testimony of any of the specific charges under review. Wells was thus allowed to testify at court on only two aspects: on what he had witnessed directly during his missions and on the methodology used to write his report[iii].

Wells’ supervisor, HRW West Africa researcher Corinne Dufka’s testimony had previously been rejected by the Special Court of Sierra Leone for lacking in impartiality and being far from objective — a fact that Jean-Serges Gbougnon speaking for the Blé Goudé defence team pointed out on 19 May 2016. Dufka accompanied Wells in most of his missions in Cote d’Ivoire.

Responding to questions from the representative of the Office of the Prosecutor, Melissa Pack, Wells underlined the values that he considers as an integral part of HRW work: objectivity and impartiality. A Harvard law student, having majored in history and psychology, Wells worked for HRW from 2009 to 2014. He explained his missions in Cote d’Ivoire. Yet during the defence’s cross-examination of Wells (19 and 20 May 2016), both these qualities seem to be lacking.

Lead defence attorney Emmanuel Altit opened questioning on 18 May by asking Wells why he had refused a meeting with him and his cabinet, which had requested one as early as 2011. Yet Wells had met 12 times in the space of one month with the office of the ICC prosecutor in September 2013, as well as with two French lawyers representing current Ivorian President Alassane Ouattara, Altit said at trial.[iv]

“The instructions I had were to hand over all emails concerning legal issues to the HRW director in France, as well as their legal department, who would follow-up.” France? Why send issues concerning a West African country to the HRW office in France, its former coloniser, a country that militarily and diplomatically had done all it could since 2002 to oust Gbagbo by all means possible? A country that played a major role in the conflict since 2002, and most likely contributed to igniting it.

The defence had collected documented testimonies of serious human rights violations in northern Cote d’Ivoire under rebel control and had asked by email to share this information with Wells. The meeting never took place because Wells never responded. Wells repeated at trial, unshaken by the absurdity of his own organisations’ request: “all legal issues were to be sent to the HRW Director in France for follow-up.” Some HRW internal regulations seem to hinge on a structural impartiality at the least.

Gbagbo’s lead defence attorney Altit has consistently questioned the HRW methodology at court. He pointed out that on the 3 June 2013 a majority clutch of judges at a pre-trial chamber in the ICC decided that there was not enough evidence to take Gbagbo to trial for crimes against humanity. The main reason cited by the judges was the overreliance on hearsay evidence such as NGO reports.

The defence’s argument that the HRW methodology is flawed in so far as it is biased and based mainly on hearsay evidence were also major points discussed at trial with numerous examples cited. Hearsay evidence, although accepted at the ICC as evidence, has a low probative value at trial.

Justice Monitor states that it provides “balanced and accessible monitoring reports on significant trials.” Yet the Justice Monitor’s reporting on the Gbagbo trial is confusing and often appear to include erroneous reporting.

A commentary published on Justice Monitor writes “Altit fired more shots, while the American researcher dodged them one by one.” Yet the general feeling after a day of testimonies by Wells was more one of lack of professionalism on the part of HRW, whose exposé of the crisis resembled an impartial narrative that does not reflect the reality on the ground, nor the variety of research resources available.

The first methodological shortcoming on the part of HRW that Altit pointed out concerned a UN resolution.

The HRW report “Cote d’Ivoire “They Killed Them Like It Was Nothing, The Need for Justice for Côte d’Ivoire’s Post-Election Crimes” authored by Wells in 2011 on page 24 reads:

“On 3 December 2010, in accordance with procedures outlined in UN Security Council resolution 1765 and political agreements signed by conflict’s protagonists, the Special Representative of the Secretary-General for Cote d’Ivoire, Choi Young-Jin, certified the electoral commission’s results and confirmed Ouattara as the winner.”

Altit pointed out that the HRW report made a factual error since the UN resolution did not provide Choi Young-Jin with the mandate to certify the elections. Altit then made Wells read UN resolution 1765 and specifically the article concerning Choi’s mandate.

Judge Cuno Tarfusser, breaking the ice, cracked a joke saying the witness had passed his French exam to which Altit answered that yes he surely got an average grade, but that the point of the exercise is rather to reveal the unscientific approach of HRW in compiling their reports.

“You could have written something else, why choose to write this?” Altit asked Wells, “ why write something that does not correspond to applied law?”

Yet if we turn to Justice Monitor and read their reporting on that day’s hearing we read this point:

“Then the lawyer, in a direct criticism of the witness, called into doubt all of HRW reports on Cote d’Ivoire. He started with the witness’s knowledge of the French language, and his ability to understand Cote d’Ivoire.” [v]

No comment. But of course no one is monitoring Justice Monitor, and so only a very limited understanding of the trial can be picked up by anyone seeking balanced and neutral information.

Wells explained that, “We said it because what I and many understood it’s what the UNSG did, that’s why we endorsed it. We do not take a position, we just wrote what the UNSG Choi said.” To only report what the UN did and omit all else in what has been called a Franco-UN coup d’état against a legitimate elected government, and by others a regime change policy against the Gbagbo government, is not taking a position according to Wells?

The 2011 post election crisis HRW report is riddled with factual errors and omits basic facts such as the divisions and non-consensus within ECOWAS, the UN as well as the African Union as to Ouattara’s victory in these elections.

Ouattara was declared the winner of the 2 December 2010 national elections by Youssouf Bakayoko, the head of the Independent Electoral Commission (IEC). Yet according to the Ivorian constitution, this commission is allowed to declare only the provisional results.

Altit, questioning HRW’s methodology, asked Wells if he knew the legal dispositions governing Cote d’Ivoire electoral code and the role of the Independent Electoral Commission, to which Wells answered: “my focus is on humanitarian law and not electoral law.” A serious statement coming from a person who should at the very least been aware that the Gbagbo coalition, known as the La majorité présidentielle (LMP), sent five legal complaints to the Constitutional Council documenting human rights violations, as well as asking for the annulment of the votes in those departments. The very same violations reported by numerous NGOs were omitted in the HRW post-election crisis report. Ouattara’s coalition, the Rassemblement des Houphouetistes pour la Démocratie et la Paix (RHDP), submitted no appeals for procedural irregularities in the second round.

Altit said the report produced by Wells did not give the readers all the elements: “You present Ouattara’s victory as a fact, you write reports and these reports have consequences (…) You help to decide who is right and who is wrong.”

By stating that Gbagbo did not try in any way to prevent human rights abuses, HRW totally ignores a 115 page report know as the Kadjo Djidji report. The published post-election inquiry was set up by Gbagbo through a presidential decree in January 2011, a fact mentioned in UN reports. The same extensive inquiry was also initially ignored by the ICC prosecutor in the first document containing the charges (DCC). The prosecutor’s second amended DCC erroneously called it a one-page report. By doing so, the prosecutor actually breached ICC regulations that require all evidence, regardless if its incriminating or exculpatory, to be presented to the defence, as well as the Judges.

HRW received the largest sum ever given by financier George Soros to one single human rights organization - a 100 million dollar endowment. [vi] Curiously, Justice Monitor is also financed by Soros through his Open Society Foundation. This financial link is a possible conflict of interest.

HRW has also come under criticism for supposed political meddling in its policy lines. In a 2014 open letter to HRW, a group of over one hundred scholars criticized what they describe as the group’s close ties to the U.S. government. They believe these ties create a “perverse incentive structure” mainly due to the revolving-door process that sees government officials moving to the non-profit sector and vice-versa.

Altit also denounced HRW’s impartiality for its recurring to the use of double standard when describing a situation or setting the context of the events.

Both HRW trial testimony and the organization’s report smack of a biased narrative that gives the impression of a general consensus around the victory of Ouattara. It also premptively paints Gbagbo as the wrong doer. When HRW reports on the Constitutional Council and its deliberations it writes that the President of the Constitutional Council is “a close friend of Gbagbo’s.” Yet when it states that the Independent Electoral Commission (IEC) announced the elections results, it did not specify that Bayayoko, head of the IEC came from Ouattara’s party and had not respected the legal norms regulating Ivorian elections. Wells answered that he was not aware of Bakayoko’s political affiliation.

Altit pointed out that in the part of the report entitled “Pro-Gbagbo Forces, Incitement to Violence by the Gbagbo Camp,” the only concrete example of such incitement is a statement made by Gbagbo spokesman Ahoua Don Mello on RTI national television on March 18, a day after Gbagbo forces allegedly fired mortars into an Abobo marketplace and killed some 25 civilians. Yet Wells denied in the document he presented to ICC that Don Mello ever made any statement inciting hatred, Altit tells us. There is thus already a contradiction between the report’s finding and what Wells deposited as his testimony at Court. Note the HRW reports attributes the 18 March bombing to Gbagbo’s government without providing any forensic or ballistic expertise in the report or at Court.

Other flimsy evidence in the HRW report is written on page 43 quoting the Associated Press (AP) news agency. The AP reported that in a RTI broadcast around that time, “the anchor-man smiled as he described a dozen alleged rebels killed by pro-Gbagbo soldiers in central Abidjan as ‘culled like little birds.’ Graphic images of their bloodied bodies were interspersed with images of soldiers giving each other high five and cheering crowds.”

The video is however not available and worse, when one reads the AP article written by Marco Chown Oved and subsequently cited by HRW, there are actually two quotes by HRW in that very article. By principle, a variety of sources is something HRW says they stand by.

Altit continued to call into question HRW’s double standard approach in analysing a situation and in particular the difference in how the Gbagbo camp and the Ouattara camp are depicted: “You say in your report that he [Gbagbo] should be convicted of crimes simply because he was the Head of the Army and that he allegedly did not take the necessary measures (…) in the other camp, you mention neither Alassane Ouattara nor Guillaume Soro (…) Why don’t you apply the same standard [to both sides]? ”

In the section of the HRW report that explains the electoral background, Wells relies heavily on one source — that of a BBC article. Asked on the limited use of sources Wells had nothing to add.

Witness testimonies are not collected in a methodic manner; no recordings are made of the interviews, or in some cases identity papers aren’t checked. Thus is appears that there is no systematic verification procedures and the HRW reports are written up based on newspaper reports and notes taken by HRW staff interviewing witnesses. Identities, due to alleged security issues, are hidden and thus no one can verify if what HRW wrote is correct. The defence has no way of challenging the information presented, thus such evidence also breaches the right to a fair trial.

Often fixers, who were paid 50 USD a day, were used to identify witnesses. These same fixers and intermediaries on some occasions also acted as translators. Considering the serious matters under review, a professional translator should be a requirement for any methodically organised research.

Altit presented video footage at trial, footage easily available on the Internet, of rebel leader Guillaume Soro calling on heavily-armed Force Nouvelles rebels to take over the national television RTI. HRW omitted this incriminating detail that is obvious proof that the demonstration was not peaceful, but instead had weapon-bearing rebels. One of the four main charges against Gbagbo and Blé Goudé is that the demonstration was heavily repressed. Wells who was not in the country at the time answered: “we were interested in what happened the day of the protest and not what happened before.” That same 16 of December 2010, the Forces Nouvelles not only attacked the city of Abidjan, but launched a series of actions throughout the country, again another series of events not included in HRW’s considerations.

Gbagbo’s former Youth Minister Blé Goudé is currently facing a joint trial with him at the ICC. At the time of Gbagbo’s administration, he was the leader of the so-called Young Patriots, nicknamed 'the General', for his ability to mobilise large numbers of people onto the streets in a flash, stirring up the crowds for huge non-violent demonstrations, protest marches, sit-ins and hunger strikes. His methods were an extraordinary example of non-violent resistance still respected today.

When Jean-Serges Gbougnon, defence lawyer for Blè Goudé, asked if Matt Wells had tried to meet with Blé Goudé during his missions, he answers: “no I did not.” Asked if it would have been possible, Wells answers: “I do not know.”

When asked to explain why he describes the Young Patriots as a “militia,” based on what he had seen, Wells recalls at trial: a group of youth jogging and chanting pro-Gbagbo slogans. This for him (supported by witness statements) is enough evidence to say they were a “militia” in a human rights watch mission report and at trial in an international court. Wells could not even recall what the joggers were signing.

Gbougnon showed obvious surprise to learn that HRW does not record audio or transcript versions of their testimonies, but only takes notes. The defence asked how one was able to rectify an aspect if one thinks the notes taken by the HRW do not reflect the initial interview and thus the reality on the ground.