Exceptional weakness, doubtful authenticity and/or containing significant anonymous hearsay, flimsy, caricatured, one-sided, inconsistent or otherwise inadequate, lacking in probative value, these are some of the words used by the majority Hague-based International Criminal Court Judges’ Cuno Tarfusser and Geoffrey A. Henderson to dismiss at mid-trial the ICC Prosecutor’s evidence in the Prosecutor v. Laurent Gbagbo and Charles Blé Goudé case.
On 15 January 2019 Laurent Gbagbo, former President of the West African country Côte d'Ivoire and activist and youth Minister Charles Blé Goudé, had already been acquitted by majority, Judge Herrera Carbuccia dissenting, from all charges of crimes against humanity allegedly committed in Côte d'Ivoire’s post-election crisis in 2010 and 2011.
In their written decisions, published six months later, on 16 July, the majority Judges state that the documents that were submitted by the Prosecutor in this case would “not have passed even the most rudimentary admissibility test in many domestic systems.” How was it possible then that at the ICC instead such weak probative documentation was accepted?
One reason appears to be the lack of admissibility rulings for the evidence submitted: as early as 1 February 2016, one week into the trial, which began on 28 January 2016, in a dissenting opinion Judge Henderson had warned the Trial Chamber on this serious potential to undermine both the fairness and efficiency of the proceedings. Henderson tells us in his 16 July Reasons that, with the exception of the Prosecutor v. Jean-Pierre Bemba Gombo case, issuing admissibility decisions before the closure of evidence has been the settled and uncontroversial practice in all international criminal proceedings. Lacking admissibility rulings allowed for this case record to be flooded with documents: in all 4,610 items of documentary and other non-oral items of evidence.
No filters were applied also to the 96 witnesses submitted of which 57 testified in person or via video link at trial, whereas 39 were admitted only via previous recorded testimony. Since frequently witnesses changed their evidence more or less significantly when examined by the Defence at trial, a submittal of such a high number of previous recorded testimonies raises many questions.
Admitting to the case record dubious evidence also meant creating the need to write extensive legal decisions on this same dubious evidence: “For example, had we been able to simply exclude all anonymous hearsay, this draft would have been several hundreds of pages shorter,“writes Judge Henderson in his 16 July Reasons which is a 961-page document.
With 34 years of judicial experience of which ten passed as an ICC Judge, Judge Tarfusser pointed out to what he considered to be the worst shortcoming of this case on the part of the Prosecutor: “her[i] unwillingness to adjust and progressively amend her narrative, taking stock of things said or revealed in the courtroom: instead, this narrative has remained the same as in the early days of the pre-trial stage, and to this very day.”
Laurent Gbagbo did engage in a conflict which saw civilian victims succumb, yet he was fighting a well-structured rebellion, the Forces Nouvelles (New Forces), which had been attacking his regime since 2001, and had occupied the Northern part of the country, splitting it in two since 2002. Gbagbo’s government, elected in 2000, did not even last two years, as he was forced to come to terms with the rebel occupation for the following eight years.[ii]
The Prosecutor’s narrative systematically omitted or downplayed the presence of the Force Nouvelles, or other significant political and military actors, such as the role of the UN (were evidence surfaced at trial that in some instances the UN acted in support of rebels) and France (were evidence at trial indicated that tanks of the French army also shot at the FDS, the Ivorian national army and a French army general menaced militarily the Ivorian authorities). This omission, by hiding agency, rendered the judicial exercise awkward to say the least. Judge Henderson compares it to a chess game where: “ one is not familiar with all the rules and is only told about the moves of one player.”
Cheery picking evidence to suit her narrative was one of the main criticisms that came forth in the majority decision against the Prosecutor. Such procedural shortcomings end up, according to the ICC Majority Judges, questioning the very capacity of the ICC to exercise its core function, namely to bring justice.
Not following the statutory obligation to ‘investigate incriminating as well as exonerating circumstances pursuant to article 54(1)(a) of the Statute was a consequence of the Prosecutor’s omissions.
For example as for video evidence the Prosecutor submitted a film whose focus was the “humanitarian crisis” by a British filmmaker whose knowledge of French was tenuous and whose translations of what people said on the ground “outrageously inaccurate.” His testimony at trial was a waste of time and money according to the majority Judges due to the “tenuous, indirect or inexistent knowledge of and connection to the charged events on the ground and charged individuals.”
I have been following the crisis as a filmmaker and developed a documentary film project Simone and Laurent Gbagbo, le droit à la difference (Simone and Laurent Gbagbo, the right to difference), a U tube web site, and thus an open source, that houses dozens of first hand testimonies of the 2010 post election crisis, as well as a 90-minute film of testimonies just on the elections, Presidential election in Ivory Coast November 2010.
On this U tube website one can find extensive interviews of five out of the eight Ministers cited by the Prosecutor as being a part of the “inner circle” which allegedly carried out a common plan to keep Gbagbo in power by all means - former defence Minister Bertin Kadet, former Minister of Foreign Affairs and former head of the Front Populaire Ivoirien (FPI) political party Aboudramane Sangaré, Former Minister of Public Service Hubert Oulaï, former Interior Minister Émile Guiriéoulou and Former Defence Minister Alain Dogou- who all tell a very different story than the Prosecutor’s narrative. None of this footage available on U tube was considered at trial or in the written decisions, although the Prosecutor could submit video evidence as late as 31 July 2017.[iii]
Judge Herderson and Tarfusser provided a detailed analysis of the evidence submitted and came to the legal conclusion that no reasonable trial chamber could conclude that any of the Ministers mentioned, nor the first lady Simone Gbagbo, against whom the ICC has still not dropped charges although she was acquitted in the trial for crimes against humanity in Côte d'Ivoire, shared the intent to commit crimes against the civilian population.
Procedural as well as investigative flaws on the part of the office of the Prosecutor were identified by the majority Judges as occurring even prior to the opening of the ICC investigation in Côte d'Ivoire, which begs the question of a breach of impartiality.
In 2017 leaked French diplomatic documents[iv] revealed that on the 11 April 2011, five months before the opening of an ICC investigation and hours before Gbagbo’s arrest, the ICC Prosecutor at the time Louis Moreno Ocampo had requested that Laurent Gbagbo be kept imprisoned until a country refers the case to the ICC. Twenty high level French diplomats were copied on these e-mails sent by the Africa director of the French Ministry of Foreign Affairs Stephane Gompertz, and were thus aware of the political manoeuvring taking place to discard Laurent Gbagbo.
This grave breach of due process on the part of Prosecutor Ocampo, which should have called for the immediate closure of the trial according to legal experts, but which was omitted from the trial, is corroborated in Judge Tarfusser’s 16 July decision which reveals that interviews of key witnesses on the part of the ICC Prosecutor were held two months prior to the ICC authorization to open an investigation in Côte d'Ivoire.
An equally dubious decisions by the pre-trail Chamber during the pre-trail in June 2013, decision denounced among others by former South African President Thabo Mbeki, which had been a key mediator throughout the crisis, was also mentioned as being unusual by the Majority.
Not taking stock of what came forth in the legal exercise, thus negating the very essence and reason for holding a trial, and the need to adjust lines in accordance with evidence revealed at trial is not only the main flaw of the Prosecutor’s office: when one looks into the 300-page dissenting opinion by Judge Herrera for example she mentions Charles Blé Goudé’s use of “hate speech” without citing a single source or extract of a speech by Blé Goudé to back her statements. This is particularly disturbing as ample video evidence was shown at trial which pointed to the exact contrary: “his many speeches advocating for dialogue, for the protection of the population and a calm approach to the complexity of the situation; far from being encouraged, violence is explicitly repudiated as a method in many of those speeches. As recalled in the Reasons by Judge Henderson, ‘affiliation to Mr Gbagbo is not criminal per se’”, writes Tarfusser. Another example, Gbagbo’s Divo speech, considered a key incriminating speech by the Prosecutor, is analysed in detail by Henderson but not mentioned once by Herrera.
In January 2019 the Majority Judges also ruled the immediate release of both accused. Judge Tarfusser thinks the turning by the Appeals Chamber, two weeks later on 1 February, of his request for an immediate unconditional release into a conditional release under a “heavily restrictive regime,” clashes with the respect for fundamental human rights.
Also for Judge Henderson “it is incompatible with the presumption of innocence to continue the trial with the hope that the only incriminating evidence capable of supporting a conviction would be supplied by the accused.”
“The unjustified severity of the conditions imposed on Laurent Gbagbo and Charles Blé Goudé does not seem to take into account the acquitted status of the two persons, and in particular their acquittal following a procedure of dismissal at mid-trial, and the relentless finding of the majority of the judges of the Trial Chamber on the exceptional weakness of the indictment case.” comments PHD candidate in international Law at Laval University and Member of the Canada Research Chair on International Criminal Justice and Human Rights Moussa Bienvenu Haba. “With regard to the quantitative severity, it should be noted that the appellate judges actually imposed all the 8 conditions proposed by the Prosecutor. (…) The third condition imposes on Gbagbo and Blé Goudé the prohibition to travel outside the municipality in which they reside in the host State, unless expressly authorized by the Court beforehand. (...)The unjustified rigor of this condition made it impossible to implement and pushed Belgium to request its amendment to the Appeals Chamber for its applicability to Laurent Gbagbo (Judgment of 28 February 2019). Moreover, given these very strict conditions and the difficulty of implementing them, no state has yet accepted to welcome Blé Goudé. He lives recluse in a hotel room in The Hague since February 1st." says Moussa Bienvenu Haba.
Gbagbo was in detention at the ICC since November 2011 and Charles Blé Goudé since March 2014. Both had undergone previous detention in Côte d'Ivoire in extremely harsh conditions under the Alassane Ouattara regime. In a key note delivered by Nigerian human rights lawyer Femi Falana on 31 July in Dakar at the meeting convened by the African Network on International Criminal Justice, Falana calls their further detention a “selective persecution.”[v]
Paolo Sannella,[vi] former Italian ambassador in Côte d'Ivoire during the 2002 rebel attack welcomes the acquittal as a “a first step towards the rehabilitation of the ICC”” from what so far has been “a one-sided victor’s justice were the Prosecutor painted the aggressor as a victim, thus adding suffering upon suffering, and injustice upon injustice. A trial riddled with “continuing and serious political manipulation in a period of recrudescence in neo-colonial bullying that stained the name of France and its allies by dragging Côte d'Ivoire into the tragedy of a war”(…) There remains now the hope that the Court will not be intimidated and firmly maintain this line of truth and justice exposed with such precision and clarity in the written decisions. We hope that the procedure will now be completed quickly and effectively. Certainly this behaviour by the Court will not be enough to redeem a history stained by too many errors and insufficiencies, but it may perhaps contribute to correcting the main inconsistencies. It may also contribute to putting in their proper light unpunished violence, the innocent dead, victims of partly obscure events that put Côte d’Ivoire on fire for almost a decade starting from the war unleashed in 2002 and for which no one today seems to want to assume the responsibility, ” commented Sannella.
Experts in international criminal law, journalists and NGOs since January 2019 either remain silent on this case or often reprimand the ICC for not having been able to bring justice by condemning a high profile indictee such as a former President.[vii] Not acknowledging the “magnitude of the discrepancies between the facts as originally alleged by the Prosecutor and those facts as having surfaced in the courtroom” seems to be a major concern also outside the courtroom. This miscarriage of justice, if not addressed, will end up lowering the established standards of criminal justice, both national and international.
[i] Since June 2012 Fatou Bensouda has replaced Louis Moreno Ocampo as ICC Prosecutor.
[i] Since June 2012 Fatou Bensouda has replaced Louis Moreno Ocampo as ICC Prosecutor.
[ii] Background information on the Côte d'Ivoire crisis with articles and video testimonies https://www.free-simone-and-laurent-gbagbo.com
[iii] My film project Simone and Laurent Gbagbo, le droit a la diffétence. was briefly mentioned at the pre-trial stage where the defence recalled an extract of a video interview of French ambassador Gildas LeLidec on the 2004 French-Ivoirian confrontation, thus the Prosecutor was aware of the U-tube website.
[iv] Fanny Pigeuad, The devious manoeuvres behind ex- Ivorian leader Laurent Gbagbo's trial at ICC , November 2017, Médiapart.
[vi] Paolo Sannella’s video testimony https://www.youtube.com/watch?v=6A36OjLKGu4
[vii] Not taking stock of what was revealed at trail seems to be a problem also for the law “experts” such as Mark Ellis, Executive Director of the International Bar Association, who wrote in March 2019 : “high-profile acquittals can be seen as a setback for justice” or “But the Gbagbo acquittal is particularly damaging. It sheds light on either the inability of the Office of the Prosecutor (OTP) to successfully bring a case against a high profile indictee, or the failure of the judges to fully comprehend the OTP’s case. Neither effect is promising for the Court.” here http://opiniojuris.org/2019/03/28/the-latest-crisis-of-the-icc-the-acquittal-of-laurent-gbagbo/ or Maxence Peniguet and Thierry Cruellier who wrote in Acquittal of Gbagbo and Blé Goudé: hammering for the Prosecutor’s Office in Justiceinfo.net that the ICC Prosecutor “ has failed once again to convict people holding power when atrocities were being committed.”