ICC Credibility and the Case against Laurent Gbagbo

When former Ivorian leader Laurent Gbagbo stepped into court on Tuesday, February 19, he became the first head of state to appear before the International Criminal Court (ICC) in The Hague. Gbagbo is only one of three former heads of state to become a subject of an ICC arrest warrant and proceedings (see our briefing paper on the background to the case here). The court issued arrest warrants for Sudan’s Omar Al-Bashir in 2009, and for Muammar Qaddafi, then president of Libya, in 2011. With Al-Bashir yet to be arrested and Qaddafi killed by a Libyan mob, Gbagbo became the first head of state to be brought into the court’s custody.

The proceedings against Gbagbo come at an important stage in the development of the ICC, which has now been in existence for 10 years, and which now has a new team of prosecutors, led by Fatou Bensouda. The court is also reviewing its performance during its first decade, which produced only two verdicts: one of them a conviction following a trial that was marked by missteps, the other an acquittal.

In its first case, that of Congolese warlord Thomas Lubanga Dyilo, judges threatened to release the accused on two different occasions. He was eventually convicted and sentenced to a 14-year jail term. Another Congolese warlord Mathieu Ngudjolo Chui was recently acquitted and released, after a trial that lasted three years.

Other prosecutions have also faced challenges. In early 2012, judges confirmed charges against only four out of six prominent Kenyans, including the country’s deputy prime minister and current presidential candidate Uhuru Kenyatta. Several challenges have delayed the commencement of trials for two warlords from Darfur; former Congolese Vice President Jean-Pierre Bemba’s trial is still in progress.

Against this background, it is extremely important for the court to get it right in the Gbagbo case, which brings with it its own challenges.

So far, only one faction in the Ivorian conflict (Gbagbo and his wife) have become subjects of ICC arrest warrants. However, Human Rights Watch (HRW) documented massacres and atrocities carried out by the forces of current President Alassane Ouattara in March, 2011, in the campaign that eventually led to Gbagbo being pushed out of power with the assitance of the French military. These attrocities included a massacre in western town of Duékoué, where HRW says “pro-Ouattara forces committed horrific abuses, killing several hundred people.” These abuses have yet to be properly investigated or prosecuted in Ivory Coast.

The court’s previous prosecutor, Luis Moreno Ocampo, indicated publicly that his office was investigating all sides to the conflict, and that arrest warrants would be issued in a sequential order. This, he explained, meant going after different factions and individuals at different times. While there might be legitimate reasons for applying sequencing in the Ivory Coast situation, such an open-ended sequencing, coupled with a failure to effectively explain this process to affected communities in Ivory Coast, will create the perception that the court’s investigations are one-sided.

This criticism is one that the court must work to avoid.

The new prosecutor, Fatou Bensouda, has indicated on numerous occasions that she will only be led by the evidence. Beyond Laurent and Simone Gbagbo, if her investigations lead her to others who are alleged to have been involved in the commission of serious crimes, irrespective of the sides they took in the conflict, they must be made to account for their actions before a credible judicial process. The prosecutor should only be prevented in this regard if there are credible efforts to ensure there is accountability at the domestic level.

As with the trial of Charles Taylor at the Special Court for Sierra Leone, credible proceedings in Gbagbo’s case will reaffirm that leaders, however powerful, can be brought to account if they are accused of being involved in the commission of serious crimes.