ICC Will Try Gbagbo for Crimes Against Humanity

On June 12, a majority of Pre-Trial Chamber I at the International Criminal Court (ICC) confirmed four counts of crimes against humanity against the former President of the Côte d’Ivoire, Laurent Gbagbo. Gbagbo is the first head of state to be brought into ICC custody, as well as the first individual to be tried for crimes stemming from the 2010-2011 post-election violence in Côte d’Ivoire that resulted in the deaths of at least 3,000 civilians. Judge Christine Van den Wyngaert issued a dissenting opinion.

In its majority decision, the chamber found that there were substantial grounds to believe that pro-Gbagbo forces committed acts of murder, rape, other inhuman acts or – in the alternative – attempted murder, and persecution. The chamber also found reasonable grounds to believe that these violent crimes were part of a widespread and systematic attack directed at a civilian population.  The crimes charged occurred in Abidjan, Abobo, and Yopougon from December 2010 to April 2011.

The majority noted that “the acts of violence analysed by the Chamber reveal a clear pattern of violence directed at pro-Ouattara demonstrators or activists, and more generally against areas whose inhabitants were perceived to be supporters of Alassane Ouattara.” Ouattara, who is the current President of Côte d’Ivoire, defeated Gbagbo in the contested 2010 election, which resulted in widespread violence.

The majority also concluded that there are substantial grounds to believe Gbagbo is responsible for crimes against humanity under three types of individual criminal responsibility pursuant to Article 25 of the Rome Statute. According to the ICC press release, Gbagbo:

[I]s accused of having engaged his individual criminal responsibility for committing these crimes, jointly with members of his inner circle and through members of the pro-Gbagbo forces (article 25(3)(a) of the Rome Statute) or, in the alternative, for ordering soliciting and inducing the commission of these crimes (article 25(3)(b) of the Rome Statute) or, in the alternative, for contributing in any other way to the commission of these crimes (article 25(3)(d) of the Rome Statute).

However, the chamber failed to confirm Gbagbo’s responsibility as a commander under Article 28 because, according to the majority, he did not merely fail to prevent or suppress crimes of others, his “failure was an inherent component of the deliberate effort to achieve the purpose of retaining power at any cost, including through the commission of crimes.”

In a dissenting opinion, Judge Van den Wyngaert noted that there is still insufficient evidence to confirm charges against Gbagbo, and she did not find substantial grounds to believe he is criminally liable under Article 25. In particular, the judge criticized the prosecution for over reliance on anonymous hearsay evidence.

Gbagbo made his initial appearance at the ICC on December 5, 2011, shortly after his arrest in Côte d’Ivoire. A confirmation of charges hearing was held from February 19-28, 2013, but a decision on the confirmation of charges had been postponed after the pre-trial chamber requested the prosecution provide more evidence or conduct additional investigations in relation to the charges against Gbagbo.

Two other individuals have been indicted by the ICC for crimes stemming from the post-election violence in Côte d’Ivoire. Charles Blé Goudé, a close ally of Gbagbo, is charged with four counts of crimes against humanity.  Blé Goudé was arrested on March 22 of this year and made his initial appearance at the court on March 27. Gbagbo’s wife, Simone Gbagbo, is also charged with four counts of crimes against humanity and remains at large.