Simone Gbagbo, wife of former Ivorian Head of State Laurent Gbagbo, has been on trial before Ivorian court for the past ten months for crimes against humanity after being sentenced to 20 years’ imprisonment in 2016 for undermining state security during the 2010-2011 post-election crisis in Côte d’Ivoire. Since February 2012, she has also been subject to an International Criminal Court (ICC) arrest warrant for four counts of crimes against humanity for acts allegedly committed during the post-election period. Côte d’Ivoire refused to transfer her because it considered that Ms. Gbagbo could be tried at the local level for the same charges. At the same time, her husband Laurent Gbagbo and their political party’s youth leader, Charles Blé Goudé, have been on trial before the ICC since January 28, 2016.
Quite unexpectedly, the trial lasted a long time, from postponement to postponement, punctuated with procedural delays. The court’s decision could be interpreted in two ways.
On the one hand, the proceedings appear to have been conducted in an expeditious and often non-adversarial manner, as criticized by Ms. Gbagbo’s defense lawyers and human rights organizations. After decrying numerous violations of the rights of the defense, defense lawyers eventually withdrew from the proceedings at the end of 2016. The assigned lawyers also withdrew from the proceedings in February 2017, denouncing, among other things, defense rights violations, the non-disclosure of documents in time, and the refusal of the court to hear certain key witnesses presented by the defense.
On the other hand, the acquittal of Simone Gbagbo could lead one to believe that the case was poorly built and badly put together, with contradictory and insufficient testimony given the gravity of the charges. In this context, in view of the fact that the burden of proof rests with the accusing party and the general criminal procedure principle that doubt always benefits the accused, the judges naturally leaned toward an acquittal.
It is therefore necessary to welcome the decision of this court, which was able to confine itself to the law and to the evidence presented. Besides, this would be a guarantee of independence of the magistrates who composed the court when several observers feared a trial tainted by lack of independence and impartiality.
In that sense, it is perplexing that some observers should speak of a failure in the fight against impunity. Such an analysis presupposes that the purpose of this trial was to systematically condemn the accused, notwithstanding the principles of presumption of innocence and fair trial.
In this series of legal observations, one question always remains in mind. What is the impact of this acquittal decision on the ICC’s prosecution of Simone Gbagbo?
When the verdict was rendered, the ICC, through its spokesman, announced on March 30, 2017, that this decision had no impact on the February 2012 arrest warrant as the facts were different. They also reminded Côte d’Ivoire of its obligation to cooperate with the Court by transferring Simone Gbagbo to The Hague.
Such a position deserves attention. The facts referred to in the ICC’s warrant against Simone Gbagbo took place in the same period and under the same circumstances as the facts that were examined during the proceedings leading to her acquittal in Côte d’Ivoire. These include the repressed December 16, 2010 opposition march on the national television network, the bombing of the Abobo market, which resulted in the murder of seven female civilian demonstrators on March 8, 2011, and sexual violence committed by pro-Gbagbo soldiers.
Since 2013, the Ivorian authorities had even opposed the arrest warrant issued by the ICC against the accused, on the grounds that the same case was already pending before Ivorian courts.
ICC judges ruled in December 2014 that the level of responsibility and the constituent elements of the crimes were different and that Côte d’Ivoire still had an obligation to transfer Simone Gbagbo to the ICC, a decision confirmed in Appeal in May 2015.
However, there is a fundamental principle of general criminal law (ne bis in idem, also known as double jeopardy), which prohibits the trial of a person again for the same acts for which he has already been tried. Thus, transferring and judging Simone Gbagbo at the ICC would be prejudicial to the proper administration of justice and to the interests of the parties. Thus, following the acquittal, Côte d’Ivoire could again raise a new objection to the admissibility of the case by showing that the decision taken in Côte d’Ivoire concerned the same facts, the same level of responsibility, and that the procedure was reliable.
A comprehensive framework of cooperation and complementarity between the ICC and prosecution at the national level should have been established at the outset to ensure effective prosecution. Since this was not done, it would have been simpler for Côte d’Ivoire to transfer Simone Gbagbo to the ICC as soon as the arrest warrant was issued.
Moreover, this acquittal decision could be seen differently, in particular with political implications related to the current context.
One should keep in mind that the facts are actually taking place in Côte d’Ivoire, and it is also necessary to take into account the socio-political environment that has not always been alien to choices made by the various governments, in particular in the field of post-conflict justice.
At the moment, judicial news is reportedly getting into line with the trend of reconciliation that the Ivorians are vigorously calling for.
Indeed, in the wake of the post-election crisis, all observers agreed that responsibilities were shared between the two camps that clashed: “pro-Gbagbo” forces, and “pro-Ouattara” forces. Paradoxically, almost all the prosecutions initiated at the national level concerned only the “pro-Gbagbo” and spared the “pro Ouattara,” on whom there was no lack of grounds for investigation and prosecution.
Following negotiations that took place after the political dialogue between the government and the opposition in 2013 and 2014, the Ivorian judiciary had curiously granted interim release to political actors and acquitted politicians strongly involved in this dialogue, with a view to fostering an easing of tensions.
In the same vein, the acquittal of Simone Gbagbo could be seen as an act to foster appeasement in the face of political tension. This decision, as well as the refusal to transfer Simone Gbagbo to the ICC, could be analyzed as a politically influenced decision in order to satisfy supporters of the political opposition and give a chance to national reconciliation. At the same time, it could be a decision to give strong signals of reconciliation to silence clamors for the arrest and trial of people close to the present government, who are not subject to any prosecution for the moment.
In a context where the suspicion of “victors’ justice” is widespread and where a good part of the Ivorian population does not seem to trust the judicial system and demand prosecution, a judicial-political decision such as this would calm passions, especially in the run-up to the upcoming 2020 elections. This would probably be a good way out for President Ouattara, who is not a candidate to his own succession.
For the time being, the Ivorians are expecting fair prosecution of all parties to the conflict, with a view to accountability and calmly reaching national reconciliation.
Eric-Aimé Semien is the president of the Observatoire Ivoirien des Droits de l’Homme (OIDH). The views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative.