On Wednesday, July 19, the Appeals Chamber of the International Criminal Court (ICC) reversed Trial Chamber I’s ruling that former Ivory Coast president Laurent Gbagbo should remain in custody and ordered a new review in regards to whether he should be released. Gbagbo, who is 72 years old, has been in court custody since November 30, 2011 on four counts of crimes against humanity. He has sought interim release multiple times while in ICC custody, but the trial chamber has denied previous requests in part due to an alleged pro-Gbagbo movement that could help him escape, making him a flight risk.
The Impugned Decision
The trial chamber ruled in its March 2017 decision that circumstances had not changed enough to warrant Gbagbo’s release, nor were conditions proposed for a conditional release specific and enforceable enough to warrant considering it. The trial chamber found that Gbagbo had an incentive to abscond if allowed to leave court custody because of his age, the nature of the crimes he was accused of, and that he denied responsibility. It also found the prosecution and victims’ legal representative’s arguments concerning the continued existence of a pro-Gbagbo network compelling and noted that just the possibility of flight was enough to keep a suspect in custody.
The defense argued that circumstances had changed, with Gbagbo having continued to serve time, his health decreasing as his age advances, and the Ivory Coast stabilizing to the point where criminal proceedings were happening without interference. Furthermore, the defense noted, release would be appropriate because liberty is the general rule to both the Rome Statute and internationally recognized human rights.
The trial chamber ruled that the changed circumstances raised by the defense were not determinative, that the length of time served was not a changed circumstance, and the potential expenditures and lack of specific, enforceable conditions made release inappropriate in any case. It also dismissed the defense’s submissions that the prosecutor had failed to establish the existence of a pro-Gbagbo network, noting that it did not have to revisit arguments already addressed. The dissent, while not disagreeing with the legal analysis by the majority, believed it failed to give Gbagbo’s age, health, and time spent in custody the weight they deserved.
The defense appealed the decision on six grounds: (1) the majority failed to properly consider defense arguments regarding the existence of a pro-Gbagbo network; (2) the majority failed to take the length of pre-trial detention into account; (3) the majority failed to properly substantiate existence of pro-Gbagbo network; (4) the majority failed to properly take Gbagbo’s age and health into a account; (5) the majority improperly used the plead of not guilty and nature of charges before him to presume Gbagbo was a flight risk; and (6) the majority failed to properly consider conditional release.
The Appeals Chamber Decision
Noting that it does not conduct de novo but rather corrective review, the Appeals Chamber started with the first and third issues on appeal. It held, like in the original decision, that it did not have to reexamine repetitive arguments in regards to the substantiation of a pro-Gbagbo network nor did the prosecution have to prove that the network would try to help Gbabgo but just indicate the possibility. However, the Appeals Chamber found under the fourth ground of appeal that the majority made a mistake in considering Gbagbo’s age as a factor that increased his risk of flight. Instead, old age, combined with factors such as ill health, could mitigate the threat to abscond.
In addition, the Appeals Chamber determined that an error of law was committed in the trial chamber decision finding that a not guilty plea and the gravity of charges levied against a defendant could increase their flight risk. The Appeals Chamber cited Articles 66 and 67 of the Rome Statute, that there is a presumption of innocence and one should not be compelled to testify against oneself, in upholding the fifth ground of appeal. By making interim release more likely under a guilty plea for lesser charges, the trial chamber came into conflict with those two articles.
The Appeals Chamber also upheld the second ground of appeal: that the impugned decision improperly failed to consider the length of time Gbagbo had already served. Though time served could not qualify as changed circumstances on its own, it is still a factor that needs to be considered along all other factors in determining if detention has stopped being reasonable. Given that Gbagbo had been in detention since 2011, and his trial did not start until January 28, 2016, the trial chamber made a mistake in not considering his time already served.
The Appeals Chamber went on to make it clear it was not saying that Gbagbo should be released, just that the trial chamber should revisit the issue of his detention again, taking all factors and relevant law into account.
The Appeals Chamber decided not to rule on the sixth ground of appeal, whether the impugned decision properly considered conditional release, deciding that issue should not be heard until after the trial chamber revisited if interim release was appropriate. In its review, the trial chamber should not use Gbagbo’s plea or age to support continued detention nor should it just rely on new information provided by the parties to make its final decision. Instead, circumstances as a whole, including Gbagbo’s health and time spent in captivity already, should be considered.
Gbagbo remains in custody at the ICC detention center in The Hague.
Wade Herring is an intern with Open Society Justice Initiative in The Hague. He is a rising second year law student at the University of Georgia and has studied international law at the Georgia Law-Leuven Global Governance Summer School. He hopes to continue public interest and human rights work after he graduates.