Judges Reassess Whether Former Ivorian First Lady Simone Gbagbo Can Still Be Tried at the ICC

International Criminal Court (ICC) judges are reviewing whether former Ivorian first lady Simone Gbagbo can still be tried by the international court based in The Hague. In 2015, an Ivorian court convicted Simone for undermining state security and handed her a 20-year prison sentence. But two months ago, the country’s president, Alassane Ouattara, pardoned her as part of a larger Ivorian amnesty process.

Laurent Gbagbo, the former president of the Ivory Coast whose refusal to hand over power after losing a 2010 election to Ouattara sparked the violence over which the ICC indicted he and his wife, has been in detention in The Hague since November 2011. His trial opened in January 2016 and the prosecution has completed presenting its case.

In February 2012, ICC judges had issued a warrant for Simone’s arrest over the alleged crimes against humanity of murder, rape and other forms of sexual violence, and persecution. The crimes were allegedly committed in Ivory Coast between December 16, 2010 and April 12, 2011. In 2014, a pre-trial chamber of the ICC confirmed the case against the former first lady, a decision affirmed by the appeals chamber in 2015. However, she remained in custody in the Ivory Coast, whose government preferred to try her locally.

In 2015, an Ivorian court convicted Simone for undermining state security and handed her a 20-year prison sentence. In 2017 she was acquitted of crimes against humanity charges in a process reportedly marred by fair trial concerns and a critical lack of evidence. However, in July 2018, her lawyer was quoted as saying the Ivorian Supreme Court had overturned the acquittal and sent the case before another criminal court. In the crimes against humanity trial, prosecutors alleged that Simone was part of a committee that organized abuses by the armed forces and militias against supporters of her husband’s opponent, in a conflict where up to 3,000 civilians were killed and more than 150 women raped.

While pardoning Simone last August, current Ivorian president Ouattara said the gesture was intended to promote “peace and real reconciliation” and would benefit a total of 800 prisoners. It appears then that the former first lady—who was released on August 8—will not be retried for crimes against humanity since, according to one report, the presidential amnesty “includes all legal pursuits against the 800 political prisoners.”

Having been tried and sentenced in a local court, ICC judges now need to determine whether the former first lady can still be tried in The Hague. According to article 17(1)(a) of the court’s Rome Statute, a case is inadmissible at the ICC if it is being investigated or prosecuted by a state which has jurisdiction over it, unless the state is unwilling or unable to genuinely investigate or prosecute.

Moreover, article 17(1)(c) provides that the ICC shall find the case inadmissible if the person concerned has already been tried for conduct which is the subject of the complaint. Similarly, Article 20(3) provides that n0 person who has been tried by another court shall be tried by the ICC for the same conduct.

In December 2014, Pre-Trial Chamber I found Simone’s case admissible at the ICC, because the Ivorian government had not demonstrated that proceedings in The Hague were parallel to the ongoing domestic proceedings. Judges found that the level of responsibility and the constituent elements of the crimes were different and that Ivory Coast still had an obligation to transfer Simone to the ICC. This decision was confirmed in 2015, when judges in the ICC Appeals Chamber rejected the Ivorian government’s appeal.

Last month, Pre-Trial Chamber II judges Antoine Kesia‐Mbe Mindua, Tomoko Akane, and Rosario Salvatore Aitala said that, as previously noted by the court, the admissibility of a case is not static. Rather, it must be determined on the basis of facts as they exist at the time when the admissibility is assessed. They added that the chamber has a duty to act on its own initiative when it appears that the grounds on which pending decisions were adopted may be altered.

The chamber is therefore seeking to receive information concerning any acts taken by Ivorian judicial authorities since December 2014 which could impact the admissibility of the case. Such information includes all pertinent judicial decisions regarding Simone Gbagbo and any other relevant information, including if the concerned judgements have become final according to national law.

The judges have ordered the ICC Registrar to request the relevant national authorities in the Ivory Coast to expeditiously provide Trial Chamber II with the relevant information and documentation.

Meanwhile, prosecutor Fatou Bensouda has requested judges to allow her office to access the information and material to be transmitted by Ivorian government. The prosecutor, as the party that requested the arrest warrant against Simone and whose office assesses admissibility, has requested permission to provide observations on the present admissibility of the case.