Prosecution Lays Out Evidence in Support of Continuation of Gbagbo’s Trial

Former Ivory Coast president Laurent Gbagbo has asked International Criminal Court (ICC) judges to end his trial at the court based in The Hague, arguing that the prosecution has failed to present sufficient evidence to justify the continuation of the trial. Gbagbo, 73, lost an election in 2010 to current president Alassane Ouattara and, following charges that he orchestrated post-election violence, he was arrested and transferred to the ICC in November 2011.

The former president is on trial alongside Charles Blé Goudé, his former minister for sports and youth affairs, who has also asked judges to declare that there is no case to answer—meaning that now that the prosecution has completed its case, there is not enough evidence to continue the trial. They are charged with four counts of crimes against humanity, including murder, rape, persecution, and other inhumane acts (or, in the alternative, attempted murder). The crimes were allegedly committed during post-electoral violence in their home country between December 16, 2010 and April 12, 2011.

Their trial, which started in January 2016, is being conducted by Trial Chamber I, composed of judges Cuno Tarfusser (presiding), Olga Herrera Carbuccia, and Geoffrey Henderson.

After the last prosecution witness testified in January 2018, judges instructed the Office of the Prosecutor (OTP) to file a trial brief illustrating its case and detailing the evidence in support of the charges. Judges say the goal of this exercise was to obtain from the prosecution an explanation of whether it considered that it had proved the charges spelt out in their pre-trial brief. The prosecution filed the brief last March.

In April 2018, defense lawyers submitted that the prosecutor had not presented enough evidence to warrant a conviction. In July, they asked judges to declare a lack of sufficient evidence to support the charges and to acquit the accused. A hearing was subsequently held at the start of October to receive submissions on the defense motions.

This post summarizes the prosecution’s submissions on the evidence it has presented, as argued at the hearing, which it contends is strong evidence to sustain the case to the end of the trial stage. As deputy prosecutor James Stewart put it, “The accused should be put upon their defense and this trial should proceed to its conclusion with a determination on the merits of their guilt or innocence.”

Incidents Related to the Charges

The prosecution outlined its evidence of five incidents that underpin the charges against Gbagbo and Blé Goudé.

Incident 1: December 2010 massacre of demonstrators

At a December 14, 2010 meeting of the Defense and Security Forces (FDS) high command, Gbagbo allegedly ordered his generals to repress a demonstration by the opposition party, Rally of Houphouetists for Democracy and Peace (RHDP), who intended to move onto the Ivorian Radio and Television (RTI). He reportedly said: “The march must not take place. It was prohibited.” The FDS, reinforced by pro-Gbagbo youth, militia and mercenaries, violently repressed the march using live ammunition, fragmentation grenades and other weapons, the prosecution said. They killed 24 identified civilians and many other unidentified civilians, raped at least 11 women and girls and seriously wounded 52 identified civilians and many other unidentified civilians, the prosecution alleged.

According to the prosecution, the use by the FDS of live ammunition and fragmentation grenades against demonstrators, the involvement of members of the pro-Gbagbo militia groups, namely Group of Patriots for Peace (GPP), Young Patriots and Student and School Federation of Côte d’Ivoire (FESCI) in repressing the march, and the significant amount of casualties, demonstrate that Gbagbo’s instructions to the generals were understood and meant to be understood as a call to repress the march by all means, including violence.

The prosecution dismissed Gbagbo’s claim that the march was organized by rebels who planned a military attack, and that armed individuals who were in the march fired on the FDS. The prosecution insists testimonial evidence from witnesses 106, 172, 588, 350, 547, and 587, corroborated by reliable portions of police reports, shows that demonstrators were unarmed.

Incident 2: Incitement of militia killings in February 2011

The prosecution claims its evidence demonstrates that, on the morning of February 25, 2011, Blé Goudé held a meeting at which he instructed the pro-Gbagbo youth assembled to “check comings and goings in their neighborhoods and report any stranger or foreigner entering their neighborhoods.” This speech was inflammatory, the prosecution says, and in the ensuing violence in the Yopougon area, pro-Gbagbo forces killed at least 19 civilians and wounded at least 13.

Defense lawyers claim the attackers were not pro-Gbagbo militia, and contend that the Yopougon incident resulted from escalating tensions between two neighborhoods, which predated Blé Goudé’s speech. The prosecution insists the attackers were pro-Gbagbo and attended Blé Goudé’s meeting.

Incident 3: Murder of women at peaceful anti-Gbagbo protest

On March 3, 2011, the prosecution maintains, members of the FDS from Gbagbo’s Republican Guards who were patrolling Abobo, shot a 14.5 millimeter gun and AK-47 rifles into a crowd of peaceful female protesters carrying anti-Gbagbo signs and asking him to step down. Seven women were killed and many other people injured, the prosecution says. According to the prosecution, the attack came within a week of Gbagbo’s order to FDS generals to ensure they maintained control of Abobo; and one day after he emphasized in a speech his resolve to stay in power, despite mounting domestic and international pressure.

The prosecution contends that the FDS shooting of unarmed and peaceful civilian protesters was part of a widespread and systematic attack directed against the civilian population in neighborhoods inhabited by perceived Ouattara supporters. The prosecution says its evidence further shows that DNA analysis of samples taken from bodies exhumed from a mass grave in Abobo, against samples of family members, proved the identification of three of the seven women. Forensic evidence, including autopsies of these bodies by forensic pathology experts, confirmed they were killed by gunshot.

Incident 4: The Abobo shelling that killed 31 civilians

The prosecution alleges that on March 17, 2011, members of the Ground-to-air Artillery Battalion (BASA) in Camp Commando executed orders and launched 120 millimeter mortars on the Siaka Koné market, SOS Village, a mosque, a hospital, and some homes, killing at least 31 civilians and wounding at least 36 others. A former senior military official testified that Gbagbo authorized BASA to use the mortars.

Meanwhile, Witness 239 testified that BASA officers are taught in training that the president himself needs to sign off on the use of 120 millimeter mortars because of the significant destruction they cause. The prosecution cites “overwhelming” testimonial, video, photographic, and forensic evidence that shows the FDS targeted civilians mainly on political grounds, as Abobo was a pro-Ouattara neighborhood.

Witness 564, a medico-legal expert, verified that four of the eight bodies she examined had wounds consistent with shelling as the cause of death. For the remaining four bodies, Witness 564 did not exclude shelling as the cause of death. The prosecution submits that, despite military authorities knowing of civilian deaths, no proper investigation was conducted and nobody was punished.

Incident 5: Killing of 61 people on ethnic and political grounds

Around April 12, 2011, in the Yopougon neighborhoods of Doukouré and Mami Faitai, pro-Gbagbo forces allegedly killed at least 61 persons primarily from northern Ivory Coast and neighboring West African countries. They also raped at least six women and wounded at least three persons, the prosecution claims.

These crimes, which the prosecution argues were committed on ethnic, political, national, and religious grounds, allegedly formed part of a continuum of violence perpetrated against perceived Ouattara supporters that was set in motion by Blé Goudé’s inflammatory speech. In some instances, the perpetrators asked about peoples’ ethnicity before attacking them, the prosecution contends.

In the days preceding Gbagbo’s arrest, he and Blé Goudé purportedly asked their loyalist forces to continue the fight to remain in power. The prosecution claims its evidence shows that the crimes perpetrated in Yopougon on April 12 were committed a day after Gbagbo’s arrest, by youth, mercenaries, and GPP members trained, armed, and financed by Gbagbo and Blé Goudé and loyal members based at the Locodjoro naval base.

Contextual elements of the case

According to the prosecution, there were at least 142 murders, 17 rapes, 110 other inhumane acts, and multiple acts of persecution. The prosecution claims that its evidence shows that these acts were not random; not committed out of coincidence. These were acts of violence committed by the pro-Gbagbo forces against civilians perceived as Ouattara’s supporters in Abidjan and during the post-election crisis. For its part, the defense argues that the course of conduct involving the multiple commission of acts referred to in Article 7(1) of the Rome Statute is not proven. This article defines a crime against humanity as an act “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” Moreover, the defense contends that the prosecution has filed to prove that there was a state or organizational policy to commit an attack, which is also required by the Rome Statute.

The second component of the prosecution’s evidence aims to demonstrate that Gbagbo and Blé Goudé had a state or organizational policy to commit crimes against humanity; and the different modes of criminal liability the accused stand charged with. This evidence will be summarized in a subsequent post.