Former Ivory Coast president Laurent Gbagbo, who was released to Belgium last weekend, faces a range of restrictions to his movements and communications, according to a ruling by International Criminal Court (ICC) appeals judges.
According to the judges, there was “sufficient factual indication” that Gbagbo and his co-accused, Charles Blé Goudé, might abscond if released unconditionally. This necessitated the imposition of conditions to mitigate the flight risk. When the judges issued the oral ruling on the release last Friday, they did not state the conditions imposed but said they were outlined in a written decision to be issued later.
Gbagbo and Blé Goudé, who have been on trial at the ICC since January 2016, were acquitted on January 15, after judges determined that there was no need for them to present their evidence because the prosecution had failed to satisfy the burden of proof in relation to several core elements of the case. A day later, the Appeals Chamber granted a prosecution request to keep the two accused in detention pending its appeal against the acquittal.
Following a February 1 hearing, judges ordered the duo’s release but imposed several conditions on them. Gbagbo traveled to Belgium while Blé Goudé, who served as his Youth and Sports Minister, remains in the Netherlands but not in detention.
Under Rule 119 of the court’s Rules of Procedure and Evidence, judges may set one or more conditions restricting the liberty of an accused person. These include restrictions on movement, barring contacts with certain individuals, requiring the accused to reside at a particular address, and surrender of their passport to the court.
Accordingly, Gbagbo and Blé Goudé were required to sign an undertaking that they would abide by all court orders, including reporting to the seat of the court when needed, and accepting that proceedings before the Appeals Chamber may proceed in their absence if they fail to appear before the court when ordered to do so.
They were also required to provide their addresses to the court and to the states that would receive them. The court’s authorization is needed before changing the address. In addition, they are barred from traveling beyond the territorial limits of the municipality of the receiving state without the ICC’s authorization.
In a further move to limit their movements, Gbagbo and Blé Goudé had to surrender their identity documents, including their passports, to the court’s Registry. They also have to report weekly to law enforcement authorities of the countries to which they were released. They are also required to abide by any additional “reasonable conditions” imposed by the state of release.
The prosecution did not oppose the conditional release of the accused. Rather, it asked judges to impose several conditions on the accused to ensure their attendance at future proceedings and to protect the integrity of future proceedings.
In turn, another condition imposed on the accused is that they must not contact, either directly or through another party, any prosecution witness in the case, or any person who they are aware has been interviewed in ongoing investigations in the Ivory Coast. Furthermore, they are barred from making any public statements about the case or being in contact with the public or speaking to the press concerning the case.
In imposing the conditions, judges noted that both Gbagbo and Blé Goudé had indicated that they would accept conditions. Moreover, an unnamed state – now known to be Belgium – had said it would accept Gbagbo under the conditions stipulated by the Appeals Chamber.
However, in the decision on conditional release, appeals judges ruled unanimously that Article 81(3)(c)(i) of the Rome Statute must be interpreted restrictively. The article provides conditions under which an acquitted person may be kept in detention.
“The onus of justifying the measure of continued detention upon acquittal lies squarely upon the Prosecutor, and continued detention must be limited to situations which are truly exceptional,” said the Appeals Chamber. It added that, before continued detention can be ordered, all reasonable measures less severe than detention must be considered and found to be insufficient.
The appeals judges also noted that although Article 81(3)(c) does not expressly provide that conditions may be imposed on the acquitted person once released, the trial chamber has the power to impose conditions on the released person in such a situation. They ruled that the trial chamber’s power to impose conditions extends to the Appeals Chamber once the case reaches it.
Trial Chamber I, which acquitted the Ivorian nationals, dismissed the prosecution’s appeal to keep the accused in detention pending the appeal. Two of three judges determined on January 16 that Gbagbo and Blé Goudé were not a flight risk and dismissed prosecution arguments that there was a high probability that the appeal against their acquittal would succeed. Delivering the ruling, Judge Cuno Tarfusser said acquittal of the accused before they presented their evidence showed, in the view of the majority, “how exceptionally weak the prosecution evidence is.”