Côte d’Ivoire: Laurent Gbagbo and Charles Blé Goudé acquitted by ICC and released on conditions

Laurent Gbagbo (L) and Charles Blé Goudé SERCOM/APR NEW
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The Hague - On 15 January 2019, Trial Chamber I (the Chamber) of the International Criminal Court (ICC) decided, in a majority decision, to acquit Mr. Laurent Gbagbo and Mr. Charles Blé Goudé of charges of crimes against humanity.

The ICC Prosecutor had alleged that the former Côte d’Ivoire president, Mr. Gbagbo, and members of his inner circle, including former youth leader Mr. Blé Goudé, created and executed a common plan to hold on to power after losing the country's 2010 presidential election by encouraging attacks against supporters of then rival candidate, Mr. Alassane Ouattara. Mr. Gbagbo and Mr. Blé Goudé were each charged with four counts of crimes against humanity in this context.  

The majority of judges, Presiding Judge Cuno Tarfusser and Judge Geoffrey Henderson, concluded in an oral decision that the Prosecutor failed to satisfy the burden of proof in accordance with Article 66 of the Rome Statute. In particular, they reasoned that the Office of the Prosecutor (OTP) did not meet the threshold of evidence in relation to the alleged crimes, including the failure to demonstrate a common plan to keep Mr. Gbagbo in power and a deliberate policy of attacking civilian populations. In the judges’ opinion, the Prosecution additionally failed to prove that the defendants gave public speeches inciting the alleged crimes.

Ms. Fanta Doumbia, Executive Coordinator of the Ivorian national coalition for the ICC responded, "This acquittal must not make us forget the thousands of victims of the Ivorian crisis who are in need of justice and reparations.” Mr. Ali Ouattara, President of the Board of the Ivorian Coalition added, "The ICC would benefit from not giving false hope to victims of serious crimes. It must give victims confidence through credible investigations and decisions that take their interest into account. Moreover, it must also investigate all the parties involved in the Ivorian conflict so that today's impunity does not become the crime of tomorrow.”

In commenting the acquittal, Journalists For Justice stressed the “disappointment among the victims after the Gbagbo/Blé Goudé acquittal. But nobody denies that terrible things happened in Ivory Coast during the post-election violence in 2010/11. The judges reminded the audience of that in their acquittal decision. But the crucial point is that the Prosecution presented an exceptionally weak case, as presiding judge Cuno Tarfusser stated, that did not establish a sufficient link relevant under international criminal law between the atrocities and the accused: No evidence of a common plan to attack civilians in a widespread or systematic manner, as part of a state or organisational policy. These are the high evidentiary thresholds within the Rome Statute system for a conviction for crimes against humanity. As the defence stated after the acquittal: This is a victory for the ICC, because it has been shown that the court has independent and professional judges who look at the facts.”

In her dissenting written opinion, Judge Herrera Carbuccia disagreed with the decision of the majority, expressing her view that the evidence provided by the Prosecutor was sufficient for "a reasonable Trial Chamber to convict the accused". She went on to challenge the majority’s issuing of the final decision orally, in place of a written decision with a full reasoning as to the basis of their judgement. Judge Carbuccia asserted that such an oral summary by the majority is contrary to Article 74(5) of the Rome Statute, which obliges judges to issue a “reasoned statement” of the Chamber’s findings in writing.

The Coordinator of the African Network on International Criminal Justice (ANICJ), Mr Chino Obiagwu, expressed his concerns in relation to the redress for victims of crimes against humanity in Côte d'Ivoire: “The Rome Statute system under articles 75 (1) ties reparations to convictions and once a defendant is discharged and acquitted of crimes, one may wonder the fate of victims. The establishment, strengthening and expansion of national funds for compensation to victims should be encouraged. Where appropriate, other bilateral and multilateral funds may also be established for this purpose.”

“…Our investigations in the Côte d'Ivoire continue. We remain committed to our mandate under the Rome Statute and will continue to honour it,” said ICC Prosecutor, Ms. Fatou Bensouda, in a statement. “As we do, my Office is vigorously dedicated to doing its part, with the plight of the victims in Côte d'Ivoire foremost and always on our minds."

As a result of the majority decision, the Chamber ordered the immediate release of Mr. Gbagbo and Mr. Blé Goudé. In response, the OTP filed an urgent request asking the Chamber to suspend the release order, stating that “it intends to appeal the full and detailed reasoned decision”, and alleging exceptional circumstances that would justify the continued detention of the defendants pending further Court proceedings.

In explaining the exceptional circumstances, the Prosecution asserted that there is “a concrete risk that the accused will not appear for the continuation of the trial” should an appeal of the decision be successful, underscoring the access of Mr. Gbagbo and Mr. Blé Goudé to sufficient means and support to avoid reappearing before the Court. The request additionally highlights the absence of a fully reasoned statement by the majority on their decision.

The legal representative of victims echoed the OTP, demanding the imposition of strict conditions in the case of an immediate release with the aim of reducing the flight risk of Mr. Gbagbo and Mr. Blé Goudé, such as their transfer to a State Party other than Côte d’Ivoire.

In a statement released after the acquittals, Ms. Paolina Massidda, the counsel representing victims in the case, expressed the deep disappointment of victims at the decision. “They participated in the trial in the hope that an impartial tribunal could someday bringing justice. This hope is vain today.”

On 16 January 2019, in another majority decision, the Chamber rejected the request for continued detention of the Prosecutor and legal representative of victims, stating that it was not convinced that the alleged circumstances could be considered exceptional. The majority of Judges demanded written and signed reassurances that the defendants and their counsels will appear before the Court if so requested, and decided to release Mr. Gbagbo and Mr. Blé Goudé.

The Office of the Prosecutor then filed an appeal against the decision of the Chamber to release Mr. Gbagbo and Mr. Blé Goudé, requesting the Appeals Chamber to suspend its effect. On 18 January 2019, the Appeals Chamber, by majority, suspended the Trial Chamber I’s decision to release Mr Gbagbo and Mr Blé Goudé, scheduled a hearing on 1 February 2019 and ordered the defendants to return to detention.

Africa Legal Aid (AFLA), in light of the decision, defended the judicial independence of the Court highlighting that “these developments should prove to skeptics that the ICC is a serious Court composed of independent judges, who may disagree with their fellow judges. The ICC is not a kangaroo court that is just there to convict.”

Ms. Amal Nassar, FIDH Representative to the ICC stated that “the ICC as a whole should learn from its difficulties in convicting (former) political leaders bearing the highest responsibility in the perpetration of crimes and revise adequately its policies.”

In its judgement of 1 February 2019, the Appeals Chamber ordered the conditional release of Mr. Gbagbo and Mr. Blé Goudé, who are to be released to a State willing to accept them on its territory and willing and able to enforce the conditions outlined in the decision. The Appeals Chamber imposed on Mr. Gbagbo and Mr. Blé Goudé to surrender their identity documents, to refrain from contacting witnesses in the case and from making public statements, and strict limitations on their freedom of movement. Mr. Peter Lewis, Registrar of the Court, has been tasked with identifying and entering into arrangements with States that can fulfill this role. On 2 February, Belgium made public that it has agreed to host Mr. Gbagbo, while Mr. Blé Goudé is still waiting for a State to manifest the intention to accept him.