The Latest Crisis of the ICC: The Acquittal of Laurent

Gbagbo
opiniojuris.org/2019/03/28/the-latest-crisis-of-the-icc-the-acquittal-of-laurent-gbagbo/

March 28,
2019

[Mark Ellis is Executive Director of the International Bar Association, London.]

On March 24, 2016, the International Criminal Tribunal for the former Yugoslavia (“ICTY”)
convicted Radovan Karadžić of genocide, crimes against humanity, and violations of the
laws or customs of war. Almost exactly three years later, on March 20, 2019, the Appeals
Chamber of the International Residual Mechanism for Criminal Tribunals upheld his
conviction and even increased his sentence from 40 years to life in prison.

Since its establishment over two decades ago, the ICTY has successfully indicted 161
individuals. Of these indictees, ninety have been convicted and eighteen acquitted.
History will judge the ICTY as a success in bringing to account those who committed
some of the most heinous crimes during the war in the former Yugoslavia. However, the
ICTY’s permanent successor tribunal – the International Criminal Court (“ICC”) – is
struggling to sustain any perceptible notion of success. The Court has convicted fewer
than ten people (three for international crimes) and acquitted four since its
establishment seventeen years ago. The recent acquittal of former President of the Ivory
Coast, Laurent Gbagbo, sheds further light on some of the shortcomings of the ICC.

In January of this year, the ICC acquitted Gbagbo of all charges. It was the first time a
former Head of State had ever gone to trial before the ICC. The case against Kenya’s
President Uhuru Kenyatta was stymied by Kenya’s unwillingness to cooperate with the
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Court. Gbagbo was also the second highest profile acquittal, after Bemba, in the Court’s
history. There are many signs that the struggling Court’s impact has fallen short of
expectations. But the Gbagbo acquittal is particularly damaging. It sheds light on either
the inability of the Office of the Prosecutor (OTP) to successfully bring a case against a
high profile indictee, or the failure of the judges to fully comprehend the OTP’s case.
Neither effect is promising for the Court.

Gbagbo had been detained for nearly eight years, accused of crimes against humanity
committed during the violence that followed his defeat in the 2010 Ivory Coast
presidential elections. As Gbagbo refused to step down, forces loyal to him attacked
civilians in the city of Abidjan. Specifically targeting communities supportive of the newly
elected president, Alassane Ouattara, pro-Gbagbo forces killed more than 3,000 civilians
and raped 150 women and girls. They ruthlessly attacked demonstrators against the
Gbagbo government-controlled state television station RTI (Radiodiffusion Télévision
Ivoirienne), which was inciting violence against pro-Ouattara groups. The attacks
appeared well-organized, widespread, and systematic, giving rise to allegations that
Gbagbo and his inner circle were giving the orders.

After roughly four months of bloodshed, pro-Ouattara forces, with UN and French
assistance, captured Gbagbo and transferred him to The Hague on November 30, 2011.

Gbagbo’s trial might have been groundbreaking. As the OTP confidently stated: “Leaders
must understand that violence is no longer an option to retain or gain power. The time of
impunity for these crimes is over.”

However, the anticipation of justice quickly evaporated at trial. Before the Defense even
presented its case, the charges were dropped. The Prosecutor had presented 82
witnesses during 231 days of court hearings, and submitted thousands of evidentiary
documents, yet the judges found insufficient evidence to prove that Gbagbo was directly
responsible for the violence.

This monumental defeat for the OTP is reminiscent of the 2018 acquittal of former Vice-
President of the Democratic Republic of the Congo, Jean-Pierre Bemba Gombo. Bemba
was convicted of war crimes and crimes against humanity, but the conviction was
appealed and overturned. The Appeals Chamber declared that certain crimes for which
Bemba was convicted fell outside the scope of facts and circumstances described in the
charging instrument and, consequently, he was to be acquitted of the remaining charges.
For the victims it was a devastating ruling.

While these high-profile acquittals can be seen as a setback for justice, they also highlight
concerns about the Court’s viability. Despite important achievements, the ICC remains in
jeopardy.

Exactly 124 countries are State Parties to the Court and, subsequently, consent to its
jurisdiction. However, some of the most important and populous states – the United
States, China, India, Russia, Israel and Indonesia have yet to cede to the Court’s
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jurisdiction. Three of these countries are permanent (P5) members of the UN Security
Council.

The United States has been particularly disparaging of the Court. While U.S. objections
have been clear for years, the current National Security Advisor, John Bolton, has used
incendiary rhetoric to declare the ICC “illegitimate” and threatened the arrest of Court
personnel if it pursues criminal charges against U.S. military and intelligence staff for
alleged war crimes committed in Afghanistan. Most recently, the United States has
stated that it will revoke or deny visas to members of the ICC.

Without full support of the Security Council, the ICC’s authority will continue to be
challenged. The Security Council has been deaf to the Court’s request for assistance in
enforcing arrest warrants. Sudan is a telling example. Despite an outstanding ICC arrest
warrant for Sudanese President Omar Al-Bashir, thirty-three countries to date have
refused to enforce it. Of these, ten are State Parties to the ICC. The Security Council has
done absolutely nothing to sanction non-cooperation, despite UNSC Resolution 1593,
which urges all states to cooperate with the ICC in relation to the Sudan situation. The
result is that Al-Bashir has travelled freely, without consequence, for almost ten years.

Another challenge to the ICC’s legitimacy comes from within. During the past five years,
the Philippines, Burundi and The Gambia have initiated steps to withdraw from the ICC
(The Gambia recently reversed its position). Others, notably South Africa, have
contemplated the same. The African Union (“AU”) has forcefully criticised the Court for a
disproportionate focus on prosecutions against Africans. Considering that the largest
number of State Parties is from Africa, the AU’s ongoing call for state withdrawal is
unsettling, at best. Sir Geoffrey Nice QC, the British jurist who prosecuted Slobodan
Milosevic at the ICTY, admitted that “[i]f the African Union pulled out en bloc, it would be
terminal for the court. The court would die.”

Finally, the ICC’s annual budget of over $170 million raises legitimate arguments that
money may be better spent on rebuilding post-conflict societies. Since its establishment,
the ICC has convicted fewer than ten people and acquitted four, all at a cost well in
excess of $1 billion. The Court doesn’t help itself when its judges, already earning a tax-
free six-figure salary for less than full time docket work, are demanding a retroactive 26%
raise and increase in pensions.

Already there is movement among some states to ensure Head of State impunity in all
ICC cases. Gbagbo’s acquittal will bolster this position. This should provoke deep self-
examination by the OTP, which drives the Court’s agenda, on its investigation and
charging strategies, and for the Court a renewed commitment to its founding principles,
which today fall short of expectations. Justice and victims demand no less.

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