The Significance of the ICC Case of Cote d’Ivoire’s Former Leader Isn’t His Acquittal. It’s His Arrest.

Written by Tyler Jager

On January 15, 2019, the typically quiet walls of the International Criminal Court were punctuated by whoops of victory. Laurent Gbagbo, the former president of Cote d’Ivoire from 2000-2011, had just been cleared of all charges by the International Criminal Court (ICC).

The charges were egregious: war crimes and crimes against humanity committed during the violence after the 2011 elections in Cote d’Ivoire, which Gbagbo lost to the current president, Alassane Ouattara. Across Abidjan, Cote d’Ivoire’s capital, as well as The Hague, pro-Gbagbo supporters flooded the streets, crying out, popping champagne, and awaiting his release.[1]

The 2011 elections had been a disaster for Cote d’Ivoire. Despite Ouattara’s widely recognized victory, then-President Gbagbo refused to step down. Amid claims of fraud, the post-election violence resulted in over 3,000 civilian deaths.[2] The Ivorian Armed Forces, with the full authority of President Gbagbo, targeted civilians on the basis of political, ethnic, and religious affiliation. Over 150 women were raped. Eventually, however, Gbagbo was captured by the opposition, and with international support, especially from France, extradited to the International Criminal Court.

News media from the United States and other Western countries has been quick to condemn Gbagbo’s acquittal, citing ICC dysfunction and failure to administer justice. The international community was said to “react with shock” to the news; the decision was described as “loss” for the ICC, a “failure.”[3][4]

But Western media outlets are, by and large, missing a part of the story. Any onlooker who had followed the entire case would not have “reacted with shock” to Gbagbo’s acquittal. A New York Times article describes the evidence of the prosecution as “circumstantial,” and prosecutors reportedly “failed to gather documentation that directly implicated the defendants.”[5] This reflected the statement of the ICC itself, which similarly cited a lack of evidence indicating the former president’s guilt.[6] By any modern legal metric of guilt beyond a reasonable doubt, the ICC behaved exactly in the way one would expect. A case of human rights abuses and war crimes in a country did not end in a paper trail to its leader, according to the evidence available to judges. That is not to say Gbagbo is innocent, nor that such abuses were not committed; only that the connection between crime and perpetrator was not sufficient enough for conviction.

Nor is it to say that the story of Laurent Gbagbo is not significant. In fact, the collision of Laurent Gbagbo with the International Criminal Court is significant in the extreme. The story here, however, is not Gbagbo’s trial. It is his arrest.

President Gbagbo’s apprehension and extradition display at least two systemic weaknesses of the International Criminal Court as an institution. The first is the influence of domestic politics. Before the trial of President Gbagbo, the ICC had been criticized for being a judicial body that “only prosecutes rebels”[7]. The past record of the ICC reflects this criticism: Uhuru Kenyatta, President of Kenya, and several of his military commanders were indicted for post-election violence in 2007, and then charges were dismissed—even before the defendants could come to The Hague. The same result occurred for former DRC Vice President Jean-Pierre Bemba, who allegedly committed war crimes of murder, pillaging, and rape.[8] The vast majority of individuals who have been indicted, and subsequently convicted, are rebel leaders from the LRA or groups in the DRC.[9] That’s why Gbagbo’s indictment, extradition, and detention was such a watershed moment for the Court.

But was Gbagbo’s case so different? While he was indeed a former head of state, Gbagbo was only removed from power due to a political rival’s use of force. In other words, the only reason the ICC tried Gbagbo at all was a result of his fortune in battle. Even more troubling, numerous sources report pro-Ouattara forces committed crimes just as horrific as those in the Gbagbo camp. According to Human Rights Watch, a Ouattara-aligned militia under the command of his Prime Minister “massacred hundreds of ethnic Guéré civilians perceived as supporting Gbagbo.”[10] The militias raped dozens of women. They abducted children to become child soldiers. A strong case can be made that Ouattara deserves indictment in front of the ICC just as much as Gbagbo. The only reason he didn’t receive it is his victory.

This is what I call the “opposition problem” of the ICC. If two politicians in a country vie for power by violent means, and are of relatively equal guilt, only a loser stands a chance of trial under the International Criminal Court, for the simple reason that a winner would never extradite themselves. The winner doesn’t even have to think about extradition; they can simply remove their country as a party to the Rome Statute of the ICC. An example: Rodrigo Duterte, the notoriously brutal leader of the Philippines, has withdrawn his nation from the Rome Statute, a decision which goes into effect this March.[11]

The other weakness of the ICC displayed by Gbagbo’s arrest is the influence of powerful states. A common critique of the ICC, the one preferred by China, India, and many African nations, is that it’s simply an instrument for status quo powers—that is, Western powers—to exercise their authority. It is difficult to counter this argument when one looks at the list of people indicted by the ICC and sees only one continent, Africa, represented. Of course, that is mostly a byproduct of which countries have ratified the Rome Statute—the United States has withdrawn, and most of Asia and the Middle East have not ratified either.

However, powerful states often intervene to favor one side or another in an foreign conflict where war crimes are being committed. In Cote d’Ivoire, for example, the military intervention of France was crucial for Ouattara’s success in post-election violence. Moreover, French diplomats personally intervened at the Office of the Prosecutor to ensure that Gbagbo would be detained.[12] To what extent is his appearance in the Hague a demonstration not of justice, but of French preferences?  The chief question for the ICC, therefore, is not what the result of trial should be. A trial resulting in acquittal is not necessarily an omen of injustice. The question is who gets tried in the first place. As shown in Laurent Gbagbo’s case, the answer to that question has little to do with justice and everything to do with power.


Endnotes

[1] Searcey, Dionne, and Palko Karasz. “Laurent Gbagbo, Former Ivory Coast Leader, Acquitted of …” NYTimes.com. January 15, 2019.

[2] “Cote D’Ivoire’s Forgotten Victims.” Human Rights Watch. March 05, 2018.

[3] Carlson, Kerstin. “Gbagbo’s Acquittal Suggests Confusion and Dysfunction at the ICC.” The Conversation. January 23, 2019.

[4] Holligan, Anna. “Laurent Gbagbo Case: Ivory Coast Leader’s Acquittal Rattles ICC Foundations.” BBC News. January 15, 2019.

[5] Searcey, Dionne, and Palko Karasz. “Laurent Gbagbo, Former Ivory Coast Leader, Acquitted of …”

[6] “ICC Trial Chamber I Acquits Laurent Gbagbo and Charles Blé Goudé from All Charges.” International Criminal Court. January 15, 2019.

[7]Kersten, Mark. “Some Quick Reflections on the Gbagbo Acquittal at the ICC.” Justice in Conflict. January 18, 2019.

[8] Ibid.

[9] “​​​​​​​​​​​​​​​​​​​​​​​​​Court Records and Transcripts.” International Criminal Court.

[10] “Côte D’Ivoire: Ouattara Forces Kill, Rape Civilians During Offensive.” Human Rights Watch. April 17, 2015.

[11] Gita, Ruth Abbey. “Duterte Withdraws from ICC ‘effective Immediately’.” Sunstar Philippines. March 14, 2018.

[12] Bergsmo, Morten. “La CPI, L’affaire Gbagbo Et Le Rôle De La France.” Le Monde.fr. January 18, 2019.


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