Laurent Gbagbo acquittal by the International Criminal Court of crimes against humanity raises the question: what will it take to secure a conviction at the ICC? In this article, Yvonne McDermott shows that the solution lies in addressing deeper problems around the with the collection and presentation of evidence by the ICC’s Office of the Prosecutor.
The International Criminal Court’s (ICC) acquittal of former Cote d’Ivoire president, Laurent Gbagbo, and his youth militia leader, Charles Blé Goudé, on charges of crimes against humanity, has been described as a “blow” for the court.
They were both charged with allegedly orchestrating the murder, rape, inhumane acts and persecution against opponents between December 2010 and April 2011 in Côte d’Ivoire. This, after Gbagbo lost the November 2010 presidential election. Over 3,000 people died in the conflict. They had been on trial for the past three years.
To be sure, their acquittal leaves the ICC with the unusual distinction of being the only international criminal tribunal to have acquitted more people of the core crimes of genocide, war crimes and crimes against humanity than it has convicted. It has convicted three individuals for these core crimes and acquitted four. Charges against a further eight defendants have been dropped at various stages in proceedings, largely owing to a lack of evidence.
The acquittal also marks the latest in a series of cases against high-profile heads of state that have not progressed beyond the prosecution’s presentation of its case. The prosecutor withdrew the charges against Kenyan President Uhuru Kenyatta in 2014, alleging that witness intimidation had hampered the collection of relevant evidence.
Meanwhile, a warrant of arrest against Sudan’s President Omar al-Bashir for crimes against humanity has been active for almost a decade without any realistic prospect of his transfer to the court.
But, rather than being a taint on the court’s external reputation, Gbagbo’s acquittal should be seen for what it is – a vindication of the ICC as an independent and impartial judicial institution.
While we are still waiting for a full written decision, the acquittal highlights an important point. It shows that the ICC’s judges are not susceptible to external expectations of conviction, and will instead weigh up each individual case on its merits and the strength of its evidence.
This reflects the principle, enunciated by Chief Prosecutor Robert H. Jackson at Nuremberg, that “to pass these defendants a poisoned chalice is to put it to our own lips as well.”
The job of the ICC
The expectations on the ICC are enormous – restoring peace and security, bringing justice and reparations to victims, and deterring future offenders are amongst its many oft-cited goals. But it is, at the end of the day, a criminal court. As such, the only obligation on its judges is to dispense justice in a way that is fair to the accused.
Judges Tarfusser and Henderson, who formed the majority in the case, found that the prosecution had failed to put forward enough evidence to prove certain key elements of the crimes charged. These included the existence of a policy to attack a civilian population (a key element of crimes against humanity). Another is the existence of a “common plan” to keep Gbagbo in power by committing crimes against civilians.
In addition, the majority found that the prosecution failed to show that the speeches made by either of the defendants contributed to the crimes committed in the post-election violence. As a result of these deficiencies in the prosecution case, the chamber concluded that there was no need for the defence to present any evidence to refute the prosecution’s allegations.
Judge Herrera Carbuccia, in her dissenting opinion, argued that the prosecutor, like the accused, is also entitled to the right to a fair trial, and that the majority’s approach violated that right. As I have argued elsewhere, this is a dangerous approach because it allows for defendants’ rights to be balanced against competing demands. This includes nebulous concepts such as “victims’ right to seek justice”, as cited in Judge Carbuccia’s dissent.
The accused’s right to a fair trial must be at the centre of every criminal trial. And, where the judges feel (as was the case for the majority in Gbagbo’s case) that the evidence presented could not reasonably sustain a conviction, then the only ethical thing to do is to acquit and release the defendant.
The acquittal does, however, highlight some deeper problems around the collection and presentation of evidence by the ICC’s Office of the Prosecutor. Early in the Gbagbo case, the prosecution was scolded for its over-reliance on NGO reports, UN reports and news articles.
In February 2018, after the last prosecution witness had testified, the prosecutor was invited to submit a trial brief, clarifying the narrative of the case against Gbagbo and Blé Goudé, and specifically linking the evidence presented to the charges. In hindsight, this order showed how the chamber was unclear, even at that late stage, on how the evidence presented purportedly supported the crimes charged.
Nor did the majority of the trial chamber help itself by declining to rule on the admissibility of evidence until the close of trial. This meant that, instead of excluding evidence that seemed to be less likely to prove the charges at the time that it was presented, the chamber allowed all evidence to be considered “submitted” before it. Its admissibility was to be decided later, once all evidence had been received.
As Judge Henderson consistently noted in his dissenting opinions on this matter, that this approach simply saw the chamber “kicking the can down the road” by deferring these assessments of the evidence. It allowed the case record to get flooded by evidence that we now know the chamber found less than convincing or relevant to the charges.
Need for reform
The Gbagbo acquittal, then, should lead to a serious rethink in the ICC’s Office of the Prosecutor on how it resources and carries out investigations, the type of evidence it needs to prove its cases, and how it presents the narrative of its cases. In particular, it shows a need for the prosecution to link the charges more explicitly to the evidence presented.
It should also give cause for reflection on the trial chambers’ approach to the admissibility of evidence. It is clear that major reforms are needed. But, these reforms would strengthen the ICC and safeguard its reputation as a credible judicial institution, capable of dispensing justice in a fair and impartial manner.