The worst appears to be over. The detention of Laurent Gbagbo yesterday by French forces, (or was it Alassane Ouattara troops?), appears to have closed an ugly, brutal and costly chapter of Ivorian history.
Over the past few days there has been a buzz in the air about the possibility of the International Criminal Court investigating possible crimes against humanity in the Ivory Coast. The ICC’s Prosecutor, Luis Moreno-Ocampo, has expressed a desire to open an investigation and there’s a sense that it isn’t a matter of whether he will initiate an investigation, but when he will.
In line with the remarkable spread of the use of accountability and transitional justice language, President Ouattara’s camp has expressed its desire to create a Truth and Reconciliation Commission and to put Gbagbo on trial. Ivory Coasts’ representative to the UN declared that Gbagbo will be brought to justice:
The question is whether the international community, and the ICC in particular, should sit back and see whether Ouattara’s government can and will investigate and prosecute those responsible for atrocities or whether it should intervene now.
Skeptics of the ICC’s involvement will argue that the Court has no place in intervening in Ivory Coast, at least not until it is obvious that the new government refuses to bring individuals responsible for crimes to account. They will sensibly argue that Ivory Coast should have the “first shot” at establishing the rule of law and respect for democracy. Criminal prosecutions, after all, are most fruitful and effective when conducted locally.
I largely agree with this view and agree that Ivory Coast should have primacy over an investigation and trial. However, the ICC’s involvement would not undermine the capacity for Ouattara to initiate credible and legitimate trials. On the contrary, it might provide an impetus to do so.
The situation in Ivory Coast remains incredibly sensitive. It is far from a foregone conclusion that the country will not return to violence. While the hope of weathering the storm and returning to calm has increased, the country is still in turbulent waters. As one observer accurately described it: “whether this country will be able to bounce back from the depths of violence, propaganda and hate that he dragged it into is anything but certain.” A state whose streets have been littered with the bodies of victims does not transform to peace, security and stability overnight.
The delicacy of the current situation is further complicated by the sharp divisions that run through the country and which may provide fodder for future violent conflict. Indeed, the French denials that their special forces were responsible for detaining Gbagbo and their adamant assurances that it was Ivorian forces which nabbed him, are intended to prevent any provocation of the deep chasm that divides Gbagbo’s and Ouattara’s supporters.
Further complicating the situation is that troops on both sides of the conflict have allegedly committed atrocities. Ivory Coast is not a black-and-white story of bad guys committing atrocities (Gbagbo forces) against good guys fighting for democracy (Ouatttara forces). It is clear that Gbagbo’s troops committed crimes that must be investigated and as one Human Rights Watch (HRW) official argued,“Gbagbo has been credibly implicated in crimes against humanity and other atrocities for which he should be held to account.” However, evidence suggests that Ouattara’s forces may also be responsible for human rights abuses.
A recent report by HRW suggested that Ouattara’s forces killed hundreds of civilians, raped more than twenty alleged Gbagbo supporters, and burned at least 10 villages in Côte d’Ivoire’s far western region. The UN has expressed fears that Gbagbo supporters could be the target of retributive violence. Further, as Phil Clark writes in his lucid account of Ouattara’s and Gbagbo’s history, despite having the support and backing of most of the international community, Ouattara’s history gives reason to “question his democratic credentials and his ability to ensure stable governance.”
There is a need to refrain from victor’s justice on the part of Ouattara’s camp, as well as the international community, by ensuring the investigation of all alleged perpetrators, regardless of their affiliation in the conflict, are brought to justice.
As I argued before, if the Prosecutor is seeking to initiate an investigation in Ivory Coast, he should not hesitate to do so through his proprio motu powers. Doing so would allow for the Court to both be and appear impartial and even-handed. There is also an argument to be made that the ICC represents the best mechanism to ensure that alleged crimes on both sides are investigated and prosecuted.
Even the most committed stance to fairness and impartiality by this Ivorian government, combined with a willingness to investigate and prosecute crimes by forces loyal to Ouattara may not be convincing to citizens loyal to Gbagbo. And remember, 46% of Ivorians voted for Gbagbo. That’s nothing to scoff at. The ICC could lend its international legitimacy and importantly, its distance from the conflict to guarantee accountability and justice in Ivory Coast.
Of course, as noted above, critics will point to the inherent problems of distant justice and claim that accountability should be achieved locally. But in cases like the Ivory Coast, where both sides may be implicated, abstracting the processes of justice may ultimately be more beneficial and just than the immediate creation of a local tribunal.
Critically, having the ICC investigate alleged crimes does not preclude Ivory Coast from investigating and prosecuting the individuals most responsible for atrocities. Indeed, it might provide an incentive for them to so. If the new Ivorian government responds to the Court’s involvement by demonstrating a concrete willingness and ability to set up a credible and legitimate tribunal to investigate all crimes by all sides of the conflict, the Prosecutor would not have to proceed with his investigation. In fact, the Prosecutor would be unable to do so under the complementarity regime which underpins the Court and dictates that the ICC can only investigate and prosecute individuals of states which are “unwilling or unable” to do so themselves. Should this occur, would it not be a remarkable victory both for the Court in instigating effective local justice as well as for the citizens of Ivory Coast?
The UN has pledged to help Ivory Coast rebuild the rule of law. UN Secretary General Ban Ki-moon declared that “[w]e have to help them to restore stability, rule of law, and address all humanitarian situations.” An investigation by the ICC into alleged crimes against humanity would be a good place to start.
I should have mentioned this before, but note that while Ivory Coast is not a member-state of the Court, the ICC has had jurisdiction over the situation in the country since 1 October 2003. The Ivory Coast has remained under preliminary investigation by the ICC since 2005.
Just a few thoughts in a more elaborate fashion than what twitter allows…
1) I agree with your (and KJH’s) irritation with the Prosecutor. The process will only be marginally faster with a referral than with a proprio motu investigation.
2) Beyond Ocampo’s shenanigans, however, I’m a bit skeptical about ICC involvement in Ivory Coast right now. a) In general, I think the local solution should always be preferred on principle, as you said yourself b) This is a perfect situation where the human rights focus on a political situation can lead to stalemate. Because, as I said on my blog, if if does appear that Outtara condoned the crimes committed by his supporters and if the international community is to be consistent with its current trend, it should call for at the very least an investigation into him as well, which, if it leads to his indictment, would create an unwelcome political vaccum in the country. Of course, the ICC could pull a “Bemba” on us, by going after a rebel leader, but leaving Ouattara out of it, but that would not look good I would think c) putting Outtara aside, I see your point about Victor’s justice, of course, but I’m a bit skeptical about the reconciliation discourse as well. I think it’s unrealistic at this stage. You cannot expect such a fractured society to mend after a bloody, and deeply embedded, civil conflict. d) in the same way, you can’t expect a fair accountability process to be initiated from a short-term perspective. Even if the ICC is waiting in the shadows, it should be a little patient before considering that Ivory Coast has failed. More generally on this, I think this is one problem with how complementarity functions today, with its extremely case-specific focus . Some have laughed the Kenyan admissibility challenge out of court. It is certainly weak from a purely legal point of view, in light of current ICC practice. But I find the expectations too high on how fast we expect prosecutions. The ICC has been functioning for 9 years now and has not completed a single trial! What is the standard of expediency in that case for State parties? e) which brings me to my last point: from the ICC’s perspective, I’m not sure it’s not getting involved in too many situations in relation to its logistical capacity and its budget.
I don’t have the perfect solution, of course, and it’s certainly frustrating from a human rights angle, but I think that we have too many expectations for how a society mends after conflict, expectations which are not borne out by any serious historical/sociological analysis of nation-building in the past.
Pingback: Que faire de Laurent Gbagbo ? - Esprit de justice - Blog LeMonde.fr
In line with this discussion, maybe you (and whoever else wants to join in) can help me out with research question.
I’ve been working on an article on the anti-politics of the ICC. One of my angles is that the neutrality, and thus legitimacy, of the ICC would be best ensured by more cases that are initiated proprio motu than referrals from States Parties and the Security Council. The latter two scenarios, many would argue, leaves the Court vulnerable to politicization and instrumentalization. I can elaborate if necessary.
As we know, there’s only been one case (Kenya) that was initiated by the prosecutor. I think the argument that when the Court uses this mechanism to exercise its jurisdiction encourages the perception of neutrality and independence is somewhat self-evident, as cases are selected based on sufficient gravity and not political considerations. Others have questioned my assumptions.
Very interesting comments from both – thanks for sharing your thoughts.
@Dov – I want to pick up on your second to last point about patience, expediency and expectations. Do you know what the guidelines or customary practice that the ICC bases its complementarity decisions on are? I would suppose it’s too early to have too much to base customary practice on but it would be interesting to see how the OTP handles these issues of complementarity and whether/how it views its work within time-frames. The issue of expectations is particularly fascinating and, I think, should be studied more closely. ICL creates expectations on states regarding their behaviour (such as this case) while also raising the expectations of victims that they will see justice done. That’s a tough combo any way you shake it.
@Alana – very, very interesting. I think you would get a lot of support for your argument from the human rights civil society groups and Like-Minded government negotiators from the Rome negotiations. My understanding was that they were vehement about proprio motu being within the remit of the Prosecutor’s power precisely because they believe that it provides more legitimacy to investigations while tethering the Court to the UN Security Council would politicize it. I believe a compromise was struck that balanced the interests of the Security Council states with those actors/states supporting an independent Prosecutor with proprio motu powers.
That being said, I’m not sure proprio motu is always the way to go. When there is concerted, international focus and action on a state, like in the case of Libya, then I think it may be better for the UN Security Council to refer the situation to the ICC as a “vote of confidence”. The same might be said for Darfur. The legitimacy of the Court’s investigations may actually be enhanced as part of a broader effort to restore peace/stability and end violence. The other hitches in these cases, of course, is that neither are ICC member states.
As for state referrals, it would be interesting to get to the bottom of why the OTP was so vehement about ensuring its first situations were referred to the Court by member-states. The Prosecutor clearly valued a conception of legitimacy that he would get from state referrals more than his proprio motu powers. Further, while this is just me speculating, I am not convinced the Prosecutor would have opened an investigation into Kenya proprio motu had it not been for the participation of Kofi Annan and the credibility he brought the process.
I do have a problem with an assumption that your post makes: that when the ICC makes decisions regarding whether or not to open cases proprio motu it can/does do so apolitically. Initiating investigations proprio motu may appear less explicitly political (which surely is important) but may nevertheless take into account political considerations.
Very interesting work though – I would love to read/hear more about it.