Unless there are any delays, and let’s face there are almost always delays, the trial of Côte d’Ivoire’s former First Lady will begin at the end of this month. Simone Gbagbo faces charges of crimes against humanity as a result of her involvement in the 2010/11 post-election violence, an episode of unrest that resulted in her husband and former President, Laurent Gbagbo, being deposed from power. At the same time, Simone Gbagbo faces allegations of crimes against humanity at the International Criminal Court (ICC), where an arrest warrant was issued for her in February 2012. The Court’s Judges — along with advocates of the ICC — have insisted that Gbagbo be surrendered to The Hague. But with a much larger battle between the current government of Alassane Ouattara and the ICC on the horizon, it seems unwise for the Court to go to battle over the ‘Iron Lady’.
This isn’t the first time that Simone Gbagbo has faced charges stemming from the 2010/11 violence in Côte d’Ivoire. In March 2015, Gbagbo was found guilty and sentenced to twenty years in prison for a crop of crimes, including undermine state security forming and organizing armed gangs, and disturbing the peace. Ivorian officials subsequently asked the ICC to back off in its efforts to force the surrender of Gbagbo to the Court. They had issued an admissibility challenge claiming that, because they were willing and able to prosecute Gbagbo domestically, the Court, under the principle of complementarity, had to allow the Ivorian government to prosecute Gbagbo in Côte d’Ivoire. Dissatisfied that Gbagbo had not been prosecuted for the same crimes for which she was indicted by the ICC, the Court’s judges rejected Côte d’Ivoire’s admissibility challenge and insisted that she be surrendered to the Court. The Ivorian government subsequently initiated new proceedings against the former Ivorian first lady for crimes against humanity — the same category of crimes for which the ICC itself targeted Gbagbo.
This should be a good story for the ICC. As its senior-most officials regularly insist, the ICC is a “court of last resort” and the institution’s ultimate goal is to galvanize governments to prosecute international crimes themselves, rather than relying on international tribunals. This policy of “positive complementarity” has been heralded by proponents of the ICC as a means to promote the global rule of law and to bring justice for international closer to victims and survivors of mass atrocities. And this seems to be exactly what happened in Côte d’Ivoire: as a result of the ICC’s prodding, the government moved to prosecute Gbagbo not only for domestic crimes but for crimes against humanity.
Still, just this week, Amnesty International insisted that Côte d’Ivoire surrender Gbagbo to the ICC. The Gaëtan Mootoo, West Africa researcher for Amnesty International, declared that: “Unless Côte d’Ivoire applies to the International Criminal Court to again challenge the admissibility of her case they must immediately surrender Simone Gbagbo to the ICC.” Procedurally, this is understandable; Ivorian authorities should issue a new admissibility challenge citing the new charges of crimes against humanity levied against Gbagbo. But there are good arguments that the Court, and its proponents, shouldn’t press Côte d’Ivoire — especially now.
Kevin Jon Heller took this issue up even before Gbagbo faced charges of crimes against humanity, comparing the severity of the Gbagbo’s sentence to that of individuals previously convicted at the ICC:
[W]hat would the ICC gain by insisting that Cote d’Ivoire surrender Gbagbo to the Court to face a second prosecution? After all, 20 years is hardly an insignificant sentence — five years longer than [Thomas] Lubanga’s, and eight years longer than [Germain] Katanga’s. Should the ICC really waste precious (and overstretched) OTP resources to obtain another conviction of Gbagbo, even though — if the past sentencing practice by international tribunals is any guide — she is very unlikely to receive a longer sentence from the ICC than she has already received from Cote d’Ivoire?
My answer is simple: the ICC would gain nothing, so it shouldn’t.
In a timely and important article on the subject, Heller has also argued for what he calls “radical complementarity”, whereby “as long as a state is making a genuine effort to bring a suspect to justice, the ICC should find his or her case inadmissible regardless of the prosecutorial strategy the state pursues, regardless of the conduct the state investigates, and regardless of the crimes the state charges.”
At the time Heller published his articles, a possible counter-argument could have been that victims of such Gbagbo’s alleged crimes against humanity wouldn’t see justice, unless they were also victims of disturbing the peace and undermining state security. But it is important to remember that ICC justice too is riddled with blindspots. To take but one example, the victims of atrocities perpetrated by the so-called M23 rebellion in eastern Democratic Republic of Congo won’t receive any attention during the ICC trial of M23 leader Bosco Ntaganda because prosecutors have chosen to only focus on crimes he committed a decade earlier.
But in Gbagbo’s case, it truly bears bludgeoning the point: the argument that the ICC should step off the gas in this instance is even stronger today given the fact that Gbagbo faces the same classification of crimes in Côte d’Ivoire as she faces at the ICC.
There is, however, another reason why the ICC and its champions should avoid confronting Côte d’Ivoire over Simone Gbagbo. The Court has given numerous indications that it will finally seek to prosecute crimes during the 2011 violence committed by individuals allied to President Ouattara. If previous ICC interventions are any indication, doing so will be extremely difficult and cause a great deal of acrimony between the Ivorian authorities and the Court. Here, it is worth remembering that the case against Gbagbo was built under former Chief Prosecutor Luis Moreno-Ocampo whose record of successful case construction at the ICC is abysmal — as the collapse of all of the cases relating to post-election violence in Kenya attests. Moreover, the ICC won’t be able to depend on cooperation from Ivorian officials. President Ouattara has been clear: no one else from Côte d’Ivoire will end up at the ICC.
Let’s face it. The biggest problem regarding justice and accountability for post-election violence in Côte d’Ivoire isn’t related to Simone Gbagbo. It is the reality that, five years on, not a single member of the Ouattara camp has been prosecuted for international crimes — domestically or at the ICC. Some insiders believe that the days of victor’s justice in Côte d’Ivoire are numbered and that the ICC is on the verge of issuing warrants for alleged perpetrators close to Ouattara. If that is the case, and many hope it is, ICC prosecutors and the Court’s proponents need to consider which fights they want to pick. Perhaps it’s better to support the Ivorians in their trial of Gbagbo now and plan for the eventuality of a much more vociferous fight in the coming months.
A version of this article first appeared at Justice Hub for my ongoing bi-montly column, CourtSide Justice.