Over the last few days, I have had the opportunity to contribute to a few articles and programmes covering the acquittal of former Ivorian President Laurent Gbagbo and his political ally Charles Blé Goudé at the International Criminal Court (ICC). Here are some quick reflections on the case based largely on the contributions I’ve made to the media over the past week. Above is also an interview with Al Jazeera Inside Story that I gave, alongside Jim Wormington and Yabi Gilles. I hope that readers will find it interesting.
Why did it happen? Put simply, the judges are not convinced that the prosecution’s evidence is sufficient to warrant the trial continuing. The Trial Chamber asked the prosecution for a “mid-trial brief” last year. In doing so, they cast a pall of doubt on the ability of the prosecution to prove Gbagbo and Blé Goudé’s guilt beyond a reasonable doubt as well as on the narrative put forward by the prosecution regarding their alleged common plan to commit crimes.
Critically, we don’t know why the prosecution wasn’t able to gather sufficient evidence to proceed with the trial. A number of theories have been floated: political interference in the trial on behalf of Gbagbo and his supporters, insufficient cooperation from the government of the administration of current President Alassane Ouattara, and poor case construction by the ICC. It’s entirely possible that it is all of the above. Moving forward, one challenge for the Prosecutor is to better understand how political actors opposed to the Court can undermine investigations and, therefore, how to build cases that compensate for severe interference and avoid being eviscerated at the trial stage.
Acquittals are part and parcel of any normal criminal court. They are integral to the credibility of such institutions. As is an effective defence of any suspect brought before the ICC. However, whenever a case involving mass atrocities essentially collapses at the ICC, it does damage to the perception of the Court as a credible and effective institution of international justice. This is particularly true given that the ICC is still reeling from the bombshell acquittal of former Vice President of the Democratic Republic of Congo, Jean-Pierre Bemba, for alleged atrocities perpetrated in the Central African Republic. The ICC needs wins and it’s racking up losses. States are nervous about the record of the ICC and what they see as the return on the investment they make in terms of funding the Court. Victims will be deeply disappointed. Expectations of the ICC are being left unmet. The Prosecutor’s office needs to convince the Court’s constituencies – especially victims, survivors, and states – that their personal, financial, and political investments into the ICC are worth it.
I want to stress here that saying that such acquittals hurt the credibility of the ICC should not take anything away from the importance of acquittals to a criminal court or the work of defence counsel. Moreover, as Rachel Kerr stresses, we shouldn’t conflate ICC credibility with the credibility of the ICC Office of the Prosecutor. In my view, however, the perception of the credibility and legitimacy of an institution is a measure of the expectations actors have for it. When expectations are met, credibility is high; when there is a gap between expectations and reality, credibility will be lower. The ICC has multiple constituencies, meaning it has different sources of credibility. For victims and survivors who dedicate themselves and put so much of their time and energy into participating in trials — and hoping for justice — acquittals dash the expectations that the Court, and especially the Prosecutor, set for them. For states that want, rightly or wrongly, particular trial outcomes, the credibility of the Court is also damaged with multiple high-profile acquittals. The Gbagbo decision is yet another reminder of the need to exercise expectations management from the very outset of investigations.
One would hope that the ICC Prosecutor’s office learns from each prosecutorial setback. The decision shows the need for the next administration in the Office of the Prosecutor of the ICC (a new prosecutor will be elected in less than two years!) to dedicate a deputy prosecutor singularly to investigations. This hasn’t been the case for years but needs to happen after so many setbacks and apparently flawed investigations.
At the same time, many hope that the ICC’s activities in the Ivory Coast aren’t over. While Ouattara has made clear that no more Ivorians will ever be surrendered to the ICC, after eight years of investigations into the Ivory Coast, many are still waiting on whether the Prosecutor will honour her promise to investigate and prosecute both sides of the conflict in Ivory Coast. That hasn’t happened and it’s disappointing. It remains to be seen how the Gbagbo acquittal might affect future plans to investigate and prosecute crimes in Ivory Coast.
If this case does collapse and Gbagbo is set free following the Prosecutor’s appeal, it also raises disconcerting questions about the ability of the ICC to successfully prosecute state actors. It is troubling that the Prosecutor has been unable to effectively convict state actors such as Kenya’s President Uhuru Kenyatta and Deputy President William Ruto, the DRC’s former Vice President Jean-Pierre Bemba, and Ivory Coast’s Gbagbo. This latest setback could have a chilling effect on the already apparent unwillingness of the Prosecutor to target state actors. Not a single arrest warrant for international crimes has been issued for government actors since 2011. Many are thus concerned that the Court is emerging as an institution where only rebels can be and will be successfully prosecuted. That would sap the credibility of the Court given how many civilians face violence and atrocity at the hands of their own governments. It also poses serious questions about the feasibility of successfully prosecute the ‘big fish’ among ICC suspects: Sudanese President Omar Al-Bashir.
In general, however, such losses won’t alone have a major destabilizing effect on the ICC. It’s important to look at the wider picture and remain sober in our assessment of the Court. The ICC is neither has great as its best success nor as bad as its biggest failure. The Court has three individuals awaiting trial. It has an investigation looming into Afghanistan, as well as decisions to make on whether to open investigations into Palestine, Venezuela, Ukraine, the Philippines, and the deportation of the Rohingya from Myanmar to Bangladesh, among others. The Prosecutor has to learn from failures as well as keep her focus on what lies ahead.
If there is a silver lining, it is that such decisions and cases make it impossible to uphold the claim that the ICC seeks convict African leaders and warlords who have fallen out of power. Such assertions are difficult to substantiate when judges rule that a former President of the Ivory Coast initially charged with crimes against humanity should essentially be set free. As Carsten Stahn notes, the decision “is demonstration of the application of high fairness standards towards the defendants.” This sliver of a silver lining may help the ICC’s reputation as a fair and impartial body of international justice. But as a criminal court, bad investigations are sapping its credibility.