After Gbagbo’s acquittal, it's time for the ICC to confront its demons
he recent decision by the judges of the International Criminal Court to acquit former president of Côte d’Ivoire Laurent Gbagbo and former leader of the Jeunes Patriotes Charles Blé Goudé because of a lack of evidence has once again underlined the fragility of the Court’s investigations and prosecution strategies, and called its credibility and future into question. This acquittal is the latest of several failures by the ICC’s prosecution team to secure the condemnation of indictees. While observers have welcomed the Court’s desire to guarantee the rights of defendants, they also regret that this has too often been done to the detriment of the victims’ rights and access to financial reparations. Now may be a good time for the ICC to rethink its role and responsibilities in the midst of fierce criticism.
The ICC, a political actor
The Ivoirian case once again highlights tensions regarding the ICC’s objectives, which have remain unresolved since its early years. While the ICC’s prosecutor and staff wish to see the Court as a solely judicial institution, the very nature of the crimes it has jurisdiction over – crimes of the most serious nature, i.e. against humanity, genocide, war crimes and crimes of aggression – de facto endow it with a very political mandate and make it part of wider international strategies for peace, reconciliation and conflict prevention. For many Ivoirians, the ICC, in arresting Gbagbo and Blé Goudé and keeping them far away from the Ivoirian political and judicial scenes, has given Côte d’Ivoire’s President Alassane Ouattara an easy pretext to avoid implementing a necessary national reconciliation process.
The Court’s dependency upon states to seize it, arrest indictees (it does not have its own police force) and have access to determining evidence or protect witnesses, also means that it must rely on these states’ good will and thus navigate very political waters. This is something both first Prosecutor of the Court Luis Moreno Ocampo and his successor Fatou Bensouda have deliberately refused to acknowledge to the point that Ocampo in particular, in his haste to build up the Court’s visibility, agreed to take on cases – in the Central African Republic, the Democratic Republic of Congo, Uganda or Côte d’Ivoire – where only the losing side in a conflict was being investigated and prosecuted, thus prompting accusations of victor’s justice. Pretending to be blind to the instrumentalisation of the ICC by ruling leaders (with the prosecutor’s silent assent) has not only failed to contribute to the ICC’s judicial effectiveness but also durably questioned its legitimacy in Africa and in the world. It is perhaps time that the ICC woke up to its very political role and developed the political awareness, analysis and negotiation skills it needs to navigate the international political scene more wisely than it has done until now.
The ICC, a court of last resort
Another aspect that the ICC’s prosecutors have wilfully ignored is that the Court is one of last resort – it should only be seized of a case when the national judiciary cannot or will not do so. Yet observers have noted that in many of the cases currently being prosecuted by the ICC, there is no evidence that the national justice systems were not able, or even unwilling, to prosecute. The Ivoirian case is very telling in this regard as President Ouattara agreed to the ICC investigating Gbagbo and Blé Goudé while refusing to let go of former first lady Simone Gbagbo, herself a leading political figure. She was later prosecuted and condemned by the Ivoirian justice system, but eventually amnestied by Ouattara.
While Ouattara may have argued that transferring Gbagbo and Blé Goudé to The Hague was an essential condition for preserving Côte d’Ivoire’s fragile peace and guaranteeing a serene judicial process, the argument would have been just as valid in the case of Simone Gbagbo, and it was all too practical for Ouattara to thus remove his long-time opponent from the Ivoirian political scene. If, moreover, the Ivoirian justice was able to prosecute the former first lady, there is no reason to believe it would not have been able to prosecute her husband or Blé Goudé.
"The current international climate of defiance towards international cooperation, fuelled by aggressive declarations by Presidents Trump and Putin but also by nationalist leaders in Europe, may not be the most conducive to an in-depth review but it also makes it more urgent than ever."
By taking on cases in place of national judiciaries, the ICC is depriving them of a chance to prove themselves, but also depriving victims and the wider population of a more direct access to a closer justice, and potentially wasting resources that could perhaps be better used by judiciaries that have often been fragilised, if not altogether destroyed, in a recent conflict. In December 2018, the British government underlined the very high costs – €1.5bn over 15 years – of a Court that had so far only convicted three second-rank leaders in its 17 years of operation. Rather than hastily seizing itself of the politically sensitive cases, it is no doubt time the ICC revisited its last-resort identity. It might even go as far as to see its role as one leading a worldwide effort towards greater and better justice, and seek ways to work hand in hand with, and to bolster the capacities of, national judicial systems.
The more capable these systems, but also the civil society organisations around them – in the case of the Hissène Habré affair, the latter played a crucial role in gathering evidence and supporting witnesses – the greater the chance the ICC will later be seized with solid cases that can be successfully completed, and the greater its contribution to long-term peace.
Bensouda and her team continue to pay a high price for the hastiness and blindness with which her predecessor took on new cases in the ICC’s first years. While lessons have clearly been drawn since – the pace of new cases are slowing down and reforms are being implemented – some of the premises upon which the Court has been functioning remain unquestioned. The current international climate of defiance towards international cooperation, fuelled by aggressive declarations by Presidents Trump and Putin but also by nationalist leaders in Europe, may not be the most conducive to an in-depth review but it also make its more urgent than ever. It is time for the ICC to confront its demons, resolve its contradictions and cease to pretend that it is a politically neutral actor that can administer global justice on its own. The ICC can certainly be said to have symbolical power; however, it will become more powerful and legitimate by growing more aware of the other actors around it – from governments to judiciaries to civil societies – and how it can work with them.
(Main image: International Criminal Court chief prosecutor Fatou Bensouda (C) and deputy prosecutor James Stewart (R). – Koen Van Weel/AFP/Getty Images)
The opinions expressed in this article are those of the author(s) and do not necessarily reflect the views of SAIIA or CIGI.