Institute for Security Studies (Tshwane/Pretoria)

22 July 2014

Cote d'Ivoire: Avoiding Victors' Justice in Cote d'Ivoire

analysis

Senegal's Minister of Justice, Sidiki Kaba, calls the interplay between politics and justice an 'explosive relationship.' This turbulent liaison is one that has haunted many post-conflict processes.

Speaking at a conference in Dakar themed International Criminal Justice - Reconciliation and Peace in Africa: the ICC and Beyond earlier this month, Kaba said an independent and fair judicial process, based on the rule of law and not dictated by politics, is the best way to fight impunity. 'The act of justice is not an act of vengeance,' he said.

These words ring especially true in Côte d'Ivoire. Ever since the humiliating pictures showing a dishevelled former president Laurent Gbagbo in his undershirt being escorted by police out of his bunker in Abidjan on 11 April 2011, his supporters have cried foul.

They say Gbagbo's treatment amounts to revenge by the winning side, following the five-month post-election conflict. 'The dossier is empty,' they chant, accusing the camp of President Alassane Ouattara of unfairly delivering Gbagbo to International Criminal Court (ICC).

Last month, ICC judges confirmed charges against Gbagbo for crimes against humanity, including murder, rape and persecution. The former leader has been held at the ICC's detention facilities in The Hague since his dramatic capture.

Gbagbo's henchman, former student leader Charles Blé Goudé, is keeping him company in prison in the sleepy Dutch town. Blé Goudé appeared for the first time in March this year at the ICC, also on charges of crimes against humanity.

So far, they are the only two big fish being tried for crimes committed during the conflict, which had left up to 3 000 people dead before French and United Nations (UN) forces stepped in to defeat Gbagbo's troops. Gbagbo's wife Simone is also indicted by the ICC, but Côte d'Ivoire has indicated that it would try her domestically.

Ouattara - who was at the time hiding out in Abidjan's Golf Hotel, which had been transformed into a war room for the occasion - won the duel between the two men and was inaugurated as the country's president after legitimately winning a UN-supervised election. For more than 10 years, Ouattara waited in the wings after being excluded from successive presidential elections due to a row over his nationality based on the controversial notion of ivoirité, which seemed to outsiders like a storm in a teacup.

At the Dakar conference, organised by the Council for the Development of Social Science Research in Africa (CODESRIA) and the Social Science Research Council's African Peacebuilding Network (APN), a number of participants accused the Ivorian government of instrumentalising the ICC to mete out victors' justice.

One academic even called it 'indecent' that only Gbagbo and Blé Goudé are being detained at The Hague. Is this fair? If not, can the ICC do anything to ensure that justice is seen to be done in the case of Côte d'Ivoire?

In the run-up to the presidential elections in 2015, the answers to these questions are not purely theoretical. They are explosive in a country that has far from reconciled with itself after so many years of bitter internal strife.

Addressing the room of distinguished lawyers, legal experts, social science researchers and even a few judges at the conference, Amady Ba, Head of International Cooperation in the Office of the ICC Prosecutor, refuted claims that the ICC is being biased in Côte d'Ivoire.

Rather, he said, the court is taking a step-by-step approach. It is investigating both sides of the conflict, but for strategic reasons it has chosen to first go after Gbagbo's camp. 'We have learnt from our experience in Kenya that it is better to first secure cooperation from the government.'

It is well known that in the Kenyan case the court is having huge difficulty in gathering evidence due to the lack of cooperation from the country. It leaves the ICC in a very tricky position if the head of state, in this case President Uhuru Kenyatta, is the one in their line of fire. The ICC does not have a police force to arrest anyone, least of all a head of state.

Does that mean Ouattara's government would not hand over militia leaders or the former head of the rebel movement if the ICC asked for it? Ba insists that the court is not political. 'The issues in front of the court are extremely serious. We ask you to be patient,' he said.

Human rights lawyer Eric-Aimé Semien, representing the Ivorian Action for the Protection of Human Rights, disagreed with Ba and said he doesn't believe in a step-by-step approach. He said this is all the more unfair because the ICC has decided to broaden the scope of its investigations to include the events following September 2002, when a failed coup set off the rebellion that divided the country in two for most of Gbagbo's presidency.

'Those in power now were responsible for that coup,' he alleges. There is clearly still a lot of emotion on both sides of the Ivorian political divide, and efforts by the current government to start a process of reconciliation still leaves much room for improvement.

Mamadou Diouf, Director of the Institute of African Studies at Columbia University, had a slightly more philosophical approach to the issue of politics versus justice.

He said that for historians, justice is always political. 'Otherwise why make war? The winners of the war are always the ones who mete out justice, but that does not mean annihilating your opponent,' he warned. Fair justice and the rule of law are very different from vengeance, he added. Diouf believes that 'justice after war can bring peace.' And peace is what Côte d'Ivoire deserves.

Turning the page after conflict is a huge challenge, not only for Côte d'Ivoire, but also for a string of other African countries grappling with the same problems. For now, it seems, Ivorians will have to be patient while the ICC prosecutor carries out her strategy in the interests of justice.

Liesl Louw-Vaudran, ISS consultant

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