7 November 2018

Cote d'Ivoire: Prosecution Outlines Evidence On Gbagbo and Blé Goudé's Alleged Criminal Responsibility

Former Ivory Coast President Laurent Gbagbo and his former youth and sports minister Charles Blé Goudé have filed a no case to answer motion, requesting an acquittal from the International Criminal Court (ICC) without being required to present their defense. This post summarizes prosecution evidence contained in a filing responding to the motion, and in presentations made at a hearing last month, in which it argues that it has advanced sufficient evidence to enable judges to convict the duo.

The prosecution's evidence aims to demonstrate that Gbagbo and Blé Goudé, on trial since January 2016, had a state or organizational policy to commit crimes against humanity; and to show the different modes of criminal liability the two accused allegedly bear.

Gbagbo and Blé Goudé are charged with four counts of crimes against humanity--murder, rape, persecution, and other inhumane acts (or, in the alternative, attempted murder). The prosecution contends that its evidence shows that, between November 27, 2010 and April 18, 2011 in the Ivorian capital Abidjan, pro-Gbagbo forces carried out widespread and systematic attacks against civilians. It says the manner in which the attacks were conducted shows that civilians perceived as supporters of opposition presidential candidate Alassane Ouattara were the primary objects of the attacks, and that these attacks were conducted pursuant to a state or organizational policy.

Policy to commit crimes against humanity

The prosecution is required to prove that a common plan to attack civilians existed, that the accused were part of it, and that they made an essential contribution to the plan. However, it argues that none of these elements requires the existence of a particular order expressly requiring Gbagbo's subordinates to attack civilians. It argues that the contention that this policy existed is supported by evidence that attacks targeted actual or perceived Ouattara activists and sympathizers, whose demonstrations were quelled with "indiscriminate fire or grenades." Other attacks, including shelling and indiscriminate fire, were made on densely populated neighborhoods inhabited by Ouattara supporters.

Targeting individuals from particular ethnic or religious groups is cited too. Witness 440, a police officer, testified that he received reports that pro-Gbagbo militia known as the Young Patriots identified victims at roadblocks based on facial features and identity checks. Witness 435 explained that most victims of burning, following identity checks at roadblocks, were northerners and citizens of Mali and Burkina Faso. Similarly, Witness 87 testified how he interviewed youths manning roadblocks, who said they were looking for individuals with Muslim-sounding names, cars with license plates from the northern part of the country, and those with "northern features."

Furthermore, the OTP cites the failure to prevent, repress, or report the crimes committed, as evidence of the criminality of the common plan.

Responsibility for the policy to attack civilians

The prosecution attributes the policy to attack civilians on Gbagbo, his inner circle including Blé Goudé, and loyalist forces. It argues that, besides carrying out attacks according to identified patterns, pro-Gbagbo forces were hierarchically organized, followed orders, and supported one another.

Gbagbo and the inner circle allegedly shared the motivation to keep Gbagbo in power by all means. Accordingly, they purportedly recruited, trained, and armed youth and militia such as the Group of Patriots for Peace (GPP), issued instructions, and incited them. Prosecution evidence also suggests that Gbagbo and his inner circle requisitioned the army before an election run-off, anticipating to use it to attack civilians during post-election violence.

Blé Goudé denies there was a policy to attack civilians. He argues that operations by the national army, and the roadblocks set up during the crisis, did not target pro-Ouattara civilians but aimed to protect civilians from rebels who operated in areas affected by insecurity.

Modes of criminal liability

The two are charged with various alternative modes of liability under Article 25 on individual criminal liability. Additionally, Gbagbo is charged for superior responsibility under Article 28. The prosecution has submitted that, if judges are not satisfied that the legal elements of Article 25(3)(a) on committing a crime, "whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible" on are met, other modes of liability could help capture Gbagbo and Blé Goudé's involvement in committing the crimes. Moreover, the prosecution has argued that the Trial Chamber may find that the accused are responsible through a combination of modes of liability.

According to the prosecution, the same set of facts form the basis of different modes of liability. It gives the example of Gbagbo's alleged instruction to his generals to hold the Abobo neighborhood and not to kill too many civilians. It says this may be seen as an essential contribution under Article 25(3)(a), or as an order or inducement under Article 25(3)(b), or as any contribution under Article 25(3)(d).

Below is a highlight of prosecution arguments in the evidence it has advanced on the various modes of liability.

Essential contribution to a crime - Article 25(3)(a)

The prosecution says the evidence it has presented would enable a reasonable trial chamber to convict Gbagbo and Blé Goudé of all crimes charged based on this mode of liability. It points to the pre-election recruitment, training, and arming of pro-Gbagbo youth and militia, in particularly the GPP, and issuance of instructions and incitements to them.

However, Blé Goudé contends the prosecution failed to present sufficient evidence of any of the requisite elements under Article 25(3)(a), including of what could prove the existence of a common plan, hence its case under this mode of liability must fail.

Prosecution evidence places Gbagbo at the center of the common plan, and accuses him of inciting forces loyal to him to commit crimes. Meanwhile, Blé Goudé is cast as "a vital intermediary" between Gbagbo and the loyalist militia. He is alleged to have played an essential role in recruiting and enlisting pro-Gbagbo youth, procuring their training by the national army, and inciting them to commit crimes.

In the no case to answer appeal, Blé Goudé' said there was no connection between him and two of the five charged incidents. In response, the prosecution has said it does not oppose the dismissal of the charges against him related to these incidents. Nonetheless, the prosecution contends that even if this happened, there would be no substantive changes to the crimes or mode of liability Blé Goudé faces. That is because, the prosecution says, he would still be charged for the crimes of murder, rape, and other inhumane acts or attempted murder and persecution committed in the context of three other incidents.

Ordering, soliciting or inducing the commission of crime - Article 25(3)(b)

Both individuals face this alleged mode of liability. Witness 9 testified that, as commander-in-chief, Gbagbo issued instructions to the military, whose commanders turned these instructions into operational orders. However, Gbagbo has dismissed this evidence, stating that operations were conceived by generals without any influence from him. He denies playing any role in executing the security strategy during the crisis. Moreover, the former president claims the prosecution did not demonstrate that he ordered or incited the commission of crimes.

The prosecution says there are various elements entailed in Article 25(3)(b), such as ordering, soliciting, or inducing another person in any form to commit a crime or perform an act which results in a crime, and that its evidence covers all these elements. It claims its evidence demonstrates a pattern whereby Gbagbo met with his subordinates, issued orders or instructions, and his subordinates complied and implemented such orders. It adds that its evidence includes 10 different examples of such orders.

Gbagbo has challenged the prosecution to provide evidence of any orders he made to subordinates to commit crimes. However, the prosecution notes that while ordering requires direct or circumstantial proof of positive action by the accused, a person may solicit or induce the commission of a crime either by implied or express conduct. It adds that Gbagbo induced the commission of crimes, mainly through intermediaries, but also through his statements before and during the crisis.

Meanwhile, the prosecution says that, as the acknowledged leader of the Jeunes Patriotes and Galaxie Patriotique militias, Blé Goudé conducted a sustained effort to mobilize the youth for violence. He allegedly exerted influence over the militias and his instructions to them had a direct effect on the commission of crimes. His purported authority over the pro-Gbagbo youth was demonstrated by mobilizing them to commit violent acts, financing their activities, training and arming them and playing an essential role in their recruitment and enlistment into the national army.

Aiding and abetting crimes - Article 25(3)(c)

Article 25(3)(c) holds individuals criminally responsible if they aid, abet, or assist in the commission or attempted commission of a crime, "including providing the means for its commission." The prosecution submits that if the Trial Chamber is not convinced that the evidence meets the requirements of Articles 25(3)(a) or Articles 25(3)(b), it may find that Blé Goudé's actions nevertheless assisted the direct perpetrators in the commission of the crimes charged.

Whereas Blé Goudé claims that the prosecution failed to demonstrate that he made any assistance for the purpose of facilitating a crime, the prosecution insists its evidence shows that he mobilized pro-Gbagbo youth to commit violent acts and that this served the purpose of facilitating the crimes charged.

Accessory to commission of a crime - Article 25(3)(d)

The prosecution argues that Gbagbo and Blé Goudé can also be held liable under an accessorial mode of participation, Article 25(3)(d), for contributing to the commission of the crimes charged. Gbagbo is charged under this mode for all incidents, whereas Blé Goudé is charged for three.

Responsibility of commanders and other superiors - Article 28

Under this mode of responsibility, the prosecution argues that throughout the post-election crisis, Gbagbo and the Defense and Security Forces (FDS) leadership failed to properly investigate and punish FDS elements who committed serious crimes. It contends that the failure to prevent or repress the criminal activity of the FDS, coupled with an official pattern of denial of these criminal acts, demonstrate that Gbagbo and the FDS high command condoned it.

Prosecution evidence also shows that Gbagbo was aware of the lack of discipline and criminal past of the GPP, and of the crimes they were committing, but congratulated them and encouraged them to keep fighting.

Furthermore, the prosecution says it has provided evidence including from army officers, that Gbagbo directly issued orders to the army leadership. It dismisses defense arguments that Gbagbo did not have effective control over the army and loyalist militia, insisting that the FDS, the youth, the militia or mercenaries were under Gbagbo's effective control.

A hearing has been scheduled from November 12, 2018 for defense lawyers to respond to the prosecution submissions and make the case for judges to declare a no case to answer.

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