The appeals chamber at the International Criminal Court (ICC) has ruled by a majority that former Ivory Coast president Laurent Gbagbo will stay in detention as judges consider a prosecution appeal against his acquittal.
In a ruling issued today, judges cited the prosecution submission that Gbagbo might abscond from the court if freed. They scheduled a hearing on the appeal starting on February 1.
Judges Howard Morrison and Piotr Hofmanski disagreed with keeping the 73-year-old former head of state in detention while judges Chile Eboe-Osuji, Luz del Carmen Ibáñez Carranza, and Solomy Balungi Bossa ruled in favor.
On January 15, Trial Chamber I acquitted Gbagbo and his former cabinet minister Charles Blé Goudé, after determining that there was no need for them to present their evidence since the prosecution had failed to satisfy the burden of proof in relation to several core elements of the case. The next day, the trial chamber ordered their unconditional release.
The prosecutor then moved to the appeals chamber to halt the release of the accused. She argued that, were Gbagbo and Blé Goudé to abscond, the purpose of the appeal could be defeated.
Appeals judges said whether the trial chamber erred in assessing the prosecution's submission that the accused were a "concrete flight risk" was likely to be an important aspect of the prosecutor's current appeal. They also noted that Gbagbo and Blé Goudé were acquitted by a majority, with one judge dissenting.
They said there were therefore "strong reasons" for the appeals chamber to exercise its discretion and suspend their release "because Mr. Gbagbo and Mr. Blé Goudé might no longer be available to be tried before the Court."
In the dissenting opinion, judges Morrison and Hofmanski argued that placing suspending an acquittal decision violates the fundamental right to liberty for an accused person.
Gbagbo has been in ICC detention for seven years and two months, having been transferred to The Hague in November 2011. His trial for four counts of crimes against humanity, including murder, rape, and persecution, commenced in January 2016 and saw the prosecution call 82 witnesses, the last of whom testified last January.
In dismissing the prosecution's appeal to keep the accused in detention pending the appeal, two of three Trial Chamber I judges on January 16 found that Gbagbo and Blé Goudé were not a flight risk, and dismissed prosecution arguments that there was a high probability that the appeal against their acquittal would succeed. Delivering the ruling, Judge Cuno Tarfusser said acquittal of the accused before they presented their evidence showed, in the view of the majority, "how exceptionally weak the prosecution evidence is."
The acquittals followed no case to answer motions in which the defense counsel argued that the prosecution's case hinges on "the uncorroborated testimony of a few patently incredible witnesses, and an inordinate amount of hearsay evidence" whose credibility and reliability judges are unable to evaluate
Prosecutor Fatou Bensouda had suggested that, if judges were to authorize the release of the accused, they should impose stringent conditions on them, such as release to a country in Europe near The Hague to facilitate their continued attendance at trial, requiring them to provide their addresses and contact information, not moving from these addresses or to other countries without court's authorization, and surrender of their passports.
Bensouda also proposed that judges could also order the accused not to make any contact with any prosecution witnesses or anybody interviewed in ongoing investigations in Ivory Coast; and not to make any public statements concerning the case.