The success of the International Criminal Court (ICC), particularly the Office of the Prosecutor (OTP), is sometimes measured by the number of individuals convicted. However, a strong case was made at a workshop last month that the measure of the court's success should include the number of acquittals and how the court respects the rights of accused persons.
The workshop organized by Africa Legal Aid (AFLA) during the Assembly of States Parties (ASP) 18th session in The Hague on December 2, 2019, focused on lessons from the case of former Ivory Coast president Laurent Gbagbo and his former minister for sports and youth, Charles Blé Goudé. The two were acquitted last January after majority of Trial Chamber Ijudges determined that the prosecution had failed to produce sufficient evidence to warrant presentation of a defense case.
Evelyn A. Ankumah, the AFLA Executive Director, said there is a risk that the success of the ICC is determined by the number of convictions, with acquittals often seen as a weakness and a sign that the court is not functioning properly. "The Gbagbo-Blé Goudé acquittal is not a failure of the court," said Ankumah. "One may very well look at the acquittal as a victory for international justice."
Defense lawyer Melinda Taylor echoed this position. She said acquittals are the clearest sign that the ICC is functioning as an independent and impartial court of law that respects due process. Taylor, who represents Jean-Pierre Bemba and Al Hassan Ag Abdoal Aziz Ag Mohamed Ag Mahmoud, added that concern should not be with the court's acquittal decisions.
Rather, she said, concern should be on whether adequate safeguards and procedures are in place to ensure that cases brought to trial at the ICC are evidentially and legally well-founded; and whether there are measures to ensure that defendants are not subjected to lengthy deprivations of their liberty and rights as a result of proceedings that may ultimately culminate in an acquittal.
At the time of his interim release, Gbagbo had been in ICC detention for eight years, having been transferred to The Hague in November 2011. Blé Goudé had been detained for nearly five years. The duo was charged over post-election violence in the Ivory Coast between December 2010 and April 2011. Gbagbo, who was the incumbent, disputed the poll results and declined to relinquish power. The prosecution alleges that the two committed crimes against humanity, namely murder, rape, attempted murder, and persecution.
Gbagbo and Blé Goudé are on interim release in Europe, pending determination of an appeal by the prosecution. The defense has asked the court to release Gbagbo unconditionally, arguing that the conditions imposed on the former president have denied him his right to free movement and to live in a country of his choice, and the right to express himself and to participate in political processes, including "participating in one way or another" in a presidential election in his home country later this year.
At the AFLA workshop, defense lawyer Chief Charles Taku said the fairness of proceedings should supersede any other consideration, even if the verdict of cases affects the perception of the court among victims and the wider public. "Fairness is not a weakness ... and the ICC should respect fairness as stipulated in international conventions," he said.
However, Taku, who represents Narcisse Arido and Dominic Ongwen at the ICC, suggested that the charges against Gbagbo were politically motivated and warned against the "politicization of international justice" by politicians who wish to have their opponents sent away to The Hague.
At the workshop, AFLA launched a special edition of its quarterly journal, which captures lessons from the Gbagbo and Blé Goudé acquittal. In the journal and at the workshop, Taku argued that it was inconceivable that the OTP prosecutorial mandate was exercised in total independence and devoid of any influence "when the perception conveyed by prosecuting one party, and often the vanquished in conflicts, without reasonable explanation accords the victors tacit immunity to consolidate political power and the impunity to humiliate and subject the victims associated with the vanquished to egregious violations." He said this is what occurred in the Ivory Coast and several other African situations the prosecutor brought before the court.
The African Union's legal counsel, Dr. Namira Negm, stated that cases like Gbagbo and Blé Goudé's that ended in acquittal for lack of evidence tarnish the credibility of the court. She said it is an important lesson that before issuing arrest warrants against political leaders that may result in their incarceration for many years, lengthy trials, huge costs, and high expectations on the part of victims, prosecutors must be satisfied that their cases against the defendants, in the absence of rebuttal evidence, establish guilt beyond reasonable doubt.
Others had advice for the court too. Taylor said there was a need to review the acquittal decisions issued at the ICC, with a view to discerning the legal, evidential, and procedural issues that should be avoided or remedied in future proceedings. She said ICC judges had indicated the procedures or safeguards that would avoid many of the pitfalls seen in some cases at the court. In the Mathieu Ngudjolo trial judgement, she said, the trial chamber set out a series of concerns regarding the manner in which the prosecution had conducted its investigations and further delineated the type of verification procedures that would avoid these issues in future investigations.
Moreover, added Taylor, in a 2013 decision in the Uhuru Kenyatta case, Judge Kuniko Ozaki and Judge Christine Van den Wyngaert expressed "significant disquiet" concerning the appearance that the prosecution had failed to properly investigate the case before confirmation. Finally, she said in the 2012 decision adjourning the Gbagbo confirmation proceedings, the pre-trial chamber, by majority, indicated that the prosecution's case was legally and evidentially flawed, and that it was extremely problematic to rely on indirect evidence, such as reports by non-government organizations, to fulfill the contextual elements of crimes against humanity.
For his part, Taku argued that the fair trial challenges facing the ICC must not be blamed on the OTP alone. According to him, the pre-trial process at the ICC leaves the prosecution in many instances prosecuting cases that turn out to be different from the ones the OTP intended. "The threshold for permitting investigations is unreasonably low, so also is that for the confirmation of charges," Taku argued. "A more rigorous scrutiny of the evidence submitted by the prosecution should never have allowed the Gbagbo and Blé Goudé case to proceed to trial."