by Paul Bradfield

Laurent and Simone Gbagbo, shortly after their arrest in 2011. Photo: The Guardian.

On Friday, reports from Côte d’Ivoire indicated that the government intends to lodge an admissibility challenge to the prosecution of Simone Gbagbo, the wife of former Head of State, Laurent Gbagbo, whose case is currently in the pre-trial phase at the International Criminal Court.

While a formal public motion has not yet been lodged to the Pre-Trial Chamber challenging admissibility, the government has released a statement saying:

‘The decision of the cabinet aims to have Mrs Gbagbo brought to trial by Ivorian courts, whose good reputation has been restored and which can hold a fair trial that will guarantee the rights of the defence.’

The statement comes just a few days after the African Union announced it would hold a summit next month to call for a mass withdrawal of African States from the ICC, to protest against the prosecution of the Kenyan President and Vice-President, Uhuru Kenyatta and William Ruto.

Côte d’Ivoire’s co-operation with the ICC regarding Simone’s transfer has not been as smooth when compared to that of her husband. His arrest warrant was issued under seal on 23 November 2011 and he was transferred to the seat of the court on 30 November 2011. It took a mere week to get him to the Hague. Compare that to his wife’s situation. The warrant for Simone was first issued under seal in February 2012 (it was subsequently made public in November 2012), yet 18 months later she remains in the custody of the Ivorian authorities.

Why the lack of cooperation with regard to Simone? 

Arguably, Côte d’Ivoire may not have been in a practical position to prosecute Laurent at a time when the country was enduring violent civil strife and political transition. It is also arguable that it was politically advantageous for newly elected President Alassane Outarra to get Laurent Gbagbo out of the country as soon as possible.

As per the principle of complementarity under which the ICC operates, the state of Côte d’Ivoire might well be able to show that they are willing and able to prosecute Simone, but that will ultimately be the decision of the judges of the Pre-Trial Chamber seized of the matter. If the Ivorian courts are indeed in a position to run a fair and effective trial, to prosecute ‘substantially the same conduct’ as alleged in her Arrest Warrant, then Côte d’Ivoire must demonstrate that to be the case.

The Defence for Laurent Gbagbo has already challenged the admissibility of the case against him, but on 11 June of this year, Pre Trial Chamber I rejected the challenge on the basis that the Ivorian authorities were ‘not prosecuting him’.

Laurent Gbagbo awaits proceedings in the ICC courtroom. Photo: ICC

However, if the Ivorian authorities wish to challenge the admissibility of Simone’s case on the basis that their justice system now has the requisite capacity to investigate and prosecute the crimes alleged, by the same reasoning they should similarly challenge the admissibility of Laurent’s case, for Simone is charged as an indirect co-perpetrator under article 25(3)(a) of the statute, was part of her husband’s ‘inner circle’ and had adopted the same ‘common plan’ to commit the same crimes her husband is charged with. It follows that by investigating the same conduct as alleged in Simone’s ICC warrant, they will be investigating Laurent’s as well.

But will Côte d’Ivoire also challenge the case against Laurent? Most likely not. Time will only tell. It brings us back to the ongoing debate and cold reality that the ICC operates in the face of realpolitik.  There remains the real and present danger that ‘cooperative’ states may seek to use the ICC to manipulate domestic politics at home through the referral of ‘situations’ to the court. This has the potential to dangerously harm the legitimacy of the court in the eyes of the ordinary person, especially if there is a sense that a ‘victor’s justice’ is being imposed. Critics must remember that the ICC can only operate within its legal mandate and beyond reporting uncooperative state parties to the UN, there is not much it can do when states choose to selectively cooperate.