Beyond The Hague welcomes Matthew Gillett for this guest post on the Gbagbo case at the ICC.  Matthew is currently a Legal Officer with the Office of the Prosecutor at the International Criminal Tribunal for the Former Yugoslavia (ICTY) and was a member of the New Zealand delegation to the Review Conference of the International Criminal Court (ICC) in 2010. The views expressed in this article are those of the author alone and do not necessarily reflect the views of the United Nations, the New Zealand Government or Beyond The Hague. The author would like to thank Manuel Ventura for his insightful comments.

On 12 June 2014, Pre-Trial Chamber I (“PTC”) of the International Criminal Court (“ICC”) issued its conformation decision concerning the charges against the former President of Cote d’Ivoire – Laurent Gbagbo. Problematically, the majority decision of the PTC confirmed the charges for modes of liability under article 25 but declined to confirm the charges for superior responsibility under article 28. This outcome is difficult to reconcile with the PTC’s earlier findings in the confirmation decision. It results in the Trial Chamber receiving a proceeding that has been straight-jacketed into a mould that the facts may not ultimately fit. Indeed, Judge Van den Wyngaert in her dissenting opinion found that the facts were insufficient to satisfy article 25 even on the relatively permissive article 61(7) standard, but she would have confirmed under article 28 in part. In these circumstances, the spectre of regulation 55 re-characterization lurks in the background, along with its attendant potential prejudice to the integrity and efficiency of proceedings.

Laurent Gbagbo at the ICC, photo: The Telegraph

Under the applicable standard set forth in article 61(7) of the Rome Statute, the PTC assessed whether it had been provided with sufficient evidence to establish substantial grounds to believe that Laurent Gbagbo was responsible for each of the crimes charged. The PTC confirmed the modes of liability ofco-perpetration under article 25(3)(a), ordering, soliciting or inducing under article 25(3)(b), and contributing to a group with a criminal purpose under article 25(3)(d), and committed the case for trial. However, it declined to confirm Gbagbo’s superior responsibility for the charges under article 28(a) or (b) despite the request of the Office of the Prosecutor (“OTP”) to do so.

Addressing superior responsibility under article 28, the PTC stated that “the available evidence…indicates a failure on the part of Laurent Gbagbo to prevent violence or to take adequate steps to investigate and punish the authors of the crimes...” (para. 264). Other findings in the Decision underpin this conclusion:

• The PTC found that Gbagbo was in control of forces that committed charged crimes, stating, for example, “Laurent Gbagbo and his inner circle, by virtue of their control over the pro-Gbagbo forces, exercised joint control over the will of the members of these forces who were the direct perpetrators of the crimes.” (para.230);
• It found that Gbagbo was aware of the crimes (and in fact intended them), stating “Laurent Gbagbo committed the crimes with the requisite intent and knowledge pursuant to article 30 of the Statute and he and the members of his inner circle were aware of the factual circumstances that enabled them to exercise joint control over the commission of the crimes through members of the pro-Gbagbo forces.” (para.230)
• It also appeared to find that sufficient evidence had been provided to show that Gbagbo had failed to take the appropriate measures to prevent or repress the crimes that occurred, noting “the lack of genuine investigations into allegations of civilian casualties.” (para.231, see also paras.182-192).

These findings fulfill the essential elements of superior responsibility: effective control; knowledge; and failure to prevent or repress crimes (there is an open question about the requirement of causation for article 28 responsibility, but this is not discussed in the Decision and is not addressed herein). In line with these findings, Judge Van den Wyngaert stated in her dissent that she would have confirmed under article 28 at least for the crimes by the Defence and Security Forces (“FDS”) (Dissent, para.11).

In light of these earlier findings, how did the PTC explain its decision to decline confirmation of the article 28 charges? It stated that

“the Chamber is not persuaded that the narrative of the facts, as established by the evidence, points to Laurent Gbagbo’s criminal responsibility based on his mere failure to prevent or repress the crimes committed by others pursuant to article 28 of the Statute.” (para. 263)

Referring to the “narrative of the facts” raises questions about the PTC’s approach to the article 61(7) assessment. It suggests that instead of simply reviewing the facts and circumstances to ascertain whether they fulfilled the legal elements of the charged forms of responsibility, the PTC engaged in a literary-style review of narratives to determine which one it preferred. Indeed, in rejecting article 28 the PTC did not apply the law to the facts and did not point to any element in article 28 that was not satisfied.

Laurent Gbagbo, photo: Guardian

The PTC’s subsequent explanation suggests that the actual reason for its decision was not because the evidence was insufficient to satisfy the article 28 elements, but in fact because the evidence exceeded those requirements. It stated that

“the evidence, taken as a whole, demonstrates that this failure [Gbagbo’s failure to prevent or punish the crimes by his subordinates] was an inherent component of the deliberate effort to achieve the purpose of retaining power at any cost, including through the commission of crimes.” (para. 264, emphasis added).

However, if the failure to prevent or punish the crimes was an inherent part of the common plan which was confirmed as part of the article 25 charges, then it should have also been confirmed as part of the article 28 charges. There is no basis in the Rome Statute to reject charged modes of liability simply because a different form of responsibility is also fulfilled. Indeed, in a different part of the Decision, the PTC itself acknowledged that the Prosecution may charge alternative forms of responsibility (para. 260). Nonetheless, the PTC’s rationale appears to be that because it considered Gbagbo to be responsible on a more serious basis (i.e. article 25) than “mere” superior responsibility, it would not confirm the charges under article 28. From both a legal and a pragmatic perspective, this is problematic.

As with any criminal proceeding, the evidence assessed at the pre-trial stage may not rise to the same seriousness when subjected to cross-examination and weighed against other evidence introduced during the trial. This raises the possibility that the evidence will not ultimately meet the requirements of the modes of liability in article 25 (for instance if it is not found that Gbagbo had the mens rea for the crimes as a co-perpetrator or if it is found that he did not actively contribute to the crimes). But the evidence may nonetheless be sufficient to meet the elements of superior responsibility. If that occurs, there will be no active charges under article 28 for which Gbagbo could be convicted. At that point, the possibility of re-characterization under regulation 55 will enter the fray. However, it will do so in light of a PTC decision expressly declining to confirm charges under article 28. The unfairness cuts against both parties: the Defence will have been misled by the PTC decision, while the Prosecution will have been deprived of a reasoned decision as to why the evidence does not meet the requirements of article 28.

As problematic as the PTC’s decision is, it is all the more perplexing in light of the PTC’s evident awareness of the pitfalls inherent in regulation 55 re-characterization. The PTC stated that there is “no legal impediment to the confirmation of alternative modes of liability” (para.260). It argued that it included all alternative modes of liability, but at the same time noted that the trial chamber may still re-characterize the charges:

“taking stock of past experience of the Court, the Chamber is also of the view that confirming all applicable alternative legal characterisations on the basis of the same facts is a desirable approach as it may reduce future delays at trial, and provides early notice to the defence of the different legal characterisations that may be considered by the trial judges. This more flexible approach is, of course, without prejudice to the possibility that trial judges, following the applicable procedure, consider other alternatives as well” (para. 228; see also para. 263).

This is a formula for uncertainty. The PTC itself has elsewhere acknowledged the potential prejudice to the Defence and to the efficiency of proceedings entailed in re-characterization under regulation 55:

“On the contrary, as stated in the Decision, confirmation of alternative charges may better preserve the interests of the Defence in that it provides early notification of potential alternatives and thus reduces the need to resort to regulation 55 of the Regulations, which may come at a considerable cost to the expeditiousness of the proceedings.” (Decision on the Defence request for leave to appeal the “Decision on the Confirmation of Charges against Laurent Gbagbo”, 11 September 2014, para. 51).

The concerns about regulation 55 were highlighted in the Katanga case. Because Katanga dropped his appeal in return for the OTP dropping its appeal, it is unknown whether the Appeals Chamber would have ultimately found that the way in which the Trial Chamber re-characterized the mode of liability was inconsistent with Katanga’s fair trial rights (the Appeals Chamber deferred its review of the impact of this re-characterization in its decision on the Defence’s challenge to the re-characterization of the facts).

The upshot for the Gbagbo proceedings is a pre-trial process that has resulted in potentially self-contradictory findings that leave a broad array of charges operational against the Accused but also leave open the fundamental question of which forms of responsibility he is actually in jeopardy of being convicted under. In Rome, the idea of a pre-trial process was to filter out unsustainable charges and provide a clear platform for any ensuing trial. In relation to article 28, the Gbagbo confirmation decision has the opposite effect of these laudable goals.