Has the Pre-Trial Chamber jeopardized the Gbagbo trial at the International Criminal Court?

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: Telegraph

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.

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You can have Laurent, but we’ll keep Simone

by Paul Bradfield

Simone and Laurent

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?  Continue reading