Simone Gbagbo’s Domestic Conviction Illustrates the Futility of the “Same Conduct” Requirement

by Kevin Jon Heller

Another complementarity fight is brewing, this time between the ICC and Cote d’Ivoire concerning the fate of Simone Gbagbo. In 2012, the ICC issued a warrant for her arrest, claiming that there are reasonable grounds to believe she is responsible as an indirect co-perpetrator for the crimes against humanity of murder, rape, other forms of sexual violence, and persecution. Just yesterday, however, Gbagbo was convicted in an Ivorian court and sentenced to 20 years imprisonment on very different charges:

A court in Ivory Coast has sentenced Simone Gbagbo, the wife of the former president Laurent Gbagbo, to 20 years in prison for her role in a 2011 post-election crisis in which around 3,000 people were killed, her lawyer said.

Simone Gbagbo, who is also wanted by the international criminal court, was tried alongside 82 other allies of her husband in a case that revived deep divisions in a nation still recovering from years of political turmoil and conflict.

Gen Bruno Dogbo Ble, who headed the elite republican guard, and the former navy chief Admiral Vagba Faussignaux were both jailed for 20 years, according to their lawyer, while others got shorter sentences. Michel Gbagbo, the former president’s son, was sentenced to five years.

Supporters of Laurent Gbagbo, whose refusal to acknowledge his defeat to Alassane Ouattara in elections in late 2010 sparked the brief civil war, claimed his wife’s trial was politically motivated.

“The jury members retained all the charges against her, including disturbing the peace, forming and organising armed gangs and undermining state security. It’s a shame,” said Simone Gbagbo’s lawyer, Rodrigue Dadje.

Cote d’Ivore will no doubt now file an admissibility challenge with the ICC, claiming that they do not have to surrender Gbagbo because  Art. 17(1)(c) of the Rome Statute provides that a case is inadmissible if “[t]he person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3.” Art. 20(3) specifies that, as long as the trial is genuine, “[n]o person who has been tried by another court for conduct also proscribed under article 6, 7 or 8 shall be tried by the Court with respect to the same conduct.”

I do not know the precise conduct that underlies Gbagbo’s domestic conviction. But it seems highly likely that the “undermining state security” and “organizing criminal gangs” charges were not based on substantially the same conduct as the ICC’s crimes against humanity charges. If not, the case will still be admissible before the Court, because Art. 20(3) explicitly permits the ICC to prosecute conduct different than the conduct underlying a domestic conviction. That specific provision has never been litigated, but the judges are very unlikely to read Art. 20(3) more expansively. After all, in the context of cases still under investigation at the domestic level, the Appeals Chamber specifically held in the Kenya cases that the domestic investigation must focus on “substantially the same conduct” as the ICC’s investigation:

The defining elements of a concrete case before the Court are the individual and the alleged conduct. It follows that for such a case to be inadmissible under article 17(l)(a) of the Statute, the national investigation must cover the same individual and substantially the same conduct as alleged in the proceedings before the Court.

Here is my question: what would the ICC gain by insisting that Cote d’Ivoire surrender Gbagbo to the Court to face a second prosecution? After all, 20 years is hardly an insignificant sentence — five years longer than Lubanga’s, and eight years longer than Katanga’s. Should the ICC really waste precious (and overstretched) OTP resources to obtain another conviction of Gbagbo, even though — if the past sentencing practice by international tribunals is any guide — she is very unlikely to receive a longer sentence from the ICC than she has already received from Cote d’Ivoire?

My answer is simple: the ICC would gain nothing, so it shouldn’t. As I have argued at length in my essay “A Sentence-Based Theory of Complementarity,” the ICC simply cannot afford the kind of hyper-formalism that underlies both the “same conduct” requirement and Art. 20(3). In my view, the Court should defer to any national prosecution that results (or any national investigation is likely to result) in a sentence equal to or longer than the sentence the suspect could expect to receive at the ICC, even if the national prosecution is based on completely different conduct than the ICC’s investigation. The upcoming Gbagbo complementarity fight, I think, will likely illustrate why my theory of complementarity makes sense.

Finally, it’s worth noting that should the ICC agree with me, it does in fact have an out — Art. 89(4) of the Rome Statute, which provides as follows:

If the person sought is being proceeded against or is serving a sentence in the requested State for a crime different from that for which surrender to the Court is sought, the requested State, after making its decision to grant the request, shall consult with the Court.

Nothing in the Rome Statute seems to prohibit the Court from deciding, after such a consultation, to let the suspect serve his or her domestic sentence prior to — or even instead of — requiring the state to surrender the suspect to the Court. I hope the ICC will consider such a decision regarding Gbagbo. It has nothing to gain by forcing Cote d’Ivoire to turn her over.

http://opiniojuris.org/2015/03/11/simone-gbagbos-domestic-conviction-illustrates-the-futility-of-the-same-conduct-requirement/

4 Responses

  1. Thanks for the post . I do agree somehow with you , and would like to add another perspective :

    It’s not only the identical conducts one should consider here, but also the fact, that such heavy punishment of 20 years, surely reflects genuine proceedings from other aspects obliging states according to Rome statute:

    Consider for exe article 17 (2) (a) : can one argue that 20 years in jail for conducts mentioned , are made for ” the purpose of shielding …. ” ?? Hard to claim so !!

    Or take (c) there, can one argue that the proceedings were not or are not being conducted ” independently or impartially ” ??

    I must admit , look somehow futile indeed . thanks

  2. Alternatively, the Court could dismiss the case based on the “interests of justice,” and leave for another day whether, and if so how, to refine/alter the same person/same conduct test for admissibility.

  3. Kevin,

    Two things you might want to consider. The ICC has already issued an admissibility decision on Gbagbo’s case: http://www.icc-cpi.int/iccdocs/doc/doc1882718.pdf

    Here are para. 78 and 79: “However, the documentation provided as part of, and in addition to, the Admissibility Challenge does not demonstrate that concrete, tangible and progressive investigative steps are being undertaken by the domestic authorities of Côte d’Ivoire in order to ascertain Simone Gbagbo’s criminal
    responsibility for the same conduct as that alleged in the proceedings before the Court. Nor does this documentation indicate that Simone Gbagbo is currently being prosecuted by Côte d’Ivoire for the same conduct attributed to her in the case before the Court.
    V. CONCLUSION
    79. In light of the above, the Chamber concludes that Côte d’Ivoire has not
    demonstrated that the case against Simone Gbagbo alleged in the proceedings before the Court is currently subject to domestic proceedings within the meaning of article 17(1)(a) of the Statute. Accordingly, the Chamber finds that the present case is admissible before the Court”

    2. Then you ask: “what would the ICC gain by insisting that Cote d’Ivoire surrender Gbagbo to the Court to face a second prosecution?”

    The answer is possibly here: http://news.yahoo.com/pardon-possible-coasts-iron-lady-gbagbo-194818293.html It seems likely that Ouatarra will pardon Gbagbo, which raises the question of alternative justice mechanisms and the ICC’s complementarity mechanism. Another issue that has yet to be litigated.

    Patryk

Trackbacks and Pingbacks

  1. monster high games baby

    Opinio Juris » Blog Archive Simone Gbagbo’s Domestic Conviction Illustrates the Futility of the “Same Conduct” Requirement – Opinio Juris