The Latest Crisis of the ICC: The Acquittal of Laurent Gbagbo

[Mark Ellis is Executive Director of the International Bar Association, London.]

On March 24, 2016, the International Criminal Tribunal for the former Yugoslavia (“ICTY”) convicted Radovan Karadžić of genocide, crimes against humanity, and violations of the laws or customs of war. Almost exactly three years later, on March 20, 2019, the Appeals Chamber of the International Residual Mechanism for Criminal Tribunals upheld his conviction and even increased his sentence from 40 years to life in prison.

Since its establishment over two decades ago, the ICTY has successfully indicted 161 individuals. Of these indictees, ninety have been convicted and eighteen acquitted. History will judge the ICTY as a success in bringing to account those who committed some of the most heinous crimes during the war in the former Yugoslavia. However, the ICTY’s permanent successor tribunal – the International Criminal Court (“ICC”) – is struggling to sustain any perceptible notion of success. The Court has convicted fewer than ten people (three for international crimes) and acquitted four since its establishment seventeen years ago. The recent acquittal of former President of the Ivory Coast, Laurent Gbagbo, sheds further light on some of the shortcomings of the ICC.

In January of this year, the ICC acquitted Gbagbo of all charges. It was the first time a former Head of State had ever gone to trial before the ICC. The case against Kenya’s President Uhuru Kenyatta was stymied by Kenya’s unwillingness to cooperate with the Court. Gbagbo was also the second highest profile acquittal, after Bemba, in the Court’s history. There are many signs that the struggling Court’s impact has fallen short of expectations. But the Gbagbo acquittal is particularly damaging. It sheds light on either the inability of the Office of the Prosecutor (OTP) to successfully bring a case against a high profile indictee, or the failure of the judges to fully comprehend the OTP’s case. Neither effect is promising for the Court.

Gbagbo had been detained for nearly eight years, accused of crimes against humanity committed during the violence that followed his defeat in the 2010 Ivory Coast presidential elections. As Gbagbo refused to step down, forces loyal to him attacked civilians in the city of Abidjan. Specifically targeting communities supportive of the newly elected president, Alassane Ouattara, pro-Gbagbo forces killed more than 3,000 civilians and raped 150 women and girls. They ruthlessly attacked demonstrators against the Gbagbo government-controlled state television station RTI (Radiodiffusion Télévision Ivoirienne), which was inciting violence against pro-Ouattara groups. The attacks appeared well-organized, widespread, and systematic, giving rise to allegations that Gbagbo and his inner circle were giving the orders.

After roughly four months of bloodshed, pro-Ouattara forces, with UN and French assistance, captured Gbagbo and transferred him to The Hague on November 30, 2011.

Gbagbo’s trial might have been groundbreaking. As the OTP confidently stated: “Leaders must understand that violence is no longer an option to retain or gain power. The time of impunity for these crimes is over.”

However, the anticipation of justice quickly evaporated at trial. Before the Defense even presented its case, the charges were dropped. The Prosecutor had presented 82 witnesses during 231 days of court hearings, and submitted thousands of evidentiary documents, yet the judges found insufficient evidence to prove that Gbagbo was directly responsible for the violence.

This monumental defeat for the OTP is reminiscent of the 2018 acquittal of former Vice-President of the Democratic Republic of the Congo, Jean-Pierre Bemba Gombo. Bemba was convicted of war crimes and crimes against humanity, but the conviction was appealed and overturned. The Appeals Chamber declared that certain crimes for which Bemba was convicted fell outside the scope of facts and circumstances described in the charging instrument and, consequently, he was to be acquitted of the remaining charges. For the victims it was a devastating ruling.

While these high-profile acquittals can be seen as a setback for justice, they also highlight concerns about the Court’s viability. Despite important achievements, the ICC remains in jeopardy.

Exactly 124 countries are State Parties to the Court and, subsequently, consent to its jurisdiction. However, some of the most important and populous states – the United States, China, India, Russia, Israel and Indonesia have yet to cede to the Court’s jurisdiction. Three of these countries are permanent (P5) members of the UN Security Council.

The United States has been particularly disparaging of the Court. While U.S. objections have been clear for years, the current National Security Advisor, John Bolton, has used incendiary rhetoric to declare the ICC “illegitimate” and threatened the arrest of Court personnel if it pursues criminal charges against U.S. military and intelligence staff for alleged war crimes committed in Afghanistan. Most recently, the United States has stated that it will revoke or deny visas to members of the ICC.

Without full support of the Security Council, the ICC’s authority will continue to be challenged. The Security Council has been deaf to the Court’s request for assistance in enforcing arrest warrants. Sudan is a telling example. Despite an outstanding ICC arrest warrant for Sudanese President Omar Al-Bashir, thirty-three countries to date have refused to enforce it. Of these, ten are State Parties to the ICC. The Security Council has done absolutely nothing to sanction non-cooperation, despite UNSC Resolution 1593, which urges all states to cooperate with the ICC in relation to the Sudan situation. The result is that Al-Bashir has travelled freely, without consequence, for almost ten years.

Another challenge to the ICC’s legitimacy comes from within. During the past five years, the Philippines, Burundi and The Gambia have initiated steps to withdraw from the ICC (The Gambia recently reversed its position). Others, notably South Africa, have contemplated the same. The African Union (“AU”) has forcefully criticised the Court for a disproportionate focus on prosecutions against Africans. Considering that the largest number of State Parties is from Africa, the AU’s ongoing call for state withdrawal is unsettling, at best. Sir Geoffrey Nice QC, the British jurist who prosecuted Slobodan Milosevic at the ICTY, admitted that “[i]f the African Union pulled out en bloc, it would be terminal for the court. The court would die.”

Finally, the ICC’s annual budget of over $170 million raises legitimate arguments that money may be better spent on rebuilding post-conflict societies. Since its establishment, the ICC has convicted fewer than ten people and acquitted four, all at a cost well in excess of $1 billion. The Court doesn’t help itself when its judges, already earning a tax-free six-figure salary for less than full time docket work, are demanding a retroactive 26% raise and increase in pensions.

Already there is movement among some states to ensure Head of State impunity in all ICC cases. Gbagbo’s acquittal will bolster this position. This should provoke deep self-examination by the OTP, which drives the Court’s agenda, on its investigation and charging strategies, and for the Court a renewed commitment to its founding principles, which today fall short of expectations. Justice and victims demand no less.