A Gbagbo Riposte - Why Acquittals at the ICC are (Almost Always) a Good Idea

Steven W.S. Kayuni [1]

Let me start with the following proposition: Every interpretation of the Rome Statute and/or procedural mechanism leading to an acquittal at the ICC is brave. It confirms the apparent perceptions and animus of the framers of the Rome Statute i.e. a new experiment in global justice that is not characterized by the traditional dialectic of north and south, rich and poor, first world and third world, Great Powers and everyone else but genuinely egalitarian in structure and profoundly fair in conception.[2] The process that gives effect to such acquittals may sometimes be compliant with international criminal law. It may sometimes be viable. It is often, but not always flawed.

While adherents to the ICC, actors, decision makers and participants are still in awe over the recent acquittal of the former president of Ivory Coast, Laurent Gbagbo, and his assistant, Charles Blé Goudé, the very foundations of the ICC have been rattled.[3] Possibly, the OTP is now vexed by tonnes of questions and self-doubt. The fact that the Gbagbo acquittal is not the first one in recent times does not help the ICC's cause. The ICC has seen Bemba[4] being acquitted by the Appeals Chamber. Further, the ICC has seen case withdrawals in Kenyatta and Ruto case[5] and the Muthaura case.[6] It is suggested that even though these are not acquittals stricto sensu, the withdrawals possibly bespoke the defence’s favour of the bench.

Key elements of international criminal law, as espoused in the Rome Statute and many other authoritative instruments and publicists, have considered the ICC as an epitome of the fight against impunity. When stripped of its mystical moss, the fight against impunity simply represents the shared interest of the world community to put an end to the commission of heinous crimes. The contemporary international legal system is scarcely imaginable without the phrase ‘an end to impunity,’ and a system based on such a phrase but tolerating the general legitimization of international crimes is also hard to imagine.

Notwithstanding the above, jurisprudence stemming from the ICC has installed a major imperative for acquittals: some of such reasons have been lack of evidence capable of sustaining a conviction;[7] pursuant to command responsibility principle, lack of evidence demonstrating capacity to control one’s own troops operating in a different sovereign state.[8] Make no mistake about it: contemporary ICC reasoning does not principally concern itself with problems like selectivity of ICC’s situations or the suitability of ICC’s trigger mechanism. Its central concern is the preservation of the integrity of its processes while focused on the fight against impunity. A major purpose of the ICC is to indict culpable persons, including sitting heads of state, and that purpose necessarily (and not coincidentally) mirrors due process. The ICC acquittal of Laurent Gbagbo and Charles Blé Goudé of Côte d’Ivoire constitutes a clear example of purposive intention to firmly safeguard due process and integrity of the Court. It would be a misapprehension to construe such an acquittal as a response to the African states’ refusal “….to be carried along in a vehicle that has strayed off course to the detriment of Africans’ sovereignty, security and dignity as Africans.”[9] How this acquittal augurs with accusations of political considerations, power and patronage, skewed or imbalanced power relations or anti-African bias as regards selectivity on ICC investigations and prosecutions is a discussion for another day.

An antinomy is caused by two contradictory norms. A fundamental contradiction distinguishes the legal principles of due process, fair trial and integrity on the one hand, and the fear of risking the foundational values and aims of the ICC on the other. It is suggested that the ICC has quickly resolved this antinomy by staying the course of due process and integrity over unprincipled trials and convictions of those allegedly involved in the gross violations and widespread human rights violations even if appears as a failure to serve victims and truth seekers before the Court. A review of practice shows that when the facts warrant it, the ICC and world community, including many of the most legalistic international lawyers, diplomats and politicians, struggle with different rationalizations, but generally conclude that an acquittal, though not always desirable, is the right thing to do.

These contradictory principles do not produce a uncluttered jurisprudence - antinomies do not allow for that - but they have allowed international lawyers to distinguish between lawful and unlawful decision-making, as a few examples from recent memory will show. In June 2018, the ICC Appeals Chamber acquitted Jean-Pierre Bemba Gombo, a former Vice President of the Democratic Republic of Congo (DRC), on charges of war crimes and crimes against humanity committed in the Central African Republic (CAR). With regard to the situation in CAR, the Appeals Chamber held that the OTP failed to prove that pursuant to command responsibility principle, Jean Pierre Bemba had full control over the acts or omissions of his soldiers in CAR.[10] Yet, the same Court did not deny the bare facts that wanton violations and rag-tag processes were the order of the day for the solders leading to numerous gender crimes, loss of lives and nerve-raking criminality. Sceptics of the Bemba acquittal and adherents of ICC gender crimes would wonder as to whether the Rome Statute was properly construed and grounded in the Bemba CAR situation. One can argue that the Bemba and Gbagbo decisions are certainly pathological, but hardly pathogenic, in the sense of threatening other situations and cases before the ICC. However, where does this leave the scores of victims and truth seekers of Côte d’Ivoire and Central African Republic situations?

Some international lawyers who give pride of place to the ICC processes have consistently postulated ICC decisions; international lawyers who give pride of place to banality of the ICC have been more selective in their condemnation, as well as their approbation. They have vilified the Court on indictments of African leaders or suspects from small states. However, the very same decision-makers have applauded the very same ICC for the acquittals. Such views in the broadest range of official and unofficial international and national decision makers, whose expectations and demands are a critical part of ICC processes, need to base their decision making and standpoints on formulation, interpretation and implementation of international criminal law that values the dignity of the victims of the alleged criminality, international legal policies, due process, fair trial and the fight to end impunity. Each acquittal should be appraised in terms of these aspirations.

The title of this blog is: “A Gbagbo Riposte - Why Acquittals at the ICC are (Almost Always) a Good Idea.” It is now time toturn to the parenthetical "almost always." There will be times, perhaps "nail-biting," when an ICC Trial- or Appeals Chamber should undertake to acquit a suspect, because the evidence before it is anecdotal and dangerous, both pathological and potentially pathogenic making it far-fetched for a tidy and operable jurisprudence to advance accountability in international legal system. If the Trial- and Appeals Chambers mustengage in acquittal processes, it is proposed that ten guidelines deduced from earlier and current trends may serve as a guiding light for the Court:

1. Evidential analysis should be gained as much as possible.

2. There should be significant analysis of numbers of victims and witnesses.

3. There should be proper analysis of possible conflict escalation resultant from such an acquittal.

4. The acquittal decision should mirror probable jurisprudence of the Court (comparable jurisprudence of national jurisdictions should always be a second strand of decision making).

5. An acceptable alternative (reparations, peace and reconciliation including nation building) that promises to be effectiveness should be readily available.

6. The acquittal decision should mirror consonant values of ongoing witness protective measures that should never put witnesses in vulnerable situations subjecting them to retribution.

7. Pursuant to accountability values, the Chambers should order the OTP to issue a report to the Assembly of States Parties (ASP).

8. The panel of judges involved in the decision-making should not be believed, by those within the ICC (including the ASP) or outside it, to have a parochial interest in securing an acquittal.

9. Where nation building is an inevitable part of the peace building and reconciliation processes, the ICC (through its outreach endeavours) should be responsible or prominently involved.

10. The ICC, just like Murphy's Law, should have an exit strategy in the situation country and abrupt abandonment of all ICC processes cannot be tolerated.

Notwithstanding the above, it would obviously be best to convict and jail those bearing greatest responsibility for criminality for their vicious and wanton destruction of people’s lives. This is opposed to an acquittal of a person suspected to have committed heinous crimes, even though there exists a shortfall of the threshold of evidential and probative value.

Convictions, when it is necessary, should, if at all possible, be focused narrowly on convictions alone. Convictions will be most difficult when there is no clear and certain evidence placed before Court. Given the Bemba and Gbagbo acquittals, it is suggested that actors, participants and decision makers within the OTP need to prepare cases more rigorously than before. It has to be observed that in most cases this is against all odds. As such, alternative strategies such as the announcement by the Chief Prosecutor on the OTP’s continued investigations in Côte d’Ivoire need to be roped in.[11] It is further suggested that indictments should be essayed-in only when there is promise for quality and probative evidential value that can promote the aims and values of the ICC. Acquittals may seem necessary even when the conditions are not propitious. The cost of such acquittals on the ICC is unknowable, but likely high. In addition, durable ASP or international support is uncertain. However, that will not always be the case. Hence, in each context, let the best-intentioned ICC Trial- and Appeals Chambers pressed with or agitating an acquittal process, remember that not everything lawful is noble; not everything lawful and noble is feasible; and all-in-all not everything lawful, noble, and feasible is wise.

Endnotes:

[1] Ph.D, (University of Sussex), LLM (University of Sussex), Postgraduate Cert. - Social Research Methods (University of Sussex); Associate Fellow, UK Higher Education Academy; LLB (Hons) (University of Malawi), Commonwealth Scholar; International Fellow - National Attorneys General Training and Research Institute (NAGTRI – Washington, DC); Senior Deputy Chief State Advocate in the Ministry of Justice and Constitutional Affairs of the Malawi Government. The author takes full responsibility for all the mistakes and shortfalls. The interpretations and conclusions in this article are entirely those of the author. They do not necessarily represent the views of the Malawi Government’s Ministry of Justice, Attorney General or the institutions the office represents. Email: steven.kayuni@justice.gov.mw/skayuni@lawyer.com

[2] Schabas, W,A, (2013) The Banality of International Criminal Justice, 11(3) Journal of International Criminal Justice, p.549.

[3] Holligan, Anna, Laurent Gbagbo case: Ivory Coast leader's acquittal rattles ICC foundations, https://www.bbc.com/news/world-africa-46874517 (last accessed on 25 January 2019).

[4] Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against Trial Chamber III’s “Judgment pursuant to Article 74 of the Statute, ICC-01/05-01/08-3636-Red, 08 June 2018, https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-01/05-01/08-3636-Red (last accessed on 25 January 2019).

[5] Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on the withdrawal of charges against Mr. Uhuru Muigai Kenyatta, https://www.icc-cpi.int/Pages/item.aspx?name=otp-statement-05-12-2014-2 (last accessed on 25 January 2019).

[6] Statement by ICC Prosecutor on the Notice to withdraw charges against Mr Muthaura, https://www.icc-cpi.int/Pages/item.aspx?name=otp-statement-11-03-2013 (last accessed on 25 January 2019).

[7] Prosecutor –v- Laurent Gbagbo and Charles Blé Goudé, Dissenting Opinion to the Chambers’ Oral Decision of 15 January 2019, Trial Chambers I, ICC-02/11-01/15. Per Judge Herrera Carbuccia, https://www.icc-cpi.int/CourtRecords/CR2019_00107.PDF (last accessed on 21 January 2019).

[8] Judgment on the appeal of Mr Jean-Pierre Bemba Gombo.

[9] Speech by President Uhuru Kenyatta at the Extraordinary Session of the African Union, https://www.standardmedia.co.ke/article/2000095433/speech-by-president-uhuru-kenyatta-at-the-extraordinary-session-of-the-african-union (last accessed on 25 January 2019).

[10] Judgment on the appeal of Mr Jean-Pierre Bemba Gombo.

[11] https://www.icc-cpi.int/Pages/item.aspx?name=190115-otp-stat-gbagbo (last accessed on 23 January 2019).