The acquittals add to the ICC Office of the Prosecutor’s recent string of failures to obtain convictions for accused war criminals. The decision is drawing further attention from the international community and legal scholars alike for a number of reasons, including the majority’s refusal to issue a full, written decision upon announcement of the acquittals, along with what many view to be the application of the incorrect legal standard by the Chamber. The clarification of those outstanding issues is necessary to analyze the soundness of the majority’s decision.
Whether the acquittals stand may have profound implications on the continued operation of the ICC, a fiercely debated institution. Staunch critics argue that the role of the ICC is misguided, and prosecutions should be left to the nations where the conflict occurred. Others point out flaws in the prosecutorial strategy but are careful to tout the necessity of the ICC, reminding the international community of the magnitude and complexity of the cases before the ICC. Regardless, the recent acquittals are significant and unique decisions that are sure to impact the court moving forward.
Development of the Case Against Gbagbo and Blé Goudé
In 2010, the Ivory Coast held a contentious presidential election between incumbent Gbagbo and Alassane Ouattara. The results were highly contested — the international community at large declared Ouattara the victor, but Gbagbo refused to cede power. The conflict escalated from violent public clashes between civilians and armed officials of each regime to a full-scale military conflict and civil war. Gbagbo was ultimately captured following intervention by the international community, and in 2011 the ICC launched an investigation into his role.
Following the investigation and the Ivory Coast’s acceptance of the ICC’s exercise of jurisdiction over the case, the ICC charged Gbagbo and Blé Goudé with crimes against humanity under Article 7 of the Rome Statute. The charges included murder, rape, other inhumane acts and, in the alternative, attempted murder and persecution. The Office of the Prosecutor narrowed the charges to a specific period covering four incidents during the civil unrest that each resulted in civilian casualties. The prosecutor alleged that the accused participated in the widespread and systemic attack of civilians to implement a policy of retaining power by all means necessary, including through the utilization of lethal force.
Thus far, the trial has been extensive. Since commencing in January of 2016, the Trial Chamber has held over 230 days of hearings, has heard the testimony of 82 witnesses, and has evaluated thousands of documents submitted for evidentiary review.
The Majority’s Oral Decision and the Dissent
After the prosecutor rested her case, the Trial Chamber indicated that the accused may want to file a motion for acquittal, or “no case to answer,” which Gbagbo and Blé Goudé promptly did. Following oral arguments, under a divided bench the majority issued its oral decision in a brief 15-minute hearing, noting that the prosecutor’s evidence was insufficient to prove several core elements of the crimes charged, and that there was no need for the defense to present rebuttal evidence. According to the majority, the prosecutor failed to demonstrate (1) the existence of a policy to attack the civilian population; (2) that the crimes alleged were committed in furtherance of a state or organizational policy; and (3) that the public speeches made by defendants ordered, solicited or induced the alleged crimes (or alternatively that the defendants knowingly or intentionally contributed to the crimes).
The magnitude of the decision to acquit at this stage of proceedings cannot be understated. After years of investigation, indictments of the accused, and the lengthy presentation of the prosecutor’s case, the majority’s decision implicitly announces that the prosecutor’s case was so lacking that no reasonable trier of fact could convict the accused of the crimes charged. The fact that the majority made this conclusion without viewing any rebuttal evidence presented by the defense is a striking blow to the reputation of the Office of the Prosecutor, fueling critics who question the competence of the prosecution to deliver convictions.
The initial criticism of the prosecutor, however, may be simplistic and misguided. In a 21-page dissent, Judge Olga Herrera Carbuccia was quick to point out the flaws in the majority’s decision, both of her primary arguments deserving serious consideration. She argues first that the majority issued its decision without providing the legal reasoning to substantiate its findings. Citing to text of the Rome Statute requiring a decision of the Trial Chambers to contain a full and reasoned statement of findings, she further argues that norms of international law and the preservation of a fair trial demand a full decision in writing as well. The majority, however, maintains that it is permissible for it to provide a written decision “as soon as possible,” but that the timeline for doing so is within the majority’s discretion.
It is indisputable, however, that the prosecutor cannot seek leave to appeal, and certainly cannot begin to craft a legal argument in response to the majority’s findings, until the majority issues an authoritative, written decision. At the time of publication, over two weeks after the acquittals were announced, the majority still had not issued a written decision.
Second, the dissenting judge notes that the majority appears to have evaluated the prosecutor’s evidence under the incorrect legal standard. She argues that under the ICC’s precedent, a motion for “no case to answer” must be denied if the Trial Chamber finds there is sufficient evidence where a reasonable Trial Chamber could convict the accused. To be sure, this is the standard international tribunals, including that of Yugoslavia and Rwanda, have repeatedly used. In its oral decision, however, the majority seemed to blatantly disregard the standard, arguing that “the Prosecutor has failed to satisfy the burden of proof in the requisite standard as foreseen in Article 66 of the Rome Statute,” that provision requiring the prosecutor to prove the guilt of the accused beyond a reasonable doubt. Adding to the confusion, the day following the oral decision, the majority denied using the “beyond a reasonable doubt” standard in issuing its decision, despite explicitly citing to Article 66.
Whether the majority placed a heightened legal burden upon the ICC prosecutor remains to be seen, but the majority’s apparent reliance on Article 66 certainly muddies the waters of the less established jurisprudence of this young court. Of course, the merits of Judge Herrera Carbuccia’s arguments cannot be fully evaluated absent a comprehensive, written decision by the majority.
Until the Written Decision, Implications Remain Unknown
The day after announcing the acquittals, the majority ordered both Gbagbo and Blé Goudéto be released, which the prosecutor promptly appealed. At the time of this publication, the accused were being held pending that appeal. Once the majority issues its formal written decision, the prosecutor will be permitted to appeal the acquittals in front of the ICC’s five-judge Appeals Chamber.
Whether the acquittals stand, and for what reasons, will have profound implications on both the credibility and the operation of the ICC, an institution that is regularly critiqued as one that disproportionately targets the accused of African nations. While the acquittals of Gbagbo and Blé Goudé could enhance the ICC’s credibility by showing a willingness to dismiss insufficient prosecutions despite intense external pressure from the international community to obtain convictions, the majority’s decision comes on the heels of several “failed” prosecutions, most notably those of former vice president of the Democratic Republic of the Congo, Jean-Pierre Bemba, and former deputy president of Kenya, William Ruto.
Some emphasize that fewer convictions should not be interpreted as a failure; the accused are innocent until proven guilty, and the court displays legitimacy when it acts as a neutral entity that evaluates the evidence, rather than an institution that blindly pursues convictions when indisputably heinous atrocities have occurred. Further, the ICC was always intended to be a court of last resort, trying the accused of only the most serious international crimes, and only when the “home” nation is unwilling or unable to prosecute the accused.
The track record of the Office of the Prosecutor, however, must continue to be scrutinized if the court is to continue to function as a credible institution. By analyzing the outcome of the cases before the ICC, international and legal scholars have identified obstacles that impede the ability of the office to bring forth strong cases that can result in convictions. For example, the prosecutor may be misguided in targeting only the most senior officials involved in crimes against humanity, where direct links to egregious conduct are much harder to prove. Only targeting those at the top leaves gaps in cases where mid-level or even low-level officials are more directly engaging in the criminal conduct. Pursuing only a handful of cases for mass atrocities with incredibly complex backgrounds is also risky. By focusing exclusively on senior officials, and potentially failing to obtain any convictions, the rosecutor may leave an enormous number of victims without any legal remedy, a result that screams of injustice when the repercussions of such inhumane acts are at stake.
Regardless of the ultimate fates of the accused, the ICC, the Office of the Prosecutor, and the international legal community would be remiss to fail to learn from this case. While the efficacy of the ICC will most certainly continue to be debated on the world-stage, the need for justice for victims of the world’s most heinous crimes remains unequivocal.
Viren Mascarenhas is a partner and Morgan Bridgman is an associate at King & Spalding LLP.
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