Dr Douglas Guilfoyle | firstname.lastname@example.org
On three occasions the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) has sought to bring proceedings against heads of State or government, these being the situations inCôte D’Ivoire, Kenya and Darfur, Sudan. None have thus far met with much success. The (now former) President of Sudan, Mr Al Bashir, has been ruled to have no immunity from the Court’s processes but is not in custody after more than 10 years. The case against President Uhuru Kenyatta of Kenya collapsed in 2014. Finally, the Gbagbo and Blé Goudé case, involved allegations that the former president of Côte D’Ivoire organised attacks upon civilian supporters of his principal political rival in post-election violence, was dismissed by Trial Chamber I in January of this year. In October, the ICC Prosecutor filed an appeal in Gbagbo, arguing the trial judges had erred in their evaluation of the evidence and seeking a mistrial. If successful in that application, the case could be sent back to start from scratch before a new trial chamber.
Gbagbois significant case for several reasons. First, while the failure to surrender Al Bashir and the case collapse in Kenyatta can be blamed on State obstruction, the OTP had the backing of the new government in Côte D’Ivoire. This means the spotlight is very much on the OTP’s investigation, case theory, and case management. Second, if there is to be a re-trial, Mr Gbagbo and his co-accused will have been in detention since the end of 2011. This raises serious questions about the ICC’s practice of provisional release. There is also the peculiarity of the case being dismissed in an oral decision in January 2019 with full written reasons not following until July.
The remainder of this blog post will ask: what went wrong?* It will briefly review the outcome, the initial investigation, the case theory, the mode of liability and the role of the judges, before considering the implications of the Prosecutor’s appeal.
The majority in the Gbagbo and Blé Goudé Trial Chamber for the no case to answer motion were Judges Henderson and Tarfusser, Judge Herrera-Carbuccia dissenting. For reasons of space, I will focus on the Henderson and Tarfusser separate opinions. In sum, though, their account of what went wrong for the Prosecutor was: a poorly conducted investigation was conducted which then had to underpin an inflexible case theory, which was in turn poorly executed in the courtroom. “In a nutshell, the majority acquitted Mr Gbagbo and Mr Blé Goudé because the way in which the Prosecutor depicted their actions and omissions from a legal point of view could not be sustained by the evidence” (Judge Henderson, Preliminary remarks, para 2). These opinions do not make for comfortable reading.
The underlying investigation
Judge Henderson is blunt about the quality of the investigation and evidence, noting hundreds of documents originating in the Côte d’Ivoire Presidential Palace were not inspected until 10 months after Mr Gbagbo’s arrest and no evidence was led as to how (or if) they were secured from tampering (paras 34-35) or “bombing, pillaging or raiding” (Tarfusser, para 92).
Judge Tarfusser also notes that “critical interviews” were entrusted to “staff with limited mastery of French” (para 93). Judge Tarfusser also considers many days of court time were wasted on witnesses with nothing relevant or probative to contribute, including four days questioning two documentary film makers one of whom spoke no French while the other had only such a grasp of it as to permit “remarkably” or “outrageously” inaccurate translations (para 24).
Judge Henderson is also not flattering as to the quality of oral testimony: “An extraordinary amount of evidence in this case rests upon hearsay, which the Prosecutor submitted on a prodigious scale. The Prosecutor’s relaxed approach to its use raises serious questions about her methodology” (para 42). The point being notthat such evidence is inadmissible, but rather that it is of little or no value without some corroboration, which was seldom provided.
It also appears that some early version of the Prosecutor’s case theory (below) may have distorted evidence gathering (Henderson, para 81). Thus, while evidence of payments to youth group leaders could be relevant to a case that they acted as part of a criminal plan, such evidence could only be properly interpreted against a relatively complete set of records of such disbursements to other persons and groups by the Presidential administration. Unfortunately, only the “youth leader” payments were excerpted from those records.
The Prosecutor’s case theory
Henderson notes the factual case presented was “exceedingly complex”:
“The Prosecutor, in a Herculean effort, has attempted to bring within the scope of this single litigation several years of Ivorian history … However, in framing the factual scope of the charges so broadly, the Prosecutor may have bitten off more than she could possibly chew with the resources that were available to her” (Preliminary remarks, para 5 and see para 10).
In particular, he observes that to prosecute complex international crimes succesfully one must “develop a thorough understanding of the political, social, cultural, and military background” giving rise to those crimes (Preliminary remarks, para 10; and para 77).
The Prosecutor’s case theory was that, by the time of the 2010 election, Mr Gbagbo and his “inner circle” of supporters had formed a plan that he should remain in office no matter the election outcome. To this end they “adopted a policy to engage in an attack against the part of Côte d’Ivoire’s civilian population that supported his main political rival, Mr Ouattara.” (Henderson, para. 54). This was thus to be “a straightforward story about a leader who … was unwilling to hand over power to his natural successor” (Henderson, para. 77).
Of this case theory Judge Henderson observes:
“The Prosecutor’s narrative is largely internally coherent and prima facie plausible. Nevertheless, there are a number of points of serious concern. The main concern is that the Prosecutor seems to have presented a rather one-sided version of the situation in Côte d’Ivoire. There is a reason why we ask witnesses to undertake to tell the ‘whole truth’. This is because withholding part of the relevant information may be highly misleading” (para 66).
He suggests Mr Gbagbo “was never a ‘normal’ president in a ‘normal’ situation” but rather “there appears from the evidence to have been an ongoing … [and] drawn-out civil war [which] must have been at the forefront of [the mind of] everyone involved in the post-electoral crisis” (paras 67 and 72). In this context, presenting a situation as involving deliberate attacks on civilian neighbourhoods risks overlooking that the regular army was subject to “frequent attack” and ambush in “urban guerrilla warfare” against a Commando invisible (para 68; and see Tarfusser paras 105-107). Further, local concerns about possible intervention by the former colonial power, France, whether justified or not “may have gone a long way to explaining a lot of the accused’s choices, rhetoric, and conduct” (para 70).
In particular, the Prosecutor seems to have presented a (none of the judges use this term) ‘Rwandan-ized’ narrative, in which the country had serious ethnic or religious cleavages which mapped onto “population was entirely divided into supporters of Mr Gbagbo and supporters of Mr Ouattara” (Henderson, para 76; see Tarfusser, para 12). While this narrative is simple enough, it was not borne out by the evidence of Prosecution witnesses. Judge Tarfusser extensively quotes testimony in which witnesses testified that they lived in cosmopolitan neighbourhoods, in which it was often not possible to tell the origins of one’s neighbours (Tarfusser, para 13).
As the Prosecutor lacked “almost any direct evidence for her version of events”, instead she had to advance “an elaborate and multi-faceted evidentiary argument … built almost entirely upon circumstantial evidence.” (Henderson, para 78). Thus,
“The Prosecutor relies on a wide range of factual allegations from different areas, ranging from events that predate the post electoral crisis by a decade to minute details about meetings and small-scale financial and other transactions. According to the Prosecutor, this amalgam of hundreds of individual facts together form a system of evidence that can only be fairly assessed as a whole. However, simply declaring that everything is connected and that it is only possible to understand the true significance of the individual constituent elements by viewing all aspects of the case in their totality, is one thing. Articulating what these myriad connections are and demonstrating that they actually exist and form a coherent whole, is quite something else.” (ibid).
In Judge Tarfusser’s terms, the Prosecutor’s evidence largely consisted of “nothing more than a combination between neutral, institutional conducts, on the one hand, and readings of such conducts so as to make them consistent with the ‘case theory’, on the other hand”, an approach which can only succeed if no other readings are plausible and no contradictory evidence emerges (Tarfusser, para 15). Ordering a curfew might be evidence of a military take-over; but when conducted in accordance with long-established national law it might only be a measure to restore public order. Thus, the weakness of circumstantial evidence is that wrong inferences may be drawn from perfectly true circumstances (ibid). Further, the Prosecutor’s witnesses gave evidence that the curfew had been recommended to the President by the military, not the other way around (Tarfusser, para 55).
It is hard to describe such trenchant criticism neutrally. At best the suggestion is that the Prosecutor, having formed a case theory, engaged in motivated reasoning, presenting a bricolage of de-contextualised evidence and inviting the Court to join the dots. (Conversely, as I note below it may also be read as suggesting an excessively granular approach to the evidence on the part of the judges.)
Worse, Judge Tarfusser notes that there was no effort on the part of the Prosecutor “to adjust and progressively amend her narrative” in light of the evidence as it unfolded, rather her case theory remained the same (para 104). “Throughout the trial and until her closing statements, the Prosecutor’s failure to meaningfully address facts and circumstances coming on the record through her own witnesses which were not consistent with her own ‘case-theory’ was striking” (ibid).
As Judge Henderson puts it later: “If it is a combination of evidence that allegedly proves a fact, then the Prosecutor must clearly identify all the pieces of the puzzle and, crucially, explain how they fit together” (para 87); but “[u]nfortunately, because of the Prosecutor’s ‘everything-proves-everything’ approach, it has proved impossible to conduct a linear analysis of the evidence” (para 91). Judge Tarfusser described the Prosecutor’s approach as “a vortex of circularity, self-reference and repetition that has not made the Chamber’s task any easier” (para 51).
The mode of liability
This was also a complex case for the Prosecutor, in that there was no evidence of Mr Gbagbo acting as a direct perpetrator. Further, the majority was obviously unpersuaded by the circumstantial case that Mr Gbagbo could be considered a co-perpetrator through participation in a common plan. Insofar as command responsibility was alleged, not enough was done by the Prosecutor to show how Mr Gbagbo was expected to exercise control “in a context as difficult and chaotic such as the post-electoral crisis” and regarding events alleged to have occurred between 16 December 2010 and up to and including “the hours and days following his arrest” on 11 April 2011 (Tarfusser, para 17). Quite apart from the difficulty of a President punishing conduct which occurred after he was deposed, there was only a four-month window in which Mr Gbagbo could have conducted investigations and taken disciplinary measures. Judge Tarfusser pointedly notes that the Prosecutor’s own investigations into such matters took several years.
Not all the blame necessarily rests with the Prosecutor. Judges have a role in imposing court room discipline, in conserving the use of expensive court time and translation facilities, and in not indulging counsel in irrelevancies. There were obvious tensions on the bench about the handling of evidence and other matters. Judge Henderson is sceptical of the value of admitting “over 4,610 items of documentary and other … evidence” without establishing their relevance or authenticity ab initio (para 32; compare Tarfusser para 89). Tarfusser refers to “the differences in approach within the bench, some of which so deep as to have repeatedly fractured the Chamber” and that “developments in the courtroom might also have led some to guess that I was not always supported in the choices I would have made [as presiding judge] as regards the conduct of the proceedings” (para 6). While better managed proceedings would not have changed the outcome, they might have foreshortened the time in detention for an accused with no case to answer.
It is also regrettable that, once again, a visibly splintered Trial Chamber has failed in its obvious duty to deliver one decisionsetting out the reasons of the majority and minority in a single document (Article 74(5)). Instead we have a cursory eight-page record of the oral decision of 16 July 2019, 961 pages of reasons from Judge Henderson dissecting the paucity of evidence, a further 90 pages from Judge Tarfusser (who concurs with Henderson, while still criticising the length of his analysis), and 300 pages from Judge Herrera Carbuccia on why she would have let the case proceed.
Further, while I have for the large part taken the Judges’ criticisms at face value in this analysis, Darryl Robinson has written an excellent series of posts at EJIL:talk putting the contrary view – that the judges of the majority may have taken an excessively atomistic and sceptical approach to the evidence, turning a standard of beyond reasonable doubt into something closer to certainty.
At one level, Gbagbo and Blé Goudé reinforces the lessons of the recent conviction in Ntaganda. To succeed the OTP needs deep local knowledge, should not (in the first instance at least) target anyone too remote from the direct commission of crimes, and the charges should be simply framed and based on a clear chain of evidence. In Côte D’Ivoire one has the sense that the Prosecutor may have been tempted to work backwards from who was in custody: Mr Gbagbo.
At first blush, this was a clear case of a president who refused to accede to the peaceful transfer of power after an electoral defeat. The temptation to look for evidence fitting a case theory that he had orchestrated violence to stay in power must have been strong. There was certainly not much time to investigate other theories: Mr Gbagbo was arrested on 11 April 2011, the Prosecutor officially requested Pre-Trial Chamber authorisation to open a proprio motu investigation on 23 June 2011 (granted on 3 October 2011), and Mr Gbagbo was surrendered to the ICC on 30 November 2011. By the end of December 2011, the OTP was effectively committed to prosecuting Mr Gbagbo even if confirmation of charges hearings did not open until February 2013.
That the Prosecutor has chosen to appeal the result is a bold decision. Judge Henderson’s forensic 900-page dissection of the Prosecutor’s evidence was plainly designed to send a message to the Prosecutor, but also to signal to the Appeals Chamber that no stone was left unturned. The Prosecutor’s grounds of appeal are that the Trial Chamber: first, failed to comply with the requirements of Article 74(5) in acquitting Mr Gbagbo and Mr Blé Goudé on an oral decision with written reasons to follow; and, second, failed to apply a consistent standard of proof and, indeed, made a number of erroneous or inconsistent findings of fact as a result.
On these grounds, the Prosecutor seeks a re-trial. This is fairly obviously for the reason that for the case to resume before the present bench would be close to futile: they have already found the Prosecutor failed to make out her case, why would things improve with the presentation of the defence case? Whether these grounds are sufficient remains to be seen. The failure to comply with Article 74(5) point is undoubtedly correct, but to declare a mistrial on the basis of a procedural defect seems unlikely.
On the evaluation of evidence, as noted, Robinson has made an excellent case that there are forceful criticisms to be made of the majority’s fact-finding. Robinson makes a strong case that the majority was excessively dismissive of evidence establishing crimes. That, however, was only part of the problem: the OTP theory linking those crimes to Mr Gbagbo’s inner circle was also found wanting, with one historian and transitional justice expert describing it as relying “on such a simplistic understanding of Côte d’Ivoire’s political history that it was bound to fail”. It could thus be a pyrrhic victory for the OTP to re-start this case without a new case theory as to how Mr Gbagbo was linked to the crimes which undoubtedly occurred.
From a presumption of innocence perspective, the Court’s restrictive approach to provisional release is worrying. Judge Tarfusser notes the “heavily restrictive regime” of provisional release ordered in this case, which in Mr Blé Goudé’s case means he is under effective house arrest in a closed location functionally the same as remaining in detention (para. 117). When defendants have already been acquitted, having already spent over eight years in detention, keeping them in effective detention pending the Prosecutor’s appeal (however long that may take) seems hard to justify.
*The remainder draws substantially on material previously published at EJIL: talk!.
Douglas Guilfoyle is an Associate Professor of International and Security Law at the University of New South Wales Canberra at the Australian Defence Force Academy, and is a 2019-2020 Visiting Legal Fellow at the Australian Department of Foreign Affairs and Trade. He blogs in a personal capacity. He holds degrees in Law and History from the Australian National University; and an LLM and PhD in international law from the University of Cambridge, where he was a Chevening and then a Gates Scholar. Prior to joining UNSW Canberra he worked at the Faculty of Laws at University College London (2007-2015); and the Faculty of Law at Monash University (2015-2018). His research areas include the law of the sea, international and transnational criminal law, and international courts and tribunals.