ICC: is it as useless as feared?

By Emeka-Mayaka Gekara

Women dangled bottles of champagne from their hands as they danced on streets of Abidjan, the Ivorian capital, way before judges of the International Criminal Court delivered their judgment on the case against Laurent Gbagbo and Charles Blé Goudé.

Gbagbo’s supporters were almost certain that the case against their former President and Ble Goude, his former Youth minister, would collapse.

The two were facing charges of crimes against humanity, including murder, rape and persecution allegedly committed during the 2010/2011 post-election violence.

Nearly 3,000 people died in the uprising following Gbagbo’s defiant decision to cling to power though he had been trounced by Alassane Ouattara in the presidential election.

Gbagbo was dramatically arrested in a bunker at the presidential palace and held under house arrest for seven months before he was hauled to the Hague-based court, in a move celebrated as a victory for international justice and the battle against political impunity. The prosecutor accused Gbagbo of using violence against civilians to cling to power.

Trial began in January 2016 with the prosecution presenting 82 witnesses and tonnes of documents. But, as it would soon emerge, the evidence was so weak that the defence decided not to present any witnesses. This largely informed the celebrations in Abidjan ahead of the ruling on January 15.

The ICC judges ruled that Gbagbo and his ally had no case to answer and ordered their immediate release. This was a resounding blow for the prosecution, which has previously failed to build successful cases against Kenya’s Uhuru Kenyatta and his deputy William Ruto, and former Democratic Republic of Congo Vice-President Jean-Pierre Bemba – who had his war crimes conviction overturned on appeal in June 2018.

The collapse of the Gbagbo case has reignited debate that the prosecutor has been unable to bring powerful political actors to justice. There are also questions about the competence of the ICC’s prosecution team, the role of the court in delivering justice to victims of conflict as well as protecting the rights of the accused.

Case ‘exceptionally weak’

Critics think that ICC has turned itself into a platform for “show trials” for poorly investigated and prosecuted cases, a mere scarecrow against impunity. And much of this criticism is laid at the door of the Office of the Prosecutor (OTP).

Notably, the judgment in the Ivory Coast case was a stinging rebuke for the prosecution. The judges described the prosecution case against Gbagbo as “exceptionally weak.”

Presiding Judge Cuno Tarfusser said two out of three judges believed the case was so weak that it was unlikely that their acquittal would be overturned even on appeal. The majority held that the prosecution failed to demonstrate “the existence of a ‘common plan’ to keep Gbagbo in power” which included crimes against civilians, or a “state or organisational policy to attack a civilian population.”

Amnesty International described the decision to release Gbagbo as a “crushing disappointment” to victims of post-election violence in Cote d’Ivoire.

“This ICC ruling reminds us that fair trial and due process must be at the heart of international criminal justice. Victims of the 2010-2011 violence are yet to see justice and reparations for the harm they suffered,” said Marie-Evelyne Petrus Barry, Amnesty International West and Central Africa Regional director.

Demonstration of existence of an organisation, with a common plan and policy to commit crime are essential elements for a case to meet the Rome Statute threshold for crimes against humanity or war crimes. 

And it is here that the ICC prosecution team consistently meets its waterloo.

The other is the principle of command responsibility which was the cardinal plank for the defence in the Bemba case. The spirit of the principle is that a leader can be held responsible for failure to prevent, repress or punish commission of crime by subordinates.

In 2016, ICC judges unanimously found Bemba guilty of five charges of war crimes and crimes against humanity for abuses committed by his troops during a five-month rampage in the neighbouring Central Africa Republic.

Bemba had sent his militia, the Congolese Liberation Movement (MLC), into the CAR in October 2002 to quash a coup against then president, Ange-Felix Patasse. He was sentenced to serve 18 years in prison.

But the appeal court determined that trial chamber erred in its evaluation of Bemba’s motivation and the measures that he could have taken in light of the limitations he faced in investigating and prosecuting crimes as a remote commander sending troops to a foreign country; in whether he made efforts to refer the allegations of crimes to the CAR’s authorities; and whether he intentionally limited the mandate of commissions and inquiries that he established. The thrust of the judgment was that Bemba not only faced limitations but also later set up structures to investigate and punish perpetrators.

“Mr Bemba cannot be held criminally liable for the crimes committed by his troops in the Central African Republic,” Judge Christine Van den Wyngaert said while overturning the 18-year sentence.

The judges also faulted the trial court for convicting Bemba for criminal acts that were outside the scope of the charges as confirmed.

In the Kenyan case, ICC prosecutor Fatou Bensouda could not prove the planning element, a situation she attributed to the intimidation, disappearance and bribery of witnesses.

Kenyatta and Ruto had been accused of planning and inspiring the 2007/8 violence which claimed an estimated 1,300 lives and led to displacement of hundreds of thousands of families.

The other important plank in the prosecution narrative was the alleged involvement of members of the outlawed Mungiki sect in the violence and their association with Kenyatta. Mungiki was presented as an “organisation” with elaborate structures in the contest of Article 7(2) (a) of the Rome Statute, the ICC founding document.

The prosecutor alleged that Kenyatta met and supported Mungiki to conduct revenge attacks in Naivasha.

However, attempts to prove planning of the violence and Kenyatta’s interaction with Mungiki were dealt a huge blow with the withdrawal of evidence by prosecution witness Number Four, who claimed to be a former leader of the proscribed group.

This is the witness who claimed he was present at meetings in State House and the Nairobi Club where Kenyatta and former head of Public Service Francis Muthaura allegedly planned the violence.

The prosecution could not prove that the violence was planned without witness Number Four’s testimony.

Bensouda claimed the witness who withdrew his testimony after the confirmation hearings was paid to do so; the witness said he lied about his presence in the two meetings.

Bensouda told the judges that Mungiki members said to have interacted with President Kenyatta in person during the PEV were killed or forcibly disappeared in an apparent clean-up operation after the violence.

Critics of the court point to incompetence in prosecution of cases as well as reliance on the cooperation of State Parties to the Rome Statute for investigation and arrest of accused persons.

Show trials

The Kenyatta case was particularly awkward. The accused was the head of the government, which was required by the Rome Statute to assist with evidentiary material for his prosecution. Insiders have also criticised the prosecutor’s philosophy of using intermediaries instead of experienced staff to investigate cases – intermediaries are susceptible to political manipulation, revenge and self-interest.

An argument has also been made that the office of the prosecutor often falls into the agenda of powerful countries in an attempt to rally support for the court. For instance, pressure from the French on the prosecutor could not be disguised in the Gbagbo case.

Prof Steven Kay, Kenyatta’s attorney at The Hague, has argued that cases at the International Criminal Court were being fixed behind the scenes. He describes cases in international tribunals as “show trials” incapable offering justice to victims of mass crimes and the accused.

The British thinks that international tribunals were fixed, hostile to suspects and guided by powerful forces out to “make some individuals an example” as part of the global crusade against impunity.

“Because they (powerful countries) don’t like violence in elections in Africa, somebody has got to be made an example,” he told an audience at the London School of Oriental and African Studies.

But there those who argue, especially international agencies and human rights lobbies, that the presence of the ICC is a deterrence and presenting powerful individuals before it sends a potent signal that everyone is subordinate to the law.

Is the court being used to play politics?

Finnish law scholar Martti Koskenniemi offers that every trial is political.

“Every trial affirms and re-affirms a structure of power and preferences in the world and, in some cases, the accused is probably innocent and the court guilty.”

For his part, Sir Geoffrey Nice, Queen’s Counsel, has argued that though international tribunals are essential in oversighting crimes committed during conflict, they should be accountable.

“All court systems that function well do so because they are well-supervised – by governments, parliaments and, most importantly, by a vigorous press … The UN is not a governmental institution willing to analyse critically the work of its courts. Within the UN, criticism is unwelcome,” he wrote in an article in the December 16, 2010 issue of the London Review of Books.

Meanwhile, the credibility of the ICC continues to be tested—significantly that of the Office of the Prosecutor. (