Gbagbo Defence Calls for Charges to be Dropped

At the confirmation of charges hearing in the case against former Ivory Coast president Laurent Gbgabo, the defence argued that the charges were based on flawed research and should be thrown out entirely.

Gbgabo was extradited by the Ivory Coast authorities in November 2011 and is the first former head of state to appear before the International Criminal Court, ICC.

He is charged with four counts of crimes against humanity, including murder, rape, persecution, and other inhumane acts, relating to post-election violence in Ivory Coast between December 2010 and April 2011, when Gbagbo refused to cede power to the incoming president, Alassane Outarra.

The purpose of the confirmation of charges hearing against Gbagbo is for the pre-trial chamber, composed of a three-judge panel, to determine whether there is enough evidence to bring him to trial.

At the start of the hearing, held between February 19 and 27, the defence expressed shock at what it said were “factual and legal defects and inconsistencies within the Document Containing the Charges”, referred to in court as the DCC.

Dov Jacobs, a law professor submitting arguments on behalf of the accused, called on pre-trial judges to “throw out the DCC in part or in its entirety”.

The defence repeatedly referred to what it regards as the vague and imprecise nature of the DCC, calling it “nothing but a press review” and claiming that it did not show any indication of a “properly conducted investigation”.

“The defence will show that it is not possible to establish the existence of substantial grounds to believe that President Gbagbo committed the crimes charged against him”, defence lawyer Emmanuel Altit said.

The defence also said that the prosecution had presented an incorrect interpretation of events, and that it was playing a “dangerous game” by relying on a “construction [of events] that has been put together by others” – meaning reports from the media and NGOs.

Throughout the hearing, the defence said there was a lack of balance in the case, questioning why only Gbagbo had been brought before the ICC when his political opponents, now in power, is also accused of committing serious crimes during the post-election violence.

According to the defence, the prosecution is overlooking numerous crimes and providing “a blurry snapshot of what really happened” by focusing on certain events to create a narrative that is out of context.

Gbago is only “guilty of wanting to emancipate his country”, the defence maintained.

Jacobs pointed out that Ivory Coast has demonstrated the willingness and ability to investigate and prosecute Gbagbo itself, so this case should be matter for the national judiciary.

He said “complementarity”, the principle that means the ICC only steps in when a country is unable or unwilling to prosecute suspects itself “is not an option… rather an obligation”.

In response, senior trial lawyer Eric MacDonald stressed that the prosecution would clearly “demonstrate that the ICC has jurisdiction in the matter” and that the case was entirely admissible before this court.

Moreover, he criticised the last-minute requests and points raised by the defence, claiming these were a “technique… to stall proceedings”. He pointed out that the confirmation of charges hearing had originally been planned for June 2012.

In her opening statement to the court, ICC prosecutor Fatou Bensouda stated that her office would demonstrate that Gbagbo “bears the greatest responsibility for some of the worst crimes committed in Côte d’Ivoire [Ivory Coast] during the post-election crisis of 2010-2011”.

“The prosecution’s evidence will show that Mr Gbagbo and members of his inner circle adopted a policy and common plan with the objective of maintaining Mr Gbagbo as president of Côte d’Ivoire by any means, including by lethal force,” she continued.

The prosecutor also made reference to the victims of atrocities for which Gbagbo is alleged to be responsible, and stressed that her office aimed to bring “justice to these victims”.

Bensouda said that throughout the hearing, the prosecution would focus on core evidence regarding four incidents “representative of the crimes committed by pro-Gbagbo forces in a sustained series of attacks put into motion by Mr Gbagbo during the post-electoral violence”.

According to the prosecution, “Mr Gbagbo is responsible for the killings of at least 166 persons, the rapes of at least 34 women and girls, the infliction of serious bodily injury and suffering on at least 94 persons and for committing the crime of persecution against at least 294 victims.”

The evidence presented by the prosecution included reports by NGOs like Human Rights Watch and Amnesty International, video footage, and witness statements.

The prosecution stated that Gbagbo “never had any intention to relinquish power irrespective of the result of the elections” and that “he had prepared to stay in power by legitimising the use of violence against his opponents”.

“This is attested by his orders to use the army against demonstrators,” the prosecution claimed.

The prosecution argued that Gbagbo was not only “fully aware of everything that was going on”, but that “he was the one calling the shots”.

On several occasions the prosecution made reference to the role of Gbagbo’s “inner circle”, namely his wife Simone Gbagbo and former minister Charles Blé Goudé, alleging that they “shared his option for violence”.

The prosecution said that according to one rape victim, “the police officer said to her that Simone Gbagbo had asked them to rape all the women that took part in the [demonstration] and that if they were not able to rape them, to shove a stick into them”.

Paolina Massidda, a lawyer for 199 victims authorised to participate in the proceedings, addressed the chamber about the ongoing suffering of her clients and stressed that “the right to justice is one of their main concerns”.

Massidda added that “whether the defence likes it or not”, this judicial process “involves speaking up”.

Both parties have the opportunity to file written arguments following the hearing, and judges will make a decision on whether to send the case for full trial by the end of June.

Luz Ramirez is an IWPR contributor in The Hague.