The Office of the Prosecutor (OTP) of the International Criminal Court (ICC) in The Hague, Netherlands, issued a press release today stating the prosecutor’s intention to appeal the Pre-Trial Chamber’s decision to adjourn the Confirmation of Charges Hearing in the case against Laurent Gbagbo and ask the OTP to provide more evidence to support the case.
Laurent Gbagbo is the former President of the Ivory Coast and is the first former head of state to face charges at the ICC. His wife, Simone Gbagbo, remains in custody in Ivory Coast and has also been indicted by the ICC.
On 23 November 2011, Pre-Trial Chamber III issued a warrant of arrest for Laurent Gbagbo (“Mr Gbagbo”), having found reasonable grounds to believe that he was criminally responsible as an “indirect co-perpetrator” pursuant to article 25(3)(a) of the Statute for the crimes against humanity of murder, rape and other forms of sexual violence, other inhumane acts and persecution, committed in Côte d’Ivoire during the period between 16 December 2010 and 12 April 2011. P.2 Decision to Adjourn. Footnotes omitted.
Two of the three judges in the pre-trial chamber noted these difficulties with the case:
During the Hearing, the Prosecutor made clear that besides the four charged incidents, she is relying upon further 41 incidents to establish her allegation for the existence of an “attack directed against any civilian population” under article 7 of the Statute. Of these 45 incidents, the majority of them are proven solely with anonymous hearsay from NGO Reports, United Nations reports and press articles. As explained above, the Chamber is unable to attribute much probative value to these materials. Moreover, many of these incidents are described in very summary fashion, making it difficult for the Chamber to determine whether the perpetrators acted pursuant to or in furtherance of a policy to attack a civilian population as required by article 7(2)(a) of the Statute. The Chamber is also presented with an incomplete picture as to: (i) the structural connections between the so-called “pro-Gbagbo forces” acting across the incidents; and (ii) the presence and activities of the
armed forces opposing them. Ultimately, the Chamber is asked by the Prosecutor to draw numerous inferences from actions or conduct of Mr Gbagbo, his inner circle and the “pro-Gbagbo forces”, but the Chamber does not have enough information to determine whether these inferences are sufficiently supported by the evidence in order to meet the required threshold for confirmation. Order Paragraph 36, Footnotes Omitted
Judges Kaul and Van den Wingert went on to explain the reason for adjourning rather than declining to confirm the charges:
Despite these difficulties in the evidentiary record of the Prosecutor, the
Chamber considers that this does not automatically have to lead to the immediate refusal to confirm the charges. Although the Chamber is not prepared to accept allegations proven solely through anonymous hearsay in documentary evidence, the Chamber notes that past jurisprudence, which predates the above-mentioned decisions of the Appeals Chamber, may have appeared more forgiving in this regard. Therefore, the Prosecutor in this case may not have deemed it necessary to present all her evidence or largely complete her investigation, following all relevant
incriminating and exonerating lines of investigation in order to establish the truth. The Chamber does not exclude that the Prosecutor might be able to present or collect further evidence and is therefore, out of fairness, prepared to give her a limited amount of additional time to do so. As the Appeals Chamber noted when discussing summary evidence, when the evidence is insufficient the “Pre-Trial Chamber need not reject the charges but may adjourn the hearing and request the Prosecutor to provide further evidence. Order P. 37, Footnotes omitted.
Also this week, the pre-trial chamber denied the Defense’s challenge to admissibility, the argument that the court cannot hear the case because it should be tried in Ivory Coast rather than in the ICC. The doctrine of Complementarity prevents the ICC from hearing cases that are or have been prosecuted by national authorities. Gbagbo has been indicted for economic crimes in the Ivory Coast, but the court found that did not prohibit him from being charged with Crimes Against Humanity in the ICC.
The appeals chamber could overrule the pre-trial chamber and set the matter on for trial, or find that there was not sufficient evidence to confirm, and dismiss the case, or follow the pre-trial chamber’s lead and ask for more evidence or detail before setting the case on for trial. The judges do seem to be showing little deference to the decision making or evidence interpretation of the OTP.