ICC: the Gbagbo case, new revealing of the weaknesses of the prosecutor's office
Luis Moreno-Ocampo, left, with Fatou Bensouda, right, after an oath-taking ceremony at the International Criminal Court (ICC) in The Hague, The Netherlands, on Friday June 15, 2012. © AP Photo / Bas Czerwinski , Pool
Text by: Stéphanie Maupas Follow
7 mins
The appeals chamber of the International Criminal Court confirmed the acquittals pronounced in favor of Laurent Gbagbo and Charles Blé Goudé in January 2019. The two men are now free.
But the case will have thrown a harsh light on the deep dysfunctions of the prosecutor's office and tarnished the already fragile record of prosecutor Fatou Bensouda.
His successor, Karim Khan, is expected in June to reform.
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From our correspondent in The Hague,
The case had all the assets to give the Court the credit it dreams of.
A former head of state and his ex-minister placed in the dock, tried for crimes perpetrated during a conflict whose climax lasted only four months, and enjoying assured cooperation from the country's authorities .
The Gbagbo affair
brings together all the ingredients for the failures of the prosecution.
A cocktail of political instrumentalization, surveys carried out without expertise and without verifications, ignorance of the field and superficial reading of the conflict.
For many observers of the Court and lawyers, a justice that acquits is not faulty.
But when dismissals and acquittals follow one another, the problem becomes systemic.
The Gbagbo affair is
the most bitter failure of prosecutor Fatou Bensouda
.
A failure whose origins can be found in the very foundations of the prosecutor's office, built by the first elected of this Court established in July 2002, Luis Moreno.
Ocampo, of which the Gambian was the assistant.
Acknowledgments and dismissals
From the case brought against the Congolese
Thomas Lubanga
in 2006, the prosecution revealed its flaws.
The militia leader was convicted of recruiting children into his troops.
But the first witness in the history of the Court had to admit at the stand to having lied to investigators, while in the east of the Democratic Republic of Congo (DRC) a lucrative trade in witnesses was organized.
If Thomas Lubanga was finally convicted, the Court recorded the first acquittal at the second trial.
Mathieu Ngudjolo was acquitted
, when his co-accused,
Germain Katanga,
was convicted on a very partial part of the initial charges.
Then follow the first non-places of business that do not pass the indictment, against Idriss Abou Garda, the Sudanese rebel, or the Rwandan
Callixte Mbarushimana.
On paper, the Kenya affair looked like a mini Nuremberg.
The poster was impressive, lining up six defendants, ministers and police chiefs.
One of them,
Uhuru Kenyatta
, will become head of state while surfing an outraged nationalism in the face of alleged ICC interference.
The Kenyan president will be dismissed in December 2014, like the other five suspects.
In June 2018,
the acquittal of Jean-Pierre Bemba
by the appeal chamber caused an earthquake.
The release of the former vice-president of the Democratic Republic of the Congo (DRC) is finally starting to make the 123 States parties to the Court blink, even those who fund it, and NGOs.
The Court's audit
The failure of the prosecutor in the Gbagbo case is therefore not an accident.
But with the Bemba case, this latest episode in the prosecution's misadventures has alerted the 123 states parties to the court.
Its Assembly therefore decided, in 2019, to conduct a form of audit, under the authority of South African judge Richard Goldstone, former attorney general of the international tribunals for the former Yugoslavia and Rwanda.
On November 9, 2020, he submitted a 348-page report to the Assembly.
In the part reserved for the accusation, the diagnosis is severe, but fair.
The auditors note the “
lack of long-term strategic planning
” in the surveys.
Believe that without a plan and without an overall vision, “
the teams work without precise guidelines and are reduced to a reactive decision-making process.
"Emphasize that the investigators only stay in the field for two to three weeks, in rotation, and judge the method"
ineffective
", adding that it"
must be completely overhauled
", especially as it leads to"
ignorance of the countries
”where the surveys are conducted.
Experts rely in particular on the Gbagbo affair.
In the decision to acquit, the President of the Trial Chamber, Cuno Tarfusser, wrote that “
witnesses from all walks of life have helped to paint before the Chamber a picture of Côte d'Ivoire that is simply incompatible with the one portrayed. by the prosecutor
”.
The Court does not have its own police force.
To investigate and arrest suspects, it needs the cooperation of states.
In their report, the experts pinpoint the States for their delay in responding to requests for assistance from the prosecutor's office, their irrelevant answers or the transmission of unusable documents because they have been purged of their substance.
Classic techniques of obstruction when a country does not actually wish to cooperate, an obligation, however, which is imposed on the Member States of the Court.
But in reality, obtaining judicial cooperation often involves a standoff, especially if they upset the diplomatic interests of the capitals requested.
The reform prosecutor
The prosecutor "
must show determination and strategic spirit in order to secure the necessary cooperation
", write the rapporteurs.
However, cooperation is an essential cog in international justice, but a delicate mechanism.
It requires a subtle balancing act that, unlike other prosecutors in the ad hoc tribunals for the former Yugoslavia, Rwanda or Sierra Leone, neither Luis Moreno Ocampo nor Fatou Bensouda have been able to carry out.
Both nurtured a more clientelist vision of their relations with the States, which elected them and which finance the Court.
In his time, the Argentine had created a specific division dedicated to cooperation, still in place.
Its officials see themselves as a diplomat, denounces the report.
A birth defect, inherited from the Ocampo years.
At the time, court officials ironically denounced
Argentina's “
Foreign Ministry
”.
Following his election, in 2003, Luis Moreno Ocampo had hired in his office all the diplomats, British, Canadian, Argentinian, who had made him elected.
Quite naturally, the latter engaged in diplomacy, forgetting that a prosecutor is a servant of justice and thus altering for a long time the very foundations of the prosecutor's office.
The court's audit was released even as states parties attempted to identify who would be the court's third prosecutor.
Elected in February, Karim Khan
, now head of the UN investigation into Daesh in Baghdad, will be the reform prosecutor.
In addition to the reform, the Briton could orient his penal policy towards more “
complementarity
”, accentuate the pressure on the States so that they carry out the trials in their own courts and thus put an end to impunity.
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