For the first time in its history, the International Criminal Court is trying a former head of state. The trial of former Ivorian president Laurent Gbagbo — alongside his ally Charles Blé Goudé — opened Thursday in The Hague, where Gbagbo has been held for the past four years.
Why is Gbagbo on trial?
Gbagbo and Blé Goudé each stand accused of crimes against humanity in the aftermath of Côte d’Ivoire’s November 2010 presidential elections. Côte d’Ivoire is a West African nation with about 23 million citizens and a troubling history of violent bursts fueled by exclusionary sociopolitical rhetoric since the mid-1990s. Gbagbo’s refusal to cede power to then-challenger Alassane Ouattara engulfed the country in political violence until April 2011, leaving about 3,000 people dead.
The ICC prosecutor alleges that Gbagbo attempted to stay in power by using the state’s defense and security forces and political militias to target Ouattara supporters, real or perceived, both in Abidjan and the north. Specifically, he is charged as an indirect co-perpetrator for murder, rape, sexual violence and persecution, among other acts, which amount to crimes against humanity.
How is Gbagbo’s ICC trial different?
The ICC was created by the Rome Statute in 1998 and went into effect in 2002. It has jurisdiction over atrocity crimes committed in states — or by citizens of states — that have willingly accepted its jurisdiction, which now includes Côte d’Ivoire. But the U.N. Security Council also has the power to refer to the ICC a situation in a country that has not joined the court, as it has done in Sudan and Libya. For instance, the warrant for the arrest of President Omar Hassan al-Bashir of Sudan comes from such a referral.
Until now, ICC trials mostly have been of former rebel commanders. Cases against political elites in Côte d’Ivoire are distinct from the rest of the ICC docket, which typically includes cases of atrocities during civil war, not after a hotly contested election that sparked political violence.
While this is not the first time a head of state has been charged by the ICC, Gbagbo is the first former such leader to make it to trial. Previous international courts have tried former heads of state, but not the ICC.
The Gbagbo and Blé Goudé trial is highly political, despite the claims of prosecutor Fatou Bensouda that “this trial is not about who won the 2010 elections. Nor is it about who should have won those elections.”
But the prosecution is based on the fact that Gbagbo lost the election and still tried to cling to power by military means — and there’s been no prosecution of his opponent, the current Ivorian president, whose backers are also accused of human rights abuses, leaving the proceedings against Gbagbo are intertwined with Ivorian politics.
Was the Ivorian crisis just a case of elections gone wrong? (Short answer: No.)
Earlier Monkey Cage posts have examined the violence following the 2010 elections that had its roots in the debate over Ivoirité, a policy that has poisoned Ivorian politics since the death of President Félix Houphouët-Boigny in 1993.
Ivoirité redefined eligibility to participate in Ivorian politics, limiting participation to those who were “truly” Ivorian. It was first adopted by Houphouët-Boigny’s successor, President Henri Bédié, as justification to keep Ouattara and his party out of politics. Ivoirité did not just exclude elites from running for office, though. It also redefined citizenship and nationality more broadly for ordinary Ivorians, excluding those who were labeled as being of Burkinabé or Malian descent, mostly populations from the northern part of the country.
A coup and a rebellion from 1999 to 2010 both reinforced Ivoirité and also the northerners’ feelings of exclusion by the Ivoirité policies of Bédié and later those of Gbagbo. Between 2002 and 2010, Côte d’Ivoire was essentially partitioned into the north, controlled by the Forces Nouvelles of Guillaume Soro, and the south, under the control of Gbagbo’s loyal forces. Episodic bursts of violence between the two camps and many rounds of negotiations later, the country moved toward the inclusive 2010 elections.
In that election, Gbagbo was ahead in the first round of voting, with 38 percent of the vote, compared with Ouattara’s 32 percent, with the rest going to other candidates, including Bédié. But because no one won an outright majority, the top two candidates were forced into a runoff, and all opposition parties rallied behind Ouattara.
The Independent Electoral Commission declared Ouattara the winner of the runoff election with 54.1 percent of the votes. Those results were immediately dismissed by the Constitutional Council — led by Gbagbo loyalist Judge Yao N’Dré — which invalidated 600,000 votes cast in Ouattara’s stronghold. The Constitutional Council thus declared Gbagbo the winner with 51.5 percent of the votes.
For five months, the country had two presidents, each claiming legitimacy. The struggle between the two camps escalated into violence.
How did the ICC get involved?
Ironically, Gbagbo himself had first invited the ICC to Côte d’Ivoire in 2003, although the country was not yet party to the Rome Statute. Gbagbo was facing a rebellion led by Soro, who would become leader of the Forces Nouvelles, which objected to the exclusionary citizenship policies. Soro controlled the northern half of the country from 2002 until 2006.
At that point, the Ouagadougou Accords ended at least some of the violence and stipulated that Soro become prime minister in a transition government led by Gbagbo. These same accords enabled Ouattara to run in the 2010 elections.
During the post-election violence in 2010, Ouattara sent a new referral letter — a document requesting ICC action — to the court in 2010, even though Côte d’Ivoire was still not officially a state party to the Rome Statute. The ICC subsequently issued warrants for the arrest of Gbagbo, his wife Simone Gbagbo, and Blé Goudé. No case has yet been brought against Soro at the ICC.
Why isn’t the ICC pursuing anyone from the Ouattara camp?
For many years, the ICC’s Office of the Prosecutor has responded to criticisms of what some perceive as a one-sided investigation, targeting only the Gbagbo camp, with the claim that it has adopted a sequential approach.
But in Kenya, the OTP had prosecuted two sides of a conflict simultaneously, charging Kenyan President Uhuru Kenyatta and Deputy President William Ruto at once. (Charges against Kenyatta have since been dropped.) The two later joined forces and ran for office on an anti-ICC platform. That’s when the ICC’s OTP learned that going after current state officials has its challenges.
During a recent news conference, Bensouda, the ICC prosecutor, has said that her office intensified investigation of the Ouattara camp in 2015 but declined to give any more details. The OTP may seek arrest warrants for Ouattara allies, including Soro, for his leadership of the Forces Nouvelles. Soro’s lieutenants have been named as responsible for many abuses that human rights organizations have documented in various reports.
Soro is currently the speaker for Côte d’Ivoire’s parliament and has his eyes on the 2020 presidential elections. Until very recently, he appeared to be Ouattara’s heir apparent, but his alleged involvement in the failed coup in neighboring Burkina Faso last year has sullied his reputation. An arrest warrant from the ICC would further dampen his presidential ambitions.
How long will the Gbagbo and Blé Goudé trial last?
Although the trial just opened last week, Gbagbo has already been incarcerated in The Hague for four years.
Similar trials have, in the past, gone on for many years. For instance, Slobodan Milosevic’s trial at the International Criminal Tribunal for Yugoslavia, a predecssor to the ICC, had lasted four years by the time he died of cardiac arrest. Former Liberian president Charles Taylor’s trial before the Special Tribunal for Sierra Leone lasted six years.
For the Gbagbo and Blé Goudé cases, the prosecutor has announced that she will have 138 witnesses testify. The prosecuting file is comprised of some 10,000 pieces of evidence, including hundreds of hours of video footage. All this suggests the Gbagbo-Blé Goudé trial won’t be completed any time soon.
Oumar Ba is a doctoral candidate in international relations at the University of Florida studying the politics of international justice. His dissertation focuses on ICC interventions in Côte d’Ivoire, Kenya, Uganda, and Libya. You can follow him on Twitter at @OumarKBa.