Burgess COMMENTARY

Peter Burgess

Gbagbo’s trial: charges and challenges

Photo: Wikimedia Commons The Hague-based court. Its action on Côte d’Ivoire has revived criticism of bias

ABIDJAN, 27 June 2014 (IRIN) - The recent confirmation by the International Criminal Court (ICC) that charges against Lauren Gbagbo still stand has reignited criticism about the court’s approach to Côte d’Ivoire and its alleged failure to deal even-handedly with a highly complex post-conflict situation.

The former Ivoirian president will go to trial facing four counts of crimes against humanity: murder, rape and other sexual violence, persecution and other inhuman acts. The charges relate to the post-electoral crisis of 2010-2011 following Côte d’Ivoire’s bitter divisions over who won the presidential elections.

Facing similar charges at the ICC in The Hague is Charles Blé Goudé, former youth leader of the then ruling Ivoirian Popular Front (FPI) party and a staunch and often controversial defender of the former head of state. Gbagbo’s wife, Simone, has also been indicted, but remains in Côte d’Ivoire.

Supporters of those targeted by the ICC have been critical from the outset. Reiterating long-standing accusations of bias and discrimination, FPI leader Pascal Affi N’guessan told reporters recently: “Gbagbo’s camp is the victim of victors’ justice. Locally, it’s Gbagbo supporters who have been arrested and detained… This victors’ justice has been reinforced by the international justice… this does not help dismantle the obstacles to reconciliation.” But critiques of the ICC’s actions are not confined to the FPI and its allies. Maurille Komenan, who heads the Ivoirian NGO Acting for Peace and Development, says the court in The Hague is in danger of widening rather than healing divisions by keeping the charges in place. “We acknowledge that turning to an international court after such a conflict can offer justice to the victims,” Komenan says. “But it is important to note that just one side in the conflict has been targeted by the ICC and this does not help remove the feelings of resentment.” Where is the other side? Analysts from outside Côte d’Ivoire have also questioned the ICC’s handling of the Ivoirian dossier. Human rights organizations have persistently raised concerns since the 2010-2011 conflict about alleged abuses committed by militia fighters and others supporting Alassane Ouattara, now in power. Kamissa Camara, a West Africa political analyst, points out that legal action against pro-Ouattara suspects only began in 2013. Ottilia Maunganidze of the South Africa-based Institute for Security Studies acknowledges that there may be extra complications involved in bringing Ouattara supporters to book. “The fact that only three people, all aligned to the former government, have been indicted can suggest bias. This speaks more to the challenge of being able to properly carry out investigations and receive the requisite cooperation where some of the accused may end up being from within government,” she told IRIN. Pragmatism Mark Kersten, a researcher in international relations at the London School of Economics (LSE), argues that pursuing suspects not in power is a pragmatic decision to ensure that the ruling regime cooperates with investigations. “They [ICC] realize that if they were to issue arrest warrants for those in government and their allies, the ability to conduct those kinds of investigations would be severely undermined,” he said. But he warns that “the longer the court is unable to investigate both sides of the conflict, the more the perception of its legitimacy will suffer.” The ICC has repeatedly stressed its impartiality. Speaking on Blé Goudé’s transfer to the ICC on 22 March 2014, Prosecutor Fatou Bensouda was adamant that the court was still after suspects. “This is not the end of our work in Côte d'Ivoire,” Bensouda pledged. “Our investigations will continue. We will collect more evidence, and as warranted, bring further cases before the ICC judges without fear or favour and irrespective of sides or political affiliation of the perpetrators.” “It is important to note that just one side in the conflict has been targeted by the ICC and this does not help remove the feelings of resentment.” For some sections of the Ivoirian population, the trial of Gbagbo and his allies is a positive signal, showing that a leader, once seen as impregnable, cannot escape justice. After news broke from The Hague of charges being maintained against Gbagbo, members of the Post-Election Crisis Victims Association took to the streets, cheering the court’s decision. “This is the first satisfaction the victims have had,” explained Issiaka Diaby, a member of the group. Joël N’guessan, deputy secretary-general of the ruling Rally of Republicans party, described the court’s decision as “a balm to the hearts of many families who were victims of the post-elections crisis”, arguing that this signalled the end of impunity “and an end to barbarity and dictatorship”. The limits of reconciliation But with elections due in 2015, there are concerns about the levels of political partisanship in the country and the failure to secure genuine reconciliation. Côte d’Ivoire’s Dialogue, Truth and Reconciliation Commission (CDVR) has been roundly criticized for doing little to foster reconciliation. “Côte d’Ivoire has not made many strides in national reconciliation or political dialogue,” West Africa analyst Camara told IRIN. “In Abidjan and elsewhere, the discourse is very much either pro-Gbagbo or pro-Ouattara. Among communities, divisions along either political line are definitely palpable. Even though the term of the CDVR has been extended by one year, it looks like Côte d’Ivoire is yet to move from a retributive to a restorative justice.” Commissions set up to foster reconciliation, disarm fighters and investigate crimes over the post-poll conflict have reported some progress, but observers say the impact has not been far-reaching. In a bid to shore up national reconciliation, the Ivoirian government in late 2013 began granting temporary freedom to those detained over the post-poll violence. Exiled Gbagbo ministers have also returned home after Interior Minister Hamed Bakayoko said that not everyone sought over the violence will be tried. However, critics argue that such moves are more about political expediency that a genuine attempt to start afresh. With political tensions and unresolved grievances still very much present, some Ivoirians argue that the ICC can act as a useful deterrent, a reminder that acts of violence can have legal consequences. “Despite its weaknesses, the ICC remains an important jurisdiction in protecting the often weak and defenceless civilians from leaders drunk with power,” said Julien Kouao, an Ivoirian lawyer and political analyst. 7a/ob/cs/cb