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Exceptional weakness, doubtful authenticity and/or containing significant anonymous hearsay, flimsy, caricatured, one-sided, inconsistent or otherwise inadequate, lacking in probative value, these are some of the words used by the majority Hague-based International Criminal Court Judges’ Cuno Tarfusser and Geoffrey Henderson to dismiss, at mid-trial, the ICC Prosecutor’s evidence in the case against Laurent Gbagbo, former President of the West African country Côte d'Ivoire and activist and youth Minister Charles Blé Goudé.
ICC Prosecutor Fatou Bensouda, defying all logic, has decided she may file an Appeal and has till mid September. For Judge Henderson “it is incompatible with the presumption of innocence to continue the trial with the hope that the only incriminating evidence capable of supporting a conviction would be supplied by the accused.”
In their 16 July written decisions the majority Judges state that the documents that were submitted by the Prosecutor in this case would “not have passed even the most rudimentary admissibility test in many domestic systems.”
How was it possible that at the ICC instead such weak probative documentation was accepted?
One reason appears to be the lack of admissibility rulings for the evidence submitted: as early as February 2016, one week into the trial, which began in January of that year, in a dissenting opinion Judge Henderson had warned the Trial Chamber on this serious potential to undermine both the fairness and efficiency of the proceedings.
This absence of what is considered a settled and uncontroversial practice in all international criminal proceedings, allowed for this case record to be flooded with documents: in all 4 610 items of documentary and other non-oral items of evidence. No filters were applied also to the 96 witnesses submitted, of which 39 did not appear in Court.
“Had we been able to simply exclude all anonymous hearsay, this draft would have been several hundreds of pages shorter,“ writes Judge Henderson in his Reasons, which is a 961-page document.
With 34 years of judicial experience, of which ten passed as an ICC Judge, Judge Tarfusser pointed out the Prosecutor’s gravest flaw in this case: “her unwillingness to adjust and progressively amend her narrative, taking stock of things said or revealed in the courtroom: instead, this narrative has remained the same as in the early days of the pre-trial stage, and to this very day.”
According to Tarfusser as the trial unfolded Gbagbo’s role shifted drastically from the Prosecutor’s portrait of a vicious criminal dictator to “a President who cares, wants to be informed, and takes responsibility, rather than one conspiring against his people.” How can two such contradictory portraits coexist?
Laurent Gbagbo, a historian, non-violent activist and the father of Ivorian democracy, did engage in a conflict which saw civilian victims succumb, yet he was fighting a well-structured rebellion, the Forces Nouvelles (New Forces), which had been attacking his regime since 2001, and had occupied the Northern part of the country, splitting it in two since 2002.
The Prosecutor’s narrative, by systematically omitting or downplaying the presence of the Force Nouvelles, or other significant political and military actors, such as the UN (were evidence surfaced at trial that in some instances the UN acted in support of rebels) and France (were evidence at trial indicated that tanks of the French army shot at the FDS, the Ivorian national army), did not explain the patterns of violence on the ground.
Prosecutor Bensouda’s cheery picking evidence to suit her narrative calls into question the ICC’s capacity to bring justice, as Judge Henderson compared the legal exercise to a chess game where one “is only told about the moves of one player.”
ICC statutory obligations call on the Prosecutor to also investigate exonerating circumstances, which too often seemed missing. For example video evidence did not include a U-tube web site documentary film project I developed, Simone and Laurent Gbagbo, le droit à la difference (Simone and Laurent Gbagbo, the right to difference) which houses dozens of key first hand testimonies of politicians on the 2010 post-election, the period under review. at trial.
Judge Henderson and Tarfusser, providing a detailed analysis of the evidence that was submitted, came to the legal conclusion that no reasonable trial chamber could conclude that any of the Ministers mentioned, nor the first lady Simone Gbagbo, against whom the ICC has still not dropped charges although she was acquitted in the trial for crimes against humanity in Côte d'Ivoire, shared the intent to commit crimes against the civilian population.
Procedural, as well as investigative flaws on the part of the office of the Prosecutor, were identified by the majority Judges as occurring even prior to the opening of the ICC investigation in Côte d'Ivoire, which begs the question of a breach of impartiality and abuse of power.
This is corroborated by the 2017 leaked French diplomatic documents which revealed that on the April 11, 2011, five months before the opening of an ICC investigation and hours before Gbagbo’s arrest, the ICC Prosecutor at the time Louis Moreno Ocampo had requested that Laurent Gbagbo be kept imprisoned until a country refers the case to the ICC.
Twenty high-level French diplomats were thus aware of the political manoeuvring taking place to discard Laurent Gbagbo.
Not taking stock of what came forth in the legal exercise seems to be a major problem also in the 300-page dissenting opinion by Judge Herrera Carbuccia. For example, she mentions Charles Blé Goudé’s use of “hate speech” without citing a single source or extract of a speech by Blé Goudé to back her statements. The only footnote that points to some evidence cites a International Criminal Tribunal for the former Yugoslavia trial.
This is particularly disturbing as ample video evidence was shown at trial which pointed to the exact contrary, showing Youth Minister Charles Blé Goudé explicitly repudiating violence, something the majority Judges underlined.
On January 15 2019 the Majority Judges also ruled the immediate release of both accused, decision which was over turned by the Appeals Chamber on 1 February into a conditional release under a “heavily restrictive regime,” a regime the majority says clashes with the respect for fundamental human rights.
“The unjustified severity of the conditions imposed on Laurent Gbagbo and Charles Blé Goudé does not seem to take into account the acquitted status of the two persons, and in particular their acquittal following a procedure of dismissal at mid-trial, and the relentless finding of the majority of the judges of the Trial Chamber on the exceptional weakness of the indictment case" commented PHD candidate in international Law at Laval University, Moussa Bienvenu Haba.
In a African Network on International Criminal Justice meeting in Dakar on 31 July Nigerian human rights lawyer Femi Falana denounced this case as one of selective prosecution, and now selective persecution.
Paolo Sannella, former Italian ambassador in Côte d'Ivoire during the 2002 rebel attack welcomes the acquittal as “a first step towards the rehabilitation of the ICC” from what so far has been “a one-sided victor’s justice, a neo-colonial bullying that stained the name of France and its allies, who irresponsibly dragged Côte d'Ivoire into the tragedy of a war.”
Not acknowledging the “magnitude of the discrepancies between the facts as originally alleged by the Prosecutor and those facts as having surfaced in the courtroom” seems to be a major concern also outside the courtroom: experts in international criminal law, journalists and NGOs since January 2019 have either remained silent on this case or often reprimand the ICC for not having been able to bring justice by condemning a high profile indictee such as a former President.
* Fagiolo is an Italian filmmaker who works for national and international TV channels writing and producing reportage and documentaries.