Orientalism in Africa? The ICC and the case of Laurent Gbagbo
Nicoletta Fagiolo 30 May 2013

Laurent Gbagbo, the father of Ivorian democracy and the former president of Ivory Coast 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. Gbagbo’s government, elected in 2000, did not even last two years, as he was forced to come to terms with the rebel occupation for the following eight years.

Prior to the French brokered peace agreement of Linas-Marcoussis/Kléber in January 2003, African leaders mediating the crisis thought the rebels could ask for their military grievances to be addressed, but had no right over political revendications. France’s diplomacy changed this. In fact Laurent Gbagbo, after a day of discussions in Paris with the rebels, as well as then President Jacques Chirac and French Foreign Minister Dominique de Villepin, tired and returning late at the Hotel Meurice on the 24 of January confined to his friend Guy Labertit the evening before the official signing of the Marcoussis-Kléber peace accords: “ the headquarters of the coup d’état is the Quai d’Orsay”[2], the French Foreign Ministry. This peace accord forced Gbagbo to incorporate illegitimate, and often illiterate, rebels in his government.

All the subsequent peace accords called for the reunification of the country and the disarmament of the rebels, as well as of the self-defense groups which sprung up to defend themselves from rebel incursions.[3] Whereas these self defence forces, often wrongly described as pro-Gbagbo militias, did disarm and Gbagbo granted an amnesty to both sides as early as 2003 and again officially in 2007, the Force Nouvelles never disarmed two months before the elections, as all eight peace accords, spanning almost a decade, had called for. The 2010 elections were thus held “with one of the candidates, Alassane Ouattara, having an army in the North. Such an election is rigged from the start”, Ivorian reggae musician Serge Kassy explained.[4]

In April 2011 five months after the 2010 contested elections between Laurent Gbagbo and Alassane Ouattara, while Gbagbo had called for a recount of the votes, the UN and France, siding with the Force Nouvelles rebels, bombed the Presidential palace and arrested Gbagbo. At the UN Security Council India decried the “regime change” policies of the UN peacekeepers in Ivory Coast; Russia denounced the illegality of French and UN military actions; Thabo Mbeki wrote What the world got wrong in Ivory Coast[5].

Since November 2011 Laurent Gbagbo has been detained at the International Criminal Court in the Hague, accused of being an “indirect co-perpetrator”[6] of crimes against humanity while his political opponent, Alassane Ouattara, along with Guillaume Soro, the current President of the National Assembly, who both headed the 2002 rebellion, are currently not facing charges at the ICC. Ample historical evidence exists which links the financial support of Alassane Ouattara to the Forces Nouvelles rebels, such as the many examples cited in I accuse Ouattara, Why this man should find himself in front of a Judge written by journalist Théophile Kouamouo[7].

The Forces Nouvelles occupation caused a vast refugee and Internally Displaced Persons (IDPs) crisis which saw over one million people affected at its peaks in 2003 and again in 2011, according to the UN Refugee Agency. The Forces Nouvelles occupation also saw pillage-a war crime- committed by local warlords and numerous reports denounce, figures at hand, the enormous loss in taxation by the Ivorian government, as funds were siphoned from the national budget to La Centrale, a parallel tax system.[8] The illegal exploitation of natural resources in the rebel-controlled area, from minerals to timber, to cocoa-Ivory Coast is the world’s largest exporter of this crop- to diamonds, flourished. The UN still in 2009 called the region under rebel control a “warlord economy.” La Centrale thrived while the very foundations of society crumbled: teachers, doctors and numerous other civil servants fled to the South, justice and security fell under rebel control, banks were looted, land occupied. Those that remained behind had to negotiate a peace with an occupation. According to the Office for the Coordination of Humanitarian Affairs (OCHA) only one tenth of the displaced had gone back home by 2007, an indicator of the heightened and prolonged insecurity the rebellion brought[9].

Yet in the pre-trial proceedings[10] the Judges took a decision on 22 February 2012 stating that “in light of the limited information provided by the Prosecutor the Judges are unable to assess whether crimes against humanity may also have been committed by any of the rebel forces” between 2002 and 2010. This statement is outrageous when one looks through the few – and thus in itself inadequate- public sources cited in the very report, which point to the contrary[11]. One also questions the sources as one finds for example an article from French newspaper Le Monde which links death squads to the Gbagbo regime. Should the ICC Court not be aware that the Paris Court of Appeal condemned Le Monde in 2006 for defamation against the Gbagbo couple for that very same content?

In the five months post-electoral crisis, from December 2010 to May 2011, the only historical period the Prosecutor decided to review in his Document Containing the Charges (DCC) against Laurent Gbagbo, the Forces Nouvelles presence in the country is omitted from the Prosecutors analyses: two of the four events where Gbagbo is accused of committing abuses took place in a suburb of Abidjan, Abobo, nicknamed “Baghdad city” at the time by Ivoriens due to the harsh insecurity which prevailed. Abobo was occupied by a pro-Ouattara guerrilla, named the invisible commando, since even before the elections began. Investigative journalist Leslie Varenne spent time on the ground and wrote Abobo la guerre. She paints an urban guerilla which was instructed to take control of the area and the rest of the city: “no security help was provided to secure Abobo by Ouattara although Adama Toungara, a member of Ouattara’s party, was the mayor of Abobo. The mayor did not live in Abobo as it was too dangerous”. Gbagbo sent forces to protect the area from this urban guerilla. Varenne also writes that the FDS national army were very afraid to go to Abobo and thus sometimes fought shooting randomly, because often they did not know where the shots were coming from. She enumerates endless “attacks” the commando carried out against the FDS national army.[12] A UN Human Rights update of 30 March 2011 states the astonishing figure of between 350,000 and 700,000 thousand people had left Abobo. This figure tells the nature of the emergency that the FDS forces were faced with. Links to the commando invisible and Alassane Ouattara are confirmed by Varenne and can also be heard in a video interview given by IB Coulibaly, chief commander of the commando, for Jeune Afrique in April 2011[13].

The DCC instead omits the guerrilla warfare in Abobo and says Gbagbo’s forces attacked a civilian population: we read confusing sentences such as on page 47: “due to the insecurity prevailing at the time the FDS had no observers on the ground”, followed by “it is important to emphasize that on March 17 there were no military targets, no combatants were present in the area that were shelled.” So where was the insecurity faced by the FDS coming from, if not from combatants?

An attack, as described in paragraph 33 of the decision taken by the Chamber on 3 October 2011, must be carried out against a civilian population as its primary purpose. How can one accuse Gbagbo of attacking civilians in light of the above mentioned information where Gbagbo’s actions seem clear law enforcement orders combating an urban guerrilla, security operations to protect civilians which the very UN asked him to undertake?

“No soldiers joined the Golf Hotel, Ouattaras’ and the Forces Nouvelles headquarters during the post-election crisis”, writes Leslie Varenne, contrary to what the DCC says. She instead says that Ouattara had to “create an army” by adding to the Forces Nouvelles – which were about 5,000 – 25,000 recruits, mainly from young unemployed kids. Varenne writes that Ouattara’s main problem at the time was “how to make sure that the country does not plunge back to normality.”[14] He called for civil disobedience, calls the UN also criticized for its negative effects on the daily life of civilians, yet most of the population did not follow him.

At this stage of the investigation the Prosecutor Fatou Bensouda, who replaced Ocampo in June 2012, has done no ballistic or forensic expertises or autopsies to reinforce her evidence which rests heavily on NGO and UN reports, as well as newspaper articles and witness testimonies, to date scientific juridical evidence is inexistent. Hearsay statements, especially when anonymous, have little probative value and cannot be challenged by the Defence. A ballistic expertise could have cleared some incriminating evidence, such as one of the four charges against Gbagbo which involves a missile attacks on a market in Abobo. The Defence pointed out during the pre-trial hearing that a ballistic test could prove that those types of missiles cannot be fired from the distances cited by the witnesses. An interesting point which would need further investigation.

Another accusation, of the four incriminating events against Gbabo for attacking civilians, takes place on the 18 of December 2010. Gbagbo sent military reinforcements to protect the RTI, the national television station as rebels had declared they would take over the television station. The RTI had already been attacked by rebel forces in the past, with many FDS national army losing their lives. Is the “primary purpose” criteria still valid in light of discharging evidence the Defence presented during the pre-trial, namely video footage of armed Forces Nouvelles rebels taking orders from Guillaume Soro to take over the RTI?

Civil society organizations, self-defense groups, youth organizations and student unions are all lumped in one group by the Prosecutor and demonized as pro-Gbagbo supporters who committed crimes under his command, again overlooking the diversity in political expressions. One example, FESCI, a student union. During the pre-trial hearing on February 21 the Prosecutor states that “FESCI killed”. When I was interviewing human rights activist Sako Boga Gervais on 28 March 2013[15] he recalled an event which caught my attention: an attack by FESCI of two human rights organizations, the Ivorian League of Human Rights (LIDHO) and the PDH (Action for the Protection of Human Rights) in May 2007. It had been openly condemned by Gbagbo. So I presume that their actions were not linked to the President nor to Gbagbo’s policy stance. “Gbagbo went as far as helping the NGOs reconstruct damages as well as guarantee for their safety and protection,” Gervais says. If this was the relation with FESCI when Gbagbo was President in a calmer period, why should the chain of command, and thus functioning mechanisms be different in a time of heightened crisis? What is the direct link, juridical element, which links criminal acts of this student union to the Gbagbo regime?

“When Justice Jackson rose to address the Nuremburg tribunal, his very first words were not about crimes against humanity but instead about his privilege of opening the first trial in history for crimes against the peace of the world. For the judges at Nuremburg, the primordial war crime was to start a war in the first place”, writes political scientist John Laughland.[16] The crime against peace, the crime of aggression, does exist in international customary law. Although the member states of the ICC have agreed so far on a limited definition of aggression – and it will exercise jurisprudence over this crime at the earliest in 2017- its jurisprudence also rests on international customary law. The prohibition on aggression is today widely considered a jus cogens norm, a standard of international law that may not be changed by a contrary treaty provision or the development of a new rule of customary international law. One wonders how it is possible that in light of the information available today since 2002 Gbagbo is not freed on the basis of international customary law, that recognizes the crime of aggression, of which he was a victim of since 2001 or on the basis of Article 31 (d) of the Rome Statute,the treaty establishing the ICC, “grounds for excluding criminal responsibility”[17], as there is ample evidence that the Gbagbo government was attacked by an illegal armed rebel forces since 2001, a factor beyond his control?

That the Gbagbo regime should be the one held accountable for human rights abuses committed during the 2002-2010 period is historically disproven, as hundreds of accounts give details of the rebel aggression and subsequent occupation. By not addressing the illegality of the Forces Nouvelles rebel aggression the ICC Prosecutor and Judges are setting a dangerous precedent, as its political outcome will be a ICC legitimization of an armed group coming to power through force.

The Statute of the Special Court for Sierra Leone states that the court has been established to prosecute persons who bear the greatest responsibility (in this case in the crimes committed in Sierra Leone since 1996). This formulation guided the Prosecutor in his prosecutorial strategy. What analyses guided the Prosecutor in his prosecutorial strategy to choose to prosecute Gbagbo rather than Ouattara for the 2002 or 2010 period? By avoiding the 2002-up to today time frame set by the Judges is the Prosecutor not acting in a way that is prejudicial to the rights of the accused person? Is the Prosecutor also not breaching his duties with respect to the investigation? (Article 54 a, in order to establish the truth extend the investigation to cover all facts and evidence relevant to an assessment of criminal responsibility under this Statute, and, in doing so, investigate incriminating and exonerating circumstances equally). By not addressing the Forces Nouvelles crimes committed since 2002, for now over 10 years, how fast is incriminating evidence for these atrocities disappearing, as recently denounced by Ivorian human rights organizations over the 20 July 2012 attack on Nahibly camp for internally displaced persons, in the outskirt of Duékoué?[18]

When reading the Prosecutors final Document Containing the Charges (DCC) in the brief statement of facts –exposé des faits- one is baffled by the sloppiness in describing the historical events in the first few pages[19]: for example in the very first paragraph it states that Laurent Gbagbo made no effort to investigate into the crimes committed during the post-electoral crisis.[20] Yet a UN Human Rights report dated February 2011 specifies that Gbagbo called as early as the 20 of December 2010 for a national regional and international evaluation commission into the post electoral crisis and on 7 January 2011 Gbagbo, by presidential Decree No. 2011-06, established an international commission of inquiry with a mandate to investigate human rights violations related to the post electoral crisis.[21] Pascal Turlan, International cooperation adviser for the ICC Office of the Prosecutor, when asked if he had changed his mind in light of the pre-trial hearing where the Defence exposed some of these facts, responds: “ the Prosecutors’ office stands to what they wrote in their DCC, we are not here to write history, that is up to historians”[22]. But do we not all, willingly or unwillingly, write history?

It is precisely the “rewriting of history” which the Defence during the pre-trial hearing pointed out as one of the main weaknesses of the Prosecutors accusations against Gbagbo[23]. The Document Containing the Charges, divested of historical context, thus rests its accusations on two false presumptions: there was no armed conflict in the country prior to February 2011 (!) and Laurent Gbagbo lost the November 2010 elections. A ahistorical approach is one of the key features of Orientalism, that western lens which cultural critic Edward Said decried as capable of misrepresenting complexity, as it distorts history through selected elisions[24].

ICC procedures, a negotiated judicial incoherence?

To date not a single case has been brought against pro-Ouattara forces for atrocities committed from 2002 to 2010, nor for the post electoral crisis period which saw one of the worst massacres of the conflict, with 1,000 people losing their lives in one day, committed by the Forces Nouvelles in Duékoué at the end of March 2011. Is the ICC not exasperating the crisis by repeating on an international level a one-sided justice system already deplorable at the national level, which currently has over 150 people from the former Gbagbo regime in prison or facing trial and no rebels? This seems to be a clear case that does not meet the criteria of “serving the interest of justice,” a ICC statutory criteria for considering the opening of an investigation. Human Rights Watch recently wrote: “Indeed the fact that the ICC is a court of last resort when governments are either unwilling or unable to pursue cases only underscores the imperative of ICC action against those on the Ouattara side, who are otherwise beyond the reach of justice. Concrete actions against pro-Ouattara individuals where there is evidence of ICC crimes would go a long way toward rehabilitating the ICC’s credibility in Cote d’Ivoire as an impartial institution”[25], and could thus also further impartial prosecutions at the national level.

When a case is referred for an investigation to the ICC[26] a situation report is prepared so as to identify those most responsible within a given situation. One thus wonders how the Prosecutor Moreno Ocampo could allow himself to take sides by making declarations[27] pointing to the Laurent Gbagbo camp as culprits even before presenting a situation report on Ivory Coast. Ocampo was criticized at the time for undermining attempts to negotiate a resolution to the crisis. The Rome Statute says the Prosecutor can be disqualified if he participates in any matter in which his impartiality might reasonably be doubted on any ground. Its Article 42 (7) of the Statute.[28]

Investigative journalist Charles Onana writes about the grave shortcomings of the ICC and ad hoc international criminal tribunals in various African situations from Darfur to Rwanda, to the Democratic Republic of Congo and the Central African Republic. Onana’s Al-Bashir & Darfour, La Contre-Enquête, Menaces sur le Soudan et révélations sur le Procureur Ocampo (Al-Bashir & Darfur, The Counter-Investigation, Sudan under threat and revelations about the Prosecutor Ocampo) reads like a gruesome John le Carré spy novel: he tells us of testimonies obtained by under psychological torture, Prosecutors removed from cases – such as Carla del Ponte, for her attempt at investigating the Rwandan atrocities committed by the Rwandan Patriotic Front (RPF) rebels under Paul Kagame during the Rwandan genocide and in Eastern Congo up to today, probably the worst humanitarian crisis since 1994; missing UN reports such as the Robert Gersony report also concerning Rwanda’s RPF crimes (when de Ponte found the author, the UN did not authorize him to speak to the ICC); a false UN fax which appears a year later in the UN archives as proof of the planning of the Rwandan genocide; dubious evidence to apply a juridical genocide definition for the Darfur case; suspects which await their trial for over 10 years while imprisoned.

Furthermore the Prosecutor acted in a way that was prejudicial towards the rights of the accused by also wanting to interview Laurent Gbagbo while he was being held in arbitrary detention for eight torturous months with neither sunshine nor natural light in the remote village prison at Korhogo in Northern Ivory Coast. Gbagbo’s jail-keeper was Martin Fofié Kouakou, the rebel strongman in Korhogo, charged by the UN Security Council for war crimes and crimes against humanity since 2006: “he engaged in recruitment of child soldiers, abductions, imposition of forced labor, sexual abuse of women, arbitrary arrests and extra-judicial killings, contrary to human rights conventions and to international humanitarian law; obstacle to the action of the IWG, UNOCI, French Forces and to the peace process as defined by resolution 1633 (2005)”. Why did the United Nations entrust a war criminal for the safekeeping of a prisoner? The UN and French authorities were aware of the imprisonment of up to 1,000 political prisoners from the former Gbagbo regime and its sympathizers in the aftermaths of Gbagbo’s arrest. To date many are still being held.

The first procedure for collecting victims stories in Ivory Coast, victims who may also take part in the trial at the ICC, was defined by an ICC Registry report as having many shortcoming: “the Registry is not able to provide the Chamber with any assurances or even estimates regarding the representativeness of the information gathered during the exercise.”[29] One wonders why in the case of Ivory Coast the Judges chose not to send the Victims Participation and Reparations (VPRS) section to collect stories from individuals and community representatives so as to have a wider and thus more complete picture of the patters of violence in the country, as had been done for their case in Kenya. The Registry, which compiled the report, said they had no clue if this exercise actually represents the victim population due to a lack of information regarding the pattern of violence, as well as information on how the stories were collected. The Registry also underlined that at the height of the crisis there were at least 700,000 displaced persons and refugees and they are not represented in the circa 1,000 files they compiled. The time frame for collecting the testimonies was another shortcoming. A public notice was published on the 17 of June 2011 in Ivory Coast yet it did not explain how to exactly provide the victim story, many applications were thus excluded for this reason. Furthermore the Judges complained of a lack of representatives of communities. Yet the notice for community representatives was published in English, in a francophone speaking country, 11 days before the deadline in July 2011! Despite this the individual testimonies collected of the former Gbagbo supporters resulted three times higher than the Ouattara supporter victims. The 2002-2010 victims are covered in one paragraph in this document. This leaves little room for a serious mapping out of the victims representation in the crisis at this initial phase, a phase which outlines the situation as a whole, so as to establish who to incriminate. Not having an initial balanced picture of the patterns of violence during the crisis allows for a subsequent distortion of factual events.

An inadequate victims representation was also denounced in another ICC case. Aprodec asbl, a Belgian organization that defends Congolese citizens, sent an amicus curiae to the ICC judges over the Jean-Pierre Bemba case, were it complains of “conflicts of interest, biased behavior and selective and discriminatory criminal proceedings” on the part of the ICC Prosecutor. One of their complaints is the way the victim stories were collected: “upon arriving in the Central African Republic, the investigators of the prosecutor’s office have sought out exclusively victims for evidence against the MLC soldiers, (…) radio and TV spots called on people who had been victims of the MLC soldiers to come forward. The Prosecutor should instead look out for all victims testimonies from all belligerents involved, without any a priori, keeping a neutral approach without exceptions or exclusions”[30].

The Defence complained of a “wall of silence” from many international and national authorities to provide first hand documentation of the events under review, such as troop movements. Having to work to reconstruct a conflict without this background information is prejudicial to the rights of the accused.

At the Hague, where Gbagbo was transferred in November 2011 during the 15 months preceding the pre-trial hearing, which opened on the 19 of February 2013 and lasted till the 28 of February, the Prosecutor did not once call upon him to ask his point of view on the charges he is facing, a factor Gbagbo pointed out in his speech during the pre-trial hearing, stating that such as exchange would have given the trial a “fluidity of reasoning”, allowing for a focus on what is essential, and leaving out simple errors on which some of the charges are constructed.[31] Gbagbo pointed out that he often felt during the pre-trial hearing “far away from the issues we lived”. The trial calls into question the dangers of an externalized justice system uprooted from its national milieu, thus allowing for facts to be misunderstood and important nuances missed, simply because one is not an Ivorian national or very familiar with the countries culture.

In fact the pre-trial saw many example of Orientalism, a deeply distorted image of the diversity and complexity towards Ivory Coast, tending to portray this African nation through demeaning generalizations, an approach Edward Said denounced for its historical decontextualization and thus misrepresentation. Pro Gbagbo campaign slogans such as “It’s a win win situation” or “I see nothing in front but corn”, were suddenly supposed to mean “a devious plan to stay in power by all means” and “an ethnic attack on a corn growing people in the North of Ivory Coast” respectively. The defense explained painfully during the pre-trial that “It is a win win situation” is really just a slogan, and there are no particular Northern ethnic groups, of the 60 which the country houses, who are known to grow corn, but everyone grows it in their fields or eats it. In this clever campaign slogan corn thus meant “soft”, were corn referred to the cereal, and not a people. One got the impression a sachverständiger, a neutral external expert, would have discarded these facts before the pre-trial.

Gbagbo decried during the pre-trial hearing that the Prosecutor had called a former minister of defence his “his nephew”, which was simply not true. He tried to break the preconceived notion that the Prosecutor wanted to label him with, namely as a typical African dictator which rules with his family circle: “there may be many African nations that rule with their family, yet this was not the case of Ivory Coast under Gbagbo”. A demonizing campaign against Gbagbo, another characteristic of Orientalism, played a huge role in French and international media as early as 2000, the year Gbagbo came to power. Gbagbo had already been called a dictator by Jacques Chirac when accused of being a fascist back in 2004, to which he responded “that it was Chirac who had sustained the one party regime in Ivory Coast till 1990, and what is closer to fascism than a one-party state?” Anyone familiar with the struggle and rich political engagement, spanning decades, of his wife Simone Gbagbo, are aware her political career was, yes close to Gbagbo-they had founded the Ivorian Popular Front (FPI) party together when it was still an underground party under the dictatorship, but also independent from her husband.

The other major preconceived notion the Prosecutor and the Victims Representative hailed during the pre-trial was the use made of the term ivoirité. Ethnic tensions fuelled as the Forces Nouvelles rebellion rallied around the cause of the exclusion of northerners, so it is a point which cannot be overlooked, but to see ivoirité as the origins of the crisis is, at its least, misleading. Here again Orientalism is at play: a timeless, ahistorical image of Ivory Coast and its ethnic identities is presented so as to outline a simplified and misleading underlying cause for the conflict. The attention to the origins of the conflict are thus shifted away from the rebel aggression the country faced in 2002. Lawyer Agathe Baoran, defence legal assistant and the only Ivorian working on this trial at the ICC, during the pre-trail hearing went at length to explain the diverse ethnic identities to the audience by revealing the complex mosaic of her own ethnic background. She thus explained that Ivory Coast is not divided between a Muslim north and a Christian south, another stereotype which can only be overcome by using sound analytical tools.

Pascal D. Kokora, linguist and one of the five original founders of the Ivorian Popular Front (FPI), Laurent Gbagbo’s political party, reveals in his Le front populaire Ivoirien de la clandestinité a la legalité (The Ivorian Popular Front from clandestinity to legality) how Gbabo’s party struggled since its inception to move away from tribalism and later ivoirité. Tribalism was also denounced fiercely by Gbagbo is his historical books on Ivory Coast as one of the main legacies, together with a “development without growth” economy -rather than the often portrayed “Ivorian miracle”- of the Félix Houphouët-Boigny one party dictatorship. In Cote d Ivoire, pour une alternative démocratique (1983) Gbagbo shows how the one party dictatorship used tribalism to condemn the separatist Sanwi movement, or the affair Gnagbé which saw the massacre of 4,000 Bétés and Guébié. In both these cases an entire group was attacked, although ethnic grievances were not the issues at the heart of the opposition. The FPI saw one of its main challenges as overcoming ethnic divisions through embracing a democratic model. Many Northerners suffered ethnic discrimination because they had embraced Gbagbo’s party, which had moved beyond ethnic identities. A recent publication[32] which analyses the ethnic compositions of all post-independence governments has shown that Gbagbo’s government was also statistically the most diverse.

The pre-trail hearing also revealed some grave shortcomings as the Prosecutor presented evidence which had not at all been investigated or analyzed. The Defence showed examples were the Prosecutor had “blamed Gbagbo for misdoing of his adversaries”.[33] For example a fact which was supposed to incriminate Gbagbo, a handwritten document seized in Gbagbo’s residence saying that on the 29 May 2010 a Minister was given 1 million FCA francs to recruit 40 Liberian mercenaries, in reality exonerates him: the Defence pointed out in the pre-trial hearing that this Minister was in fact a pro-Ouattara Minister appointed in the 2005 coalition government. False evidence has also been included in the Prosecutors evidence list. A video a witness sustained was of a massacre, the forth charge against Gbagbo, carried out in Youpougon, a suburb of Abidjan, in May 2011 was actually filmed in Kenya. In the final written submissions the Prosecutor states that even if the tape was in fact filmed in Kenya, which it discovered only later, as the people in it are in fact speaking Swahili, his witness is still valid for another things he has to say, as he specified in his testimony that the tape had been given to him![34]

Another essential point which was not addressed during the pre-trail is the type of conflict under review. In light of UN and French involvement as actors on one side of the crisis, recognized by the Prosecutor and the Chamber, should it not be defined as an international conflict as the Judges themselves have pointed out in one of their decisions? Furthermore in light of them being actors in the crisis with a vested interest what probative value do their reports have? Much of the publically available information cited in the DCC is coming from a few UN sources and yet we have ample examples were the UN lied officially concerning this crisis, on issues such as Gbagbo having hidden mass graves or his rearmament efforts, both accusations subsequently proven unfounded by the very UN. Is there thus not also in this case a conflict of interest when using these reports as probative evidence? Behind Liberian and other mercenaries lie state powers with political interests and regional alliances which are also omitted from the pre-trial discussions. UN and NGO reports such as The usual suspects by Global Witness[35] have established detailed information of names and structures on how, for example, illegal timber companies in Liberia under Charles Taylor were fuelling the Forces Nouvelles rebellion in western Ivory Coast. An UN document by a Panel of Experts which were monitoring the arms embargo proves the rearmament of the Forces Nouvelles rebels via Burkina Faso as early as January 2011 and also their receiving military help from Nigeria and Senegal[36].

John Laughland, author of A History of Political Trials from Charles I to Saddam Hussein reminds us that the act of punishing and thus judging is a distinctive function of statehood, a contract between the people and a given state, which in exchange grants protection to the people: “the ICC, by contrast, swoops in only as an avenging angel and its only instrument of power is punishment. Structurally disconnected, like all international institutions, from the people over whom it wields power, it never has to bear the consequences of its decisions. It is the very embodiment of power without responsibility.”

Politologist Albert Bourgi criticized the diminished judicial role of the ICC due to political influences as simply an “executive branch for executing UN Security Council directives” at a recent workshop held in Addis Ababa in December 2012 which saw African political scientists and politicians meet to discuss “Africa and the world judicial governance.” Many at the meeting were displeased with the ICC’s work so far.[37] A recent book on the ICC and the Ivorian case is entitled President Laurent Gbagbo at the ICC, Justice or Imposture?[38]

If the Chamber will drop the charges against Laurent Gbagbo foreseen in June and finally decide to go after those who committed crimes against peace in Ivory Coast since 2002, it may regain some of its juridical credibility of an “impartial justice system”, yet so far the incoherence in its choice of targets on Ivory Coast has mainly legitimized an illegal UN and French intervention in April 2011 and the current Ouattara regime, a far cry from democratic. In the meantime we need to ask: is the ICC bringing reconciliation to Ivory Coast or further divisions? What can one do to preserve the disappearing evidence for the Forces Nouvelles crimes committed since 2002? A recent article in the New Yorker, Bodies of Evidence, reveals the difficulty of prosecuting people who are in power, when addressing crimes in Kosovo.[39] Would it be wiser to abandon all recriminations instead, as the art of making peace, which placed amnesty at the centre of a wars’ end for centuries, had done? If violence is born when people’s identities are reduced from complex dimensions to one or two simple dimensions, should we not be looking at ways to represent the richness of diverse Ivorian identities, rather than slice them in fictitious ethno-political factions? And where would Hannah Arendt have seen the “banality of evil” in this pre-trial?

Footnotes

[1]Franklin Delano Roosevelt died in April 1945, 7 months before the Nuremburg trials began.

[2]Guy Labertit, Adieu, Abidjan-sur-Seine, Les Coulisse du conflit Ivorien, Autres Temps Edition, Paris, 2008. p 31

[3]In 2004 as the Forces Nouvelles rebels again did not respect the deadline for disarmament, Gbagbo launched Operation Cesar/Dignity to try and reunify the country. The French responded by an intelligence operation which consisted in the killing of nine of its own soldiers in Bouaké, thus halting Gbagbo’s reunification plan. This event was followed by a brief Franco-Ivorian conflict in Abidjan, which saw 67 Ivoirians die and 2,000 injured, as French forces fired on unarmed crowds protesting the French actions which had destroyed the entire Ivorian aviation.

[4]Interview with Serge Kassy by Nicoletta Fagiolo, April 2012, Paris, France. Further information on the background to the 2010 elections and Laurent Gbagbo Nicoletta Fagiolo Laurent Gbagbo and the right to difference, RESETDOC, January 2013 here.

[5]Thabo Mbeki here

[6]The Prosecutor also recently added a new mode of responsibility, or liability, not just “indirect co-perpetrator” but also contribution for the charges against Gbagbo.

[7]Théophile Kouamouo, J’accuse Outtara, Pourquoi la place de cette homme et devant un juge, Le Gri Gri, Paris, 2012.

[8]Amongst numerous reports which define the running of the Centrale the UN Group of Experts on Cote d Ivoire met with André Ouattara, Director of the parallel tax system. The report says about La Centrale which operates in the northern part of the country since February 2004 : “zone commanders are relatively autonomous and appear to retain a large percentage of the taxes levied in their respective zones for their own purposes.” In UN Report of the Group of Experts on Cote d Ivoire, 12 April 2010 p 13 or UN Report of the Group of Experts on Cote d Ivoire, 27 October 2009 speaks of a warlord economy in the North Center West areas (known as CNO) of Ivory Coast under rebel control. See UN report cited below in footnote 11 also on illegal exploitation of natural resources.

[9]OCHA, IDPs in Cote d Ivoire, Immediate priorities and further perspectives, June 2007.

[10]The case is in the pre-trial phase which means before June 3rd 2013 the ICC Judges will decide if there are reasonable grounds to consider holding a trial or if they should release Gbgabo.

[11]Paragraph 35 in 22/02/2012 Pre-trial ICC – Decision on the “Prosecution’s provision of further information regarding potentially relevant crimes committed between 2002 and 2010here as well as Ocampo’s slim report covering 8 years of Force Nouvelles occupation which was the basis on which the Judges took their decision. Moreno Ocampo, ICC – Prosecution’s provision of further information regarding potentially relevant crimes committed between 2002 and 2010, 03/11/2011, report here

[12]Leslie Varenne, Abobo la guerre, Cote d’Ivoire ; terrin de jeu de la France et de l’ONU, éditions Milles et une nuit, Paris, 2012. P 77 and 86

[13]Côte d’Ivoire : “IB” veut sa part de la victoire contre Gbagbo in Jeune Afrique, 20 April 2011 here

[14]Leslie Varenne, op.cit. p. 102

[15]Interview with Nicoletta Fagiolo, 28 March, 2013 here

[16]John Laughland, This is not justice, The Hague has replaced Nuremburg’s jurisprudence of peace with a license to the west to kill, The Guardian, 16 February, 2002 here and Interview with John Laughland Nicoletta Fagiolo, 23 May 2013. Also John Laughland, Chronicles, Jan-Feb 2012

[17]Article 31 of Rome Statute, Grounds for excluding criminal responsibility The conduct which is alleged to constitute a crime within the jurisdiction of the Court has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided. Such a threat may either be: (i) Made by other persons; or (ii) Constituted by other circumstances beyond that person’s control

[18]See here

[19]Other factual mistakes: a coalition government was established before by Gbagbo prior to the coup d’état in 2002 and in 2003 and not in 2007; it depicts the Constitutional Council as a “ friend of Gbagbo” and states that this organ “invalidated” the IEC results, thus misrepresenting the rules of the Ivorian Constitution; it states that Gbagbo was sworn in on the 3rd, but the actual date is the 4th of December 2010, it states that an armed conflict began on 27 February 2011 thus contradicting previous ICC situation reports on the Ivorian crisis and many UN and NGO reports that analyze the Forces Nouvelles occupation and conflict since 2001.

[20]PAR 1 « il s’est bien gardé par la suite de les dénoncer ou de demander une enquête et punir les auteurs » in Soumission de l’Accusation du Document amendé de notification des charges, de l’Inventaire amendé des éléments de preuve à charge et des Tableaux amendés des éléments constitutifs des crimes here

[21]The commission was composed of seven members Djidji Kadjo Alphonse, Marc Richmond, Mawa Coulibaly and Dépreuba Béatrice (Ivorians) and Willy Rubeya, a Burundian lawyer, Robert Charvin, a French lawyer and Jean Martin Mbenba, a former Minister for human Rights in the Congo.

[22]Pascal Turlan, interview with Nicoletta Fagiolo, ICC, The Hague, 25 April 2013.

[23]The pre-trial can we watched on U tube as well as transcripts of the pre-trial in English and French including the respective final written submissions can be downloaded from the ICC website.

[24]Edward Said pointed out that rewriting is a conscious approach : “my argument is that history is made by men and women, just as it can also be unmade and rewritten, always with various silences and elisions, so than our east our Orient becomes ours to possess and direct” in Edward Said, Orientalism, Vintage books, New York, October 1979. p18

[25]Human Rights Watch, Turning Rhetoric to reality, Accountability for Serious International Crimes in Côte d’Ivoire,April 2013 here

[26]Laurent Gbagbo called on the International Criminal Court to open an investigation back in 2003, thus also formally recognizing the ICC jurisdiction over Ivory Coast, into the grave abuses committed by the Forces Nouvelles, yet till 2006 there was no concrete action on the part of the Court. By the time the Court had decided to visit Cote d’Ivoire in 2006 Gbagbo had lost faith in a part of the “international community. The French ambassador to the UN, Rochereau de la Sabalière, through a sentence introduced in resolution 1721 wanted to subordinate the Ivorian Constitution to UN Security Council resolutions. The resolution adopted on November 1 2006 excluded this phrase the French wanted, when Russia, China and the United States opposed this obvious infringement on sovereignty.

[27]As early as the 21 of December 2010 the ICC Prosecutor Moreno Ocampo mentioned Blé Goudé, the Youth Minister of the Gbagbo government, as an ICC target and again on 8 of April 2011 he said “in December we put Gbagbo and others at notice. He openly made these declarations before asking for an authorization to investigate in Cote d’Ivoire in June 2011.

[28]On the dubious role of Prosecutor Moreno Ocampo in other international cases see Charles Onana, Al-Bashir & Darfour, La Contre-Enquête, Menaces sur le Soudan et révélations sur le Procureur Ocampo, Editions Duboiris, 2010 and Julie Flint and Alex de Waal, Case Closed: A Prosecutor Without Borders here

[29]The Registry report dated 29 August 2011 on the exercise by Silvana Arbia and Didier Preira at the ICC website at ICC – Report on Victims’ Representations, 29/08/2011 here

[30]Charles Onana, op.cit. p 436-458

[31]Laurent Gbagbo pre-trial hearing speech, 28 February 2013, here

[32]Gaha Bi Loukou, Tata Kôkôtré, Océane Siloué, Cote d’Ivoire, Le rattrapage ethnique sous Alassane Ouattara, Fondements, pratiques et conséquences, l’Harmattan, November 2012.

[33]Defence team, final written submission, p. 10 in 03/04/2013 Version publique expurgée des soumissions écrites de la défense portant sur un certain nombre de questions discutées lors de l’audience de confirmation des charges here

[34]14/03/2013 Phase Pre-trial, Prosecution’s submission on issues discussed during the Confirmation Hearing here

[35]Global Witness, The Usual Suspects, 31 March 2003 here

[36]Rapport final des Expert des Nations Unies sur la Cote d’Ivoire 27/04/2011 S/2011/272 here

[37]Albert Bourgi, Quand le droit est mis au service de la politique : Albert Bourgi démasque la CPI, 19 Decembre 2012 here and Albert Bourgi, Les dérives de la CPI hypothèquent son avenir, 17 December 2012 here and Albert Bourgi, interview with Nicoletta Fagiolo, Paris, 1 May 2013.

[38]Sous la Coordination scientifique de Pr. Raymond Koudou Kessié et Pr. Hubert Oulaye, Le Président Laurent Gbagbo à la Cour Pénale Internationale, Justice ou Imposture? L’Harmattan, Mai 2013.

[39]Nicolas Schmidle, Bodies of Evidence, Kosovo’s leaders have been accused of grotesque war crimes, but can anyone prove it?, The New Yorker, 3 May 2013.

Nicoletta Fagiolo
May 2013

Image: Laurence Gbagbo at court, April 25, 2013