Is the ICC discrediting itself?

A person leaves the International Criminal Court in The Hague, Netherlands, Wednesday, Jan. 16, 2019, where lawyers were scheduled to discuss the next steps in the case of Gbagbo and ex-youth minister Charles Ble Goude, a day after both men were acquitted of crimes against humanity. (AP Photo/Peter Dejong)

Last week the International Criminal Court (ICC) acquitted Laurent Gbagbo and Charles Blé Goudé from all charges of crimes against humanity allegedly committed in Côte d’Ivoire in 2010/ 2011, a devastating blow to the victims and prosecution witnesses.  It has given the Court’s critics ammunition to further discredit the institution as they view acquittals as a failure of the Court as a whole.

However, two factors seem to be neglected in this generally myopic criticism: 1) acquittals are an important part of every criminal justice system and; 2) one needs to distinguish between the organs of the Court and their respective roles. Acquittals are not a failure of the Court as a whole.

The ICC has four organs, the Office of the Prosecutor (OTP), the Registry, the Presidency and the Judicial Divisions. To say that Gbagbo’s acquittal is a failure of the Court is in accurate and completely ignores that the Court has four distinct organs. The Prosecutor  is mandated to examine situations under the Court’s jurisdiction “where genocide, crimes against humanity, war crimes and aggression appear to have been committed, and  to carry out investigations and prosecutions against the individuals who are allegedly most responsible for those crimes”.

The Registry, is the neutral organ of the Court and it provides a variety of services to other organs including management of court records. The Presidency, which includes the President and the first and second vice who are also judges of the Court, has responsibilities that can be judicial or administrative in nature. Finally, the Judicial Divisions, of which there are three, is where the judges hear matters at different stages of the proceedings: Pre-Trial, Trial and Appeals. It is two of the three judges of Trial Chamber 1 who saw fit to acquit Gbagbo and Blé Goudé.

Acquittals are a truly disappointing outcome for the victims and prosecution witnesses who have endured a great deal to bring the perpetrated crimes to light. In this case, Gbagbo, former president of Côte d’Ivoire,  and Blé Goudé’s (who has been called the “architect of all pro-Gbagbo demonstrations” and who served as the Minister of Youth at the time)  alleged crimes stem from the post-election violence that occurred after Gbagbo refused to concede defeat to Alassane Ouattara.

Gbagbo and  Blé Goudé  were charged with crimes against humanity including murder, rape and persecution. 3000 people reportedly died during the 2010/2011 post-election violence, and 500 000 were displaced.   The post-election violence is still being investigated by the OTP despite the acquittals as violence was attributed to both sides of the political divide. The plight of victims will never be forgotten and should never be undermined by criminal justice proceedings but acquittals remain an integral part of any criminal justice system be it domestic, or international.

At the ICC, the judges bear the responsibility to assess the veracity of the evidence brought before them and to make a just ruling. In this instance they were of the opinion that the OTP had failed to prove its case. This serves as a reminder that the ICC as a whole is not on a witch-hunt and is not hell-bent on convictions at all costs. Although, a full written judgment is yet to be released, this acquittal could speak to the impartiality of the judges of the Court if it is based on a sound interpretation of the law.

This acquittal unfortunately reflects badly on the OTP as it regrettably, and according to the ICC judges, signals the OTP’s failure to bring sufficient evidence “to satisfy the burden of proof to the requisite standard”.  Gbagbo’s acquittal, like that of Jean Pierre Bemba (former vice-president of the Democratic Republic of Congo (DRC)), is significant in that it has led pundits to question whether the OTP is indeed equipped to successfully prosecute high-level suspected perpetrators.

The OTP has thus far secured three convictions, Thomas Lubanga and Germain Katanga of the DRC and Mali’s Al Mahdi. If the acquittals of Gbagbo and Blé Goudé are upheld on appeal, the OTP’s statistical record would reflect more “losses” than “victories”, if we consider convictions to be the ultimate measure of “victory” from the OTP’s perspective.

That being said, the collapse of cases is not always the OTP’s fault and the challenges that the OTP faces cannot go unmentioned. The Office is hampered by a severe lack of financial and human resources, as noted in the Prosecutors repeated  plea  for additional resources before the Assembly of States Parties. Other challenges include inconsistent and insufficient cooperation from states, political interference including witness tampering, as seen in the Kenya cases, and a lack of support from bodies like the United Nations Security Council.

The OTP has an overwhelming and deeply challenging mandate. Although it has faced many challenges it has also provided hope for victims of egregious crimes that their suffering will not go unnoticed. If the acquittal is upheld on appeal with sound legal reasoning, let it not dampen the spirits of all of those who believe in the impartiality of judges, justice, accountability and the deterrent effect of organs like the OTP.

Angela Mudukuti is an international criminal justice lawyer with the Wayamo Foundation, previously with the Southern Africa Litigation Centre and the International Criminal Court.