Earlier this week, a Trial Chamber of the International Criminal Court acquitted Laurent Gbago, former President of Côte d’Ivoire, and his right-hand man, Charles Blé Goudé. (In what follows, I will refer only to Gbagbo). By a majority of two to one, the judges held that there was insufficient evidence to place Gbagbo on his defense. The Prosecutor has indicated that she will appeal this decision.
Critics of the ICC claim that this track record constitutes an indictment of the Court. They point, in comparison, to the United Nations International Criminal Tribunal for the former Yugoslavia (ICTY). During its active life from 1995 to 2017, it indicted 161 individuals of whom 99 were sentenced, 19 acquitted and 13 referred to domestic courts. The United Nations International Criminal Tribunal for Rwanda, during its period of activity indicted 96 individuals of whom 62 were sentenced, 14 acquitted and 10 referred to domestic courts.
I would suggest, however, that the comparison is not a fair one. In the case of the UN tribunals, each court was given a specific mandate that extended over a defined territory – the states that comprised the former Yugoslavia in the case of the first and Rwanda in the second. They were supported by resolutions of the Security Council that were legally binding on all members of the United Nations. They had the full and active support of the United States that brought its political and economic muscle to back that support. On the other side, the ICC has jurisdiction over war crimes perpetrated in 123 States or committed anywhere by a person who is a national of one of those 123 States. On this ground alone the differences become manifest.
That mistakes have been made by organs of the ICC cannot be doubted. However, it is always easy to criticise in hindsight. Some proceedings have taken too long. Some of the judges have been less than prompt in issuing their decisions. Criticism of, as well as praise for, the ICC has come both from civil society and from governments.
In June 2018, there was a massive outpouring of criticism at the decision of a majority of the ICC Appeals Chamber acquitting the former Vice-President of the Central African Republic, Jean-Pierre Bemba.
Bemba had been convicted by a unanimous trial chamber of numerous serious war crimes and crimes against humanity, including murder, rape, and pillaging. He had been in the custody of the ICC for ten years and was sentenced to 18 years in prison. A judgment written by Judge Christine van den Wyngaert, on behalf of three of the five appeal judges, held that the evidence did not establish, with the required degree of proof, that Bemba as a military commander, failed to take the necessary and reasonable measures to prevent and/or to punish the crimes. They held further that, in any event, some of the charges on which Bemba had been convicted went beyond the scope of those confirmed by the pre-trial chamber.
Many critics have found fault with the reasoning of the majority. Some experts in the field of international law have furnished careful and sober academic analyses (for discussion of this decision on this blog, see here, here, here and here) The decision is widely perceived as a serious setback for the ICC. They point out that the trial lasted for some 48 months and that the trial chamber heard from 77 witnesses.
That horrendous crimes were committed during the civil war that raged in the Central African Republic is not in dispute. That a substantial number of egregious war crimes and crimes against humanity were committed in the Central African Republic is not in dispute, They included murder, and mass rape. The acquittal has come as a huge disappointment to the victims, many of whom participated through counsel at the trial and in the appeals proceedings.
Laurent Gbagbo has been in the custody of the ICC since 2011. His trial began in 2016. Like Bemba, he was accused of having committed heinous crimes against humanity including intentional attacks on civilians resulting in the deaths of some thousands of them. The prosecution called 82 witnesses during the trial, which began in 2016. The majority judges, led by Judge Cuno Tarfusser, held that the prosecution had failed to show that there was sufficient evidence of a “common plan” to foment violence and ruled that Gbagbo had no case to answer.
I do not propose to discuss the reasoning of the majority or dissenting judgments in these two cases. In the Gbagbo case the majority has not yet released written reasons). Some of the issues are by no means easy to resolve. I do suggest, however, that some of the attacks on the majority judges have been as unfortunate as they have been unfair. The most serious of these criticisms is that the majority judges are wrong to have placed the ICC in an embarrassing position and especially after the setbacks it suffered from the withdrawal of the Kenya cases (after witness tampering and non-cooperation) and some of the Libya cases. Then there was the failure by a number of African States to arrest President Al-Bashir of Sudan whose arrest on genocide charges has been sought by the ICC since 2009. That the decisions are an embarrassment for the ICC cannot be doubted. Far more important, however, is that the majority judges were not prepared to base their decision on any factor other than the fair trial rights of the defendant. That they had no other motive cannot be doubted. And that is much to their credit.
I have often cavilled at criticisms of acquittals in international criminal courts. I have said on many occasions that the fairness of any criminal justice system must be judged by acquittals and not by convictions. As a former chief prosecutor of the ICTY and ICTR, I welcomed acquittals that helped establish the credibility of those courts. Acquittals do not necessarily follow from any inadequacies in the office of the prosecutor. Most lawyers, both civil and criminal, have experienced losing cases that they regarded as wrapped up – and contrariwise. Witnesses who prior to trial appeared to be unassailable, crack under cross-examination. Hesitant and nervous witnesses are oftentimes found credible and believed by judges and juries. The answer to the Bemba and Gbagbo acquittals is not to attack the reasoning of the majority of the judges. The challenge to the Office of the Prosecutor is to expend greater effort in ensuring that cases brought to trial are fully investigated and supported by sufficient evidence.
Cases against national leaders, and other state actors, for the commission of war crimes and crimes against humanity are usually difficult to establish. In most of the cases, they have not perpetrated any of the crimes themselves and they leave no smoking guns. The direct perpetrators are members of their armies and militias. Prosecutors often have to rely on circumstantial evidence and the doctrine of command responsibility that requires knowledge on the part of the leaders that they knew or should have known the crimes would be committed and failed to have taken steps to prevent them from being perpetrated or punish the perpetrators after the event. Where guilt is based on circumstantial evidence, such evidence must exclude any reasonable conclusion other than the guilt of the defendant. In both the Bemba and Gbagbo cases the judges in the majority held that this degree of proof was absent. In the Gbagbo case this conclusion is particularly embarrassing for the prosecution as it was the decision at the end of the prosecution’s case. No rebutting evidence was called for. In cases against state actors the prosecutor must also take into account the often fraught politics and political manoeuvring that will accompany them.
Before issuing arrest warrants against leaders that result in their incarceration for many years, lengthy trials and high expectations on the part of victims, prosecutors must be satisfied that their cases against the defendants, in the absence of rebutting evidence, establish guilt beyond a reasonable doubt. In the ICTY it was the practice in the Office of the Prosecutor to have all of the evidence relied upon in indictments reviewed by all of the lawyers in the office. They debated the strengths and weaknesses of each of the charges and submitted detailed reports to the Chief Prosecutor. I am not aware of any ICTY case in which a reviewing judge refused to confirm and charges or that a prosecution, including those against state actors, was dismissed without the defendant being placed on his defense.
The record of the Prosecutor of the ICC is not a happy one. And, presumably steps are being taken to ensure that the evidence against defendants, and especially former leaders appears, on the face of it, meets the necessary standard of proof.
That the ICC is experiencing choppy waters cannot be denied. However, the recent rant against the ICC by John Bolton, the national security advisor of President Trump, has been met with opprobrium from many quarters both in The United States and abroad. It has brought forth from the European Union strong support for the ICC. That our world needs an international criminal court cannot reasonably be doubted. We should under no account revert to the world prior to the ICTY and ICTR when there was no international court that could inquire into some of the worst crimes known to humankind. There was effectively impunity for war criminals.
If there were no ICC in existence today, many people in many countries would be agitating for and demanding one. That we have one is a single achievement. It behooves us to make it the best possible and to assist it, as States, civil society, and individuals, in the best and most productive way possible.