Gbabgo and the ICC

Tuesday, 22 January 2019
Nicholas Westcott

Last week, the International Criminal Court (ICC) acquitted Laurent Gbagbo and his former youth minister. The court in The Hague ruled that Cote d’Ivoire’s former president had no case to answer and dropped charges of crimes against humanity, which related to the country’s post-election violence in 2011.

I was closely involved with the 2010 elections in Cote d’Ivoire and their aftermath, being at the time British Ambassador to the country, and from February 2011 responsible for policy on the country at the EU’s External Action Service in Brussels. I had not just a ringside seat at the crisis, but was for much of the time inside the ring itself. 

The ICC judgement is puzzling. I am not a jurist. But as a witness to the events at issue, let me report what I saw and heard at the time.

In the run-up to the elections, everyone in Cote d’Ivoire and the international community knew they would be difficult. In 2002, the peace deal that ended the civil war had created an uneasy power-sharing arrangement between then President Gbagbo’s Jeunes Patriotes in the south and the Forces Nouvelles in the north. Cote d’Ivoire was left with a dysfunctional government, a stalled economy and rampant corruption. The 2010 elections were seen as a way to break out of this stasis, but they also ran the risk of reigniting conflict.

The UN mission in the country (UNOCI) provided support for the process and prepared to do a parallel tabulation of the result alongside the Electoral Commission (CEI). Observer missions from the African Union (AU), West African bloc ECOWAS, the US and EU were also deployed to monitor the vote. Given the UK’s interest in peaceful elections, I called on all the three main candidates – President Gbagbo, Alassane Ouattara, and Henri Konan Bédié – as well as their senior officials to urge transparency, peace and respect for the process and outcome. 

One such meeting, on 8 August 2010, was with President Gbagbo’s Diplomatic Adviser, Alcide Djedje, who was close to the President and with whom I had good relations. It was late in the afternoon and we met one-on-one in his office. Djedje complained about the threat to the process posed by the FN military leaders, the ‘ComZones’. He said the President was well-placed to win the election, but would be open to a government of national unity if the result was not clear. I urged that it was essential this time not to delay the elections (after repeated delays in the past) which were the only path towards a permanent peace in the country. But what would happen, I asked, if Gbagbo lost the election? Would he step down?

“If the President loses the election”, Djedje replied, “there will be a civil war.”

At the time I considered this hyperbole, a threat designed to persuade the international community to turn a blind eye to a degree of electoral manipulation. But I reported it all the same.

The first round of the election on 31 October passed relatively peacefully. The second round, a month later, on 28 November, was altogether more fraught. As results were being collated, President Gbagbo unilaterally declared a curfew, immediately condemned by the opposition parties. Sensing that this was a precursor to an attempt to steal the election, a posse of Ambassadors drove around town calling on all the main parties urging restraint. At the Presidential Palace we were kept waiting until 1.15 am to see the President, accompanied by Djedje. Always a man of nocturnal habits, Gbagbo was in relaxed and expansive form, reflecting on his experience of the 1968 riots in Paris (“I don’t like rules…”), his love of football as well as the elections. He promised to lift the curfew and allow the CEI a free hand in declaring the results.

He lied on both counts. The curfew remained. The election result confirming that Ouattara had won could only be announced by the President of the CEI, Bakayoko, under the close protection of UNOCI. Ouattara holed up in the Golf Hotel, also protected from Gbagbo’s forces by UNOCI troops. And as Gbagbo’s hand-picked Constitutional Court tried to overturn the result and Gbagbo’s forces mobilised throughout Abidjan and the country to keep him in power, I saw Djedje’s words in a new light.

It was increasingly clear from his actions and those of his allies that Gbagbo had no intention of leaving power at all, that he was perfectly willing to kill his own citizens in order to keep it, and that this had been conceived as a fallback plan in advance, just in case he really did lose the election. In the ensuing violence, 3,000 people were killed. In the end, with support from French troops, Gbagbo was captured and Ouattara became president.

I am not a lawyer. The burden of proof to show criminal liability should be high. But that Gbagbo was politically guilty of refusing to accept the legitimate result of the election and being willing to incite lethal violence in which 3,000 people died in order to overturn it is not - to my mind - in doubt. 

The big question for all of us now is: what is the ICC’s role in all of this?

The ICC was established to prosecute those who could not be tried in their own country, either because there was no effective justice system or because it would be politically impossible, as in the case of political leaders. The aim was to enforce greater respect for the law and more peaceful political processes by making clear that even political leaders could not enjoy immunity if they committed or allowed human rights abuses in their pursuit of power. 

Since its creation, there have been several high-profile indictments including many current or former heads-of-state. But none of these cases has succeeded. Sudan’s president Omar al-Bashir remains in power. The Democratic Republic of Congo’s former vice-president Jean-Pierre Bemba was acquitted. The cases against Uhuru Kenyatta and William Ruto, now Kenya’s president and deputy president, were dropped. And now Gbagbo.

Despite this, there is a case that the ICC indictments have not been without effect. Being indicted by the ICC is a serious nuisance. Al-Bashir’s freedom of movement outside Sudan has been severely limited. Bemba spent years in prison before he was acquitted. Kenyatta and Ruto had to divert much money and much time from their political careers to deal with the charges. It is clearly better to avoid such an indictment if you can. 

This has almost certainly had a restraining influence on some political leaders who might otherwise have condoned violence in pursuit of their political ambitions. The 2012 and even 2017 elections in Kenya avoided the scale of violence that so nearly threw the whole country into chaos in 2007-8. Cote d’Ivoire’s 2015 elections also passed peacefully, as have the most recent elections in Nigeria. 

But the failure of the ICC to achieve any convictions is undermining its credibility, even if the judges’ aim is to make its judicial standards and impartiality credible.

Clearly the ICC has had no disincentive impact on the leaders in South Sudan, and in Sudan itself it is possible that the continued threat of being taken before the ICC is actually discouraging Bashir from making concessions or stepping down in the face of the escalating riots. The travesty of the current elections in the DRC suggests that shameless manipulation is once more something that the African community of nations is willing to condone, though serious violence there may still break out if the disenfranchised decide they have nothing to lose. 

Where do we go from here? The ICC still has a purpose, but can it fulfil it without a far more effective (and perhaps therefore expensive) prosecution process than it has demonstrated so far? The States Party need some hard thinking - informally but swiftly - over whether its reputation can be salvaged enough to sustain its life.

At the same time, bodies like the African Union need to be conscious that while many African governments are hostile to the ICC, the difficulty lies in finding effective alternatives to discourage the kind of violence that could threaten the stability of not just individual countries but the wider continent. The successful trial of Chad’s former dictator Hissene Habre, heard by AU-appointed judges in Senegal (and wonderfully described in Celeste Hicks’ recent book The Trial of Hissene Habre, Zed Press, 2018) could provide a promising model of people holding their rulers to account. But there is a long way to go.

Nick Westcott is the director of RAS.