Thursday, October 25, 2012

Update on Cote d'Ivoire Case at the ICC and Related Domestic Proceedings

Former President of Cote d'Ivoire Laurent Koudou Gbagbo at his initial appearance at the ICC on December 5, 2011. Photo: ICC-CPI/Peter Dejong

By Kirkland Green

As AMICC has explained in its advocacy papers, the International Criminal Court has been investigating the Cote d’Ivoire situation since October 3, 2011. Although Cote d’Ivoire is not party to the Court, it accepted the ICC’s jurisdiction which means the Prosecutor could and did ask for permission from the Pre-Trial Chamber to examine alleged crimes there. The scope of the investigation now includes alleged atrocity crimes that occurred between September 19, 2002 and November 28, 2010. A year ago an ICC Pre-Trial Chamber issued an arrest warrant for former Cote d’Ivoire president Laurent Gbagbo for four counts of crimes against humanity. He is now the first former head of state to face trial at the ICC. There have been some delays in this case to determine if Gbagbo was fit to stand trial and the Court recently denied his request to leave The Hague while awaiting trial. There have also been developments in domestic cases dealing with related crimes.

Background of the Conflict

Divided by ethnic and religious lines, Cote d’Ivoire has been split between the north and the south since 2002. In November 2010, the sitting president Laurent Gbagbo refused to step down after losing re-election to former Prime Minister Alassane Ouattara. Despite pressure from various organizations, such as the African Union and the United Nations, Gbagbo refused to cede power. Subsequently, Gbagbo used security forces to “terrorize citizens in the country’s principal city, Abidjan, where more than 3,000 people were killed and uncounted were raped or mistreated.”

Domestic Justice Initiatives

The new leadership under Ouattara has committed to holding perpetrators of atrocity crimes accountable in domestic courts: “The murderers will be punished. The investigations are under way to shine the light on crimes…” On October 2, 2012 General Bruno Dogbo Ble, head of Gbagbo’s Republican Guard was the first individual to stand trial for post election violence in the country. He is currently charged with “a host of abuses that ‘likely constitute crimes against humanity.’” Also, Ivorian prosecutor Noel Dje Enrike Yahau has charged eight of Gbagbo’s top allies with genocide

Despite domestic initiatives for justice, both Gbagbo’s and Ouattara’s forces are alleged to have targeted “victims based on ethnicity and presumed political affiliation.” The Republican Forces of Côte d'Ivoire, who are loyal to Ouattara, are alleged to have committed various forms of violence. One of these includes an attack in Duekoue where hundreds of people thought to be supporting Gbagbo were murdered. Under Ouattara’s government, Cote d’Ivoire domestic prosecutions have come under criticism. So far no one loyal to Ouattara has been charged of atrocity crimes. Moreover, various analysts believe that the behavior of pro-Gbagbo forces do not meet the requirements of genocide, despite claims made by domestic courts. The head of the Cote d’Ivoire Coalition for the International Criminal Court (CI CPI) believes that Ivorian courts are not equipped to offer impartial justice.

ICC Developments

Although Cote d’Ivoire is not party to the ICC, it signed the Rome Statute on November 30, 1998 and accepted the Court’s jurisdiction three times. On September 26, 2012, the government adopted a series of bills to facilitate ratification of the treaty. The CI CPI and other members of Ivorian civil society believe that this is encouraging, but that more work is necessary to ensure impartial justice, such as increased ICC outreach to victims of atrocity crimes.

In The Hague, the Gbagbo case is proceeding slowly. Pre-trial judges postponed the confirmation of charges hearing, initially set for August, in order to allow for Gbagbo's health to be assessed. A few weeks later, the judges affirmed the validity of the government's acceptance of jurisdiction, rejecting an application to dismiss the case against Gbagbo.

Domestic courts have come under criticism for claims of victor’s justice. However, since the ICC has broadened the scope of its investigation to include alleged crimes that occurred since September 19, 2002, and the Prosecutor has vowed to "collect evidence impartially and independently," all perpetrators of atrocity crimes may be prosecuted. Moreover, Cote d’Ivoire government initiatives to ratify the Rome Statute may discourage any attempts to promote unfair justice.

Wednesday, October 24, 2012

AMICC Examines Remark in US Presidential Debate about Genocide Indictment

The ICC has not been an issue in the presidential campaign, though there has been interest about a remark made by candidate Mitt Romney in the last debate, focused on foreign policy, on October 22. Commentators and bloggers were interested in whether his remark signaled an openness to the ICC. In the segment on Iran, Mr. Romney said:

"Secondly, I’d take on diplomatic isolation efforts. I’d make sure that Ahmadinejad is indicted under the Genocide Convention. His words amount to genocide incitation. I would indict him for it. I would also make sure that their diplomats are treated like the pariah they are around the world, the same way we treated the apartheid diplomats of South Africa."

The statement raised several questions, including where such an indictment would be made. Mr. Romney's campaign clarified that he was referring to the "World Court" which, according to Talking Points Memo, the campaign aide believed could arrest Mr. Ahmadinejad. Twitter and foreign policy blogs have been abuzz with analysis of the statement, problems with it and the political context.

Here are a few points of clarification in light of Mr. Romney's statement:

Judicial Venue

- "World Court" usually refers to the UN's primary judicial organ, the International Court of Justice (ICJ) which deals with disputes between nations. While it could adjudicate claims regarding the Genocide Convention, as it did in the Serbia case in 2007, the ICJ can neither indict nor arrest individuals, as reportedly suggested by Mr. Romney's campaign.

- US courts, under federal law, as amended by the Genocide Accountability Act of 2007, Public Law 110-151 (December 21, 2007), allows for the prosecution of genocide in US courts if the crime is committed in whole or in part the US or if the offender is a US national, legal alien, habitual resident or is brought to or found in the US after the crime occurred. Incitement charges carry maximum penalties of $500,000 or five years imprisonment. Unless Mr. Ahmadinejad were brought to or found in the US, an indictment in the US is unlikely.

- The ICC does not now have jurisdiction over the territories or citizens of Iran or Israel, at least one of which would be required in order to bring a case against an Iranian national for statements intended to incite crimes on Israeli territory. If it did, the Prosecutor could not act without a State Party referral or permission from the Pre-Trial Chamber.

- In the absence of such jurisdiction, the ICC could not act without a referral from the UN Security Council - the near certainty of a veto by China or Russia makes this unlikely.

Alleged Crimes
- Incitement to genocide is one of the crimes under the Rome Statute (Article 6; Article 25(3)(e): "In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person ... [i]n respect of the crime of genocide, directly and publicly incites others to commit genocide").

- The factual accuracy of Mr. Ahmadinejad's alleged incitement has been the subject of fact-checking. The findings so far are unclear as to the circumstances and sources of his alleged statements about Israel.

Wednesday, October 17, 2012

At UN Security Council Open Debate on the ICC, United States Reaffirms Role of ICC, Cooperation

Security Council Debates Promotion of Rule of Law, Role of ICC
On October 17, 2012 the UN Security Council debated the promotion of rule of raw and the role of ICC. UN Photo/Rick Bajornas

At the first-ever open debate in the Security Council specifically about the ICC, US Ambassador to the UN Susan Rice recognized "that the ICC can be an important tool for accountability" and that "we've responded positively to informal requests for assistance" from the ICC. Read more.

The debate also featured statements by:

Monday, October 01, 2012

ICC Prosecutions Coordinator Alex Whiting to Speak at Columbia on October 11

The Columbia University Institute for the Study of Human Rights, of which AMICC is a program, will present an event on Thursday, October 11 featuring a senior attorney from the International Criminal Court, Prosecutions Coordinator Alex Whiting. Whiting is responsible for managing and providing legal guidance and direction to all of the ICC’s prosecutions. At the event, he will discuss the work of the ICC's Office of the Prosecutor and assess its successes and shortcomings.

Whiting was previously a senior trial attorney at the UN International Criminal Tribunal for the former Yugoslavia. A former assistant U.S. attorney for the District of Massachusetts and a former trial attorney in the criminal section of the Civil Rights Division in the Department of Justice, Whiting is on leave from Harvard Law School where he is an assistant clinical professor of law. He holds a B.A. and a J.D. from Yale.

The event is co-sponsored by the Columbia Society of International Law and the Human Rights Institute.

Details: Room 106, Jerome Greene Hall, Columbia Law School, 435 West 116th Street. Free and open to the public. No RSVP required. Lunch will be provided. Questions & Answers to follow.

Learn more at or download the event flyer.