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22 mars 2016 2 22 /03 /mars /2016 08:46
#GbagboCase / When international justice becomes arbitrary (#ICC #ProcèsDeLaHonte #FreeGbagbo)

By Nicoletta Fagiolo

Wednesday, 24 February 2016

Since 2011, Former President of Côte d'Ivoire Laurent Gbagbo has been under arrest and held in The Hague for alleged crimes against humanity. His former Minister of Youth Charles Blé Goudé has been incarcerated since March 2014. The International Criminal Court (ICC) indicted the two under the pretext of bringing justice to the post-colonial country following a post-electoral crisis in 2011. But a series of oversights, blunders and ambiguous judicial procedures could leave the ICC marred for skewed politics and arbitrary jabs at justice. Nicoletta Fagiolo looks at the ‘Asymetrical’ approach of the ICC in its trial vs. Ivorian leaders Gbagbo and Blé Goudé.

Two and a half weeks into the International Criminal Court’s (ICC) most high-profile case to date, the trial of former President of Côte d'Ivoire Laurent Gbagbo and Minister of Youth and Employment Charles Blé Goudé [1], talk of a politically motivated trial is already underway.

“There is nothing serious against Gbagbo, it’s political pressure coming from France and I can do nothing,” ICC Chief Prosecutor Fatou Bensouda reportedly told Central African Republic presidential candidate Pascal Bida Koyagbele. According to South African columnist on foreign affairs Shannon Ebrahim, in her article “French Hand in Gbagbo's Fall” [2], Bensouda’s comment was as recent as October 2015, just three months before the trial began.

It is estimated that the prosecution alone costs between 4 to 8 million euros a year just for this trial, said investigative journalist Fanny Pigeaud, 60% of which comes from EU taxpayers’ pockets.

Two very specific cases bring into question the ICC and it’s suspected role as a body that enables incumbent African leaders to remove political opponents. One is the Democratic Republic of the Congo, where Joseph Kabila was ushered into power in 2011, following the 2008 arrest of his opponent Jean-Pierre Bemba. Another is in Kenya, where the Prime Minister Raila Odinga hoped to profit from an ICC indictment against Uhuru Kenyatta, his opponent in the presidential elections, and win the elections. Eventually the ICC dropped charges against Kenyatta in December 2014 due to a lack of sufficient evidence.

In the case against Gbagbo and Blé Goudé, the crimes that the charges hinge on were allegedly carried out during the five-month period following the country’s contested November 2010 elections, during which incumbent President Gbagbo ran against his opponent and current President Alassane Ouattara. The prosecution accuses both Gbagbo and Blé Goudé of four counts of crimes against humanity, including ordering murder and rape. These charges carry terms of life imprisonment. Gbagbo and Blé Goudé have pleaded not guilty to the accusations of orchestrating “unspeakable violence”.

Following the November 2010 elections, Côte d'Ivoire was saddled with two presidents. Gbagbo was publically sworn in on 4 December 2010 in the Presidential Palace in front of the country’s major institutions - from the army to the judiciary, trade unions and traditional leaders, other constitutional bodies, politicians, bishops and affiliates. The army Chief of Staff, Philippe Mangou, and other generals, also present at Gbagbo’s inauguration, swore allegiance to Gbagbo on national television the previous day.

In contrast, current President Ouattara was declared victorious by the head of the Independent Electoral Commission (CEI), Youssouf Bakayoko, on 2 December 2010. In a closed meeting at the Golf Hotel, Ouattara’s campaign headquarters as well as a stronghold of the rebel presence in Abidjan, the French and American ambassadors looked on as the supposed exit polls were broadcast on French TV. The CEI, mandated by the Ivorian Constitution to only declare the provisional results, had however already surpassed its deadline. Bakayoko seeking protection subsequently fled to France as Ouattara wrote a letter to the Constitutional Council claiming victory.

Special Representative of the UN Secretary General in Côte d'Ivoire Young-jin Choi endorsed Ouattara’s victory on the afternoon of 3 December 2010, just two hours after the Constitutional Council had declared the Hotel Golf results null. Meanwhile, at the UN Security Council in New York, a five-day standoff began over the adoption of a resolution. The US Permanent Representative to the UN Susan Rice pushed for non-recognition of Gbagbo’s representatives, claiming them as illegitimate. At the same time, the Russian delegate maintained Gbagbo’s representatives were valid.

As early as 3 December 2010 two French deputies, Socialist Party François Loncle and Henri Emmanuelli, released a press statement declaring "a smear campaign directed exclusively at the Ivorian authorities and a denigration campaign of suspicion orchestrated by the majority of French media.” [3] The brief reports from news agencies worldwide, however, repeated only one story ad nauseum: Gbagbo lost the elections in November 2010, but was reportedly clinging to power. It is this version, although contested by a wide range of evidence at the time and further supported by evidence published since then, which prevails to this day.

According to Bensouda, a campaign of violence was launched by Gbagbo and youth leader Blé Goudé, after Gbagbo had allegedly lost the elections to Ouattara. Thus Gbagbo according to Bensouda, despite being sworn in as President on the 4th of December by the country’s Constitutional Council, was an illegitimate president unwilling to step down, and who had also orchestrated a “common plan” with an “inner circle” to remain in power at all costs. This “inner circle” is allegedly made up of the state’s entire security apparatus — the Forces de Défense et de Sécurité (“FDS”), comprising of the National Armed Forces of Côte d’Ivoire, the Gendarmerie, the Republican Guard, the Security Operations Command Centre and the state police, all of which had sworn allegiance to Gbagbo. The prosecution alleges that the plan was conceived as early as 2000, when Gbagbo was first elected.

The defence countered in their opening statement on 1 February that the country’s Constitutional Council, which has the last word on election certification by law, declared Gbagbo the legitimate winner. This conclusion, they emphasized, was drawn after taking into account certified and attested acts of serious violence by rebels in the northern area they controlled.

Multiple electoral observers reported serious human rights violations in the rebel-held territory. In the northern city of Bouaké one foreign observer recalls, “all the EU observers left two days after the first round and never came back” [4]. Seventeen out of 120 EU election observers were evacuated for fear of their life, all from the rebel controlled areas in the north, although a UN report mistakenly states they were evacuated from the south.

Ouattara remained in the Golf Hotel as these provisional results were endorsed by Choi on December 3, although not yet by the UN Security Council (UNSC), which only declared Ouattara winner on the 8th of December 2010 after intense US and French lobbying.

"You are the legitimate winner once the Constitutional Council declares you the winner" former Ivorian Ambassador to the UN Alcide Djédjé recently reiterated. Djédjé also accuses Choi, of having "exceeded his authority" during the November 2010 presidential election in the country.

The UN’s mandate “was not to say who won or did not win the elections," noted Djédjé, but the Special Representative of the UN was to just confirm whether elections were held in accordance with the Ivorian constitution [5].

In a closed-door video conference held with the Economic Community of West African States (ECOWAS) from Abuja, Choi himself admitted he was supposed to “certify results, not name a winner”. “Choi acknowledged as much”, said Russia's Deputy Permanent Representative Konstantin Dolgov to Inner City Press on 7 December 2010.

A complaint was recently filed in Canada against Choi for certifying those electoral results, thus bypassing his mandate. At the time Djédjé threatened to expel Choi for rejecting the country’s Constitutional Council’s recognition of Gbagbo’s 51% run-off victory over Ouattara’s 49%. The US-led UNSC never convened the Security Council over the rejection. At 5:15 pm that same 3 December 2010, the US Mission to the UN emailed a copy of a statement by US President Obama hailing Ouattara as the winner and calling on Gbagbo to respect the result. Mathew Lee from Inner City Press asks: “So has Barak Obama become the Security Council? What explains the Council's failure to meet, and failure to even issue a press statement?” [6].

Thabo Mbeki, former president of South Africa who was visiting Côte d'Ivoire in December 2010, concluded in his mission report that the elections could not be considered valid. In his article What the World Got Wrong on Côte d'Ivoire, he recalls how the US ambassador in Abidjan, Wanda L. Nesbitt, had already warned her government in 2009 that without some basic requirements fulfilled – a territorial and fiscal reunification of the country, the return of the national administration to the north, and especially the total disarmament of the rebellion, the Forces Nouvelles, entrenched in the north since 2002 – no democratic elections could be held.

Gbagbo called for a ballot recount in December 2010 — a demand that went unheeded by Ouattara, as well as international bodies. Gbagbo requested that the UN mission in Côte d’Ivoire (ONUCI) and the post-2008 UN-mandated French Licorne force leave the country on 18 of December.

The case against Gbagbo pivots critically on the validity of his election and the acts he allegedly perpetrated or directed during the following period. Despite serious doubts as who actually won these elections, the first glaring discrepancy of this trial is that Bensouda, and also her predecessor, whom she replaced in 2012, Luis Moreno-Ocampo, declared that the trial will not look into the elections, but only focus on the post-electoral events. That decision begins the trial under the assumption that Ouattara lawfully won the elections.

To date the ICC judges have turned away from examining the electoral issue, raising a question over the court’s approach to due process.

A similar divergence from legal logic was demonstrated by the International Tribunal for Rwanda when it decided to exclusively accuse the country’s Hutu population of “genocide” during the country’s bloody conflict that left 800,000 dead. During proceedings, the Tribunal avoided at all costs looking into who had shot down the plane of Rwandan President Juvénal Habyarimana, the event that, according to the Court itself, was responsible for spurring the “genocide”. Arusha left a legacy of a judicial nightmare, which will, at the least, leave future researchers on international justice speechless as to the amount of procedural abuse inflicted on its detainees. This grave shortcoming was largely possible due to this initial flaw in context analyses [7].

The second major, striking deviation of this trial also concerns a lack of historical context analyses by the prosecution. Lead defence attorney Emmanuel Altit told the court that “it’s as if one is asked to judge the major events of the Korean war while omitting the American and Chinese armies” as he addressed the three-judge bench on 1 February 2016. Accusing the prosecutor of omitting the major protagonists of the recent Ivorian history, Altit is referring to the rebels that Ouattara had armed. The court was shown a video of a Force Nouvelles rebel warlord speaking to a crowd of followers and thanking Ouattara for supplying them with weapons. Altit also points to the role played by the French army, as well as the UN operation, ONUCI, in ousting Gbagbo.

The ICC trial can only be a viable scientifically legal exercise if the events are placed in their historical context. “Paris intervened not for humanitarian reasons, but also for geopolitical interests, as in Libya. The operation of the Elysée worked so well that French citizens have little understanding of what happened in Côte d'Ivoire, so little that Sarkozy boasted a few years later. ‘We took Laurent Gbagbo out and installed Alassane Ouattara, without any controversy, nothing’. Will the ICC judges be able to sort out fact from fiction?”, asks French journalist and author of France Côte d’Ivoire, a truncated history, Fanny Pigeaud.

Altit countered on 1 February 2016 that there had been a deliberate campaign orchestrated since 2000 to make Gbagbo “out to be some kind of demon” and “paint Ouattara as the good guy.” Former French diplomat Laurent Bigot, on 2 February 2016, told the French daily newspaper Le Monde that, “in 2010, I was Deputy Director for West Africa at the Foreign Ministry. This is not a position that allows me to judge the innocence or guilt of the protagonists of the crisis, but just to testify. It is no secret that for the French, Gbagbo and the Ivorian national army represented the Evil side, whereas Ouattara and the Force Nouvelles (then Republican Forces of Côte d'Ivoire, FRCI) were the good guys.” [8]

Altit underlined that not a single person of French nationality has been called to testify at the ICC, despite the proven knowledge of French involvement and thus the usefulness to hear their point of view. “How can we judge a conflict whose protagonists are concealed,” Altit asked, “and who, most importantly, are these rebels?”

Gbagbo, broadly held as the father of Ivorian democracy, did engage in a conflict and there were civilian victims. Yet he was fighting a well-structured rebel body, the Forces Nouvelles (New Forces), which had been attacking his government since 2001 and had occupied the northern part of the country, splitting it in two since 2002.

These same rebels were behind the destabilization attempts in Côte d’Ivoire since the 1999 coup organized against President Henrie Konan Bedié, and were responsible for a series of attempted coups (September 2000, January 2001 and September 2002) that eventually split the country in two. The defence insists that Gbagbo's efforts in 2010-2011, in light of the rebel presence, become legitimate efforts to fend off an external aggression — one that, as of November 2010, ballooned into an international conflict.

The central, north and west regions (known as CNO) remained under rebel control until 17 March 2011, when Alassane Ouattara appointed them as a national military force. At that time they were renamed the Republican Forces of Côte d’Ivoire (FRCI). Alain Dogou, the country’s former defence minister, questioned the legality of this action. “It is exactly as if in Colombia, a pseudo administrative act transformed the FARC rebels, the same who had detained Ingrid Bentacourt for five years in the jungle, into the regular forces and the national army of Colombia (Fac) into a rebel movement,” he said [9].

The Ouattara backed Forces Nouvelles rebels are known to have committed extensively documented, terrible atrocities since 2002, on which Gbagbo had called the ICC to investigate as early as 2003. The level of coordination and planning, the infrastructure, and the weaponry available to the rebels all suggest a pattern of outside assistance which could qualify the attack as an international conflict as early as 2002. The state apparatus in the north collapsed as over a million people fled south, yet Gbagbo’s calls for an investigation went unheeded at the time.

Since then a warlord economy has reigned in the region, which continues to this day. Current President Ouattara has promoted many of these leading warlords (known as comzons) to key positions in the Ivorian security system. By not acknowledging this rebel coup d’état, an armed takeover is being indirectly legitimized by the ICC. The crime of aggression endorsed by universal customary law, unpunished, allows for the same aggression to continue with impunity.

Just months prior to the October 2015 Ivorian Presidential elections, a seminar was held by the Academy of Sciences, Arts, Cultures of Africa and the African Diaspora (ASCAD) in Abidjan. During the April 2015 seminar on Elections and violence in Côte d’Ivoire, Professor Ouraga Obou, a former member of the Ivorian Constitutional Council, called for a withdrawal of the dozos (the traditional hunters recruited by Ouattara into the Force Nouvelles army) from the state’s security apparatus and called for a consultation framework [10]. Signs of persistent insecurity and the lack of disarmament of these rebel-turned-national-army forces was one of the reasons for a wide spread boycott of the last elections, when Ouattara was re-elected according to the French Directorate of Military Intelligence with a 17% voter turnout. The Ivorian Popular Front (FPI), Gbagbo’s socialist party, by contrast, reported an 11% voter turnout due to the boycott. Guillaume Soro, head of the Force Nouvelles rebellion political arm since 2002 and current President of the National Assembly recently faced an arrest warrant for allegedly supporting an attempted coup d’état in neighbouring Burkina Faso.

Referring to the 11-day battle for the country’s economic capital that began on 31 March 2011, Altit told the court “Ouattara and his supporters wanted to seize power by force and the battle of Abidjan was, simply put, the very implementation of this strategy.” He further emphasised that “the plans for military action had been drawn up by the plotters and schemers in cooperation with French military leaders during the entire crisis”.

Investigative journalist and author of Abobo la Guerre Leslie Varenne, who was on the ground during the crucial crisis months, writes that various ONUCI sources spoke to her of a US-French plan. Known as “Operation restore peace and democracy”, the concept was concocted in December 2010 in Abidjan [11].

A Wikileaks cable dated 27 January 2011 shows a United States Africa Command (AFRICOM) West Africa OS analyst angered by a statement given to the Zambian press by Force Nouvelles leader Soro as early as 30 January 2011. Soro spoke of a commando raid to oust Gbagbo. The cable speaks for itself. “1) We probably should have reported that Soro was in Zambia. Did anyone else realize that?… 2) What kind of IDIOT openly broadcasts this in such detail?? When you were referencing these calls in your piece Mark, I was thinking back to when Ouattara was saying something along these lines…but this one is pretty airmailed.” [12]

The AFRICOM specialist is most probably referring to the interview Ouattara gave in January 2011 where he stated that preparations for a military intervention were under way and were a viable solution for the Ivorian electoral deadlock, thus bypassing the African Union’s call for a peaceful solution.

Varenne also points out that Ouattara’s statement was an official admission to breaching the UN arms embargo at the time, as a military solution would necessarily imply rearmament. Since few soldiers were defecting from the national army Ouattara had the only choice of quickly recruiting circa 25,000 mercenaries to constitute a military force, recalls Varenne.

Pierre Sané, former Amnesty International secretary general calls the military solution for a contested election “logic of the absurd.” [12] Jean Ziegler, member of the Advisory Committee of the UN Human Rights Council in an interview in December 2015 called for the dropping of the charges against Laurent Gbagbo, a man of peace, stating “if Willy Brandt - who met Gbagbo while heading the Socialist International - had still been alive it would never have come to this.” [13]

Côte d’Ivoire was returning to normal life after the elections, despite the so-called disobedience campaigns funded with 150,000 euros set side by Ouattara. As he called people to take to the streets, the majority of the population ignored his rabble rousing. [14] A UN panel of experts as early as 2009 reported that northern Côte d’Ivoire was a “warlord economy”, and condemned the constant rearmament and recruitment of Forces Nouvelles via Burkina Faso, Nigeria and Senegal despite the arms embargo.

Two confidential letters published by investigative journalist Charles Onana in his bookFrance-Côte d’Ivoire, Coup d‘état in 2011 point to the international nature of the conflict. One from Burkina Faso President Blaise Compaoré to French President Sarkozy, on 24 March 2011. In the letter the former mediator in the Ivorian crisis, Compaoré, asks the French premier to intervene to oust Gbagbo. For Onana “its not normal that a member of ECOWAS asks for French military intervention in a neighbouring African country that is undergoing an electoral conflict” [15]. The other letter, dated 25 February 2011, is from former President Sarkozy to then Nigerian President Goodluck Jonathan, who also held the rotating chair of ECOWAS at the time. Sarkozy says all is ready to oust Gbagbo and that someone must explain the crisis to [South African President] Jacob Zuma, so an emissary should be sent to South Africa. [15] Zuma, who was mandated at the time by the African Union as part of a high level Panel of Experts to act as mediators in the Ivorian crisis, was claiming Gbagbo had won the elections.

On 4 March 2011 Gbagbo attended a ceremony paying homage to 32 fallen soldiers of the FDS National Army, who had perished in battle fighting the rebellion just in the two preceding weeks. [16]
While the ICC trial focuses on the conflict in Abidjan, the struggle enveloped a large part of the country. The Forces Nouvelles rebels, starting 22 February 2011, descended across the country some 600 kilometres from the north onto Abidjan, breaking the 2003 ceasefire. Soro’s troops attacked from the western town of Danané and continued throughout many surrounding areas, including Bounta, Boyapleu, Téapleu, Zouan-Hounien, Bin-Bouyé, Toulépleu, Péhé. Cities, towns and villages were pillaged by the Forces Nouvelles combatants, as they desecrated the local population. Many residents fled in anticipation of, or immediately upon, the arrival of pro-Ouattara forces. Just 3,000 out of 50,000 inhabitants were left in the town of Toulépleu by the end of March, the International Red Cross reported.

On the 18 of March the Forces Nouvelles (turned Republican Forces of Côte d’Ivoire, FRCI) opened another two fronts: as they attacked Bloléquin in the west they began a southward invasion also from the centre and east. Daloa, the country’s third largest city in the west fell on 28 March to the rebel forces. Rebels reached the southern port of San Pedro, the largest exporter of cacao in the world, on 31 March. The eastern towns of Bandourou and Abengourou fell on the 29 March. Yamoussoukro, the county’s political capital in the centre of the country fell on 30 March. The massacre of Duékoué happened in this western city of approximately 180,000 inhabitants when it was invaded by rebels on March 27. The International Red Cross confirmed that Forces Nouvelles rebels killed up to 800 people on one single day — 29 March 2011. This tragic event that could help prosecutors put into context the threat Gbagbo was facing has not been mentioned in their indictment.

Just as in 2002, the pro-Ouattara fighters began a three-pronged assault that brought them swiftly to the country’s commercial capital and seat of power, Abidjan, within days.

“As combat waged in and around these towns throughout March, allegedly the Forces Nouvelles systematically targeted pro-Gbagbo civilians, despite repeated public announcements by Soro and Ouattara spokespersons that their fight was only against Gbagbo's armed forces,” reported Human Rights Watch. HRW however calls for both sides of the ‘conflict’ to be prosecuted. This stance, often repeated by mainstream media, is contrary to the international legal custom of criminalizing perpetrators breaking peace accords.

“The ICC rests on false assumptions, such as the figure of 3,000 killed in the aftermaths of the elections”, says Varenne. According to the European spokesperson for Gbagbo, Bernard Houdin, in an interview 29 January 2016 on French TV France 24, the figure of those killed in the crisis is likely to be pushing on 16,000. This figure is unreleased information from the Ivorian ‘Truth and Reconciliation Commission’ report, a report Ouattara has refused to make public.

On 2 April 2011, a meeting was held at the Elysée French Presidential palace, says Varenne. French army chief of staff, Admiral [Édouard] Guillaud, special army chief of staff advisor to Nicolas Sarkozy, General [Benoît] Puga, French Foreign Minister Alain Juppé and Gerard Longuet were all present for a ‘war council’ encounter on Côte d’Ivoire.

Reinforcements, including French special forces and the French Foreign Legion, were sent to Côte d’Ivoire, despite Juppé’s April 6 statement that, “French forces will not participate in a military operation as this would be violating the legal framework set by the 30 March 2011 UN resolution.” [17] Meanwhile, at the UN, India and Russia denounced the unauthorised “regime change policy” that France had undertaken.

“Five years of investigation to come to this form of failure,” Altit said addressing the three bench judges. “Five years to prepare a certain judicial catastrophe that some judges in the pre-trial chamber saw coming.”

In fact, in February 2013, the ICC pre-trial chamber heard evidence against Gbagbo to determine whether to confirm the charges against him. Gbagbo had already spent 16 months in detention at The Hague and seven in northern Côte d’Ivoire. In June 2013, a majority of pre-trial chamber judges found that the prosecution had failed to put forward enough evidence to support the charges. Instead of dismissing the case, the judges gave the prosecution more time to investigate.

Former president of South Africa, Thabo Mbeki, said “any normal judge would have declared Gbagbo not guilty and released him”. Speaking in front of a crowd in 2015 at his African Leadership Institute, Mbeki slammed the ICC’s juridical decision, and furthermore, told a parallel story of how the ICC ended up bringing war, through an indictment, of a rebel leader Joseph Kony that broke down Ugandan peace talks instead of bringing peace to Uganda. It was the people of Uganda, who had opted for traditional courts that were side stepped and who suffered the consequences of conflict resuming. The same could end up happening in Côte d’Ivoire if Gbagbo is not freed. Mbeki cites a recent letter written by former President of Mozambique Joaquim Alberto Chissano on behalf of the Africa Forum of Former African Heads of State and Government to the ICC Prosecutor Bensouda. In it he calls for dropping the charges against Gbagbo, which at the pre-trial stage were already very doubtful, in the name of peace.

As eventually the charges against Gbagbo were confirmed in June 2014, one of the three judges, Judge Christine Van den Wyngaert, still filed a dissenting opinion. “There is no convincing evidence, in my opinion, to show that Laurent Gbagbo at any point agreed with his alleged ‘inner circle’ to commit crimes against innocent civilians,” wrote Van den Wyngaert in June 2014. “In addition, I am not persuaded by the available evidence that there are substantial grounds to believe that Laurent Gbagbo, either alone or in concert with one or more members of the alleged “inner circle”, used the forces at his disposal to intentionally commit crimes against civilians,” she wrote.

ICC prosecutors are focusing on four specific incidents (and a fifth incident, events in Yopougon on 25-28 February 2011, only for Blé Goudé) that allegedly took place during the five-month period before Gbagbo’s arrest in April 2011.

The first incident is the 16 December 2010 demonstration organized by Ouattara supporters calling for a new director at the national television station (RTI). A video recorded on December 15, 2010 in which rebel leader and prime minister in Ouattara’s government Soro tells men in military fatigues that he was ordered by Ouattara to go and install a new director-general of RTI the following day, and he would need them [the armed men] to ensure that is done, was screened in court by the Defence to show that there was no peaceful demonstration. In the same video, two men in military fatigues tell the other uniformed men that they do not need to add to what has been said, and the men should be ready to deploy the following day.

The “amateurish level of historical and political background knowledge at this ICC trial,” said Varenne in the article ‘The ICC: Chronicle of a Disaster’, leads to “the country’s history…reduced in the manner of a Wikipedia page,” by both the defence and the accusation. Varenne in Abobo la Guerre places the 16 December 2010 events in context: “it is a known almost cultural factor in Africa that to take over power one has to besiege the presidency and the national television.” Her investigations that day found Soro’s armed force carried out an armed attack against a SDF national army barricade at the “Carrefour de la Veuve.” Judge Van den Wyngaert in her 12 June 2014 dissenting opinion went into great detail and presented clear evidence disproving the accusation against Gbagbo for this incident. [18]

Incident two and three (a pro-Ouattara women’s demonstrations on 3 March 2011 where seven women died and the shelling of a market on 17 March) are both set in Abobo district of Abidjan — an area that was infiltrated as early as December 2010 by the so-called invisible commando. A pro-Ouattara militia, it is estimated by the country’s disarmament program that the invisible commando was made up of 7,786 combatants. By mid-March the entire Abobo district was under militia control. This urban-guerrilla movement repeatedly attacked the Ivorian national army bases and stole the weapons of slain security forces. “They even managed to get a hold of a tank”, remembers Varenne.

During the on-going trial, video evidence was screened by the defence, specifically showing a young man testifying that the police had asked that densely populated Abobo district be evacuated for safety. The prosecutor, instead, alleges that Gbagbo, like a mad dictator, “attacked the civilian population in an area known for being pro-Ouattara”.

Furthermore the defence pointed out that a national trial in Côte d’Ivoire acquitted the military officers who has been charged for the Abobo shelling. Thus the alleged direct perpetrators were acquitted in Côte d’Ivoire in 2015, yet the alleged indirect co-perpetrators, Gbagbo and Ble Goudé, are still charged for the incident at the ICC.

The last incident, which the prosecutor mentions, is an attack in Yopougon district that takes place after Gbagbo had been overthrown and had already ordered the army officially on television to stop fighting. While in detention in northern Côte d’Ivoire, Gbagbo continued to reiterate to a group of visiting global leaders known as the Elders, including South African Archbishop Desmond Tutu, that he had given orders to the army to stop fighting on 8 April 2011.

Flimsy evidence also supports Gbagbo’s alleged plan to stay in power at all costs. The defence maintains that the prosecutor actually altered punctuation in the original text of a 2010 speech by Gbagbo to a crowd of policemen. By doing so, the prosecutor was able to construct some form of accusation but putting words in Gbagbo’s mouth, which he never spoke.

The prosecutor alleges that a slogan used by Gbagbo during the election campaign in 2010, “I win or I win” was proof of Gbagbo’s wanting to remain in power. That same harmless slogan used to incriminate Gbagbo was appealing enough to encourage Ouattara’s wife, Dominique, to dance to it, the defence showed in a video. Cabinet meetings held by Gbagbo and his administration are also cited by the prosecution to demonstrate criminal intent, but the prosecutions notes of such meetings are completely void of incriminating content.

Gbagbo, a socialist, historian and the father of Ivorian democracy, spearheaded 40 years of non-violent struggle. Following in the footsteps of his mentor, Blé Goudé embraced non- violence as the heart of his actions. Ironically, he was widely known as ‘the Street General’. That term was not for his military prowess, but for his ability to mobilize large numbers of people onto the streets for huge pacifist marches. These demonstrations, a mains nues(unarmed), managed to abort an illegitimate takeover of the government by the foreign-backed rebellion, the Forces Nouvelles, in crucial moments of the country’s recent history.

Blé Goudé’s youth movement embodies one of the most extraordinary examples of non-violent resistance to date. When faced with extreme aggression, such as that by the French Licorne force in Abidjan in 2004, where 67 unarmed Ivorian demonstrators were shot dead and over 1,000 were injured, Blé Goudé called for restraint. Video evidence presented to the court on 2-3 February proves that no demonstrators were armed. The now 44-year old incarcerated Guibéroua-born NGO-founder asked the population to take to the streets, but to refrain from attacking anyone, especially French nationals living in the country. Stéphane Haumant who was filming for Canal + French television on the ground at the time confirmed that no demonstrators were armed. On 25 of March 2011, as the rebels were advancing from the north onto Abidjan, Blé Goudé held a two-day prayer sit in with a John Lennon-Yoko Ono-style mattress protest imploring for a peaceful resolution to the crisis.

Despite this information Blé Goudé is frequently depicted as a “militia leader”. However, he called on crowds to stop “bandits” with their bare hands. French Licorne spokesperson Georges Peillon, with on-ground experience, also defined the Forces Nouvelles as “bandits”. [19]

On 3 February 2016, the lead lawyer of Blé Goudé’s defence team, Geert-Jan Alexander Knoops, compared the Blé Goudé case to American boxer, Rubin “Hurricane” Carter, who was wrongly imprisoned to 19 years in prison for murders he did not commit.

Video evidence presented by Knoops shows Blé Goudé receiving a delegation of rebel leaders in Gbagbo’s home town and later the two parties — the rebel and the government authorities — address a rally calling for peace. Blé Goudé launched a Caravan of Peace in 2007 calling for reconciliation. Again, Knoops shows video footage with Blé Goudé meeting with victims of rebel attacks. Another video clip showed Blé Goudé in an interview on state-owned television, RTI, in which he calls on the leaders of the main political parties to talk to each other for the sake of peace in Côte d’Ivoire.

On 3 February 2016 Blé Goudé’s defence lawyer, Claver N’Dry, accused ex-prosecutor Moreno Ocampo of impartiality. N’Dry points out that the Rome Statute, the backbone of the ICC, stipulates that the prosecutor can be disqualified if his impartiality might reasonably be doubted. As early as 21 December 2010, months before investigations were opened, Ocampo singled out Blé Goudé as a leader whose rhetoric could ignite violence and that, because of this, he could face charges at the ICC, N’Dry said. N’Dry continues, and asks why others who were calling for the violent overthrow of Gbagbo at the time were not scrutinized. It is a clear breach of the presumption of innocence.

Even the choice of terminology breaches the presumption of innocence. Most human rights reports today write “militia leader” instead of “militant” leader.

N’Dry, challenged the prosecution, underlining that it did not match the facts, but was built on a “faulty narrative”. He claimed the prosecution had been manipulated by certain political interests and selected media intent on the “manufacturing of enemies”, citing Pierre Conesa, a former senior official of the French Defence Ministry, expert on international strategic and military issues, and author of The Manufacturing of an Enemy, or How to Kill with a Clean Conscience.

Conesa said, “For if some enemies are real, others analyzed with hindsight, are surprisingly artificial”. N’Dry argued that belligerence can also be rooted in ideological constructions, perceptions or misconceptions and he will provide factual evidence during the trial to dispel them.

Presiding Judge Cuno Tarfusser, perhaps not catching the subtlety of N’Dry’s argument, said it was “wrong for N’Dry to accuse the prosecution of fabricating a case,” and that he “did not want it repeated”. Yet 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 prosecutor’s accusations against Gbagbo and Blé Goudé. If one side is painting a militia leader and the other a non-violent leader, one a dictator and the other a democrat, then one of the two sides is necessarily weaving a faulty narrative to make his or her case.

Prosecutor Bensouda has sought no ballistic or forensic expertise 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.

In a juridical system that follows due process the search for exculpatory evidence — evidence favourable to the defendant — goes parallel with searching for incriminating evidence, and is a part of the prosecutor’s mandate and should not require suspect or defence mobilization. The defence has complained largely of this lack of procedural criteria on the part of the prosecutor, which often has omitted to disclose exonerating evidence.

Procedural flaws are also striking. The ICC has infringed defendants’ rights in this trial by largely accepting hearsay and anonymous testimony as evidence, a procedure that cannot be contested by the defence at court. One hundred thirty-eight witness testimonies are slated for the duration of the trial. So far, the majority that have been heard have shown severe inconsistencies, originally filed written statements contrasting with their in-court testimony. One witness stated doctors would not treat him. Yet in court, he pointed out that they did not do so “since the operating tables had not been cleaned”. This crucial detail had been omitted by the prosecutor — an imperative point if trying to indicate that the man’s treatment was refused on a political basis as written in the witness statement. One witness conveniently remembers an incident in which he fingers Blé Goudé in the 25-28 February 2011 Yopougon incident only after he is called to testify. The witness claims that the event did not “come to his mind” before being summoned by the ICC.

During cross-examination on 16 February, a female witness admitted that she went to hospital weeks after the alleged incident, making the validity of the hospital documents filed by the prosecution questionable. Lead Judge Cuno Tarfusser adjourned the hearing until 3 Marc 2016.

In October 2015 as Ouattara was re-elected, broadcaster Aljazeera ran a piece that points to his “creeping authoritarianism”. From a human rights point of view the situation is serious — according to the last political prisoners report published by the Ivorian Popular Front (FPI) 15 January 2016, despite the release of 102 political prisoners at the end of 2015, some 311 are still being held to date. This excludes the 228 so called “ghost detainees”, people who have disappeared in hidden prisons since April 2011. Press freedom is muzzled and three journalists have been assassinated since 2011. Of Gbagbo’s former government and sympathizers, dozens still have their assets frozen and are banned from travel. Five years after the crisis, some one-third of Gbagbo’s last government cabinet ministers are still in exile, others are under arrest or facing charges. The party’s headquarters has been repeatedly ransacked, their meetings hindered and on 4 May 2015 again three of Gbagbo’s high ranking party members were arrested: Hubert Oulaye, Sébastien Djédjé Dano and youth leader Justin Koua. Ouattara has decided not to air the ICC trial on public television.

Leaders at the 26th African Unit (AU) Summit meeting in Addis Ababa, Ethiopia, on 31 January 2016 supported a decision to develop a roadmap for the mass withdrawal of African countries from the ICC. President Kenyatta addressing the summit underlined the “unfair targeting” and “dysfunctional” nature of the court. In a world of serious global conflict Africans can no longer afford to “contend with an ICC pursuing weak and politicized cases…We refuse to be carried along in a vehicle that has strayed off course to the detriment of our sovereignty, security and dignity as Africans”, said Kenyan President Kenyatta. [20]

Yet is it not wishful thinking to imagine a just international court - a reflection of a genuine democratization of an institution - when we have not given thought to the democratization of power on a global level. This trial is a blatant reminder that only asymmetric justice- Pigeuad called it hemiplegic justice [21]- can come from a world were asymmetric power still reigns. Bensouda should be denouncing the “French pressure” and not accept to put on trial two non-violent leaders whom we “have nothing serious against”.


[1] http://www.iol.co.za/news/french-hand-in-gbagbos-fall-1983585

[2] http://www.rfi.fr/afrique/20101206-francecote-ivoire-amities-socialistes-laurent-gbagbo

[3] Chief of the EU mission Cristian Dan Preda will instead declare end of January 2011 that EU observers were evacuated, but again miscites the actual areas of the evacuation, as attested by evidence of the bills paid to the aircraft owner who evacuated them. Fanny Pigeaud, France Côte d’Ivoire, Une histoire tronquée, Vents d’ailleurs, 2015. p 144

[4] 11 February 2015 http://news.abidjan.net/h/525871.html

[5] Matthew Russell Lee at http://www.innercitypress.com/rice2ruscote120710.html

[6] Charles Onana, Les secrets de la justice internationale, Enquetes truquées sur le génocide rwandaise, Duboiris, Paris, 2005 and http://www.resetdoc.org/story/00000022468. Video on the Rwandan 1994 plane crash https://www.youtube.com/watch?v=xuZQsGPWAuU

[7] http://www.lemonde.fr/afrique/article/2016/02/05/proces-gbagbo-ou-sont-les-bourreaux-du-camp-du-bien_4860079_3212.html

[8] Alain Dogou, Ma vérité sur le complot contre Laurent Gbagbo, Contre-rapport des résultats de la Commission internationale de l'ONU sur la crise postélectorale, L'Harmattan, Paris, 2012.p. 68-69

[9] http://www.linfodrome.com/vie-politique/20706-ake-ngbo-fait-des-revelations-voici-les-2- raisons-des-crises-en-cote-d-ivoire

[10] Leslie Varenne, Abobo la guerre, éditions Mille et Une Nuits, 2012.

[11] https://wikileaks.org/gifiles/docs/19/1952795_re-ct-os-cote-d-ivoire-ct-rival-urges-commando-raid-to-oust.html

[12] Pierre Sané, Interview with Nicoletta Fagiolo, December 2015, Dakar Senegal at https://www.youtube.com/watch?v=2iHkEsD6X3Q

[13] Jean Ziegler, interview Geneva, December 2015 at https://www.youtube.com/watch?v=nQbX56B6zKg

[14] Leslie Varenne, Abobo la guerre, éditions Mille et Une Nuits, 2012 et Leslie Varenne, CPI : chronique d’un désastre, 6 février 2016 at https://www.iveris.eu/list/articles_dactualite/140-cpi__chronique_dun_desastre and op. cit. p156

[15] Charles Onana interview in documentary film Presidential Elections November 2010 at https://www.youtube.com/watch?v=xwDLCb2UkXE

[16] Charles Onana, France- Côte d’Ivoire, Coup d’état, Duboiris, Paris, 2011.

[17] Fanny Pigeaud, France Côte d'Ivoire, Une histoire tronquée, Vents D'ailleurs, 2015. p 226

[18] Leslie Varenne, op. cit. p.157

[19] Judge Van den Wyngaert writes on the 16 December incident: “The Confirmation Decision attaches a lot of importance to Laurent Gbagbo’s alleged instruction during a meeting held on 14 December 2010 that the RTI march should not take place (see Confirmation Decision, para. 40). However, this finding relies entirely on the testimony of Witness P-9, who also stated that Laurent Gbagbo did not give any specific instructions as to how this should be accomplished. There is no other evidence about what was said during this meeting. Following the meeting, the Chief of Staff gave oral instructions to the Commander of the Ground Forces not to shoot at civilians or impartial forces. [See Witness P-9, CIV-OTP-0051-0935 at 0964-0967 ]. There is also evidence of similar orders by the Chief of Police [See CIV-OTP-0005-0031 at 0031-0032 and Witness P-46, CIV-OTP-0014-0204 at 0209]. As far as the evidence relating to alleged radio intercepts of orders given on the FDS network on the day of the RTI march is concerned, I consider the terminology used (“rentrer dans la foule”) ambiguous. It could just as easily refer to an order to push back the crowd with conventional crowd control techniques [see, e.g., CIV-OTP-0010-0028 at 0029 and 0031; CIV- OTP-0045-1413 at 1413]. More importantly, there is no evidence whatsoever showing that any of these intercepted orders emanated from or were approved by Laurent Gbagbo.” at https://www.icc-cpi.int/iccdocs/doc/doc1783397.pdf

[20] Georges Peillon, interview Nicoletta Fagiolo, Lyon, April 2012 at https://www.youtube.com/watch?v=l1YnmToSr38

[21] http://www.president.go.ke/2016/01/30/statement-by-his-excellency-hon-uhuru-kenyatta-c-g-h-president-and-commander-in-chief-of-the-defence-forces-of-the-republic-of-kenya-on-the-status-of-the-kenyan-situation-at-the-icc/

[22] Fanny Pigeaud, Gbagbo jugé à la CPI: une justice internationale hémiplégique at http://forumdesdemocrates.over-blog.com/2016/01/gbagbo-juge-a-la-cpi-une-justice-internationale-hemiplegique.html


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