18th Session of the Assembly of States Parties to the Rome Statute
Day 1 (2 December 2019)
Name of the Event: Launch of the AFLA quarterly: Lessons from Gbagbo & Blé Goudé case and ICC Review (Side Event co-hosted by Uganda and Africa Legal Aid)
Overview by: Raghavi Viswanath, Junior Research Associate PILPG-NL
Main Highlights:
The Gbagbo and Blé acquittal calls for a more nuanced review of prosecutorial strategies and the sentencing practices of the Court. Importantly, the Court should steer clear of the risk of politicization. Instead, the Court should focus on the need to preserve the right to family life of the accused, encourage positive complementarity through domestic prosecutions and incentivize States to accept released/acquitted defendants.
Summary of the Event:
Ambassador Blaak-Sow (Ambassador of Uganda to the Benelux and European Union) and Ambassador van den Ijsel (Netherlands Ambassador to the ICC and OPCW) welcomed all participants to the launch of the AFLA quarterly, and spoke about how the 18th session of the Assembly of States Parties was expected to serve as a crucial signpost for the review of the Court’s performance. The first panelist was Dr. Namira Negm (Legal Counsel of the African Union). Dr. Negm first commented on the timeliness of the AFLA quarterly which exposes the Court’s prioritization of the situations in the African continent. In her view, Gbagbo was a tipping point in this trend. Notably, she discussed how Gbagbo prompted many allies of the Court to call for reforms in prosecutorial strategies. The case also warns of the damage that unsubstantiated indictments cause both to the reputation and the resources of the Court.
This was followed by a short presentation by Evelyn Ankumah (Executive Director, Africa Legal Aid). She emphasized on the need for nuance in criticism. The ‘beyond reasonable doubt’ and ‘presumption of innocence’ standards are not new to criminal trials. However, the application of these standards in Gbagbo was unique – because of the heinousness and scale of the crimes, the interests of the victims, and the interests of States that often wish to see particular persons prosecuted. Therefore, the key question should be how to minimize the risk of politicization – both on the OTP and the judges. The political background of the case should not be the basis for reduced evidentiary standards. To this end, she warned against measuring the success of the Court by the number of convictions. In the long run, the Court will only have legitimacy if it gives due regard to the interests of fairness.
Chief Taku (Immediate Past President, ICC Bar Association; Defence Counsel before the ICTR, SCSL and the ICC) and Mariana Pena (Senior Legal Officer, Open Society Justice Initiative) then called for a reconsideration of the arrest and detention policies of the Court. Gbagbo’s continued detention even after the acquittal would inevitably lead to double victimization. In her presentation, Mariana Pena highlighted how the calls for a review of the ICC were not triggered merely by the recent string of acquittals. These calls are grounded in broader systemic failures of the Court’s detention policies, its limited understanding of the limitations on the ground, and the strained relationship between the Court and the States Parties. These problems are further compounded by the uncertainty in the standards applicable to ‘no case to answer’ motions. In particular, she discussed the implications of the draft resolution of the creation of an expert panel to review the Court’s performance. In her view, it was important that the panel be encouraged to direct recommendations both at States Parties and the Court. In order to ensure independence and credibility, the review process must engage with the civil society.
Melinda Taylor (Defence Counsel at the ICC) then made a short presentation on the due process lessons learned in the wake of the Gbagbo and Ble acquittal. Significantly, the practice of acquittals is not unique to the ICC. Both the ICTY and the ICTR have famously acquitted many senior leaders involved in the Yugoslav conflict. Therefore, it would not be incorrect to infer that the heightened criticism directed at the ICC is in fact linked to the defendants being African nationals. She then spoke of how States could assist in undoing the trust deficit. In her view, releasing defendants should be considered as important as arresting and detaining them. However, releasing defendants/acquitting defendants does not serve the rehabilitative ends of justice if the defendant is already made to serve de facto punishment and denied the right to family life. Notably, Gbagbo was one of many cases where the accused was acquitted after having served nearly eight years in detention. Therefore, more States should be encouraged to host the defendants released or acquitted by the Court. As of today, only two states have signed agreements with the Court to evince their interest in accepting released prisoners. In conclusion, she spoke of how the permanence of the Court should be used to its advantage. The Court, unlike its predecessors, had the opportunity to learn from the practices of the ad hoc tribunals and revise its working policies to keep up with the constantly evolving interests of justice.
The panelist presentations were followed by a brief floor discussion. Dr. Negm, in particular, was asked about the pushback from the African Union, and the futility of reform if African States choose to withdraw from the Statute. Dr. Negm acknowledged that withdrawal may be an extreme measure. However, reforms in the prosecutorial strategies could contain/undo this trend. The root of the problem was the target-based approach of the OTP – which has repeatedly failed, as seen in the Kenyatta and Ruto cases. Instead, the Court should draw on the success of the ad hoc tribunals and encourage domestic prosecutions at first instance. In so doing, the Court could also avoid creating unrealistic expectations for the victims and local communities. The event ended with comments from the counsel in the Gbagbo case, who discussed how the case prompted constructive exchanges between the Defence and the OTP, and internal policy reviews across all divisions. She voiced the agreement of the room that there was an urgent need to raise, and not lower, the bar for prosecutions.