The prosecutor of the International Criminal Court (ICC) has taken a significant step toward ensuring that those responsible for grave crimes committed in Côte d’Ivoire are held to account, Human Rights Watch said today.
The ICC prosecutor submitted a request on June 23, 2011, to open an investigation into crimes committed in Côte d’Ivoire following the November 2010 presidential election run-off between then-president Laurent Gbagbo and Alassane Ouattara, who was recognized internationally as the winner. Ouattara has asked the ICC for help to investigate crimes committed in Côte d’Ivoire.
“The ICC prosecutor’s decision underscores the importance of holding perpetrators to account for Côte d’Ivoire’s deadly spate of post-election violence,” said Elise Keppler, senior international justice counsel at Human Rights Watch. “It will be important that ICC investigations go beyond the latest abuses, though, and address terrible crimes committed over the past decade. That is a matter for the pretrial chamber to decide.”
A decision by the ICC prosecutor to act on his own initiative to open an investigation – known as using his propio motu power – requires approval by the ICC judges. The prosecutor must demonstrate that there is a “reasonable basis to proceed,” taking into account the court’s requirements concerning the gravity of the crimes and the inability or unwillingness of national courts to prosecute. Following the first request by the ICC prosecutor to open an investigation on his own initiative, for the situation in Kenya, the pretrial chamber authorized an investigation into crimes committed over a wider period of time than the prosecutor initially requested.
Serious crimes in violation of international law – including war crimes and likely crimes against humanity – were committed by forces loyal to Gbagbo and Ouattara between December 2010 and April 2011. Crimes under the ICC’s Rome Statute documented by Human Rights Watch in January, March, April, and June of this year include murder, rape and other sexual violence, enforced disappearances, and intentional attacks against the civilian population.
The post-election violence capped more than a decade of human rights abuses in Côte d’Ivoire, beginning with the violence-marred elections in 2000 and the 2002-2003 armed conflict and its aftermath. Human Rights Watch, the United Nations, and others documented grave violations of international law by forces under the control of Gbagbo and the current prime minister, Guillaume Soro, including murder, sexual violence, and the use of child soldiers. No one has been credibly prosecuted for the crimes during this period, and a 2004 UN Commission of Inquiry report on crimes during the 2002-2003 conflict also has been kept secret.
Even if the ICC opens an investigation, the ICC prosecutor has to date pursued only a small number of cases in situations under investigation. Holding fair domestic trials in Côte d’Ivoire will therefore continue to be very important, Human Rights Watch said.
“Regardless of whether the ICC opens an investigation in Côte d’Ivoire, domestic prosecutions will also be needed,” Keppler said. “Key donors – including the European Union and the United States – should help the new Ivorian government to identify what is needed for fair trials of serious crimes.”
Human Rights Watch called on donor countries and institutions to help Côte d’Ivoire find the support it needs to pursue impartial, independent, and credible domestic prosecutions of serious crimes that violate international law.
Dozens of people alleged to have participated in or overseen abuses by the former Gbagbo forces, including the former president and his wife, have been in detention in Côte d’Ivoire for over two months. The justice minister recently said that preliminary investigations have been completed in some cases by civilian or military prosecutors, though formal charges have not been initiated. Human Rights Watch called on the government to initiate proceedings swiftly against people in detention to end their legal limbo.
In sharp contrast, though, no member of the Republican Forces has been arrested or detained for grave post-election crimes, despite consistent reports of their involvement in war crimes and potential crimes against humanity.
“Impartial justice will be essential to rebuilding respect for the rule of law in Côte d’Ivoire,” Keppler said. “Both the ICC and national efforts should investigate and prosecute crimes by both sides.”
The ICC prosecutor has been criticized for having an undue focus on Africa because the court’s six current investigations relate to alleged crimes committed in African countries. However, three – Uganda, Democratic Republic of Congo, and Central African Republic – came about as a result of referrals by countries where the crimes were committed. Two more – the Darfur region of Sudan and Libya – came about as a result of a UN Security Council referral. The prosecutor acted on his own initiative to open only one investigation, for crimes committed in Kenya during post-election violence from 2007 to 2008.
The ICC prosecutor is also looking at a number of other situations in countries around the world. These include Afghanistan, Colombia, Georgia, Guinea, Honduras, and Nigeria. The Palestinian National Authority has also petitioned the ICC prosecutor to accept jurisdiction over alleged crimes committed in Gaza.
African civil society organizations and international organizations with a presence in Africa have called for African governments to support the ICC as a crucial court of last resort to ensure justice for victims.
Côte d’Ivoire is not a state party to the ICC, but the Ivorian government in 2003 submitted a declaration giving the court jurisdiction for events after September 19, 2002. Ouattara reaffirmed the declaration at the end of 2010. While such declarations provide jurisdiction, they do not trigger an ICC investigation, which requires a referral by an ICC state party, referral by the UN Security Council, or a decision by the prosecutor to act on his initiative.