Written by: Regina Paulose
In a significant turn of events, Côte d’Ivoire has determined that it will file a motion to dismiss the ICC warrant issued in February 2012 for Simone Gbagbo. Simone Gbagbo is the wife of former Côte d’Ivoire President Laurent Gbagbo, who has a case pending before the ICC. The ICC has charged Simone Gbagbo with different crimes under crimes against humanity during the post –election violence that took place in Côte d’Ivoire. Simone Gbagbo’s case is an interesting one. She is the first female to be charged with crimes by the ICC.
The Côte d’Ivoire Government has notified the ICC of this particular decision. The Government issued the following statement:
“The decision of the cabinet aims to have Mrs Gbagbo brought to trial by Ivorian courts, whose good reputation has been restored and which can hold a fair trial that will guarantee the rights of the defence.”
Côte d’Ivoire’s action comes at an impeccable time. This decision coincides with the African Union (AU) special summit taking place in October to address issues related to the ICC. Members of the AU – most notably Kenya – have expressed disdain for the enforcement of the Rome Statute on the African continent and seem particularly surprised by the enforcement of the Statute on state parties who have acceded to the ICC’s jurisdiction. They also argue that the ICC has been “targeting” Africa, even though state parties within Africa affirmed the ICC Prosecutor’s request to investigate certain situations (Simone Gbagbo’s case is the result of such a request). The Security Council has also played a role in Africa. The AU is not (so far) protesting the Security Council’s decisions to refer cases to the ICC. Not surprisingly, the summit could call for a possible “walk out” of signatories to the Rome Statute. Côte d’Ivoire officials plan on standing in solidarity with decisions made during the AU summit.
A brief history of this case indicates that Côte d’Ivoire was not willing to try Simone Gbagbo for her alleged crimes. Former ICC Prosecutor Moreno – Ocampo used his propriu motu powers to initiate an investigation. “On 14 December 2010, President of Côte d’Ivoire Alassane Ouattara sent a letter to the Office of the Prosecutor reaffirming the Côte d’Ivoire government’s acceptance of the Court’s jurisdiction. On 3 May 2011, President Ouattara reiterated his wish that the Court open an investigation.” Côte d’Ivoire actions should raise eyebrows as between 2010 to the present, Côte d’Ivoire has not objected to the ICC’s trial of Laurent Gbagbo, but now claims that they have the wherewithal to try Simone Gbagbo.
Simone Gbagbo will not have protections in a national criminal trial. President Ouattara has a significant history with the Gbagbo’s. The country is continuing to repair itself from the bloody aftermath of the 2010 elections, which required the assistance of French forces and the UN in order to place President Ouattara in office. According to Human Rights Watch, there are small signs of improvement in the justice system. However, it does not outweigh the fact that the post -election violence prosecutions have been one sided towards Gbagbo supporters who have been in pre-trial detention for over two years. Human Rights Watch has also reports that loyalists to Gbagbo continue to attack Ouattara’s forces and Government outposts. The UN Security Council has even called upon the Government for impartiality and transparency within its legal framework. Simone Gbagbo’s trial will become a rallying cry for supporters loyal to Gbagbo which could sink Côte d’Ivoire back into an abyss of violence.
The ICC is a court of “last resort” and the purpose of the Court is to function as a supplementary mechanism to national level cases. Under Article 17 of the Rome Statute, a case is “inadmissible” on limited grounds. In this particular case, it is doubtful that Côte d’Ivoire was willing and able to carry out the prosecution of Simone Gbagbo. At least they were unwilling and unable to until the AU called for a special summit.
If the ICC is genuinely interested in preventing these situations from turning into a circus, it is important that the Assembly of State Parties consider imposing strict time limits regarding challenges to admissibility. Time limits are good for various reasons and it encourages governments to carefully evaluate and determine whether their judicial systems can handle such grave cases without undue delay. More importantly it allows victims to be sure that their cases will move forward in a smooth manner, rather than be victims again but this time – to the system.
So which jurisdiction will prevail in a case such as this? Time will tell, and lets hope the AU has no bearing on the decision.
 William Burke White, “A Wife Accused of War Crimes: The Unprecedented case of Simone Gbagbo” December 3, 2012, available at: http://www.theatlantic.com/international/archive/2012/12/a-wife-accused-of-war-crimes-the-unprecedented-case-of-simone-gbagbo/265828/
 AlJazeera, “AU to discuss ICC trials of Kenyan leaders” September 20, 2013, available at: http://www.aljazeera.com/news/africa/2013/09/20139209543865471.html
 Laurent Gbagbo and his wife were arrested in an underground bunker on the same day. The warrants were also issued at the same time. Laurent Gbagbo was transferred to the Hague.
 Adekeye Adebajo, “After Gbagbo, what next for Ivory coast?” April 5, 2011, available at: http://www.theguardian.com/commentisfree/2011/apr/05/after-gbagbo-ivory-coast-ouattara
 Bax, Smith, and Willsher, “Ivory Coast prepares for showdown as Ouattara’s men mass north of Abidjan” April 3, 2011, available at: http://www.theguardian.com/world/2011/apr/03/ivory-coast-ouattara-militias-mass
 HRW, “Côte d’Ivoire: 2 Years in, Uneven Progress” May 21, 2013, available at: http://www.hrw.org/news/2013/05/21/cote-d-ivoire-2-years-uneven-progress
 United Nations Security Council Resolution S/RES/2112 (2013) available at: http://www.un.org/ga/search/view_doc.asp?symbol=S/RES/2112(2013)
 See IRIN, “Analysis: A long road ahead for justice in Côte d’Ivoire” May 3, 2013, available at: http://www.irinnews.org/report/97969/analysis-a-long-road-ahead-for-justice-in-c%C3%B4te-d-ivoire
 Article 17 of Rome Statute reads: the Court shall determine that a case is inadmissible where: (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution; (b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute; (c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3; (d) The case is not of sufficient gravity to justify further action by the Court.