Côte d’Ivoire: Le couple Gbagbo inculpé de “crimes économiques”

This post was originally published on UN Dispatch. C’est le premier billet en français que l’éditeur m’a commandité, donc c’est un essai. Amis francophones, j’aimerai beaucoup savoir ce que vous en pensez.

C’est un premier pas pour la justice en Côte d’Ivoire: Laurent et Simone Gbagbo – assignés à résidence dans le nord du pays depuis leur capture dramatique et médiatisée du 11 avril dernier – ont été inculpés hier par le procureur de la République d’Abidjan. L’inculpation porte sur les “crimes économiques” commis par l’ancien président et sa femme. Le procureur a annoncé le jeudi 18 août lors d’une conférence de presse que les chefs d’inculpation contre Mr. Gbagbo concernaient notamment “vol aggravé, atteinte à l’économie nationale, détournement de deniers publics, pillage.

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The high stakes of the Taylor trial

A fascinating new phase in the trial of Charles Taylor, Liberian warlord and President of his country from 1997 to 2003, is underway. Following 18 months of proceedings, the defense case for Taylor – charged by the Special Court for Sierra Leone (SCSL) with 11 counts of war crimes, crimes against humanity, and other violations of international humanitarian law, to which he pleaded non guilty – began on July 13.  This has been getting some international media attention. As noted by contributors to the Trial of Charles Taylor blog, a project of the Open Society Institute:

“[Taylor] is the first sitting African head of state to be indicted and prosecuted for his alleged responsibility for some of the worst crimes known to humanity, the laser beam of international attention will zero in as he tells his side of the story.” 

International attention, however, has been more like a faint gleam than a “laser beam”, and I have yet to find commentary that focuses on what, as far as I’m concerned, seems to be the most significant aspect of these historic proceedings – the fact that, if Taylor is found guilty, this trial will set a critical precedent in international law. Indeed, while there have been past indictments – and even convictions – for war crimes and crimes against humanity, no head of state has yet to be found personally responsible for atrocities committed during his or her tenure.

In this post, I won’t be discussing the history and specifics of what led to Taylor and a dozen other war criminals to be indicted by the SCSL – suffice it to say that there is ample evidence (in spite of Taylor’s pleading not guilty and his vehement denial of charges during his opening statement) that these individuals committed unbelievable atrocities in the context of the Sierra Leone conflict. (A key prosecution witness, Joseph Marzah, described how Taylor allegedly encouraged – even ordered – the killing of women and children or the eating of human flesh). 

Above all else, I believe it is crucial to highlight the importance of Taylor’s trial not only for Sierra Leone, and more generally the West African region, but also the implications for international law and the international criminal justice system specifically.

In the case of Charles Taylor, the fact that the charges against him are explicitely linked to his involvement in the conflict in Sierra Leone – and not Liberia, the country he presided over for 7 years – complicates the picture. Stephen Rapp, the prosecutor of the SCSL, has to prove Taylor’s personal, criminal responsibility in the events that unfolded in Sierra Leone between 1996 and 2002, when the civil war came to an end. Including Taylor’s, the court has brought 13 indictments against individuals who “bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996.” 

So far, three guilty verdicts have been pronounced against former rebel leaders, with sentences ranging from 15 to 52 years – out of the three judgments, one may still be appealed. It should also be noted that four of the 13 indicted have either died or are presumed dead, leaving nine individuals in the custody of the SCSL. 

One might wonder, then, what purpose might the conviction of Charles Taylor and a dozen others serve? Particularly as so few of those who perpetrated atrocities in Sierra Leone are being tried, will all these lengthy, costly legal procedures provide any solace for the victims of the conflict? Will justice be served? What, if anything, would the sentencing of war criminals achieve for Sierra Leone? for West Africa? for international justice? 

The Special Court for Sierra Leone prides itself on contributing to the re-establishment of the rule in law in the country – in addition to court proceedings, the SCSL also facilitates capacity-building for judges, legal experts and lawyers. And, indeed, the judicial institutions of Sierra Leone are being strengthened thanks to the SCSL. Beyond this, of course, the main objective of the SCSL is to bring justice to the people of Sierra Leone. Already, legal proceedings have yielded a number of firsts and have established important precedents. The Special Court:

  • Was the first to rule that national amnesty does not apply to the prosecution of international crimes, and was the first court to adjudicate the limitations of immunity by a head of state before an international criminal court.   
  • Was the first to enter convictions for the forcible recruitment and use of child soldiers for acts of terrorism in a non-international armed conflict and for the crime of attacks on UN peacekeepers.   
  • Also pronounced the first-ever convictions on the charge of sexual slavery and forced marriage as crimes against humanity. 

However, despite this important jurisprudence and the benefits to the local judicial system, many argue that the SCSL – as well as other international criminal courts – can make the process of reconciliation much more difficult and that, ultimately, convicting and sentencing war criminals achieves little for the victims. 

I, on the contrary, believe that the sentencing of war criminals and perpetrators of crimes against humanity is fundamentally important. In addition to the signifcant advances for Sierra Leone’s judicial system listed above, should Taylor be found guilty, it would set the standard for accountability and send a clear signal to current and former heads of state that a culture of impunity will not be tolerated by the international community. As prosecutor Stephen Rapp notes, “this is an enormous test for international justice.”

With Taylor’s trial, the stakes are high – the former president still has a strong following in West Africa, and no clear popular consensus has emerged around the man who (in)famously ran for president in 1996 with the slogan “He killed my Ma, he killed my Pa, but I will vote for him.” A conviction would at least contribute to the delegitimization of movements supporting him – which, in a still fragile Liberia, will be critical to the country’s long term political stabilization. 

Particularly as heads of state like Bashir in Sudan, Mugabe in Zimbabwe or even the military junta in Burma, continue to oppress and victimize their populations, the ever growing jurisprudence reinforcing the international justice system would receive an adrenaline shot should Taylor be sentenced. 

As with the prosecution by the ICC of Thomas Lubanga for his crimes in the Democratic Republic of Congo, many claim that the international media and public attention detract from the validity of the proceedings. As Catherine Mabille, Lubanga’s head defense lawyer notes: “In the press he is already convicted, convicted before being tried. And in the eyes of a vast majority, as soon as there is an arrest warrant and as soon as the charges are confirmed and the matter is committed to trial, the presumption of innocence disappears.”  

However, all those indicted by international criminal courts, including Taylor, are presumed innocent until proven guilty, and given a chance to present their side of the story. For all intents and purposes, they are guaranteed a fair trial. This is especially true, given that, as mentioned previously, the media and public opinion are not nearly as mobilized as they could be – frankly, even searching for material to compose this blog post, I was surprised by how little analysis and commentary Taylor’s trial has generated (leading me to conclude that Lubanga’s defense lawyer may be slightly delusional.)

Considering how many times throughout history leaders have abused, oppressed, manipulated and murdered their own populations, the need to establish a standard for accountability is of paramount importance. For now, even as the International Criminal Court has issued a warrant for Bashir’s arrest, he remains free to roam around the African continent (having already made several trips abroad since the warrant was issued), as the African Union decided not to honor the warrant for his arrest… 

(In an interesting twist of fate, it’s worth noting that Taylor’s son, Chucky Taylor, was convicted of torture last year, in the first prosecution under the United States’ Extraterritorial Torture Statute.)

Of course, the evolution of institutions – such as the international justice system – is always complex, and for every achievement, there are set-backs. But there is no doubt in my mind that if Taylor is convicted and sentenced for his crimes, entrepreneurs of violence, warlords and other small or big tyrants the world over will hear the message loud and clear: the culture of impunity is coming to an end.

Point of View – Rony Brauman

My new life has so far not afforded me quality time for thinking/blogging – I need to refocus my energy! I’ve been reading a lot though, and feel constantly inspired to share thoughts with all (2 or 3) of you – after blogging about the ICC and Bashir’s indictment last week, I read this great piece written by Rony Brauman, who was the head of Doctors Without Borders (as you might know, one of my all time favorite NGOs).

He also happens to be a former professor of mine, whose analysis and vision of the world had a profound impact on me. He is one of those disheveled guys that you would probably not think much of at first glance – but he is an amazing thinker (dare I say philosopher??), and is held in the highest regard by field practicioners who have worked with him.

This piece definitely characterizes his controversial take on most issues – his views are almost always counter-intuitive, but he is extremely convincing. His views on genocide are absolutely worth reading about – if this piece piques your interest, I strongly encourage you to look further into his work (drop me an email if you’d like some recommendations)

Apart from the judicial inflation to which it gives rise, the major problem with this perception of armed conflicts as “genocides” (the former Yugoslavia, Sudan, and undoubtedly more to come) is that it removes them from history and politics, in order to subject them instead to a purely moral judgment. To qualify a war as genocidal is to leave the terrain of politics, of its relations of force, of its compromises and contingencies, in order to situate oneself in some metaphysical beyond in which the only conflict is between Good and Evil: fanatics versus moderates, blood-thirsty hordes versus innocent civilians….

Read the full piece here.

Meanwhile, African Union soldiers are wearing blue plastic bags on their helmets to indicate they now operate under the UN… Boy, do we care about the situation in Darfur or what?? Very unsatisfactory state of affairs – as much as I am a huge supporter of strengthening international law, I am even more a believer in putting your $$ where your mouth is… Which, quite unfortunately, most countries, most leaders fail to do, time and time again.

The ICC and its Responsibility

Lots of talk this week about the indictement of Sudan’s President, Omar Al Bashir. Journalists, analysts and bloggers are taking positions on this issue, and the terms of the debate seem to boil down to justice vs. peace. Indicting Bashir, it again signals the “end of impunity”, also diminishes the possibility of negotiated political settlement in which the “”””international community”””(many quotation marks intended) would play a significant role.

I am firm believer in the role of international law in guaranteeing respect for human rights and moving us towards something closer to global justice – in the long run. In the short run, however, it seems that political considerations (might I say imperatives?) need to be weighed appropriately when making highly charged legal decisions, such as indicting Bashir. Politically, the move hasn’t garnered the high level support it needs to succeed. Beyond this, it also is a critical move for the ICC – if the indictment is challenged by the judges, the consequences for the Office of the Prosecutor should be interesting…

There are hundreds of opinion pieces on this topic – this one, from the LA Times, takes the position that the indictment probably delays the possibility of peace in Darfur (and in Sudan at large). I thought this quote really captured the essence of the debate, and I’ll leave you with it:

“A harsh question: Is this [the indictment] about helping bring peace to Darfur or is it about furthering a political vision of the world, one based on human rights as the categorical political and, above all, moral imperative no matter what the real-world consequences?”(emphasis added)

Oh, the traps of idealism….

Speaking of Justice…

Here is an interesting essay by Owen Fiss, a law professor at Yale. I tend to be an advocate of the International Criminal Court, particularly because it (theoretically) signals the end of impunity for perpetrators of atrocities. I find his basic argument, that the internationalization of prosecution is unnecessary because nations usually have the capacity and ability to deal with these issues through their own justice system, to be quite potent:

The crimes may have a global dimension—human rights, after all, are universal—yet national tribunals are capable of punishing persons for human rights violations under either ordinary criminal law or the same norms used by international tribunals[…]
Justice is also a political obligation, for it defines the foundational commitments of a given regime. The willingness of a regime to punish human rights abuses reveals—to its own citizens and to all the world—its true character.

I do believe that, in general, it is important to let States take responsibility. This is true in terms of post-conflict reconstruction, as it is true in terms of developing certain sectors of public services, such as health and education, where the intervention of foreigners can be detrimental to long term sustainability. Thierry Vircoulon has a great paper on this topic.

However, I’m not entirely convinced by the argument – if States chose not to prosecute these types of crimes (for mostly political reasons), or if the outcome is influenced by political considerations, then the whole process becomes a farce. As Fiss notes, the ICC only has African cases on its docket – even though plenty of crimes against humanity have been committed in other parts of the world, and not necessarily only in the context of civil wars… The ICC’s inability -thus far- to prosecute Western criminals of war (and they exist!) leads to the type of argument Fiss is making. This is precisely the same line of thinking that American detractors of the ICC use – that the US is able to prosecute and handle these cases within their own national jurisdiction, and that the ICC basically encroaches upon their sovereignty.

I would only agree with Fiss if it were the case that, left to their own devices, nation States would prosecute these crimes. He cites the case of Argentina,

In 1985, for example, leaders of the junta that ruled Argentina from 1976 to 1983 were convicted in Argentine courts under domestic criminal statutes for their roles in authorizing extrajudicial killings, torture, kidnapping, and other crimes.

But there are so many counter-examples for this – Iraq comes to mind. The circus that was Saddam Hussein’s trial and his brutal execution were an enormous shame – this could have been the opportunity for the ICC to show its worth. Also, the current debacle with the Cambodia trials for the Khmer Rouge also demonstrates how political considerations disturb these crucial legal proceedings.

Until the ICC becomes truly global in its reach – meaning that it doesn’t only prosecute African war criminals – it will continue to be criticized (and, I suppose, rightly so). But that is entirely dependent on the willingness of States to at least complement their own prosecution of these crimes with a parallel international mechanism (like Rwanda did with the gacaca, for instance).