12.1 Reflection: The Situation in Côte d’Ivoire
Introduction
My observations on the contexts relevant here do not start with the alleged crimes in Côte d’Ivoire but the temporalities of feminist rewriting as a critical practice. The first feminist rewritings in international law that marked the audiences concerned old judgments, such as the judgment in the Lotus case by the Permanent Court of Justice, decided in 1927.Footnote 1 Another important one was the International Court of Justice’s decision on the Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, of 1955.Footnote 2 At the time when the original decisions were made, not only the international judges, counsel, and legal experts active on the cases, but almost all scholars, experts, negotiators, and professors – the most visible part of the intellectual and professional community of international lawyers – were men.
What difference does the (historical) context make? Early feminist rewriting could move freely in a realm of possibilities, in a liberty of constraints, a space of reimagination that resembles the often controversial ‘what if?’ histories, referred to as counterfactual or alternative histories in historiographical research. With the ongoing sex and gender transformation in international law that started in the 1990s, that moment of ‘what if there were a woman’ or even several women on the bench – or as counsel – has passed, in some sub-disciplines of international law at least. Amongst these disciplines, international criminal law (ICL) is generally considered the leading example of progress towards more equal sex and gender representation in authoritative and visible roles.
In the first decision concerning the alleged crimes in Côte d’Ivoire addressed here, Pre-Trial Chamber III consisted of three members, two of whom were women, Judge Silvia Fernández de Gurmendi presiding. The second decision was adopted by an all-female panel in Pre-Trial Chamber I. This change in the context of rewriting is brought about by very positive developments which remain aleatory and primarily restricted to ICL.Footnote 3 At the same time, the new context accentuates the challenges of rewriting as a creative critical exercise, by underlining the question of the difference between a decision by an all-female panel and a feminist decision. What is feminism(s) today, and who decides on the matter? I will return to this question in the concluding remarks.
I will proceed by giving a brief account of the conflict in Côte d’Ivoire which gave rise to the ICC’s intervention before outlining each of the cases concerning Côte d’Ivoire. I will then analyse each rewritten decision separately, concluding with general reflections. I start with Judge Natalie Hodgson’s rewritten Decision on the Prosecutor’s Application Pursuant to Article 58 for a Warrant of Arrest against Simone Gbagbo and continue with Judge Sarah Easy’s rewriting of the Decision on Côte d’Ivoire’s challenge to the admissibility of the case against Simone Gbagbo.
Background to the Conflict
Côte d’Ivoire experienced post-election violence after the results of the 2010–2011 presidential election were disputed. Mr Laurent Gbagbo claimed victory although the electoral commission stated that his opponent, Mr Alassane Ouattara, had won. It was reported that unrest ensued, with systematic and widespread attacks occurring against the civilian population. Witnesses described instances of raids with excessive force used, while others detailed incidences of rape, murder, disappearances, and mass graves. It was estimated that during the conflict, approximately 1 million people were displaced. The investigation focused on both pro-Gbagbo and pro-Ouattara forces, but so far only pro-Gbagbo personnel have been charged.
Background to the Cases
Côte d’Ivoire accepted the jurisdiction of the ICC in April 2003 and ratified the Rome Statute on 15 February 2013. On 3 October 2011, the Office of the Prosecutor (OTP) was granted permission to open a proprio motu investigation in relation to alleged crimes committed since November 2010. On 22 February 2012, this was expanded to include alleged crimes committed since 10 September 2002. On 23 November 2011, a warrant of arrest was issued for Mr Laurent Gbagbo while on 21 December 2011 a warrant was issued for Mr Charles Blé Goudé, a military leader within Mr Gbagbo’s party. On 29 February 2012, Ms Simone Gbagbo had a warrant of arrest issued against her for the crimes against humanity of murder, rape and other sexual violence, persecution, and other inhuman acts. While the charges against Mr Laurent Gbagbo and Mr Charles Blé Goudé proceeded to trial (where they were eventually acquitted), the warrant against Ms Simone Gbagbo was vacated on 19 July 2021.
Feminist Reimaginings
Prosecutor v. Simone Gbagbo, Decision of the Prosecutor’s Application Pursuant to Article 58 for a Warrant of Arrest against Simone Gbagbo
Judge Natalie Hodgson’s rewriting appears to have two primary objectives, the first less explicit than the second. First, her revisions to the original try to bring order and logic to an ICC decision. She uses titles that structure the corpus text of the decision and organises the questions the court must resolve. Her drafting closely follows the language and order of appearance of the Rome Statute’s diverse criteria about what the Court must be convinced of at this stage of the proceedings. Her initiative suggests that feminist rewriting also comprises the general objective of communication and clarity. I welcome the suggestion for clarity, considering how gender, social class, and other structural circumstances and factors have for long restrained access to international law, to its education, its professions, and its intellectual and professional communities. Those less familiar with international law, the general public, civil society activists, students, and others should be provided with more pedagogical and approachable legal instruments, as Hodgson seems to suggest. Substantially, Judge Hodgson’s decision reproduces the findings of the Pre-Trial Chamber on jurisdiction and admissibility.
The second objective of this feminist rewriting relates to the qualification of Simone Gbagbo’s role in the examination of the ‘reasonable grounds’ test. The rewritten decision introduces supplementary information on Simone Gbagbo, thereby altering the way in which her personality, political importance, and agency are presented. In contrast to the original decision in which Simone Gbagbo is predominantly and repeatedly represented as the wife of Laurent Gbagbo, as if an auxiliary to ‘her husband’,Footnote 4 the rewritten judgment mentions the circumstance that Simone Gbagbo is married to Laurent Gbagbo only once. At a later part of the decision, Judge Hodgson refers to Simone Gbagbo’s ‘relationship with Laurent Gbagbo’, without specifying it. The fact that Laurent Gbagbo was, at the time of the alleged crimes, the president or the ex-president of Côte d’Ivoire, is noted only once.
In contrast to framing Simone Gbagbo in the Pre-Trial Chamber (para. 10) as the wife who was ideologically and professionally very close to her husband, the rewritten decision presents an inner circle ‘comprising individuals occupying formal and informal positions in Mr Gbagbo’s government’ (para. 24), of which Simone Gbagbo is a member. Under the heading ‘Whether There Are Reasonable Grounds to Believe That Ms Gbagbo Is Criminally Responsible for the Crimes Alleged by the Prosecutor’, Judge Hodgson’s decision introduces specific reasons why Simone Gbagbo should be considered an indirect co-perpetrator under Article 25(3)(a) of the Statute. The image that appears is not that of a wife following the president-husband, who even (mischievously?) ‘acted as an alter ego for her husband’ (PTC para. 10) but a power-couple of two independent, notable, long-term politicians at the centre of the inner circle of the Côte d’Ivoire government.
The rewritten decision details, for example, that ‘Ms Gbagbo had her own cabinet within the presidency with its own staff. In a country where women are significantly underrepresented in political positions, Ms Gbagbo was an active decision maker and possessed significant political power’ (para. 34). That power has a history in ‘her long political career’, including the fact that she was a ‘founding member’ of the Front populaire ivorien (para. 35). Thereafter, Judge Hodgson refers to elements concerning meetings, military equipment, and orders given to militias. These matters were also addressed in the original decision but Judge Hodgson emphasises them differently to suggest that Simone Gbagbo was able to ‘exercise joint control over the crimes’ (para. 38), ‘made a co-ordinated and essential contribution to the crime’ (para. 39), and ‘acted with the necessary degree of intent and knowledge in performing her role within the common plan’ (para. 40).
Judge Hodgson provides a more substantiated analysis of Simone Gbagbo’s role than in the original judgment by demonstrating that the legal requirements for issuing a warrant of arrest are independent (of ‘the husband’). She explains how Simone Gbagbo’s arrest warrant depends, in accordance with Article 58(1) and in addition to the reasonable grounds test addressed above, on whether the arrest is necessary to: (i) ensure her appearance before the Court; (ii) ensure that she does not use her connections and resources to obstruct or endanger the investigation; and (iii) prevent the further commission of crimes within the jurisdiction of the Court. The rewritten decision proceeds to analyse these aspects individually, relying on ICC case law, commenting in paragraph 44 on how:
A person’s past and present political position, international contacts, financial and professional background, their access to necessary networks and financial resources, and the likely length of any potential sentence are factors that might increase the risk that an individual will abscond or avoid arrest.Footnote 5 Additionally, a person’s access to networks and financial status is a relevant factor in determining whether they have the means to interfere with the investigation or safety of witnesses.Footnote 6
The decision then replies to these requirements, stating how Simone Gbagbo has a ‘long political history and strong political connections throughout Côte d’Ivoire’ and that ‘her supporters have called for her release and oppose her transfer to the ICC’ (para. 45). On international connections, the decision details that Simone Gbagbo ‘has studied abroad in Senegal and France, as well as having completed multiple international training courses’ (para. 46). The decision suggests that these connections ‘could assist her to abscond’ (para. 46). Furthermore, Judge Hodgson’s decision notes that ‘the Prosecutor has provided evidence that Ms Gbagbo has access to significant financial resources’ (para. 46), and that her ‘connection to high-profile members of the former government and her relationship with Mr Gbagbo might also assist her to access relevant contacts and resources in order to abscond’ (para. 46).
To strengthen the arrest warrant further, Judge Hodgson’s decision introduces additional information on the situation in Côte d’Ivoire at the moment of the consideration of the arrest warrant. It refers to allegations about previous concealing of ‘crimes committed by members of the inner circle’ (para. 55), and provides information on how ‘supporters of Ms Gbagbo are currently discussing strategies for regaining political power in Côte d’Ivoire. The pro-Gbagbo forces that remain loyal to Ms Gbagbo and the other members of the inner circle continue to have access to significant material resources, including weapons’ (para. 49).
The rewriting culminates in a section entitled ‘Concluding Comments’ that starts with the following statement: ‘Ms Gbagbo is the first woman to be the subject of an application for an arrest warrant before this Court’ (para. 51). As such a section is not habitual in ICC or other international criminal court decisions, it somewhat diminishes the impression of reading a ‘real’ decision of the ICC Pre-Trial Chamber. But it certainly allows Judge Hodgson to be more explicit about her message. After explaining – in a scholarly manner – how women’s general underrepresentation in politics and the military has meant the rarity of their qualification as suspects or accused in international criminal trials, the rewriting returns to a more judge-like voice: ‘The issue before this Court is not whether Ms Gbagbo’s conduct adhered to the traditional gender roles that woman are expected to perform, or whether Ms Gbagbo should be punished for her relationship with her husband, but rather the extent to which Ms Gbagbo herself is or is not guilty of perpetrating international crimes’ (para. 53, footnote omitted).
The Female Perpetrator of International Crimes as a Hard Case for Feminism(s)
An astute academic article authored by Natalie Hodgson that precedes the rewriting project by several years helpfully adds background and nuances to her reimagined judgment.Footnote 7 In her article, stereotypes regarding gender, femininity, violence, and conflict that shape legal discourses are analysed and deconstructed in the cases of six defendants in international criminal courts. Hodgson identifies three narratives used in international criminal courts to frame women defendants: mother, monster, and wife,Footnote 8 and localises them via discourse analysis in the case materials. Regarding the ICC case of Simone Gbagbo, one of the six analysed in the article, Hodgson suggests that motherly characteristics of Gbagbo are referred to by the defence. The article quotes Côte d’Ivoire’s challenge to the admissibility of Simone Gbagbo’s case: ‘She has devoted most of her adult life, striving to advance the education of the people of Côte d’Ivoire in so far as they came under her sphere of influence in general and the women and children of Abidjan in particular.’Footnote 9
For Hodgson, ‘the use of motherly attributes’ in the case of Simone Gbagbo ‘suggests that the themes of domesticity and motherhood pervade all stages of a female defendant’s case, and that females are analysed with respect to these themes even when the defendant’s character or conduct is not the main issue before the court’.Footnote 10 Pertinently, she gives primary importance in Simone Gbagbo’s case to the wife narrative by the ICC prosecution and the Pre-Trial Chamber. The language used, such as the recurrent choice of the word ‘husband’, ‘emphasises the personal and familial connection between the two’.Footnote 11 The patriarchal stereotyping appears most striking in how the Pre-Trial Chamber presupposes that the motivation for Simone Gbagbo’s alleged crimes was not to retain her own political power or her political party’s power, as is granted to be the case for the inner circle of President Gbagbo, but rather ‘her husband’s power’.Footnote 12
How does other academic scholarship in criminology, sociology, history, and criminal law see perpetrator women? There is a broad concordance about the starting point that women’s participation in violent crime is significantly minor in quantity compared to that of men, and that women’s participation differs in quality.Footnote 13 I entitled this section ‘The Female Perpetrator of International Crimes as a Hard Case for Feminism(s)’ to mark a focus in a discussion that risks exceeding the limited space available. Why call the female perpetrator of international crimes a hard case? I try to explain by a short excursion into the narratives of women in international law and their incompatibility with the real-life eventuality of women’s transgression to perpetration of international crimes.
Women have a history of perpetrating international crimes, including sexual violence against women and men, at all levels of responsibility.Footnote 14 National trials after World War II and the armed conflicts and episodes of large-scale violence in the Democratic Republic of Congo (DRC), Rwanda, and former Yugoslavia, to name only a few, have dealt with the criminal responsibility of women, including women who committed direct violence. Women prosecuted in international criminal trials have so far been accused as indirect perpetrators, indirect co-perpetrators, and involved in joint criminal enterprise. Despite these examples, the paradigmatic image of women in international criminal justice remains that of victims of sexual and gendered violence. That is likely to relate the arguably essentialised, ahistorical notions and narrative strategies of women’s general propensity to preserve life, aversion to violence, or otherwise higher values, hardly leaving space for deviance, violence, and crimes by women.Footnote 15
Women’s history in international law, as its explicit objects, subjects, agents, and actors, is typically considered short and modest, but perhaps it is more adequately qualified as obscured and ignored.Footnote 16 The red line can be sketched in a few main roles and routes in diverse temporalities, grossly simplified. Women are seen to have entered international law as pacifists acting in the law against war; as empathetic and solidary carers for others in international humanitarian law and abolition of slavery;Footnote 17 as equal citizens in the advocacy for suffrage and women’s rights more broadly, and as victims of sexual and gendered violence; experts of it and combatants against it in international criminal law.Footnote 18 These roles remain to a large extent, despite the diverse contexts, marked by gendered assumptions of women’s character and moral disposition, and not least by women themselves.
Should that situation be ‘redressed’ and if yes, how? Sociological and physical limits to women’s role as direct perpetrators are diminishing, as women more broadly access positions of leadership in various contexts and modern weapons technologies provide an array of ‘smart’ solutions for conducting warfare.Footnote 19 For legal academic Doris Buss, asking ‘where are the women?’ directs us to roles and places often obscured in dominant narratives and ‘opens up a range of questions about what war and armed conflict are, how they are understood, practiced, and represented, and how women and men, femininities and masculinities, are involved in and produced through war’.Footnote 20 Diversity of women’s and men’s real experiences in conflict, including violence and criminality, should be ‘recognized as valid, rather than being excluded from the discourse or reduced to stereotype’.Footnote 21
Many commentaries suggest that international criminal trials have a role in ‘writing history’.Footnote 22 From that perspective, the transformation of gender balance of the benches in international criminal trials may also alter the authorship of histories about violence and international crime. The unease that persists regarding women’s perpetuation of international crimes is, however, also current, perhaps in particular amongst women, and feminists. The infamous photos of Karen England’s and other US personnel’s cruel violence on detainees in Abu Ghraib prison in Iraq shocked because, as one commentator put it, ‘this is not how women are expected to behave. Feminism taught me 30 years ago that not only had women gotten a raw deal from men, we were morally superior to them. When it came to distinguishing right from wrong, the needle of our compass always pointed to true north’.Footnote 23
On the IntLawGrls, a website on women and international law, a blog series titled ‘Women in Nuremberg’ celebrated women amongst the prosecutorial staff and defence counsels, as well as staffers, interpreters, and journalists. In contrast, the very few women accused of international crimes were barely mentioned, with the suggestion they are ‘Not Our Sisters’.Footnote 24 As the editors noted, ‘[t]he crimes of which these women were convicted ought to be unimaginable, and will remain, here at least, unprintable’.Footnote 25 The desire to identify only with the positive accomplishments of women remains. It has, however, been met with scholarship striving to dissipate the obscurity surrounding women perpetrators in crimes of totalitarian regimes. A branch of German and international academic discussion on Nazi criminality has since the 1980s sought an end to ‘the rituals of innocence in the women’s movement and in women’s history’.Footnote 26 In international (criminal) law, this turn is in the making, and the rewritten decision of Simone Gbagbo’s arrest warrant makes an important contribution to it.
Complementarity Test in Simone Gbagbo’s Admissibility Decision, Prosecutor v. Simone Gbagbo, Decision on Côte d’Ivoire’s Challenge to the Admissibility of the Case against Simone Gbagbo
In the five years from the first International Law Commission (ILC) draft in 1993 for a statute of an international criminal court to the adoption of the Rome Statute in the 1998 diplomatic conference attended by the delegations representing 161 states, the issue of delimitation of the international and national criminal jurisdiction was among the most difficult to negotiate.Footnote 27 The solutions found, substantially in Article 17 entitled ‘Issues of Admissibility’, packaged together with Article 20 on ‘Ne bis in idem’, became parts of a multifarious compromise package that made the adoption possible. As the lengthy Articles 18–19 spell out, the concrete application of the delimitation was likely to become cumbersome. Articles 17–20 are typically read in connection with the preamble of the Statute’s tenth paragraph, ‘Emphasizing that the International Criminal Court established under this Statute shall be complementary to national criminal jurisdictions’. This paragraph provides the origin of the discourse on ‘the complementarity principle’.Footnote 28
This legal and doctrinal landscape on complementarity is at the centre of Judge Sarah Easy’s ‘Separate and dissenting opinion’ to Pre-Trial Chamber I decision on Côte d’Ivoire’s challenge to the admissibility of the case against Simone Gbagbo. Judge Easy explains the motivation of her dissent as follows: ‘In governing the relationship between the (ICC) and domestic criminal courts, Article 17(1)(a) is of great consequence for women and minority groups for whom such institutions have historically been unavailable or ineffective in securing justice.’Footnote 29 The dissent relates to how the Pre-Trial Chamber arrived at its conclusion to dismiss the inadmissibility challenge by Côte d’Ivoire. In doing so, Judge Easy dismisses the Pre-Trial Chamber’s decision.
Judge Easy’s feminist reimagining rejects the Pre-Trial Chamber I use of the ‘same person/same conduct’ test as being too narrow and vague.Footnote 30 In doing so, she refers to the language used in the Appeals Chamber decision on Libya’s appeal against the Pre-Trial Decision in the case against Saif Al-Islam Gaddafi.Footnote 31 In this case, the Appeals Chamber dismissed the admissibility challenge by Libya. In her judgment, Judge Easy regrets that the Pre-Trial Chamber ‘has not seized the opportunity to further clarify the content of this [same person/same conduct] test and address the gender justice concerns arising out of its application’.Footnote 32 At this point, it is necessary to return to the observations about the context of the feminist redrafting exercise that I started with. Who were the judges deciding the case that is now ‘reimagined’? Silvia Fernández de Gurmendi (presiding), Ekaterina Tredafilova, and Christine Van den Wyngaert. A bench of three women resorted to an interpretation that is, to quote Easy, ‘likely [to] operate in a discriminatory manner against women who are statistically significantly more likely to be victims of sexual and gender-based violence, by precluding them from seeking redress at both the national and international level’.Footnote 33
The main critique of Judge Easy’s dissent is, however, not directed at the Pre-Trial Chamber’s decision, but the state of Côte d’Ivoire, its legal system, judiciary, and ‘court and law enforcement personnel’.Footnote 34 The sharp rewriting fails to pay attention to the history of Côte d’Ivoire’s relationship with the ICC as a movement towards a closer relation – the acceptance of its jurisdiction as a non-state party in 2003, the proprio motu investigation in 2011, state party to the Rome Statute in 2013. In contrast, Judge Easy underlines that the court must exercise ‘the expressive function of denouncing state conduct which fosters impunity’,Footnote 35 having inquired about the quality and the conduct of the national law enforcement authorities and judiciary. This position mirrors a contentious aspect in the Statute negotiations that the Court has tried not to dwell on extensively in its case law.
Judge Easy explains how ‘evidence before me indicates that entrenched discriminatory attitudes towards women and girls in Côte d’Ivoire present a significant barrier to the genuine investigation of incidents of sexual and gender-based violence’.Footnote 36 She quotes at length a report by an NGO describing shocking events of sexual and gendered violence in detail.Footnote 37 She further finds that there is evidence suggesting ‘that the pervasive trivialisation of these crimes is so significant that even if the justice system had not been disrupted by political turmoil and conflict, lacunae in the prosecution of sexual and gender-based crimes would prevail’.Footnote 38 Judge Easy further argues that ‘gender-based discrimination is not only practised by the general population but evinced by the very institutions charged with effecting justice. Of great concern is the systematic encouragement by the Ivorian police for the victims to seek an amicable solution with their rapist’.Footnote 39
I am, firstly, surprised by how this feminist rewriting outright refuses to consider whether any co-operation with or support to the Côte d’Ivoire authorities would be meaningful.Footnote 40 While Judge Easy mentions the efforts of the UN operation in Côte d’Ivoire (UNOCI) to train the national and local police in sexual and gender-based violence, they are considered as ‘unlikely to have a transformative effect … due to the nature of structural discrimination which is omnipresent across economic and socio-political spheres’.Footnote 41 Judge Easy appears to choose a straightforward polarisation of the national and the international jurisdiction – an outcome the Rome Statute negotiators struggled to avoid.Footnote 42 Her decision flags the prioritisation of international law and the ‘international community’, trusting both with inherently superior qualities, at least regarding the interests of women and girls. The ICC is presented as being able and potentially willing to completely take over the administration of criminal justice in Côte d’Ivoire. The domestic judiciary and administration of the post-colonial state are painted in indelible dark colours, as a despicable nest of violence, brutality, and injustice. Consideration is given exclusively to the interests of victimised women, in particular those who relate to the ICC favourably, potentially having received attention and promises of international reparations to be granted subsequently
A second issue with Judge Easy’s feminist reimagining is the exclusive focus on criminal trials, and on punishment in particular. A prison sentence as lengthy as possible is considered the only ever acceptable consequence for perpetrators of any sexual violence.Footnote 43 No empirical evidence is deemed necessary by Judge Easy to demonstrate the explicit and extraordinary value of international criminal trials from the point of view of victims, for example, or the societal effects of international punishments, in general.Footnote 44 This certainty of the superiority of international criminal justice departs from scholarship searching also for alternative, not criminal prosecution-based models of resolution of conflicts in transitional justice or more broadly in post-conflict societies.Footnote 45 It contrasts with the experience that ‘in terms of the relative significance of the local fit and international frame in retributive justice outcomes for women, international norms must always work their influence through the filter of domestic structures and domestic norms’.Footnote 46 Judge Easy’s separate and dissenting opinion is not so inclined; instead it sees as a particular risk ‘the prevalence of customary law, particularly in northern rural regions’ (of Côte d’Ivoire) which ‘further enshrines structural discrimination and inadequate protections for victims of sexual violence’.Footnote 47
Further, Judge Easy’s dissent does not introduce any attempt to balance the goal of retribution with other interests, such as granting a fair trial to the accused. This might be because of gendered assumptions about the identity of the parties in a criminal trial at the ICC: the male perpetrators and the female victims, notwithstanding the current case. Judge Easy admits that the Court has established that ‘the assessment of the conduct forming the subject of domestic proceedings in the context of an admissibility challenge must focus on the underlying incidents and not their legal characterisation’.Footnote 48 That the reasons for that position can be seen as diverse, including the acknowledgement of the heterogeneity of legal cultures, criminal law, and justice systems in the world, is not addressed.
There is a connection, as Judge Easy also notes, to the ne bis in idem principle in Article 20, ‘which protects the accused from double penalisation of the same acts under different labels of criminality’.Footnote 49 Easy ‘regret[s]’, however, ‘that this interpretation is likely to adversely impact victims … by confining the ambit of recognition and reparations available to those prescribed for ordinary crimes’.Footnote 50 She further undertakes an astute, if somewhat complex, examination of the procedural and doctrinal minutiae of Articles 17 and 20 in light of the growing ICC case law to ground her conclusions. Because of the various ‘significant barriers to justice for women and girls in Côte d’Ivoire, it cannot be said that the ongoing investigation into Ms Simone Gbagbo’s criminality’ by the justice system of Côte d’Ivoire ‘constitutes a genuine investigation’,Footnote 51 Judge Easy believes. She therefore concurs ‘with the Majority in finding that the present case is admissible before the Court’.Footnote 52
Judge Sarah Easy’s feminist rewriting has the merit of strong internal consistency: it makes the legal and procedural interests of female victims of sexual and gender-based violence in an international criminal trial the superior, if not the only, objective of the ICC. A concern I have with the approach used by Judge Easy is that should one wish to extend the reflection to potential real-life consequences of this rewriting for Ivorians in the narrated context, several challenges appear. Who (that is, what constituency of power) guarantees the sustainability of such an exclusively punitive policy? In the tensions of the fragile ‘international community’, with its wavering and often racialised policies of international criminal justice, the ICC has so far been struggling annually to gather the financial resources for its functioning. Its longevity is a real concern: in the reimagined situation of Côte d’Ivoire, what happens to the victims when the odds are reversed in the ICC and the international crews pack their bags to focus on another situation?
The decision therefore gives reason to inquire about the nature of ‘justice’ in a feminism where everything should be sacrificed for the ambition of ‘saving’ a number of ‘women and girls’ from the hands of their own malicious post-colonial state, its authorities, customary law, the legal profession as a whole, denounced for ‘conduct which fosters impunity’,Footnote 53 ‘weak effort’,Footnote 54 ‘pervasive trivialisation of these crimes’Footnote 55 – to such a fatal and lasting extent that even any future proceedings ‘of such crimes would likely not be considered genuine’.Footnote 56 I am not ignorant of or insensitive to the suffering and injustices encountered by individuals and communities facing or having faced sexual violence. Rather, I wish to take issue with the feminist anti-impunity position upon which Judge Easy’s reasoning is based, and I would like to respectfully encourage open discussions on the civilisational assumptions of feminist approaches that emphasise international criminal prosecutions at the expense of the (post-colonial, African) national state and its own efforts towards post-conflict justice.
The issue could be approached in terms of universalism of international criminal law and ‘women’s rights’, opposing them to particularism(s), local culture, as early post-colonial feminist theory did.Footnote 57 Yet, to my understanding, the main questions are no longer there. After the ‘Me Too’ movement and the global backlash on feminism(s), including the deplorable spectacle of annihilation of the Women, Peace and Security agenda in Afghanistan since 2021, is it plausible to argue for some imagined perfection, a superiority of legal protection of women’s rights or universal ‘international law’ safeguarding women’s interests at the centre that could be as clearly juxtaposed with its ‘lack’ in the periphery?Footnote 58 Women’s lives and their rights, their bare existence, to start with their physical inviolability, sexuality, and their political and economic survival as members of society are globally under threat or already attacked, be it in Finland, Australia, the United States, or Côte d’Ivoire. Why should feminist reimagining so resolutely turn its back on the possibilities of exchanges and collaboration between the local, national, and international judiciary and law enforcement – experts, judicial personnel, representatives of victims? Finally, whose interests are served by excluding any chance of a transformative reform in Côte d’Ivoire as a whole: what does such a hopeless image, as one of ‘The Dark Corners of the World’,Footnote 59 convey to Ivorians of the future of their own democratic state?
The Remains of the Rewriting
I have raised many questions in the preceding pages, such as the following: Is feminist reimagining constrained by the international law in force and its established structures, its sediments of institutional practice, formed when (almost) all women, their ideas and interests were absent? How should feminism(s) relate to that long absence, so full of consequences for current law and jurisprudence? Should a feminist remain always combative or rather try to show resilience – to whom? I started my reflections by calling for attention to the contexts in which feminist rewriting takes place. In the instructions for this fascinating project, the rewriters were invited to imagine themselves in the same position of knowledge as the ICC judges were at the time of rendering their decisions. Inside the frames formed by that rule, the authors have creatively searched for ways to change, to transform, to remedy, by rewriting decisions of the ICC.
The two rewritten decisions discussed above reflect diverse and to some extent contradictory desires. Natalie Hodgson’s rewriting aims, primarily, at discrediting certain stereotypical categorisations of the roles and behaviour of women and men, deconstructing the discursive choices of the original decision and offering a new rationality for approaching perpetration of international crimes. In that sense, and in my subjective understanding, it is primarily based on the rationale of emancipation of women aiming at a formal equality of sexes and genders. The second rewriting by Sarah Easy is feminist in a different manner, more frontal and ambitious in how it aims at rewriting the political architecture of the Rome Statute: its (in)famous oscillation between the acknowledgement of national sovereignty, the past status quo of impunity and the complementary international criminal jurisdiction. The impression of a categorical, civilisational dismissal of the ailing post-colonial state is a risk that I have touched on.
Beyond the temporal contexts, feminist reimagining can be approached in terms of the places of rewriting, the situations of the exercise in geographical, political, cultural spaces, languages, and discourses: the locations of, firstly, committing the alleged international crimes, secondly, taking the original decision, and thirdly, the feminist rewriting each flavour the exercise. How do feminism(s) relate to populations, languages, everyday lived experiences ‘on the ground’ of the interventions of international criminal courts and tribunals in ‘the situation of Côte d’Ivoire’?
The violence addressed as (alleged) international crimes by the prosecutor of the ICC in The Hague took place in Côte d’Ivoire, a state that became independent from its colonisation by France in 1960.Footnote 60 The international crimes were allegedly committed both by and against nationals or residents of Côte d’Ivoire, a population of 29 million. Seventy-eight languages are spoken in Côte d’Ivoire.Footnote 61 The official language, imposed during the colonial period, is French, currently understood by an estimated 80 per cent of the population.Footnote 62 It is the language used in the media, election campaigns, and the administration of justice. The literacy rate at the time of the alleged violence (2012) was 40.98 per cent.Footnote 63 The latest estimation (2019) is 89.89 per cent.Footnote 64
The feminist rewriting took place in Australia and the United Kingdom, by native speakers of English. The draft decisions discussed in November 2022 contained no or few references to local academic or media sources or other locally produced knowledge about Côte d’Ivoire. In that sense, the feminist justice rendered may appear, from the point of view of the local population, its academic scholars, media, and civil society, to remain as distanced from the contexts of everyday life and of the violence, the victims, and the perpetrators as the regular ICC practice has been critically claimed to be.Footnote 65 A difference of importance exists, however, in how the ICC judges have access to a dedicated staff researching, collecting, translating, interpreting, analysing, and synthesising materials, and writing drafts of the decisions. Part of that work became available for the feminist rewriters via documents of the Court. The pro bono feminist judgment authors we are reading in this volume had no or very limited means at their disposal to engage translators, for example.
Distance can be seen in a positive light, as an element of impartiality, an intrinsic value in criminal justice. Even more so, one could argue, in a situation of violence that could be qualified as ‘political violence’ since it occurs, in the narrative of the ICC at least, between adherents to conflicting political parties in a national state. Distance may, however, also cause ignorance, so that the knowledge and experiences of the distant other – ‘the Other’ of what is close/known – are neglected or marginalised. Lack of local sources of information in making decisions in a central question of a particular society can signal indifference, or at worst a standing as hierarchically superior masters who believe they should have the last word. Here I would make a distinction between the legal questions of jurisdiction and competence and the intellectual, value-based positionings, bearing in mind how ‘feminist justice’ is at times associated with aspirations towards the experience of a palpable, human, material justice by the persons concerned, eventually engaged in dialogues, and less concerned for the formal procedures.
In that sense, the astute rewritings discussed here do not exhaust the possibilities of a feminist reimagining of Côte d’Ivoire. As we have been invited in this project to think ‘outside the box’, I shall shortly try to explain that remark. One example of an ‘outside-the-box’ reflection would be to openly question the choice of international criminal justice as the central instrument for a feminist reimagining of ‘the situation of Côte d’Ivoire’. It would mean countering another kind of inability or unwillingness, namely that of the ‘international community’ and international lawyers to critically evaluate the limits of their institutional practices. In such an evaluation, the Côte d’Ivoire situation might figure as a poignant example of structural violence where the focus on individual criminal responsibility is inapt, so that any international resources and attention should at best be directed differently.
To arrive at that reflection requires admitting that the actus reus of Simone Gbagbo’s and the other accused’s crimes, casually characterised as ‘election violence’, exceed the conceptual frame of criminal responsibility in which the ICC tried to make it fit. The ‘election violence’ or a threat of it was and remains recurrent and omnipresent, not restricted to the temporal jurisdiction of the ICC in ‘the situation in the Republic of Côte d’Ivoire’, or to the acts or omissions of the accused that featured in the ICC case materials. Therefore, instead of the frame set by the ICC, a feminist rethinking might rather try to address the general, structural, constitutional, and legal difficulties of peaceful democratic governance in a young state scarred by colonialism and the slave trade, surrounded by neighbouring states confronting comparable problems, aggravated by the fact that they are situated in Africa, a continent and populations exploited, discriminated, othered, and ostracised like no other.
The thinking ‘outside the box’ would therefore question whether an efficient cure to a tense and dysfunctional political system in a confrontational social environment that is turning every upcoming election into a potential starting point for a new outbreak of violence can be found in the elegant courthouse in The Hague, or in the international prison-house in Scheveningen. A feminist rethinking might even ask to what extent the ICC and the overwhelming, passionate commitment, activism, and academic investment in international criminal punishment forms part of a global political economy that adds to the already manifold challenges faced by post-colonial states.
Another line of ‘outside-the-box’ thinking might dig even deeper, analysing the ideological, cultural, and civilisational underpinnings of the arguably ‘Western’ and gendered conceptions of the hierarchies of violence. Why is rape, in particular, as if intuitively, considered a ‘fate worse than death’?Footnote 66 Since when, where, and why should one think so? Do feminism(s) have to integrate the ideologies or cultural mythologies of the magical ‘purity’ of virgins of Christianity and other religions, thus confirming the male control of female sexuality and the patriarchal demands on the familial and national lineage of children?Footnote 67 Similarly, it comes across that diverse types of sexual conduct or victims are valued in civilisational, culture-based ways, too. Is anal sex more serious or less serious violence than vaginal penetration, for example, and what civilisational assumptions or fears might figure behind such hierarchies? Finally, why is ‘violent gang rape of … grandmothers’Footnote 68 more serious or shocking a crime than the same conduct regarding persons not having biological descendants?
These are complex and sensitive issues to study and discuss. Leaving the security of the like-minded ‘box’ may become a risky excursion into unknown or even hostile territory, thus prone to misunderstandings and manifold confusion. Yet the word ‘feminist’ would seem to call for a courageously critical reconsideration of the gendered and European-originated ‘international’ humanitarian law, the basis of the current international criminal law on sexual and gendered violence: what and who have been the protected interests behind the criminalisation of this violence, and where and among whom did these norms first take form?Footnote 69 Why should the victims of sexual violence be burdened, in addition to physical and mental pain and eventual bodily injury, with the tragic, ominous stigma, as if ‘damaged goods for life’? A feminist rewriting at its best would make sure that the shame and stigma change sides, not ‘soiling’ the victims, and this without regard to their sex, gender, sexual orientation, age, ability, motherhood or not, or civil status.
Some of the ‘outside-the-box’ feminist rewritings of the ICC decisions would abstain from applying every rule of the current order of international law. Instead, they would question and reflect. They might also choose not to use the money from donors to queue for an audience with the staff of the ICC Prosecutor’s Office at the margins of the meeting of the Assembly of States Parties to the Rome Statute. They would, instead, launch a broad public reflection on the sense of trying to enforce individual criminal responsibility for long-term structural societal and political problems in a post-colonial African state by an international court in Europe. Thereby they would also question the use of resources available for and in Côte d’Ivoire, such as the short and at times erratic attention span of the Western/Global North’s governments, media, and public on a small selection of jus in bello violence, instead of focusing on peace and thus the prohibition of violence in general (jus ad bellum).Footnote 70 This would require facing the challenge of imagining together with the civil society, academia, judiciary, and law enforcement personnel of Côte d’Ivoire different, hopefully better adapted, ways to channel the general desire for justice and progress, and profit from the benevolent intellectual energies of international lawyers – perhaps feminists at the forefront.
12.2 Female Defendants in the Simone Gbagbo Warrant
In 2012, the Pre-Trial Chamber III issued a warrant under Article 58 of the Statute for the arrest of Ms Simone Gbagbo,Footnote 71 the first female defendant in the history of the Court. The Chamber found there were reasonable grounds for believing that Ms Gbagbo had committed the crimes against humanity of murder, rape, other forms of sexual violence, persecution, and other inhumane acts.Footnote 72 The Chamber determined that Ms Gbagbo’s criminal responsibility could reasonably be established as an indirect co-perpetrator under Article 25(3)(a), based upon her involvement in the ‘inner circle’ of her husband, Mr Laurent Gbagbo.Footnote 73 Furthermore, the Chamber held that, despite Ms Gbagbo’s detention in custody, the issuance of the warrant was necessary in light of her political contacts, economic resources, and propensity to commit further crimes within the jurisdiction of the Court.Footnote 74
In this reimagined judgment, Natalie Hodgson endorses the Chamber’s decision to issue the warrant of arrest for Ms Gbagbo whilst refuting the gendered stereotypes encoded in the original presentation of the facts. Employing gender-neutral language that avoids overemphasis of Ms Gbagbo’s status as a ‘wife and mother’, Hodgson challenges traditional narratives of the passive, disenfranchised female defendant, as well as broader ideas about femininity and conflict. Hodgson concludes by offering some thoughts on the relevance and irrelevance of a defendant’s gender in criminal prosecutions.
Decision on the Prosecutor’s Application pursuant to Article 58 for a Warrant of Arrest against Simone Gbagbo No.: ICC-02/11-01/12
Date: 2 March 2012
Original: English
PRE-TRIAL CHAMBER III(B)
Before: Judge Natalie HODGSON
SITUATION IN THE REPUBLIC OF CÔTE D’IVOIRE
IN THE CASE OF THE PROSECUTOR v. SIMONE GBAGBO
Pre-Trial Chamber III (Chamber) of the International Criminal Court (ICC or Court) issues the following decision on the Prosecutor’s Application Pursuant to Article 58 as to Simone GBAGBO (Prosecutor’s Application).
Procedural History
1. On 3 October 2011, the Pre-Trial Chamber authorised an investigation into the situation in the Republic of Côte d’Ivoire.Footnote 75
2. On 30 November 2011, the Pre-Trial Chamber issued a warrant of arrest against Laurent Gbagbo (Mr Gbagbo).Footnote 76
3. On 7 February 2012, the Prosecutor filed an application for a warrant of arrest against Simone Gbagbo (Ms Gbagbo). The Prosecutor argues that Ms Gbagbo is responsible, as an indirect co-perpetrator under Article 25(3)(a) of the Rome Statute (Statute), for the crimes against humanity of murder,Footnote 77 rape and other sexual violence,Footnote 78 other inhumane acts,Footnote 79 and persecution.Footnote 80
4. Under Article 58(l) of the Statute, to issue an arrest warrant, the Chamber shall determine whether there are reasonable grounds to believe that the person concerned has committed a crime within the jurisdiction of the Court, and that the arrest of the person appears necessary.
The Jurisdiction of the Court and the Admissibility of the Case against Ms Gbagbo
Jurisdiction
5. For conduct to fall within the Court’s jurisdiction, three criteria must be satisfied:
(i) The conduct amounts to a crime listed in Article 5 of the Statute;
(ii) The crime occurred within the relevant timeframe specified in Article 11 of the Statute; and
(iii) The crime satisfies the territorial or nationality criteria in Article 12 of the Statute.
6. Given the similarities between this application and the application against Mr Gbagbo, the Chamber adopts its earlier reasoning from the Decision on the Prosecutor’s Application for a Warrant of Arrest against Mr Gbagbo and concludes that the case against Ms Gbagbo falls within the temporal, territorial, and nationality jurisdiction of the Court.Footnote 81
7. For the reasons listed below, the Chamber also concludes that the case against Ms Gbagbo falls within the Court’s subject-matter jurisdiction.
Admissibility
8. The Prosecutor submits that the current case is admissible. Although there are domestic proceedings against Ms Gbagbo, the Prosecutor submits that these concern ‘economic’ crimes which are not substantially the same conduct as the present case.
9. The Prosecutor further submits that the case is of sufficient gravity, based on the scale, nature, and manner of the commission of the crimes and the impact of these crimes on the victim.
10. Article 19(1) of the Statute grants the Chamber the discretionary power to determine the admissibility of a case on its own motion. The Appeals Chamber has held that, at the arrest warrant stage where the Prosecutor’s application is made on a confidential and ex parte basis, the Chamber should only exercise its discretion in exceptional circumstances, so as to preserve the interests of the relevant person.Footnote 82
11. The Chamber notes its reasoning from the Decision Authorising the Investigation in the Republic of Côte d’Ivoire, where the Chamber was satisfied that potential cases arising in the situation would be admissible and of the requisite gravity. It is inappropriate at this stage for the Chamber to examine the admissibility of the case against Ms Gbagbo more fully.
Whether There Are Reasonable Grounds to Believe That One or More Crimes Falling within the Jurisdiction of the Court Have Been Committed
12. The Prosecutor submits that Ms Gbagbo is criminally responsible for the crimes against humanity of (1) murder, (2) rape and other forms of sexual violence, (3) other inhumane acts, and (4) persecution.
13. When the 2010 presidential election in Côte d’Ivoire was held, the Front populaire ivoirien (FPI), the political party of which Ms Gbagbo was a member, was in power. The incumbent president of Côte d’Ivoire was Mr Gbagbo, Ms Gbagbo’s husband. On 2 December 2010, the Independent Electoral Commission announced that Alassane Ouattara (Mr Ouattara) had won the election with 54 per cent of the vote. Mr Ouattara was a member of the Rassemblement des Républicains (RDR) political party. On 3 December 2010, the Constitutional Council announced that the election results were invalid and Mr Gbagbo was the winner.Footnote 83
14. The Prosecutor submits that in subsequent months, Ms Gbagbo along with Mr Gbagbo and other members of his inner circle orchestrated significant violence against individuals perceived to be supporters of Mr Ouattara, as part of an alleged plan to retain their political power by all means necessary.
Contextual Elements of the Crimes against Humanity
15. Under Article 7(1) of the Statute, a crime against humanity involves any of the specified acts (underlying acts) when committed as part of a widespread or systematic attack directed against any civilian population with knowledge of the attack. An ‘attack directed against any civilian population’ is a course of conduct involving the multiple commission of the acts referred to in Article 7(1), pursuant to or in furtherance of a state or organisational policy to commit such an attack.Footnote 84
Widespread or Systematic Attack against a Civilian Population
16. The Chamber finds that there are reasonable grounds to believe that between 28 November 2010 and 8 May 2011, multiple attacks were committed against civilians who were or were perceived to be supporters of Mr Ouattara.
17. The materials provided by the Prosecutor indicate that victims were attacked because they lived in areas believed to support Mr Ouattara.Footnote 85 Victims were also identified on ethnic, religious, or national grounds as perceived supporters of Mr Ouattara.Footnote 86 The attacks were carried out by the Ivorian Defence and Security Forces (FDS), youth militia, and mercenaries (collectively, the pro-Gbagbo forces).Footnote 87
18. Members of the inner circle, including Ms Gbagbo, distributed weapons to the pro-Gbagbo forces. The pro-Gbagbo forces were also given direct and indirect instructions and training on how to target supporters of Mr Ouattara.Footnote 88
19. The materials indicate that attacks continued over a period of five months and resulted in between 706 and 1,059 murders, 35 rapes, the arbitrary arrest of at least 520 individuals, and the infliction of serious bodily injury and suffering on at least 90 people.Footnote 89 The attacks involved multiple incidents and occurred in the city of Abidjan, in the west of Côte d’Ivoire (including Bedi-Goazon, Bloléquin, Duékoué, and Gagnoa), and in the coastal areas of Côte d’Ivoire (including Sassandra).Footnote 90
20. The materials indicate that violence followed a consistent pattern. The pro-Gbagbo forces erected road blocks in order to identify individuals who, based on their ethnicity or religious background, may have supported Mr Ouattara. Attacks on civilians were carried out concurrently in multiple locations, demonstrating coordination among the pro-Gbagbo forces.
21. The Chamber therefore concludes that there are reasonable grounds to believe that in the aftermath of the Côte d’Ivoire presidential elections, pro-Gbagbo forces attacked the civilian population, targeting people who they believed were supporters of Mr Ouattara.
22. The Chamber further concludes that there are reasonable grounds to believe that these attacks were both widespread and systematic.
Pursuant to or in Furtherance of a State or Organisational Policy to Commit such an Attack
23. The Prosecutor submits that Mr Gbagbo and his inner circle constituted an ‘organisation’.
24. The Chamber is satisfied that there are reasonable grounds to believe that an inner circle existed, comprising individuals occupying formal and informal positions in Mr Gbagbo’s government. Ms Gbagbo was a member of this inner circle.Footnote 91
25. The materials provided by the Prosecutor indicate that the inner circle adopted a policy to attack Mr Ouattara, members of the RDR political party, and civilians who were believed to support Mr Ouattara, in order to retain their political power by all means necessary.
26. The existence of this policy can be inferred by: the consistent and widespread attacks by pro-Gbagbo forces against civilians believed to support Mr Ouattara; the provision of finance and weapons to pro-Gbagbo forces by members of the inner circle; and instructions provided by members of the inner circle to pro-Gbagbo forces.
27. The Chamber therefore concludes that there are reasonable grounds to believe that the attacks occurred pursuant to, or in furtherance of, an organisational policy to commit such an attack.
Underlying Acts
28. The Prosecutor submits that Ms Gbagbo, as an indirect co-perpetrator, committed the crimes against humanity of murder (Count 1),Footnote 92 rape and other forms of sexual violence (Count 2),Footnote 93 other inhumane acts (Count 3),Footnote 94 and persecution (Count 4).Footnote 95
29. The Prosecutor refers to the following four incidents in support of the charges:
(i) The attacks relating to the Radiodiffusion Télévision Ivoirienne (RTI) demonstrations between 16 and 19 December 2010.
(ii) The attack on the women’s march in Abobo on 3 March 2011.
(iii) The Abobo market shelling on 17 March 2011.
(iv) The Yopougon massacre on 12 April 2011.
30. The Chamber notes that, in the Decision on the Prosecutor’s Application for a Warrant of Arrest against Mr Gbagbo, the Chamber found that there were reasonable grounds to believe that the acts of murder, rape, and other forms of sexual violence, persecution, and other inhumane acts had been committed by pro-Gbagbo forces during these incidents.Footnote 96
31. As such, the Chamber adopts its earlier reasoning and concludes that there are reasonable grounds to believe that the charged crimes were committed in Côte d’Ivoire during the period between 16 December 2010 and 12 April 2011.
Whether There Are Reasonable Grounds to Believe That Ms Gbagbo Is Criminally Responsible for the Crimes Alleged by the Prosecutor
32. The Prosecutor submits that Ms Gbagbo is responsible for the alleged crimes as an indirect co-perpetrator.Footnote 97
33. The Chamber is satisfied that there are reasonable grounds to believe that Ms Gbagbo fulfils the elements of co-perpetration.
34. Immediately prior to the 2010 election, Ms Gbagbo had her own cabinet within the Presidency with its own staff. In a country where women are significantly underrepresented in political positions, Ms Gbagbo was an active decision maker and possessed significant political power.Footnote 98 Many perceived her as the alter ego of the president.
35. Ms Gbagbo’s significant political power reflects her long political career. She was a founding member of the FPI. In addition, she has served as a member of the Parliament for Abobo and secretary of the Congrès national pour la résistance et la démocratie (CNRD) political group.Footnote 99
36. This Chamber has already found that there is a reasonable basis to believe that members occupying formal and informal positions in the government comprised an ‘inner circle’ who operated pursuant to a policy to retain their political power by all means necessary. Ms Gbagbo was a member of this inner circle.
37. During the relevant period, the materials provided by the Prosecutor indicate that Ms Gbagbo participated in meetings of the inner circle to plan and coordinate attacks against Ouattara supporters, in order to retain her political position and her own political power. Ms Gbagbo instructed the pro-Gbagbo forces to commit crimes against individuals who were perceived to support the political opponents of the FPI. Ms Gbagbo held meetings with officials in the FDS and supplied them with military equipment. The FDS perpetrated violence on her orders. Ms Gbagbo also provided instructions to members of the youth militia to commit crimes against Ouattara supporters.
38. The Chamber finds that there are reasonable grounds to believe that a common plan existed among the inner circle and that Ms Gbagbo and the other members of the inner circle were aware that implementing this plan would lead to the commission of the offences discussed above in the ordinary course of events. Given her position in the inner circle, Ms Gbagbo was aware of the relevant circumstances that enabled her and other members of Mr Gbagbo’s inner circle to exercise joint control over the alleged crimes.
39. Further, by virtue of the various roles they occupied and actions they performed, Ms Gbagbo and the other members of the inner circle made a co-ordinated and essential contribution to the alleged crimes. The pro-Gbagbo forces complied with the orders they received from the inner circle with almost automatic compliance.
40. There are reasonable grounds to believe that Ms Gbagbo acted with the necessary degree of intent and knowledge in performing her role within the common plan.
41. Therefore, the Chamber concludes that there are reasonable grounds to believe that Ms Gbagbo is responsible for the crimes as an indirect co-perpetrator.
Whether the Requirements for the Arrest of Ms Gbagbo under Article 58(1)(B) of the Statute Have Been Met
42. Pursuant to Article 58(1) of the Statute, when there are reasonable grounds to believe that a person has committed crimes within the jurisdiction of the Court, the Chamber shall issue a warrant of arrest if the arrest of the person appears necessary.
43. The grounds on which an arrest may appear necessary are: (i) ensuring the person’s appearance at trial; (ii) ensuring that the person does not obstruct or endanger the investigation or court proceedings; and (iii) to prevent the person from continuing with the commission of the crime or a related crime within the jurisdiction of the Court which arises from the same circumstances.Footnote 100
44. A person’s past and present political position, international contacts, financial and professional background, their access to necessary networks and financial resources, and the likely length of any potential sentence are factors that might increase the risk that an individual will abscond or avoid arrest.Footnote 101 Additionally, a person’s access to networks and financial status is a relevant factor in determining whether they have the means to interfere with the investigation or safety of witnesses.Footnote 102
45. Ms Gbagbo has a long political history and strong political connections throughout Côte d’Ivoire. Ms Gbagbo no longer holds a position of power and is currently being detained in Côte d’Ivoire. However, evidence indicates that she still enjoys a significant degree of political support. Her supporters have called for her release and oppose her transfer to the ICC.Footnote 103
46. Ms Gbagbo has studied abroad in Senegal and France, as well as having completed multiple international training courses. This suggests that Ms Gbagbo has international connections that could assist her to abscond. The Prosecutor has provided evidence that Ms Gbagbo has access to significant financial resources. Further, Ms Gbagbo’s connection to high-profile members of the former government and her relationship with Mr Gbagbo might also assist her to access relevant contacts and resources in order to abscond.
47. As discussed above, there are reasonable grounds to believe that Ms Gbagbo is responsible for serious crimes within the jurisdiction of the Court that could attract a significant penal sanction if proven.
48. Forces loyal to the FPI are alleged to have been previously involved in concealing crimes committed by members of the inner circle. The United Nations has reported that pro-Gbagbo forces allegedly involved in murder and other human rights violations in Côte d’Ivoire have denied the UN access to alleged mass graves, preventing any investigation of their conduct.Footnote 104
49. Supporters of Ms Gbagbo are currently discussing strategies for regaining political power in Côte d’Ivoire. The pro-Gbagbo forces that remain loyal to Ms Gbagbo and the other members of the inner circle continue to have access to significant material resources, including weapons.Footnote 105
50. The Chamber is therefore satisfied that Ms Gbagbo’s arrest is necessary: (i) to ensure her appearance before the Court; (ii) to ensure that she does not use her connections and resources to obstruct or endanger the investigation; and (iii) to prevent the further commission of crimes within the jurisdiction of the Court.
Concluding Comments
51. Ms Gbagbo is the first woman to be the subject of an application for an arrest warrant before this Court. As it is likely that this case will attract interest due to the gender of the accused, it is worth making some final remarks.
52. Historically, women have been involved in conflict in a range of ways, including as perpetrators, enablers, and bystanders to violence.Footnote 106 However, the underrepresentation of women in politics and the military, particularly in leadership positions, means that women have been less likely to be identified as those who are potentially ‘most responsible’ for alleged international crimes. Thus, women have rarely been selected for prosecution before international criminal tribunals.
53. All accused persons before this Court have the right to a fair hearing conducted impartially.Footnote 107 This Court’s application and interpretation of the law must be without any adverse distinction as to gender.Footnote 108 The issue before this Court is not whether Ms Gbagbo’s conduct adhered to the traditional gender roles that woman are expected to perform,Footnote 109 or whether Ms Gbagbo should be punished for her relationship with her husband, but rather the extent to which Ms Gbagbo herself is or is not guilty of perpetrating international crimes.
54. There may be times when an accused’s gender becomes legally relevant. Similarly to how international criminal tribunals have previously drawn on expert cultural evidence,Footnote 110 expert gender evidence may provide assistance in understanding an accused’s actions and how these may have been influenced by a patriarchal social context. Hypothetically, one can imagine a situation where such evidence might assist the court in understanding, for example, the extent of an accused’s political influence.Footnote 111 Such evidence is most likely to provide an explanation for a defendant’s actions, but not legally excuse the defendant’s conduct.Footnote 112
For These Reasons, the Chamber
DECIDES that the conditions established by Article 58(1) of the Statute in order to issue a warrant of arrest against Simone Gbagbo are met in relation to her alleged criminal responsibility within the meaning of Article 25(3)(a) of the Statute for the crimes against humanity of (1) murder under Article 7(l)(a); (2) rape and other forms of sexual violence under Article 7(1)(g); (3) other inhumane acts under Article 7(l)(k); and (4) persecution under Article 7(l)(h) of the Statute committed in the territory of Côte d’Ivoire during the period between 16 December 2010 and 12 April 2011.
Judge Natalie Hodgson
12.3 Complementarity Test in the Simone Gbagbo Admissibility Decision
In 2014, Pre-Trial Chamber I rejected a challenge to the admissibility of the case against Ms Simone Gbagbo brought by Côte D’Ivoire in accordance with Article 19(2)(b) of the Statute, and on the ground of inadmissibility under Article 17(1)(a).Footnote 113 The Chamber held that Côte D’Ivoire had failed to establish that an investigation into the same case was being conducted at the national level on the basis that the investigative steps taken by the national authorities in order to ascertain Simone Gbagbo’s criminality were not ‘tangible, concrete and progressive’ but rather ‘sparse and disparate’.Footnote 114 Furthermore, the Chamber found that the contours of the national investigation were so unclear that it was not in a position to discern, with sufficient clarity, that the subject matter of the national investigation covered the same conduct as described in the Article 58 decision.Footnote 115
In this rewritten decision, Sarah Easy injects gendered considerations into the so-called same person/same conduct test which has failed to expressly recognise the absence of the prosecution of sexual and gender-based crimes as a factor supporting the admissibility of a case. Easy offers a novel interpretation of the term ‘genuinely’ under Article 17(1)(a) which would restrict the class of proceedings to which the ICC has to defer to a genuine prosecution that is capable of bringing perpetrators of sexual and gender-based crimes to justice. Ultimately, Easy concurs with the Chamber in determining that Côte D’Ivoire has provided insufficient information to establish it is investigating the same conduct but goes further in identifying the gendered barriers obstructing the existence of a national genuine investigation.
Decision of Côte d’Ivoire’s Challenge to the Admissibility of the Case against Simone Gbagbo No.: ICC-02/11-01/12
Date: 6 May 2021
Original: English
TRIAL CHAMBER IX(B)
Before: Judge Sarah EASY
SITUATION IN THE REPUBLIC OF CÔTE D’IVOIRE
IN THE CASE OF THE PROSECUTOR v. SIMONE GBAGBO
Separate and Dissenting Opinion of Judge Sarah Easy
1. I agree with the Majority of the Chamber that the challenge to the admissibility of the case against Ms Simone Gbagbo brought by Côte d’Ivoire (the Admissibility Challenge) must be rejected. Notwithstanding my agreement, I append the following separate and dissenting opinion to present my views on certain aspects of the judgment. I clarify that I only address the issues arising in this matter which I consider require my attention.
Applicable Law
2. As recalled by the Majority of the Chamber, the Admissibility Challenge is brought by Côte d’Ivoire as a state having jurisdiction over the case against Ms Gbagbo, in accordance with Article 19(2)(b) of the Rome Statute (the Statute), and on the ground of inadmissibility under Article 17(1)(a) of the Statute. Article 17(1)(a) provides that ‘the Court shall determine that a case is inadmissible where … [t]he 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’.
3. The majority judgment confirmed that the second tier of the assessment of admissibility under Article 17(1)(a), concerning the question of unwillingness or inability, should only be considered when the state, having jurisdiction, is inactive in investigating or prosecuting the case before the Court.Footnote 116 As such, the Chamber must first determine whether the state has discharged its burden of demonstrating the existence of an ongoing investigation or prosecution of the case by its domestic authorities.Footnote 117
Same Person/Same Conduct Test
4. In assessing the parameters of the case before the Court, the Majority of the Chamber applied the definition of a ‘case’ as previously set out by the Appeals Chamber, being: (i) the suspect against whom the proceedings before the Court are being conducted; and (ii) the conduct giving rise to criminal liability under the Statute that is alleged in the proceedings.Footnote 118 In adopting this definition, the Majority of the Chamber implicitly accepted the narrow and vague ‘same person/same conduct’ test for determining whether the first tier of the assessment of admissibility under Article 17(1)(a) had been satisfied, being that the state is investigating or prosecuting the same case before the Court.
5. It should be noted that the so-called same person/same conduct test is not prescribed by Article 17(1)(a), having evolved through interpretations of the chambers of this Court.Footnote 119 In governing the relationship between the International Criminal Court and domestic criminal courts, Article 17(1)(a) is of great consequence for women and minority groups for whom such institutions have historically been unavailable or ineffective in securing justice.Footnote 120 As such, it is regrettable that the majority judgment has not seized the opportunity to further clarify the content of this test and address the gender justice concerns arising from its application.
6. In my view, and contrary to the opinion of the Majority of the Chamber, the same person/same conduct test, if confirmed in its current form, would likely give rise to adverse distinctions upon gender grounds, contrary to Article 21(3) of the Statute. This is of particular significance to the case at hand, given that Ms Simone Gbagbo is charged with individual criminal responsibility for crimes against humanity, including the gender-based crimes of rape and other forms of sexual violence under Article 7(1)(g), and other inhumane acts under Article 7(1)(k).Footnote 121 Some of these crimes allegedly took place in the context of the 2011 women’s march in Abobo, where thousands of women protested against the Gbagbo government.Footnote 122
7. Firstly, there remains considerable ambiguity as to what degree of similarity the conduct being investigated or prosecuted by the domestic authorities must bear in relation to the conduct charged by the Prosecutor for the case to be deemed inadmissible. This ambiguity has been exacerbated by the relaxation of the admissibility test to require only ‘substantially the same conduct’.Footnote 123 The Appeals Chamber opined that the incidents being investigated or prosecuted domestically may constitute substantially the same conduct where they ‘form the crux of the Prosecutor’s case and/or represent the most serious aspects of the case’.Footnote 124 I consider that defining admissibility criteria in relation to the ‘crux’ or ‘seriousness’ of the case is not only unworkable in its vagueness but poses a grave risk to the effective prosecution of sexual and gender-based crimes. This is due to the traditional treatment of sexual and gender-based crimes as lesser crimes or simply the inevitable byproduct of conflict.Footnote 125
8. Furthermore, the Chamber has clarified that the fact that incidents which are described in the Article 58 Decision as ‘particularly violent’ or which appear to be significantly representative of the conduct attributed to the suspect are not covered by the national proceedings, may be taken into account in the Chamber’s ultimate determination of whether those proceedings cover the same conduct with which the respondent is charged.Footnote 126 To date, the Court is yet to recognise that gendered incidents, described in the Article 58 Decision as sexual or persecutory in nature, which are not covered by the national proceedings, may equally constitute a factor supporting the admissibility of a case.
9. Accordingly, under the existing interpretation of ‘substantially the same conduct’, one could argue that a domestic case investigating virtually all of the conduct charged by the Prosecutor but omitting an incident or incidents constituting sexual and gender-based crimes would be inadmissible before the International Criminal Court. Such an interpretation would likely operate in a discriminatory manner against women, who are statistically significantly more likely to be victims of sexual and gender-based violence, by precluding them from seeking redress at both the national and international level.
10. In my opinion, the definition of a ‘case’ under Article 17(1)(a) by reference to the ‘same conduct’ has textual support through the parallel definition of the closely linked ne bis idem principle under Article 20(1).Footnote 127 There is nothing, however, in the Statute or the reasoning of the Appeals Chamber which provides a sound legal basis for the easing of this test of ‘substantially the same conduct’. For this reason, and taking into account the potential gendered consequences of the existing interpretation, I consider that for a case to be deemed inadmissible under Article 17(1)(a), the conduct being investigated or prosecuted by the state must cover all of the same conduct charged in the Article 58 Decision. The degree of permissible dissimilarity between the conduct being investigated and the conduct charged should be confined to minor discrepancies in the description of the underlying facts, so that the conduct is the same in time, location, and subject matter.
11. For the avoidance of doubt, a domestic case which goes beyond the crimes charged in the warrant of arrest, by investigating or prosecuting additional conduct, will not be deemed inadmissible, provided it covers the ‘same conduct’ at a minimum.
Defining Conduct
12. It is well settled by the Chambers of this Court that the assessment of the conduct forming the subject of domestic proceedings in the context of an admissibility challenge must focus on the underlying incidents and not their legal characterisation.Footnote 128 This finding upholds the closely linked ne bis idem principle under Article 20(1), which protects the accused from double penalisation of the same acts under different labels of criminality.Footnote 129 I regret that this interpretation is likely to adversely impact victims in states which have not incorporated international crimes into their domestic law, by confining the ambit of recognition and reparations available to those prescribed for ordinary crimes. However, there is no provision in the Statute capable of supporting an alternative interpretation by mandating the manner in which states must incorporate the substantive crimes listed under Article 5 into their domestic legal system.
13. Although there may be discrepancies between the way a particular act is criminalised under the Statute and under domestic law, Article 17(1)(a) is clear that the state must nevertheless ‘have jurisdiction’ over the case, and thus criminalise the same conduct. Consequently, to use the example of the crime against humanity of rape, the Prosecutor must be careful in ensuring that all relevant incidents of penetration criminalised at the international level are punishable under domestic law. Thus, a state which restricts the definition of rape to penile–vaginal penetration only may not be said to have jurisdiction over a case involving anal, oral, or other forms of penetration. As such, I consider that an inquiry into the manner in which the conduct is criminalised by the domestic legal system is necessary and permissible to the extent of establishing that the same conduct is in fact within the jurisdiction of the state.
Genuine Proceedings
14. Article 17(a) renders a case admissible if the state is unwilling or unable genuinely to carry out the investigation or prosecution, yet the Chambers have directed little to no attention to the interpretation of ‘genuinely’ as a standalone term. There appears to be tacit understanding that this term operates so as to require a genuine unwillingness and/or genuine inability on the part of the state to render a case inadmissible. For instance, the second tier of the admissibility test has been formulated as ‘the genuineness of Libya’s willingness and ability to investigate’.Footnote 130 This formulation has sometimes led to the introduction of extraneous criteria into Article 17(1)(a): ‘the allocation of the burden to the State is also consistent with the raison d’être of the principle of complementarity: to prove a case inadmissible, the State must establish that it is undertaking a meaningful investigation that genuinely seeks to ascertain the criminal responsibility of the suspect’.Footnote 131 Reference to the investigation as ‘meaningful’, a term not present in the text of the Statute, reflects the prosecution’s struggle to establish some standard of adequacy concerning the national proceedings that would render a case inadmissible before the Court. Such a standard is in fact provided for by a proper reading of the term ‘genuinely’.
15. A closer examination of the context in which the term ‘genuinely’ is employed reveals that it in fact modifies the objective quality of the investigation or prosecution to which the Court must defer under Article 17(1)(a), requiring a genuine investigation or prosecution. This is evident under Article 17(1)(b) wherein the adverb ‘genuinely’ is repeated and positioned more closely to the verb ‘prosecute’, reading: ‘unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute’. Furthermore, Articles 17(2) and 17(3), which set out the criteria for determining unwillingness and inability respectively, make no mention of the term genuinely. This interpretation of ‘genuinely’ has been endorsed by the Court to the extent that it has confirmed that proceedings may be deemed ‘inconsistent with an intent to bring the person to justice’, where the violations of the rights of the suspect are so egregious that the proceedings can no longer be regarded as capable of providing any genuine form of justice.Footnote 132 In this way, the Court has acknowledged that it is the genuineness of the proceedings, as opposed to the genuineness of the state’s unwillingness or inability, which is relevant to admissibility.
16. As such, the term ‘genuinely’ restricts the class of national proceedings that requires deference from the Court. Without the inclusion of the word ‘genuinely’, any national proceedings where there was an intent to bring the accused to justice, and the system was not unavailable, would preclude action by the Court, even if the proceedings were so inadequate as to be incapable of bringing the accused to justice.
17. The drafting history of the Statute confirms that it was the states’ intention to modify the class of proceedings precluded from the purview of the Court, with the term evolving from ‘effectively prosecute’ to ‘duly prosecute’ before arriving at ‘genuinely prosecute’.Footnote 133 Whilst it is clear that the term was not intended to set aside national proceedings simply because the Office of the Prosecutor could develop a more effective prosecutorial strategy, the term cannot be interpreted in a way that is permissive to impunity and thus contrary to the object and purpose of the Statute.
18. The term ‘genuine’ is defined by the Oxford Dictionary as ‘having the supposed character, not sham or feigned’.Footnote 134 Genuineness is thus a distinct concept from unwillingness or inability. Rather, the genuineness of an existing prosecution informs the Court as to whether the state is truly willing or able to carry out the prosecution. Whilst a state may intend to bring someone to justice by appropriately investigating their criminality (demonstrating willingness) and enjoy a functioning national justice system, in the sense that it is not unavailable as a result of conflict or natural disaster (demonstrating ability), it may still, by the disingenuous design or inadequate workings of its system, be incapable of bringing the accused to justice.
19. This interpretation of genuineness is more closely aligned with the overall object and purpose of the Statute. Whilst the principle of complementarity has often been described as striking a balance between state sovereignty and an effective and credible ICC,Footnote 135 it must be emphasised that state sovereignty and effective prosecution by the Court are not competing objects of the Rome Statute. Rather, the Preamble establishes that the overall, singular object and purpose of the Statute is to ensure that ‘the most serious crimes of concern to the international community must not go unpunished’ and to ‘put an end to impunity’. This object is pursued primarily by states through domestic proceedings and complementarily by the Court when the state is found unwilling or unable. If the prosecution of a case is so inadequate as to be incapable of ever bringing the accused to justice, it cannot be said to be a genuine prosecution for the purpose of Article 17(1)(a).
20. The requirement for a genuine investigation or prosecution in the assessment of admissibility is aligned with the ‘Policy Paper on Sexual and Gender Based Crimes 2014’, adopted by the Prosecutor, which separates the evaluation of ‘the existence of genuine proceedings’ under paragraph 40 from the assessment of ‘whether such proceedings are vitiated by an unwillingness or inability’ under paragraph 42.Footnote 136
21. As such, I find that the state challenging the admissibility of a case before the Court must demonstrate the existence of an ongoing investigation or prosecution which covers all of the same conduct against the same person being investigated or prosecuted by the Court. If the state discharges this burden, it must further establish its willingness and ability to genuinely carry out the ongoing investigation or prosecution.
Analysis
Existence of an Ongoing Investigation
22. As stated above, I agree with the determination made by the Majority of the Chamber that Côte d’Ivoire’s challenge to the admissibility of the case against Ms Gbagbo before the Court must be rejected.Footnote 137 However, for reasons set out below, I respectfully disagree with the reasoning employed by the majority in reaching its decision.
23. The Majority of the Chamber found that Côte d’Ivoire failed to establish that an investigation into the same case was being conducted at the national level on the basis that the investigative steps taken by the national authorities to ascertain Ms Gbagbo’s criminality were not ‘tangible, concrete and progressive’ but rather ‘sparse and disparate’.Footnote 138 However, a plain reading of Article 17(1)(a) reveals that the first tier of the admissibility assessment requires only that ‘the case is being investigated’. Introducing extraneous criteria as to the efficiency of the investigation obfuscates the distinction between ‘inaction’ and ‘unwillingness or inability’ under the two-step admissibility test that the majority itself confirmed in its judgment.Footnote 139 Indeed, the majority’s consideration of the temporal aspects of the investigation are directly provided for by the second tier of the test under Article 17(2)(b), which states that ‘unjustified delay’ may be a determinative factor of unwillingness.
24. I find concerning the continued efforts to construct a hurdle to the first tier of the admissibility assessment, in what may be perceived to be an attempt by this Court to avoid the evaluation of a state’s criminal legal system.Footnote 140 The finding of unwillingness or inability by the Court serves the expressive function of denouncing state conduct which fosters impunity for the most serious crimes of international concern. It is an important judicial responsibility mandated by Article 17(2), from which we must not shy away.
25. Upon review of the uncontested evidence provided by Côte d’Ivoire, I find that the relevant domestic authorities have:
(a) formally initiated an investigation to ascertain the criminality of Ms Gbagbo;Footnote 141
(b) detained Ms Gbagbo as a result of said investigation;Footnote 142
(c) interrogated Ms Gbagbo in furtherance of this investigation;Footnote 143
(d) questioned a civil party concerning the conduct of Ms Gbagbo;Footnote 144 and
(e) attempted to collect evidence relevant to her crimes.Footnote 145
Same Conduct/Same Person Test Applied
26. I now turn to whether the case against Ms Gbagbo currently being investigated by Côte d’Ivoire is the same case, in that it is investigating all of the same conduct against the same person. In order for the admissibility challenge at hand to succeed, Côte d’Ivoire must establish that it is currently investigating conduct constituting the basis of all of the conduct forming the basis of the charges against Ms Gbagbo, including the crimes against humanity of (1) murder under Article 7(l)(a), (2) rape and other forms of sexual violence under Article 7(1)(g), (3) other inhumane acts under Article 7(l)(k), and (4) persecution under Article 7(l)(h) of the Statute committed in the territory of Côte d’Ivoire:
(i) in the context of the march on the Radiodiffusion Télévision Ivoirienne (RTI) building on 16 December 2010;
(ii) in the context of the women’s march in Abobo on 3 March 2011;
(iii) in the context of the Abobo market shelling on 17 March 2011; and
(iv) in relation to the Yopougon massacre on 12 April 2011.
27. I share the view of the Majority of the Chamber that the economic crimes alleged in the first set of proceedings against Ms Gbagbo, referred to as RI-09/2012, RI-33/2012, and RI-04/2012, are evidently of a different nature to the conduct alleged in the case before this Court.Footnote 146 Similarly, the crimes against the state alleged in the second set of proceedings, referred to as RI-01/2011, fail to cover the same conduct as the case before this Court, namely killings, rapes, or acts causing great suffering or serious injury to individuals.Footnote 147 Finally, I concur that the contours of the national investigation are so unclear that I am not in a position to discern, with sufficient clarity, that the subject matter of the third set of proceedings covers all of the same conduct as described in the Article 58 decision.Footnote 148
28. Despite the failure of Côte D’Ivoire to satisfy the first tier of the admissibility test under Article 17(1)(a), for the sake of completeness and in order to clarify the content of this test, I will proceed to assess the unwillingness or inability of the state to carry out a genuine prosecution, as detailed in Article 17(2) and (3) of the Statute.
Unwillingness or Inability
29. As described above, the Majority of the Chamber’s finding that the investigative steps taken by the national authorities in order to ascertain Ms Gbagbo’s criminality were not ‘tangible, concrete and progressive’ but rather ‘sparse and disparate’Footnote 149 should be characterised more appropriately as an ‘unjustified delay’ constituting unwillingness on the part of the state to prosecute Ms Gbagbo under Article 17(2)(b), as opposed to the non-existence of an investigation.
30. In the alternative, the fact that the state’s ongoing investigation cannot be said to be genuine, in that it is incapable of bringing Ms Gbagbo to justice, may also evince unwillingness on the part of Côte D’Ivoire. Whilst the definition of ‘unwillingness’ under Article 17(2) appears to be exhaustive, in that it enumerates the factors to be taken into account by the Court in its interpretation of this term, the state must nevertheless establish under Article 17(1)(a) willingness to carry out a genuine investigation, as opposed to any investigation which the authorities deem fit.
31. The evidence before me indicates that entrenched discriminatory attitudes towards women and girls in Côte D’Ivoire present a significant barrier to the genuine investigation of incidents of sexual and gender-based violence with which Ms Simone Gbagbo is charged. While the Criminal Code of Côte D’Ivoire (the Criminal Code) provides a prison term of between five and twenty years for the crime of rape,Footnote 150 the evidence submitted by the victims indicates that neither the Gbagbo nor the Ouattara governments enforce this law in practice.Footnote 151 Indeed, officials from both governments as well as rebel leaders have been accused of authorising the use of sexual violence against women as a tool for political control.Footnote 152 The investigative steps taken by the Ivorian authorities to date constitute a weak effort to address even the most serious incidents of sexual violence. Such incidents, which remain unpunished, allegedly include the violent gang rape of women, including grandmothers, children as young as six, and pregnant women whose family members were sometimes forced to watch or participate.Footnote 153 Other women were abducted and endured sexual slavery for extended periods of time, sometimes forced to give birth to children conceived through rape. Many died because of the egregious sexual violence inflicted upon them. Human Rights Watch describes an environment of increasingly entrenched lawlessness in which impunity for such sexual and gender-based crimes persists.Footnote 154
32. The evidence suggests that the pervasive trivialisation of these crimes is so significant that even if the justice system had not been disrupted by political turmoil and conflict, lacunae in the prosecution of sexual and gender-based crimes would prevail. Importantly, gender-based discrimination is not only practised by the general population but evinced by the very institutions charged with effecting justice. Of great concern is the systematic encouragement by the Ivorian police for victims to seek an amicable solution with their rapist.Footnote 155 In other instances, women’s claims of sexual and gender-based violence are simply ignored. Both court and law enforcement personnel are described as suffering from an inadequate understanding of sexual violence, typically allowing perpetrators to escape prosecution.Footnote 156 Disturbingly, women have even reported the solicitation of sexual favours from magistrates in exchange for a favourable judicial decision.Footnote 157 Whilst there have been recent efforts by the United Nations Operation in Côte d’Ivoire (UNOCI) to train the national and local police in sexual and gender-based violence,Footnote 158 these are unlikely to have a transformative effect in the short term, especially if conducted in isolation. This is due to the nature of structural discrimination which is omnipresent across economic and socio-political spheres, as well as being rooted in historically unequal power relationships.Footnote 159 Furthermore, the prevalence of customary law, particularly in northern rural regions, further enshrines structural discrimination and inadequate protections for victims of sexual violence.Footnote 160 Reports suggest that victims are further discouraged from pursuing legal recourse by members of their family who view sexual violence as a ‘family problem’ and thus may advocate for reconciliation with the perpetrator.Footnote 161
33. Furthermore, significant inadequacies in the procedural rules governing the prosecution of sexual and gender-based crimes in Côte D’Ivoire mean that future proceedings of such crimes would likely not be considered genuine. Although the cour d’assises has jurisdiction over cases of rape, the evidence reveals a systematic practice of mischaracterising the crime as indecent assault.Footnote 162 This is coordinated so that the crime will be tried before a lesser court in order to relieve some of the pressure on the cour d’assises, which suffers from a lengthy backlog of cases.Footnote 163 Whilst trying rape as a lesser crime may not impair the efficiency, impartiality, or independence of the proceedings, and thus still evince an intention to secure a conviction against the accused under Article 17(2), I consider the penalties available for indecent assault under the Criminal Code to be manifestly inadequate, standing at just two months’ to two years’ imprisonment.Footnote 164 The real possibility that the incidents of rape with which Ms Simone Gbagbo is charged would be tried as lesser crimes casts serious doubt as to the genuineness of the investigation being conducted by the Ivorian authorities.
34. The absence of a legislative framework establishing protective measures for victims of sexual violence in Côte D’Ivoire represents a further barrier to genuine proceedings as it is likely to significantly diminish the number of witnesses willing to testify. Indeed, in relation to the situation in Côte D’Ivoire, the Security Council determined that ‘[i]t is likely that a significant number of rapes went unreported because the victims were afraid of retaliation or did not trust the judicial system’.Footnote 165 The concern most often voiced by the victims themselves is the lack of guarantees that their rights will be respected by the Ivorian justice system, should the case against Ms Simone Gbagbo be pursued before the national courts.Footnote 166 The absence of protective measures for victims of sexual violence may also impede their ability to testify by causing additional psychological strain.Footnote 167 Although the views of victims are not mandated as part of the legal criteria for assessing admissibility, the Chamber values this opportunity to hear their perspective which is grounded in their lived experience. It should be highlighted that the vast majority of victims have expressed their desire for Ms Simone Gbagbo to be tried before this Court.Footnote 168 In light of these significant barriers to justice for women and girls in Côte D’Ivoire, it cannot be said that the ongoing investigation into Ms Simone Gbagbo’s criminality constitutes a genuine investigation.
Conclusion
35. I conclude that Côte d’Ivoire has not demonstrated that the same case against Ms Simone Gbagbo alleged in the proceedings before the Court is currently subject to genuine domestic proceedings within the meaning of Article 17(1)(a) of the Statute. Accordingly, I concur with the majority in finding that the present case is admissible before the Court.
Judge Sarah Easy
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