V. Accountability

Several initiatives are under way to promote accountability for the grave crimes committed during the post-election period. At the international level, a commission of inquiry implicated both sides’ armed forces in war crimes and likely crimes against humanity. It provided a confidential annex of those identified as most responsible to the International Criminal Court prosecutor, who has received authorization from an ICC pre-trial chamber to open an investigation into grave crimes committed during the post-election violence.

At the domestic level, prosecutors have brought charges against at least 118 military and civilian leaders in the Gbagbo camp for their roles in the crisis. Military leaders have been charged with crimes including murder and rape, which could be underlying crimes that constitute war crimes or crimes against humanity. Civilian leaders, for the most part, have been charged with economic crimes and crimes against the state. In stark contrast to the efforts to prosecute Gbagbo and his allies, however, no member of the Republican Forces has been arrested or charged at time of writing.

Commissions of Inquiry

On March 25, 2011, the UN Human Rights Council adopted a resolution that established an independent international commission of inquiry to investigate human rights violations committed after the presidential runoff and to identify those most responsible for crimes committed so that they could be brought to justice.[282] With an extremely short timeline, the commission made its report public around June 10 and presented it to the 17th session of the Human Rights Council on June 15. In its summary, the commission concluded that:

[M]any serious violations of human rights and international humanitarian law were perpetrated by different parties: some might amount to crimes against humanity and war crimes. They were perpetrated by the defence and security forces and their allies (militias and mercenaries) and later, during their counteroffensive and once they had taken control of the country, by the Forces républicaines de Côte d’Ivoire (FRCI).[283]

Among its principal recommendations, the commission called on the government to ratify the Rome Statute of the International Criminal Court, address the conflict’s root causes including discrimination, and restore security by rapidly undertaking disarmament. [284] In its first recommendation to the Ouattara government, the commission particularly emphasized the need for justice:

See to it that those responsible for violations of human rights and international humanitarian law are brought to justice; the inquiries that have been launched must be conducted exhaustively, impartially and transparently.[285]

To that end, the commission prepared an Annex of people against whom their evidence reasonably suggested individual criminal responsibility. The commission report stated that the “confidential annex … would be handed to competent authorities within the framework of a judicial investigation.”[286] Human Rights Watch has been told by an individual involved with the commission that the Annex was given to the International Criminal Court prosecutor as well as the High Commissioner for Human Rights, Navanethem Pillay. However, the Annex was not given to Ouattara, the Minister of Justice, or the Abidjan Prosecutor. This is difficult to square with the commission’s promise to provide it to “competent authorities” for judicial investigations, as domestic authorities have initiated prosecutions related to the post-election violence.

The failure to make public the Annex or to provide it to the government and the domestic prosecuting authorities recalled a previous international commission of inquiry. In 2004, a similar commission was tasked with investigating grave crimes committed during the 2002-2003 civil war. Its detailed report, which provided evidence of crimes against humanity by both sides, was handed to the UN Security Council in November 2004. The report has still not been made public.[287] It contained a confidential annex that reportedly included 95 individuals deemed most responsible and deserving of criminal investigation. A journalist reported at that time that Simone Gbagbo, Charles Blé Goudé, and Guillaume Soro were among those named.[288] The 2011 commission specifically recommended that the Human Rights Council publish the 2004 report to fight against impunity.[289] On June 30, High Commissioner Pillay echoed these demands, but expressed ambiguity regarding whether it was the Human Rights Council or the UN Secretary-General that could authorize the report’s publication.[290] Human Rights Watch has consistently called for the report’s publication, including the annex, since 2004.[291]

Immediately after the 2011 international commission of inquiry published its report, the Ouattara government announced that it was creating a national commission of inquiry.[292] Given that the Ouattara government specifically requested the international commission, which reported on the same events and offered conclusions and recommendations that identified grave crimes by Ouattara’s forces that should be subject to judicial investigation, the timing raised concerns of a whitewash. On July 20, Ouattara signed the decree creating the commission, giving the body six months to present its conclusions on “how and why” such massive violations of human rights took place.[293] An Associated Press journalist reported that the “wording of the decree implied that the commission would rebuff the accusations [by international rights organizations] and seek to exonerate Ouattara’s forces.”[294] It was not clear whether the Ouattara government planned to wait on the national commission of inquiry’s conclusions before undertaking criminal investigations and prosecutions of the Republican Forces—but Ouattara told the Associated Press in late July that the commission’s report would be given to prosecutors before the end of 2011.[295] However, that timeline quickly appeared unlikely, as the commission only began its activities on September 13. An August 10 decree from the Minister of Human Rights named 17 commissioners, including the judge Matto Loma Cissé as president.[296] Several members of Ivorian civil society expressed concerns to Human Rights Watch about the commission’s independence and impartiality, saying that Cissé was very close to Ouattara.[297]

Domestic Prosecutions against Gbagbo Camp

After capturing Gbagbo at his residence on April 11, the Republican Forces brought him to the Golf Hotel.[298] Two days later, Gbagbo was transferred to Korhogo, a city in northern Côte d’Ivoire, and placed under house arrest; his wife, Simone, was also arrested on April 11 and later transferred to Odienné, another northern town.[299] In subsequent days, Ouattara’s forces arrested dozens more military and civilian leaders connected to Gbagbo.

For two months, no formal charges were initiated against those detained, leading groups including Human Rights Watch to call on the Ouattara government to end what appeared to be a violation of both Ivorian and international law.[300]In a June 22 response, Justice Minister Jeannot Ahoussou Kouadio claimed that no charges needed to be filed because the individuals were under house arrest, not in detention. He also cited a 1963 law that allows the head of state to issue a decree authorizing house arrest for requisition of “persons that have a profile” relating to the promotion of the country’s economic and social wealth.[301] While unclear whether the Minister’s explanation has grounding in Ivorian law, the individuals were clearly detained under international law definitions—deprived of their right to liberty, whether in a formal prison, a former hotel, or under house arrest.

Several days later, authorities began to bring formal charges. On June 26, Abidjan prosecutor Simplice Koffi announced charges against 15 political leaders under Gbagbo implicated in offenses against the state’s authority, the creation of armed gangs, and economic crimes.[302] Three days later, military prosecutor Colonel Ange Kessy announced charges against 49 officers from Gbagbo’s Ivorian army, 42 of whom were already in detention.[303] The military court is reported to have charged them with the “diversion of public funds and equipment … the illicit transfer of arms and ammunition; illegal arrests and abductions; [and] murders and concealment of corpses.”[304] Then on July 1, Koffi announced he was seekinginternational arrest warrants against several Gbagbo allies believed to be abroad, including Charles Blé Goudé. The alleged crimes primarily appear to be crimes against the state and economic crimes.[305]

Charges continued to be brought by both civilian and military prosecutors in August and September. By August 12, at least 58 military officials and 37 civilian officials—including Gbagbo’s son, Michel—had been charged.[306] As before, the military prosecutor included counts of arbitrary arrest and detention, murder, concealing corpses, and rape, while the civilian prosecutor brought charges almost exclusively for crimes against the state and economic crimes.[307] A government spokesperson was quoted on August 10 as saying that “violent crimes” from the post-election period would be left to the ICC as domestic civilian courts “are not yet ready to judge this type of crime.”[308] Finally, on August 18, Prosecutor Koffi announced charges against Gbagbo and his wife Simone for “economic crimes,” including embezzlement, robbery, and misappropriation.[309]

At time of writing, there were at least 118 individuals from the Gbagbo camp charged for crimes committed during the post-election period.

No Domestic Procedures against Republican Forces Soldiers

At time of writing, no member of the Republican Forces had been charged related to the grave crimes committed during the post-election violence. Some judicial steps were initiated in relation to the widespread killings that occurred in the west—crimes documented by Human Rights Watch, Amnesty International, the international commission of inquiry, the UNOCI Human Rights Division, and the International Federation for Human Rights. On April 2, the Justice Minister attacked the UNOCI Human Rights Division for implicating the Republican Forces and Dozo in the Duékoué massacre, but instructed the Daloa prosecutor to open a criminal investigation into crimes committed in the west.[310] According to several people interviewed by Human Rights Watch who had spoken with the prosecutor, however, a lack of personnel and equipment significantly delayed him in undertaking his investigation—with almost no work done through the end of July.[311] When Human Rights Watch asked the chief of staff for the Minister of Justice in September about the investigation, he said that a team of police and prosecutors had conducted a three-month preliminary investigation and compiled a large dossier based on their interviews with witnesses to crimes by both sides. He said that they had enough information about crimes committed by pro-Gbagbo militias, but that there “were difficulties” in the investigations against the Republican Forces—making specific reference to a reluctance to testify by international organizations who were in Duékoué when the massacre occurred and assisted in burials. He further stressed that the investigations were preliminary and needed to be “verified” before any charges were filed. He also said that, before domestic prosecutions would take place, the government was waiting for the ICC to act—despite the fact that the ICC has historically taken only a few cases in situations under investigation.[312]

No progress is evident regarding the investigation of crimes committed during the Abidjan offensive and subsequent weeks. When Human Rights Watch first published work citing at least 149 killings—and implicated Chérif Ousmane and Ousmane Coulibaly as among those responsible—Interior Minister Hamed Bakayoko promised credible investigations, but expressed “doubt” about the findings and the credibility of victim testimonies as proof.[313]No such investigation appears to have been undertaken.

Military prosecutor Ange Kessi Kouamé said in early July that he had received numerous complaints about the Republican Forces, but he could not open an investigation because it was unclear whether the soldiers qualified as civilians or military under Ivorian law. Kouamé made clear that if considered civilians, only the civilian prosecutor was competent to prosecute them, so he was awaiting the clarification.[314] At time of writing, the government did not appear to have answered whether during the crisis the Republican Forces were civilians, military, or included individuals from both categories.

The failure to bring credible investigations against the Republican Forces has raised concerns of victor’s justice, as voiced by a commissioner on the international commission of inquiry and a leading human rights activist in Côte d’Ivoire.[315] The Ouattara government has continued to promise that persons implicated in crimes will be prosecuted regardless of whether they fall in its camp or the Gbagbo camp.[316]

International Criminal Court

Côte d’Ivoire is not a state party to the Rome Statute, but it has accepted, during both the Gbagbo and Ouattara presidencies, the International Criminal Court’s jurisdiction to investigate crimes under the ICC’s authority, which are genocide, war crimes, crimes against humanity, and other serious violations of international humanitarian law. Since assuming power, Ouattara has expressly invited the ICC prosecutor to investigate crimes in Côte d’Ivoire and stated an understanding and desire for the ICC to prosecute both sides’ crimes. However, Ouattara has also asked the court to restrict the investigation’s timeframe.

Côte d’Ivoire first accepted the ICC’s jurisdiction in a declaration dated April 18, 2003. Under article 12(3) of the Rome Statute, Gbagbo’s then-Minister of Foreign Affairs, Mamadou Bamba, indicated that the government “accepts the jurisdiction of the Court for the purposes of identifying, investigating and trying the perpetrators and accomplices of acts committed on Ivorian territory since the events of 19 September 2002.”[317] The declaration said it “shall be valid for an unspecified period of time,”[318] indicating potential continuing authority for the ICC to investigate grave crimes committed during and subsequent to the 2002-2003 armed conflict. On December 14, 2010, and May 3, 2011, President Ouattara renewed the 12(3) declaration. However, he modified the requested dates for the ICC’s investigation. In his December letter, Ouattara promised cooperation with ICC investigations into “all crimes and acts of violence committed since March 2004.”[319] Five months later, in confirming his previous request, Ouattara asked the ICC to investigate “the gravest crimes committed since November 28, 2010.”[320] [See Annex for the three ICC letters.]

The prosecutor heeded the last letter’s demand in submitting his request to Pre-Trial Chamber II on June 23 to open an investigation—limiting the proposed period under investigation to the post-election period.[321] The prosecutor’s request indicates a desire to focus on crimes committed following the 2010 election because “violence… reached unprecedented levels,” and a “wealth of information” exists as to those crimes.[322]

This time limitation needlessly cut off the proposed international investigation into grave crimes committed during the decade prior to the most recent violence and ignored the desires of most leaders of Ivorian civil society, who stress the importance of investigations going back to 2002, given the gravity, scale, and complete impunity for these crimes.[323] Individuals working with Ouattara on justice issues suggested that the time limitation was included in Ouattara’s request partly as a result of a suggestion by the ICC prosecutor’s office to make an ICC investigation more manageable.[324] Several high-level diplomats interviewed by Human Rights Watch, however, believed Ouattara’s request was designed to protect some in his camp who had been involved in systematic killings, rapes, and other abuses during the 2002-2003 conflict and its aftermath.[325]

President Ouattara has consistently affirmed that the ICC should and would look at both sides’ grave crimes.[326] An ICC delegation, led by deputy prosecutor Fatou Bensouda, began its work on post-election violence during a June 27-July 4 visit to Abidjan. On June 28, Bensouda and Justice Minister Kouadio signed a formal agreement in which the Ivorian government promised full cooperation as outlined under part 9 of the Rome Statute.[327]

On October 3, 2011, the ICC judges granted the prosecutor’s request to open an investigation into the post-election violence. They also asked him “to revert to the Chamber within one month with any additional information that is available to him on potentially relevant crimes committed between 2002 and 2010.”[328]Ouattara has promised to ratify the Rome Statute “as soon as possible.”[329]

Dialogue, Truth, and Reconciliation Commission

On April 27, 2011, Ouattara promised to create a Dialogue, Truth, and Reconciliation Commission (DTRC) on the model of South Africa’s within two weeks, saying that it would be a “major focus of my presidency.”[330] Several days later, on May 1, Ouattara said he would name former Prime Minister Charles Konan Banny—a longtime politician in the PDCI party—as the commission’s head.[331]Some foreign diplomats as well as members of Ivorian civil society, including pro-Ouattara organizations, voiced displeasure to Human Rights Watch about the Banny nomination. They noted that there was little consultation with civil society in making the choice and, given his partisan political background, they were uncertain as to whether he would inspire groups on both sides to feel comfortable with and confident in the commission.[332]

On July 13, President Ouattara formally created the Dialogue, Truth, and Reconciliation Commission (DTRC) through Order 2011-176, which gave the body a two-year mandate.[333] The commission is to be led by its president, Charles Konan Banny, as well as three vice-presidents and seven commissioners.[334] It is charged to, among other things, “elaborate a typology of human rights violations,” “establish truth and situate responsibility for past and present sociopolitical events,” “listen to victims and obtain the recognition of facts by perpetrators” and “identify and make recommendations toward the fight against injustice, inequalities of all kind, tribalism, nepotism, the exclusion, as well as hatred in all of their forms.”[335] The hearings were to be open to the public, except under specific circumstances.[336] International Crisis Group expressed concern that the text of Order 2011-176 “contains no provisions that clearly define the powers of the commission and does not sufficiently guarantee its independence from the political power.”[337]

On September 5, the council of ministers adopted a decree naming the vice-presidents and commissioners. The vice-presidents are leaders from the traditional, Muslim, and Christian authorities, respectively. The seven commissioners represent the different regions of Côte d’Ivoire as well as the Ivorian diaspora and foreign residents in Côte d’Ivoire.[338] At time of writing, the commission did not have a clear strategy or role in the government’s broader justice efforts.