Summary

As he took the oath of office on May 21, 2011, Ivorian President Alassane Ouattara faced considerable challenges, one of which was dealing with the aftermath of the brief but devastating armed conflict following the 2010 presidential elections. To realize his electoral victory, following incumbent President Laurent Gbagbo’s refusal to accept electoral results certified by the United Nations (UN), Ouattara, ultimately turned to former rebel forces for support. These forces had controlled the northern part of the country since the end of the 2002-2003 conflict which was marked by serious international crimes by both Gbagbo’s security forces and the rebels. Under the Gbagbo government, there was no accountability for these crimes.

From 2003 onwards, political and military leaders on both sides implicated in overseeing atrocities retained their positions with complete impunity. By the time pro-Ouattara forces arrested Gbagbo on April 11, 2011, armed forces from both parties had, as was the case in the previous conflict, committed egregious violations of human rights and international humanitarian law. At least 3,000 people were killed and 150 women raped during the crisis, often in targeted acts perpetrated along political, ethnic, and religious lines. Since his May 2011 inauguration, President Ouattara has repeatedly underlined his commitment to hold all perpetrators of serious crimes committed during the crisis to account, including those within his own forces. To date, however, while more than 150 individuals from the Gbagbo camp have been charged with crimes stemming from the post-election crisis, not a single case has been brought against pro-Ouattara forces for atrocities committed during the five-month crisis. It remains unclear whether President Ouattara’s government will finally break from the country’s dangerous legacy of impunity for people close to the government in power.

Based on interviews in Abidjan in September 2012 and follow-up interviews with government officials, lawyers, civil society members, UN representatives, diplomats, and officials from donor agencies, this report analyzes Côte d’Ivoire’s efforts to hold perpetrators of serious international crimes during the post-election crisis to account through independent, impartial, and fair investigations, prosecutions, and trials. It builds upon Human Rights Watch’s report “They Killed Them Like it Was Nothing: The Need for Justice for Côte d’Ivoire’s Post-Election Crimes”(2011), which detailed the war crimes and likely crimes against humanity committed by both pro-Gbagbo forces and pro-Ouattara forces.

The nature and scope of the 2010-2011 violence prompted the International Criminal Court (ICC) to take action. In October 2011, the ICC judges approved the prosecutor’s request to open an investigation, the scope of which was later extended to include crimes committed since September 19, 2002. By the end of November 2011, Laurent Gbagbo, accused by the ICC of being an indirect co-author on four counts of crimes against humanity, had been arrested and transferred to The Hague, where he remains in custody. In November 2012, ICC judges unsealed an arrest warrant against the former first lady, Simone Gbagbo, for crimes against humanity, alleging that she acted as Gbagbo’s “alter ego” in overseeing atrocities in Côte d’Ivoire. At this writing, she remains in custody in Côte d’Ivoire where she has been charged with genocide, among other crimes, for acts committed during the post-election crisis. To ensure compliance with its obligations under the Rome Statute, the ICC’s founding treaty, it is incumbent on the Ivorian government to cooperate with the ICC and surrender her to the court or, as an alternative, challenge the admissibility of her case before the ICC based on national proceedings for substantively the same crimes as exist in the ICC warrant.

The Imperative for Impartial Justice

The limits on the ICC’s ability to try all serious international crime cases make national justice essential to end impunity in Côte d’Ivoire. Since the end of the post-election crisis, President Ouattara has made repeated promises that all of those involved in serious crimes—regardless of political affiliation or military rank—will be brought to justice. Chronic impunity has fed the repeated episodes of violence in Côte d’Ivoire over the last decade. Civil society actors interviewed for this report, including those who have tended to lean towards either former President Gbagbo or current President Ouattara, expressed almost unanimously that impartial justice is a necessary precondition for reconciliation, and that its continued absence will likely fuel more violence in the future.

The pursuit of accountability for serious international crimes often comes with challenges, particularly in a post-conflict situation like that in Côte d’Ivoire. Pursuing justice may prove to be deeply unpopular, including among segments of the population who believe that the forces loyal to President Ouattara who committed serious crimes were justified in doing so. Several civil society activists and a senior diplomat in Abidjan told Human Rights Watch that the one-sided approach to accountability is likely due in part to the president’s still tenuous hold over the entire military. A few government officials and diplomats expressed a need for greater stability and cited the spate of attacks on Ivorian military installations in August and September 2012, many of which were likely carried out by pro-Gbagbo militants, in justifying slow progress toward impartial accountability.

However, the country’s recent history shows that credible justice is essential to break from its repeated episodes of politico-military violence. Rather than cautioning authorities against pursuing impartial justice, the recent security threats show the urgent need to proceed in investigating and prosecuting crimes committed by both sides.

In response to the August 2012 attacks, members of the Republican Forces (Forces Républicaines de Côte d’Ivoire, FRCI), the armed forces of Côte d’Ivoire, committed widespread human rights abuses against young men from pro-Gbagbo ethnic groups, including mass arbitrary arrests, illegal detention, extortion, cruel and inhuman treatment, and, in some cases, torture. Several commanders against whom there is evidence implicating them in overseeing these abuses had been previously implicated for their command role in grave crimes during the post-election crisis. The military’s continued impunity makes it more likely that the same authors will commit the same crimes whenever there are moments of tension. In turn, the abuses have exacerbated the country’s communal divisions, reinforcing the factors that are driving the security threats in the first place.

Simply put, the cost of ignoring justice, despite the real challenges that exist, is too high.

Necessary Steps for Ivorian Authorities to Realize Impartial Justice

Following his inauguration, President Ouattara, within a short period of time, oversaw the creation of a National Commission of Inquiry; a Special Investigative Cell; and a Dialogue, Truth, and Reconciliation Commission.

The National Commission of Inquiry (Commission nationale d’enquête, CNE), which released its report in August 2012, produced a balanced summary that echoed findings from a UN-mandated international commission of inquiry and reports of human rights groups: serious international crimes were committed both by pro-Gbagbo forces and by pro-Ouattara forces. The national commission’s report offered an approximate breakdown of the cumulative human rights violations—including summary executions and acts of torture that led to death—allegedly committed by members of both groups during the crisis. Chief among its recommendations was the need to bring to justice those responsible for such violations.

The Special Investigative Cell, consisting of prosecutors, investigating judges, and judicial police, was established to investigate and prosecute crimes committed during the post-election crisis, including serious international crimes. To date, civilian and military prosecutors have collectively charged more than 150 individuals with post-election crimes. However, none of those arrested, much less charged, with violent crimes (crimes de sang) committed during the post-election crisis come from the pro-Ouattara forces. In Côte d’Ivoire’s politicized environment, the perception persists that judges and prosecutors are too easily influenced by the agenda of the executive branch of government. The lack of meaningful accountability against pro-Ouattara forces for serious international crimes committed during the crisis reinforces this perception, and underscores the growing chasm between the president’s rhetoric and reality.

The steps taken by the government to date, while important, are not enough to support the pursuit of independent and impartial justice. There are a number of areas in which the Ouattara government and Côte d’Ivoire’s international partners could provide practical assistance to put judges and prosecutors in a better position to deliver results when it comes to accountability for serious international crimes.

Strengthening Judicial and Prosecutorial Independence

Judges and prosecutors can only adjudicate cases impartially when they are able to act independently from the legislative and executive branches. Côte d’Ivoire’s constitution recognizes a separation of powers between the executive and the judiciary and guarantees the independence of the judiciary, including investigating judges. In practice, however, while there are judges that act independently, civil society activists underscored to Human Rights Watch that they are the exception rather than the rule.

The Ouattara government has taken notable steps to strengthen judicial independence. A draft law has been prepared by the High Judicial Council (le Conseil supérieur de la Magistrature, CSM)—the body governing the appointment and disciplining of judges—aimed at giving judges more say in appointing their peers. Longer-term initiatives are needed to affect a shift in culture among judges, prosecutors, and those in the executive to combat political interference and corruption. The CSM should consider ways to train judges and prosecutors about its mandate, possible threats to judicial and prosecutorial independence, and the consequences of succumbing to political interference or corruption. Officials in the executive and legislative branches should consider similar measures to sensitize political officials about why the separation of powers is essential and what should (and should not) be done to support it. Since prosecutors are legally under the authority of the minister of justice, the government, in conjunction with Ivorian prosecutors, should establish and consistently implement guidelines aimed at promoting prosecutorial independence. In addition, the government, in conjunction with Ivorian prosecutors, should develop a system of case allocation that promotes the independence and impartiality of prosecutors handling serious international crime cases.

Strengthening Prosecutions

The development and implementation of a more coherent prosecutorial strategy—one that includes criteria used by prosecutors to make decisions about case selection—is another essential part of effectively and impartially addressing serious international crimes. To start, the Special Investigative Cell, with government and donor support as needed, should consider building on the work of the National Commission of Inquiry and conduct a mapping exercise to develop a comprehensive list of the crimes committed by region during the crisis, pinpointing individual suspects where possible. Such a mapping could help identify specific priorities for the office based on the scale of violations, patterns of violence, and leads or sources of evidence, including potential perpetrators. Non-confidential portions of both the mapping exercise and the prosecutorial strategy should be shared with the public to increase understanding about the office’s work and to build trust in its ability to execute its mandate independently and impartially.

To further facilitate the development of a meaningful prosecutorial strategy, the ICC’s Office of the Prosecutor (OTP) should share its analysis of the conflict and other non-confidential materials with staff in the Special Investigative Cell. While this information may be derived from public sources, the analysis could be of significant value to the procureur de la république and the investigating judges with less experience in handling serious international crimes.

There are also a number of steps Ivorian authorities can take to support domestic investigations. Under Ivorian law, investigating judges are the primary investigators of allegations of criminal conduct, with the assistance of the judicial police as needed. The modest staffing of the Special Investigative Cell—only three investigating judges at present—seems insufficient to address the large number of criminal allegations stemming from the post-election period. The previous minister of justice indicated that the ministry would appoint three additional investigating judges; the current minister of justice should do so as soon as possible.

Field investigations are essential and should be intensified, especially since many victims and witnesses are scattered across the country and cannot easily travel to Abidjan to give a statement. But in addition to traveling outside Abidjan, investigating judges and judicial police must be able to cultivate confidence in communities affected by crimes, especially those committed by the Republican Forces. Steps to take in doing this include: recruiting judicial police from all communities affected by the post-election crisis where the crimes being investigated were committed, training investigating judges and judicial police on how to assess the risk to victims and witnesses, and devising ways to approach victims that do not compromise their safety or cause further trauma.

Legal Reforms to Improve Fair Trial Rights of Defendants

Respect for the rights of the accused ensures that judicial processes are, and appear to be, fair and credible. In Côte d’Ivoire, a number of fair trial concerns relate to the jurisdiction of serious crimes, including serious international crimes, under the cour d’assises— a non-permanent court composed of a president, two professional judges, and nine lay jurors, including three alternates. First, while the cour d’assises is by law supposed to sit every three months, it has only been convened twice since 2000, in large part because the process is cumbersome and costly. While it may be possible to convene the cour d’assises for a handful of high-profile cases, the majority of defendants already in custody for post-election crimes appear likely to remain in pretrial detention until the issue of the cour d’assises is resolved, violating their right to be tried within a reasonable time. Further, decisions by the cour d’assises are not subject to appeal, violating a defendant’s right under international human rights law to have his conviction and sentence reviewed by a higher tribunal.

The Ministry of Justice has notably identified the reform of the Code of Criminal Procedure as a priority and formed a working group in late 2012 to address the issues related to the cour d’assises. The creation of a working group is a welcome development, and the group should reach a resolution on these issues as soon as possible.

In addition, under the Code of Criminal Procedure, legal representation for defendants in criminal cases is only mandatory at the cour d’assises phase, which also means that indigent defendants only have access to legal aid at this late stage of proceedings. This risks compromising the quality of representation provided, which is especially problematic in complex cases involving serious international crimes. Ivorian authorities should make mandatory at an earlier stage of the proceeding the provision of a lawyer for defendants in criminal cases and legal aid for those who are indigent.

Establishing a Framework for Witness Protection and Support

Trials of serious crimes can be extremely sensitive and create risks to the safety and security of witnesses and victims who may testify to deeply traumatic events. Identifying and implementing a strategy for witness protection will be crucial in convincing victims and witnesses, particularly of crimes committed by pro-Ouattara forces, that they can bring complaints.

In the short term, the government, with support from donors as necessary, should sponsor training workshops for prosecutors, investigating judges, and police investigating serious international crime cases to support the protection of witnesses. Such training could cover how to assess potential risks to witnesses and how to use discrete security measures to prevent or minimize such risks. Similar training should be provided to judges and other courtroom staff working on serious international crimes regarding in-court measures that can be used to protect witnesses and minimize trauma. Ivorian authorities should also consider establishing a safe house for witnesses facing temporary threats to their safety.

Over the longer term, Ivorian authorities should establish a law(s) to create a system to protect witnesses. In devising such a law(s), Ivorian authorities should consider creating a neutral witness protection unit—meaning it operates for all witnesses, regardless of if they are testifying on behalf of the prosecution or defense, and can enter into relocation agreements with third countries to protect witnesses in extreme circumstances. The benefits of such a unit potentially extend well beyond managing witnesses in cases of serious international crimes and could include other sensitive or high profile cases.

Providing Security for Judges, Prosecutors, and Defense Lawyers

Judges and prosecutors cannot work independently or impartially if they fear for their safety. The risk of retribution is even greater for judges and prosecutors involved in serious international crime cases, given the gravity and sensitive nature of the underlying crimes. At present, there is no dedicated force to provide protection to judges and prosecutors. The government should bolster security for judges and prosecutors as a matter of priority. Ministry of Justice officials should also consider providing protection as needed for defense attorneys working on serious international crime cases; given the sensitivity of the crimes involved, they are likely to receive threats that could compromise the representation of their clients.

Necessary Steps for International Partners

While Côte d’Ivoire’s international partners have poured money into an array of rule of law projects, their commitment to help Ivorian authorities pursue accountability for serious international crimes has been inconsistent over the last decade. Greater financial and diplomatic support for judicial efforts to handle serious international crimes—including by using funds already designated for rule of law projects to more clearly support the prosecution, trial, and defense of these crimes—could assist Côte d’Ivoire in addressing its dangerous legacy of impunity.

Putting Complementarity into Practice: Building Capacity to Try Serious Crimes

The complementarity principle under the Rome Statute puts responsibility for pursuing justice for serious international crimes squarely on the shoulder of states, with the ICC only intervening as a court of last resort. There has been growing recognition within the European Union (EU), the ICC’s Assembly of States Parties, and the UN, that international partners—including key donor states and the intergovernmental organizations themselves—should use funds designated for rule of law reform projects to more specifically strengthen capacity of national institutions to realize justice for international crimes.

While progress on complementarity in diplomatic circles is welcome, it must be matched by concrete advances on the ground. Experience to date in Côte d’Ivoire reveals that while key donor states and intergovernmental organizations like the EU and the UN have invested significant resources in rule of law reform, support specifically for efforts to pursue justice for serious international crimes has been more limited.

The challenge for the donor community is to capitalize on the Ivorian government’s expression of will and square it with their commitments to complementarity made at the policy level. Côte d’Ivoire’s international partners should think proactively about how assistance designated for justice sector reform could be more specifically targeted to support efforts aimed at bringing to justice and defending perpetrators of serious international crimes. Donors should consult with national authorities to determine how this additional support could be used.

ICC staff can also help by flagging gaps in capacity so that donor support is directed to best effect. Further, during planned missions to Côte d’Ivoire in relation to ICC activities, ICC staff could seek out low-cost or cost-neutral opportunities to provide Ivorian authorities informal training or workshops in areas where weaknesses have been identified, such as witness protection.

Increasing Private and Public Diplomacy

Côte d’Ivoire’s international partners, through private and public diplomacy, have an important role to play in encouraging a political climate that favors independent and impartial justice. Several diplomats and UN officials told Human Rights Watch that they have consistently engaged in private diplomacy on these issues, which is important. However, given the lack of progress toward impartial justice to date, donors should increasingly through their private and public statements put pressure on the government to address issues that impede credible, impartial investigations, prosecutions, and trials, including in the areas identified in this report. Concerted action aimed at helping the Ouattara government end the impunity and divisiveness that defined the Gbagbo era can help avoid a recurrence of large-scale violence. Côte d’Ivoire’s international partners should also continue to emphasize with the government the need to comply with its obligation to cooperate with the ICC in its existing cases—including that of Simone Gbagbo—and its ongoing investigations.

The International Criminal Court

Despite ample evidence of crimes committed by pro-Ouattara forces that fall under the ICC’s jurisdiction, the ICC has only made arrest warrants public against the former president and his wife, Simone. This reflects the Office of the Prosecutor’s decision to pursue a “sequential” approach—meaning it will conclude its investigations against the Gbagbo side before moving on to pro-Ouattara forces.

The OTP has frequently indicated that its investigations are impartial and ongoing. However, as more time has passed without action against anyone from the Ouattara camp, many Ivorians, including Ivorian civil society leaders, have increasingly viewed the ICC as “playing politics” in Côte d’Ivoire and treading lightly around the Ouattara government. In addition to compromising the ICC’s credibility among many Ivorians, the sequencing approach has been mimicked by Ivorian authorities, which has fueled rather than eased tensions.

As the ICC Prosecutor Fatou Bensouda continues investigations in Côte d’Ivoire, she should ensure that cases against individuals from the pro-Ouattara forces are investigated as robustly as those from the Gbagbo side, including seeking from the court’s judges additional arrest warrants where evidence is gathered against those responsible for crimes in the court’s jurisdiction. Indeed, the fact that the ICC is a court of last resort when governments are either unwilling or unable to pursue cases only underscores the imperative of ICC action against those on the Ouattara side who are otherwise beyond the reach of justice. Concrete action against pro-Ouattara individuals where there is evidence of ICC crimes would go a long way toward rehabilitating the ICC’s credibility in Côte d’Ivoire as an impartial institution, and could help create the space for Ivorian authorities to similarly make much-needed progress toward ensuring that all victims have access to justice.