Recommendations

To the Ivorian Government, Particularly the President and the Justice Minister

Bolster Judicial and Prosecutorial Independence

• Finalize and work to pass the draft law on the High Judicial Council (le Conseil supérieur de la Magistrature, CSM) designed to give judges more influence in appointing new judges.
• Ensure sanctions against political officials who try to interfere with the work of prosecutors or judges working on serious international crime cases.
• Make clear publicly and privately that the executive supports the Special Investigative Cell in pursuing post-election crimes committed by both sides. Emphasize that prosecutors and judges will not face negative consequences for pursuing perpetrators linked to the government.
• In collaboration with the procureur général and the procureur de la république, develop and consistently implement guidelines aimed at supporting prosecutorial independence.
• Consider establishing a section of the CSM that would manage, among other things, the appointment and dismissal of prosecutors.
• Consider engaging the mandate of the UN special rapporteur on the independence of judges and lawyers.

Strengthen Prosecutions and Investigations

• Appoint without delay additional staff, including investigating judges, to the Special Investigative Cell.
• Approve plans to embed additional independent legal experts in the Special Investigative Cell.
• Hold regular meetings with staff in the Special Investigative Cell aimed at improving the office’s effectiveness, particularly in supporting underfunded or understaffed areas of the cell and in identifying ways to better engage with victims from both sides of the crisis.
• Request from the Ministries of Interior and Defense the appointment to the Special Investigative Cell of judicial police officers from all communities affected by the post-election crisis.
• Finalize a platform to enable information sharing and coordination between all of the transitional justice institutions, including the Special Investigative Cell and the Dialogue, Truth, and Reconciliation Commission.

Improve Fair Trial Rights of Defendants

• In reforming the cour d’assises, ensure that defendants’ rights to a fair trial within a reasonable time and to an appeal are fully protected as soon as possible.
• Make the provision of a lawyer for defendants in criminal cases mandatory at an earlier stage of the proceeding, as well as the provision of legal aid for indigent defendants.

Better Protect Witnesses, Judges, Prosecutors, and Defense Lawyers

• Sponsor trainings for prosecutors, investigating judges, and police investigating serious international crime cases on how to assess the potential risks to witnesses and how to use discrete security measures to prevent or minimize risk. Provide similar trainings 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.
• Provide police escorts by specially trained and vetted officers for witnesses traveling to and from court, where beneficial or preferred by the witness.
• Establish safe houses for witnesses facing temporary threats to their safety.
• Devise a draft law(s) for witness protection that provides safeguards inside and outside of the courtroom, and which are consistent with a defendant’s right to a fair trial.
• Consider creating a neutral witness protection unit, which should have operational autonomy to minimize the disclosure of information about witnesses and the authority to facilitate the relocation of witnesses to third countries as needed.
• Bolster security for judges, prosecutors, and defense lawyers working on serious international crime cases as a matter of priority, including by providing escorts as needed in investigations and bodyguards where there is an elevated risk of threats.
• Consider vesting the authority to oversee trials of serious international crime cases with a limited number of judges, as has been done with prosecutors and investigating judges in the Special Investigative Cell, in order to facilitate the protection of judges and to better ensure sufficient expertise in dealing with likely complicated and politicized cases.
• Approach donors to obtain assistance as needed in implementing the above recommendations and to improve the overall capacity of those handling serious international crime cases, including defense attorneys.

Cooperation with the International Criminal Court

• Cooperate with the ICC’s ongoing investigations and cases in Côte d’Ivoire, including in the Simone Gbagbo case, in compliance with the government’s obligations under the Rome Statute.

To the National Assembly

• Pass a law that reaffirms the Special Investigative Cell’s authority to investigate and prosecute crimes, including violent crimes, committed throughout the country during the post-election crisis.
• Pass legislation aimed at providing protection to witnesses inside and outside of the courtroom, while also safeguarding a defendant’s right to a fair trial.

To the High Judicial Council (Conseil Supérieur de la Magistrature)

• Consider ways to sensitize judges and prosecutors, such as through workshops or other training seminars, about the council’s mandate, possible threats to judicial and prosecutorial independence, and the consequences of succumbing to political interference or corruption.
• In coordination with the inspector general, investigate allegations of corruption involving judges and prosecutors and ensure that those who are credibly implicated are appropriately sanctioned.

To Staff in the Special Investigative Cell, Including the Procureur de la République and the Investigating Judges

• Move forward with plans to conduct a mapping exercise to develop a comprehensive list of serious crimes committed by region during the post-election period and to pinpoint suspects where possible, in order to provide the basis for identifying more specific priorities for the office.
• Develop a more comprehensive prosecutorial strategy that includes criteria used by prosecutors to make decisions about case selection.
• Publish non-confidential portions of any future mapping exercise or prosecutorial strategy to increase understanding about the Special Investigative Cell’s work and to build trust in its ability to execute its mandate independently and impartially.
• Intensify field investigations, especially since many victims and witnesses are scattered across the country and cannot easily travel to Abidjan.
• Seek training for investigating judges and judicial police on assessing security risks to victims and witnesses and approaching them in a manner that does not compromise their safety or cause further trauma.
• Consider designating an additional investigative team to coordinate and pursue linkage evidence, meaning evidence linking the “trigger pullers” on the ground with those who gave the orders across all regions, seeking additional resources from the Ministry of Justice as needed.
• Use the Rome Statute definitions of crimes and modes of liability when doing so would extend the reach of justice, including for crimes committed after September 2002.

To the Ministries of Interior and Defense

• Consider favorably requests from the Ministry of Justice to appoint to the Special Investigative Cell judicial police officers from all communities affected by the post-election crisis.

To the United Nations and Intergovernmental and Government Partners (including the European Union, the United Nations Development Program, the United Nations Operation in Côte d’Ivoire, France, and the United States)

• In consultation with national authorities, think specifically about how assistance designated for justice sector reform could be better targeted to support efforts aimed at bringing to justice and defending perpetrators of serious international crimes. For instance, donors that have allocated funds for training judicial personnel could direct some of this support to provide practical training to prosecutors and judges handling violent crimes committed during the crisis.
• Increase private and public diplomacy to press the government to better support prosecutors and judges in pursuing impartial justice in fair and credible trials, and to continue cooperation with the ICC in its cases and ongoing investigations.

To the United States

• Continue with plans to embed independent legal experts in the Special Investigative Cell.

To the United Nations Secretary-General

• Note with concern the absence of impartial accountability and highlight obstacles linked to this ongoing failure in public reports to the UN Security Council.

To the United Nations Independent Expert on the Human Rights Situation in Côte d’Ivoire

• Monitor and highlight obstacles that may compromise the independence and impartiality of judges and prosecutors, especially in relation to serious international crime cases. Continue monitoring and reporting on the Ivorian government’s progress in the implementation of your recommendations in regards to justice for serious international crimes.

To the International Criminal Court

Office of the Prosecutor

• Continue investigations in Côte d’Ivoire against all sides of the conflict with a view to requesting the court’s judges to issue additional arrest warrants, evidence permitting, against individuals from the pro-Ouattara forces responsible for crimes in the court’s jurisdiction.
• Flag gaps in the Ivorian justice system’s capacity so that donor support can be directed to best effect.
• During planned field missions to execute the ICC’s mandate under the Rome Statute, seek out low-cost or cost-neutral opportunities to provide informal training or workshops for Ivorian authorities in areas where weaknesses have been identified, such as witness protection.
• Share with Ivorian authorities the ICC’s analysis of the conflict and other non-confidential materials, in order to help facilitate national-level investigations and prosecutions.

Registry

• Continue with plans to open a field office in Abidjan as soon as possible.
• Authorize field staff to travel outside Abidjan—including to refugee camps in Liberia, for instance—to disseminate information about the court’s mandate, get a sense of the key information gaps that exist, and develop a longer-term outreach and communications strategy that addresses real needs.