II. Accountability for Post-Election Crimes to Date

National Accountability Initiatives

Since the end of the post-election crisis, President Ouattara has repeatedly promised that all of those involved in serious crimes—regardless of political affiliation or military rank—will be brought to justice. [26] After his inauguration in May 2011, the president swiftly created institutions tasked with providing truth and justice for the post-election crisis. In short order, he established a National Commission of Inquiry (Commission nationale d’enquête, CNE, created June 15, 2011), a Special Investigative Cell (Cellule spéciale d’enquête, created June 24, 2011), and a Dialogue, Truth, and Reconciliation Commission (Commission dialogue, vérité et réconciliation, created July 13, 2011), each of which will be discussed in more detail below. The military justice system is also handling cases in relation to the post-election crisis.

In a January 2012 interview with Le Monde and during an April 2012 visit to western Côte d’Ivoire, Ouattara assured his presidency would be defined by “even-handed justice” and an end to impunity, which he referred to as the country’s “tragedy.”[27]Yet, 22 months after the conflict’s end, Ivorian authorities have only arrested or charged individuals from the Gbagbo camp with crimes related to the post-election crisis.Without swift and determined action, Ouattara’s government is in danger of continuing the country’s principal “tragedy”: impunity for those connected to power.

National Commission of Inquiry

The National Commission of Inquiry was established on the heels of a report published by an international commission of inquiry, created under the authority of the UN Human Rights Council in March 2011 at the request of President Ouattara’s government.[28] The international commission of inquiry’s report, presented at the 16th session of the Human Rights Council on June 15, 2011, concluded that many serious violations of human rights and international humanitarian law were committed by all sides to the conflict.[29] Chief among its recommendations was the need to bring those responsible for such violations to justice.[30]

The National Commission of Inquiry began its field work in January 2012 with the mandate of investigating alleged violations of human rights and international humanitarian law during the post-election crisis.[31] It was established as an administrative, not a judicial, commission, meaning it did not focus on pinpointing individual criminal responsibility.[32] Even before its findings were released, President Ouattara cited the commission’s work as evidence of his commitment to impartiality and promised to ensure that any person implicated in the commission’s report would be subject to judicial investigation.[33] President Ouattara initially indicated that the commission would complete its work in late February or early March, sparking concerns that the commission may not have the time or necessary independence to fulfill its mandate.[34] The mandate was ultimately extended and the commission released a public summary of its report in August 2012; a confidential annex was sent to the prime minister and the minister of justice.

A comprehensive analysis of the commission’s summary is beyond the scope of this report. However, one of the commission’s most significant findings is that crimes were committed both by forces loyal to Gbagbo and by forces loyal to Ouattara. It also offers an approximate breakdown of the cumulative human rights violations—including summary executions and acts of torture that led to death—allegedly committed by these groups during the crisis.[35]

The National Commission of Inquiry’s work emphasizes the need for impartial justice. In discussing the commission’s report, the minister of justice, human rights, and public liberties, Gnénéma Coulibaly, told Human Rights Watch, ‘“No one can say [now] … that only one side is responsible for [abuses]. Every side is responsible and every side needs to admit their level of responsibility.” [36] The need to open judicial investigations against those suspected of committing the violations outlined in the report, regardless of political affiliation, was one of the commission’s key recommendations. [37] Both the current minister of justice and a civil society activist interviewed by Human Rights Watch felt that, since it was produced by a national body, the commission’s report helped depoliticize the idea that both sides had committed egregious crimes, which could pave the way for progress in judicial investigations. [38]

Special Investigative Cell

The Special Investigative Cell was created by the government through an interministerial order in response to the number of crimes committed during the crisis and the reality that the courts were not yet functioning in the crisis’s immediate aftermath.[39] The Special Investigative Cell is attached to the tribunal of first instance in Abidjan and is tasked with conducting criminal investigations in relation to events in Côte d’Ivoire since December 4, 2010.[40] It handles three categories of cases stemming from the crisis: attacks against state security, economic crimes, and violent crimes. It consists of one procureur de la république, three deputy prosecutors, and three investigating judges; senior officials under the previous minister of justice said three more investigating judges would be added. However, at this writing, this had not yet been done.[41] In addition, the military court in Abidjan has completed one major trial for post-election crimes, in which five former Gbagbo military officials, including General Bruno Dogbo Blé, the former head of the Republican Guard, were convicted of abduction and murder. Dogbo Blé was sentenced to 15 years’ imprisonment.[42]

Staff in the Special Investigative Cell, Ministry of Justice officials, and some civil society activists cited the creation of the Special Investigative Cell as evidence that the government has some political will to pursue accountability.[43] Indeed, creating a specialized unit to handle the investigation and prosecution of serious international crimes can help prosecutors, investigating judges, and judicial police develop the expertise needed to handle these often-complex cases.[44] There has been movement towards accountability: more than 150 individuals have been charged with post-election crimes, including Simone Gbagbo, the wife of former President Laurent Gbagbo, and Charles Blé Goudé, Gbagbo’s youth minister during the crisis.[45]

To date, however, none of those charged with post-election crimes comes from the pro-Ouattara forces. [46] The absence of prosecutions against pro-Ouattara forces is especially significant in light of findings by the international commission of inquiry, the Office of the High Commissioner for Human Rights, the United Nations Operation in Côte d’Ivoire, the International Federation of Human Rights, Human Rights Watch, Amnesty International, an Ivorian coalition of human rights organizations known as the Group of Ivorian Actors for Human Rights (Regroupement des Acteurs Ivoriens des Droits de l’Homme), and President Ouattara’s own National Commission of Inquiry about likely war crimes and crimes against humanity committed by pro-Ouattara forces.[47] The skewed approach to accountability to date supports the widely held sentiment in Côte d’Ivoire that the government is only interested in pursuing the Gbagbo side.[48] The last two reports of the UN independent expert on the human rights situation in Côte d’Ivoire have similarly raised concerns about the absence of impartiality when it comes to justice for post-election crimes.[49]

The one-sided approach to accountability thus far in Côte d’Ivoire stands in stark contrast to the consistent promises of impartial justice made by President Ouattara’s government. [50]

Several civil society activists and two senior diplomats in Abidjan told Human Rights Watch that the one-sided approach to accountability is partially due to the precarious control President Ouattara still exerts over the military.[51] One senior diplomat expressed concern that the prosecution of even foot soldiers or low-level commanders from the FRCI could threaten security.[52] Several leaders of an Ivorian professional association also said that the spate of attacks on Ivorian military installations in August and September 2012 further dimmed the prospect for impartial accountability; some felt that the country needed to achieve a measure of stability before impartial accountability could be pursued.[53]

Côte d’Ivoire indeed faced legitimate threats to its national security in the second half of 2012. And the nature of some of the attacks, combined with additional credible evidence, gave weight to the Ivorian government’s theory that many of the attacks were waged by pro-Gbagbo militants.[54]

But, rather than cautioning authorities against pursuing impartial justice, the recent security threats show the urgent need for the Special Investigative Cell to make progress in its investigations into crimes on both sides. The failure to bring to account suspected perpetrators of grave crimes risks emboldening them and others to continue resorting to the same types of abuses during moments of tension. This is precisely what happened in response to the August security threats, after which members of the Republican Forces 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.[55]

In a November 2012 report, Human Rights Watch documented that many of the worst abuses were perpetrated by troops under the command of Ousmane Coulibaly, known by his nom de guerre “Bin Laden.” He was also implicated by Human Rights Watch during the post-election crisis as one of the FRCI leaders under whose command soldiers committed dozens of summary executions and frequent acts of torture during the final battle for Abidjan in April and May 2011.[56] Impunity makes it more likely that the same authors will commit the same crimes. Ongoing abuses by the Ivorian military, and in particular the targeting of people largely on the basis of their ethnicity and perceived political preference, risk further fueling the dangerous communal divisions at the root of the security threats.

Chronic impunity has fed repeated episodes of violence in Côte d’Ivoire for over a decade, underscoring that justice, in addition to giving victims the redress they deserve, is critical to achieving durable stability. As one civil society actor put it, “Justice has to proceed [impartially] if there is to be reconciliation. There was the same hatred, the same animosity, in the killing done by both sides. It will reduce tension if we recognize this and see justice on both sides.”[57]

The imperative of pursuing justice for serious international crimes does not diminish the difficulty in doing so. Holding to account even lower ranking suspects within the forces that helped arrest Gbagbo and consolidate the current government’s hold on power may prove to be deeply unpopular. In a divided society like Côte d’Ivoire, there may be opposition to impartial justice not only by possible targets but also segments of the population who still firmly believe that pro-Ouattara supporters were justified in committing crimes under the circumstances. Moves in the direction of pursuing impartial justice may very well spark outcries.

At the same time, without justice to end the culture of impunity, history risks repeating itself. Another civil society actor put it this way, “If we remain on the path we’re currently on, we will return to where we were before. There will be another crisis…. The impunity of today leads to the crimes of tomorrow.”[58] Indeed, the view that impartial justice is a vital ingredient for reconciliation was shared widely among those interviewed by Human Rights Watch for this report, as was the concern that its absence would fuel violence in the future.[59] cost of ignoring justice is simply too high. Moreover, steps to pursue those suspected of committing serious international crimes that are affiliated with the government in power can go a long way to inspire confidence in the rule of law.[60]

Dialogue, Truth, and Reconciliation Commission

Led by former Prime Minister Charles Konan Banny, the Dialogue, Truth, and Reconciliation Commission is composed of three vice presidents and seven commissioners representing constituencies across Côte d’Ivoire and the diaspora.[61] The CDVR’s stated objectives are to shed light on root causes of the post-election crisis, the acts and patterns of violations, and ways for the country to overcome these legacies through reconciliation and recognition of those who were victimized.[62] It can also make recommendations on institutional reforms with the aim of improving the protection of human rights.[63]

In its preparatory phase, CDVR members travelled around the country to open the process of reconciliation and to inform the public of the CDVR’s mission. This phase concluded with the period of mourning and purification.[64] The CDVR then met with community representatives and sought input from the wider population on how to give meaning to the decree creating the commission. According to a high-level CDVR official interviewed for this report, Ivorians repeatedly stressed that the CDVR should cover events beginning in 2002.[65] The official also expressed concern that the ongoing one-sided justice for post-election crimes could prejudice the implementation of the CDVR’s mandate.[66]

At the time of Human Rights Watch’s field work, the CDVR was still in the process of meeting with communities to discuss, in local languages, its mission and mandate.[67] The CDVR’s mandate was set to end in September 2013, by which point it was supposed to have taken and corroborated victim, witness, and perpetrator statements; written a report of its findings; and determined appropriate reparations, financial and symbolic.[68] In addition, the CDVR has proposed the creation of 36 sub-commissions across the country. At this writing, at least 23 of these commissions were set to be operational to continue with consultations with the local population.[69]

A comprehensive analysis of the CDVR’s work is beyond the scope of this report. CDVR officials expressed frustration to Human Rights Watch, saying their progress has been very slow, in part because of a lack of government funding.[70] However, the commission has received some government funding, in addition to external funding from, among others, the UN Peacebuilding Fund, the West African Economic and Monetary Union, and the African Development Bank.[71] The CDVR has also confronted resistance to its work by members of the pro-Gbagbo Ivorian Popular Front (Front Populaire Ivoirien, FPI).[72] In October 2012, President Ouattara and the CDVR President Banny met to reinvigorate the commission’s work.[73]

Further, at this writing the CDVR had not yet established a formal relationship with the Special Investigative Cell.[74] This is concerning since both institutions are mandated to investigate the same events, meaning they will often be seeking the same information, funding, and witnesses, including detainees who may already be in custody. Lessons from the experience of the simultaneous operation in Sierra Leone of a truth and reconciliation commission and a special court with criminal jurisdiction underscore the importance of establishing from the outset a clear relationship and modalities for addressing the conflicts that emerge between the two institutions.[75] There have been efforts to establish a platform to enable information sharing and coordination between all of the transitional justice institutions in Côte d’Ivoire, although it had not yet been concluded at this writing.[76] Human Rights Watch believes that the minister of justice, human rights, and public liberties should press for the conclusion of such an agreement as soon as possible.

International Steps towards Accountability

Given the repeated episodes of politico-military violence that have plagued Côte d’Ivoire for over a decade, it is unsurprising that the call for international justice for serious international crimes in Côte d’Ivoire has been longstanding. In April of 2003, then-President Gbagbo submitted a declaration under article 12(3) of the Rome Statute, submitting Côte d’Ivoire to the jurisdiction of the International Criminal Court (ICC) for crimes falling under its jurisdiction since September 19, 2002.[77] The validity of the declaration was confirmed by President Ouattara in December 2010, when he asked the ICC to examine crimes committed since March 2004.[78] The request was reaffirmed in May 2011, although this time he asked the ICC to limit its investigation to crimes committed after November 28, 2010.[79]

In October 2011, the ICC judges authorized then-Prosecutor Luis Moreno-Ocampo to open an investigation under his propio motu power, initially for crimes committed after November 28, 2010. ICC judges have since expanded the scope of the investigation to include crimes committed after September 19, 2002, based on the Gbagbo government’s initial request in 2003.[80] Once opened, the investigation initially proceeded swiftly: in late November 2011, former President Gbagbo was arrested on an ICC arrest warrant alleging he was an indirect co-author for four counts of crimes against humanity during the post-election crisis.[81] On November 29, 2011, Ivorian authorities surrendered him to the ICC in The Hague, where he remains in custody pending a decision by ICC judges as to whether there is enough evidence to send his case to trial.[82] In late November 2012 the ICC unsealed an arrest warrant—originally issued in February 2012—against former President Gbagbo’s wife, Simone Gbagbo. She has also been charged with four counts of crimes against humanity allegedly committed during the same period.[83] At this writing, she remains in custody in Côte d’Ivoire where she is charged with genocide, among other crimes, for acts committed during the post-election crisis.[84] The government has indicated that it is “looking closely” at the ICC request for her arrest and surrender.[85] Human Rights Watch strongly urges the Ivorian government to comply with its obligation under the Rome Statute to cooperate with the ICC and surrender Simone Gbagbo to the court or, as an alternative, challenge the admissibility of her case before the ICC because it is trying her for the same events.

The Office of the Prosecutor (OTP), now under the leadership of Fatou Bensouda, has indicated that its investigations are ongoing and impartial.[86] Despite ample evidence of crimes committed by pro-Ouattara forces that could fall under the ICC’s jurisdiction, no one has yet been indicted.[87] The OTP’s lack of action against pro-Ouattara forces reflects its pursuit of a “sequential” approach, where the office conducts investigations against one group at a time—meaning it will conclude its investigations against the Gbagbo side before pursuing pro-Ouattara forces.[88]

Human Rights Watch appreciates the challenges facing the ICC which may make it difficult to pursue all groups at the same time, at least initially. The ICC’s broad jurisdiction means that the prosecutor can, and does, act in a number of unrelated country situations simultaneously, stretching its limited resources. Further, the office must rely to an extent on the government’s permission to access the country to investigate crime scenes and interview witnesses, among other tasks. Against this backdrop, the attraction of proceeding incrementally may seem impossible to resist, especially in the face of ready cooperation by the government to proceed against one side. Indeed, in Côte d’Ivoire, the Ouattara government was ready to help the ICC build a case quickly against Gbagbo, particularly amidst concerns that Gbagbo’s continued presence in the country posed an ongoing security threat. From a practical point of view, the Ivorian government’s incentive to cooperate with the ICC was considerable, as the government sought to achieve its primary goal: Gbagbo’s quick surrender to the ICC.

At the same time, Ivorian civil society activists told Human Rights Watch that the ICC’s quick action against Gbagbo effectively diminished its leverage when it comes to securing ongoing cooperation from Ivorian authorities, especially for ICC orders against forces loyal to the government.[89] Had the Office of the Prosecutor investigated allegations and issued arrest warrants against alleged perpetrators from both sides simultaneously, it would have been in a stronger position to see its orders executed. Adopting a simultaneous rather than a sequential approach was a feasible option, given that many victims of crimes committed by pro-Ouattara forces could have been easily found in refugee camps, internally displaced persons’ camps, and through traditional and neighborhood leaders in pro-Gbagbo areas.

As more time has passed without action against anyone from the Ouattara camp, the ICC has been increasingly viewed as “playing politics” in Côte d’Ivoire, feeding the perception that only one side has access to justice. [90] Ivorian civil society activists and others said the delay in investigations associated with the sequential approach has undermined the ICC’s credibility among the wider population. [91] In a country where the ICC’s legitimacy by example is most needed, the court’s independence and impartiality are now routinely questioned.

In addition to affecting its credibility among the Ivorian population, the ICC’s sequential approach has had an unfortunate spillover effect in Côte d’Ivoire. As one civil society actor interviewed by Human Rights Watch noted,

A lot of Ivorians are waiting for [the ICC] to charge someone from the Ouattara camp. If they stop at Gbagbo, there will be a problem. If they take a couple more from the Gbagbo camp [without anyone from the Ouattara camp], there will be a problem. The ICC needs to be an example of fairness and impartiality to our own justice system, but instead it has the same problems we do here. It’s showing the government here that slow progress [toward pro-Gbagbo trials] and being one-sided is acceptable.[92]

Indeed, Guillaume Soro, Ouattara’s former prime minister and the current head of Côte d’Ivoire’s National Assembly, made this very point when asked about the lack of justice for crimes committed by his side’s forces: “It was precisely in order not to be accused of victor’s justice that we brought in the International Criminal Court … [which] people cannot claim to be complaisant or to pick sides…. Up until now the ICC has been invited to come investigate in Côte d’Ivoire. Yet, the ICC, to my knowledge, has only issued four arrest warrants, [all against the Gbagbo side]. You will agree that the ICC has decided on the basis of its investigations.”[93]

The ICC has consistently emphasized the impartiality of its ongoing investigations in its public messaging around the Gbagbo cases.[94] While such statements are important, they are simply not enough to manage the fallout of pursuing a one-sided approach over the long term—consequences that extend far beyond those to the court’s reputation. The ICC should therefore continue its investigations against pro-Ouattara forces who may have committed crimes in the court’s jurisdiction with a view to, evidence permitting, bringing forth cases as soon as possible. Issuing warrants against members of the pro-Ouattara forces, in addition to reinforcing the ICC’s impartiality, could effectively open the space for prosecutorial and judicial authorities to do the same in Côte d’Ivoire. Additional recommendations for the ICC will be discussed in Section IV of this report.