IV. International Partners

The international community’s support for rebuilding the judicial sector has been longstanding in Côte d’Ivoire. On February 27, 2004, the United Nations Security Council established a peacekeeping mission in Côte d’Ivoire—known as the UN Operation in Côte d’Ivoire (UNOCI, or ONUCI by its French acronym).[173] Included in the resolution creating the UN peacekeeping mission was the mandate to assist the government, together with other international organizations, in “re-establishing the authority of the judiciary and the rule of law throughout Côte d’Ivoire.”[174] However, international partners’ commitment to helping Ivorian authorities pursue accountability for serious international crimes has been inconsistent over the last decade. There has been repeated reference to the need for prosecutions and trials, including by several UN commissions of inquiry, but it was only in 2011 that this need was met with concrete action: first, at the national level, with the creation of the Special Investigative Cell; and second, when the International Criminal Court opened an investigation. These are important developments, but they only represent the first steps on the long road to effectively address the entrenched culture of impunity that has plagued Côte d’Ivoire.

The complementarity principle under the Rome Statute puts responsibility for pursuing justice for serious international crimes squarely on the shoulder of states, with the International Criminal Court (ICC) only intervening as a court of last resort. The Kampala complementarity resolution highlighted “the need for additional measures at the national level as required and for the enhancement of international assistance to effectively prosecute perpetrators of the most serious crimes of concern to the international community.” This helped kick-start discussions on how to better integrate development actors in the fight against impunity. [175]

Since the Kampala resolution was passed, there has been growing and welcome recognition that international partners can use funds already earmarked for rule of law reform projects more specifically towards strengthening capacity to realize national justice for international crimes. In November 2012, the ICC’s states parties reiterated their resolve “to enhance the capacity of national jurisdictions to prosecute the perpetrators of the most serious crimes of international concern in accordance with internationally recognized fair trial standards, pursuant to the principle of complementarity.”[176]

Among donor organizations, the European Union, for instance, adopted an “Action Plan” in 2011 to implement the complementarity principle (among other ICC-related issues), which urged the EU and its member states to “support, as appropriate, the development of training and assistance for judges, prosecutors, officials, legal assistance experts and counsels” in countries unable to “properly proceed with the investigation” of ICC crimes. [177] The European Commission, the EU’s executive arm, has finalized a “toolkit,” essentially a guidance note for designing development programs in recipient countries to support national capacity building efforts to tackle international crimes. [178]

In late 2012, Helen Clark, head of the United Nations Development Programme (UNDP), reiterated her organization’s support for the idea of strengthening national capacity to handle serious international crimes as part of an integrated approach to rule of law reform efforts, flagging that such efforts “must be specifically designed from the outset with a development perspective, to enable their integration with broader justice reform programs and to maximize spill-over benefits for developing the rule of law.”[179] Further, UNDP has identified complementarity as one of the priorities in its global program for conflict-affected countries for 2013, which creates the potential to devote additional staff and financial resources to realizing the concept more concretely in specified countries.[180] At the October 2012 International Center for Transitional Justice and UNDP co-hosted “Greentree” seminar—which included criminal practitioners involved in serious crime cases and policy officials in the areas of international justice, rule of law assistance, and development—Côte d’Ivoire was discussed as a case study to analyze the needs and challenges faced by individual states prosecuting serious international crimes.[181]

Indeed, designating funds specifically for Rome Statute crimes as a “related but distinct” subset of rule of law assistance, not unlike what is already done by states for piracy, terrorism, and organized crime, can encourage cooperation with the recipient government in question when it comes to identifying benchmarks of success. Targeted assistance is necessary given the complexity of cases involving serious international crimes and the specialized expertise needed to try them, whether they are tried under domestic law or the Rome Statute. More engaged participation between the donor and recipient government increases the former’s leverage when it comes to seeing results at the national level.

While policy progress on complementarity in diplomatic circles in the ICC, the EU, and UN is welcome, it must be matched by concrete advances on the ground. As outlined in more detail below, the experience to date in Côte d’Ivoire has revealed that while key donor states and intergovernmental organizations like the EU and the UN have invested significant resources into rule of law reform projects, efforts aimed specifically at supporting efforts to pursue justice for serious international crimes have been more limited.

That is not to suggest that the projects should be donor-driven. On the contrary, without sufficient national buy-in and support for serious international crimes accountability, such projects are destined to fail. But the government in Côte d’Ivoire has exhibited some commitment to accountability, notably through the creation of the Special Investigative Cell, although the pursuit of justice has been one-sided to date. The challenge for the donor community is to capitalize on the government’s demonstration of will and square it with donors’ commitment to complementarity at the policy level. Indeed, the challenges facing the national authorities when it comes to prosecuting and trying cases articulated in Section III illustrate that there are a number of areas that could benefit from additional support. Côte d’Ivoire’s international partners should consult with national authorities to determine how this additional support could be used to best practical effect.

Human Rights Watch also urges donor states and intergovernmental organizations to increase private and public diplomacy on the need for accountability, and particularly the importance of independent and impartial justice for post-election crimes. A number of Côte d’Ivoire’s international partners have engaged in private diplomacy on these issues, which is important. However, given that nearly two years have passed since the end of the crisis and investigations and prosecutions have advanced essentially only against the Gbagbo camp, additional private and public diplomacy appears needed to press the government to put its oft-cited commitment to impartial justice into action. This is especially relevant in light of concerns about rising tensions as a result of the one-sided pursuit of accountability to date, outlined in Section II.

Finally, while it will only handle a handful of cases, the close scrutiny by Ivorians of the ICC’s actions to date—and its undeniable impact on the domestic justice agenda—only underscores why it is essential for the ICC to continue its investigations against pro-Ouattara forces and, evidence permitting, to bring charges as soon as possible. By pursuing pro-Ouattara perpetrators, the ICC could help cultivate a climate in Côte d’Ivoire that expects authorities at the national level to follow suit. Perceived and real inaction at the international and national levels risks stoking long-simmering political tensions that could erupt into new rounds of political and ethnic violence in the future. Recommendations for the ICC’s Office of the Prosecutor are also discussed below.

Financial and Technical Support

At the outset, it should be underscored that coordination among bilateral and multilateral donors—instrumental to avoid duplication, improve efficiency, and capitalize on collective leverage—is strong in Côte d’Ivoire. Under the Gbagbo government, the Ministry of Justice showed little interest in coordinating the relatively few donors in place at the time, so the international stakeholders themselves established regular donor coordination meetings, which were chaired by the EU and UNOCI.[182] The Ouattara government has since identified reforming the justice sector as one of its priorities. The coordination meetings continue and are held every two months.[183] There is also a transitional justice coordination group, which meets monthly.[184]

As mentioned earlier, in April 2012, the Ministry of Justice finalized a national justice sector strategy, which forms the basis for interventions in the justice and prison sectors by the government, the UN, the EU, and other partners from 2012 to 2015. While the creation of the Special Investigative Cell is referenced as a point of context, there is no mention of specific initiatives aimed at improving capacity to deliver justice for serious international crimes. At this writing, the corresponding action plan, which identifies how the priorities will be implemented and will serve as a roadmap for international partners supporting justice reform, had yet to be finalized by the Ministry of Justice.[185] However, the latest draft awaiting government sign-off makes no reference to measures to improve capacity for serious international crimes.[186]

Outside of the action plan, donors can support accountability efforts for serious crimes. For instance, in addition to supporting broader justice sector reform efforts, the United States government provided funds for two independent legal experts to assist the Special Investigative Cell for several months with technical assistance on international standards for organizational, investigative, and prosecutorial processes.[187] The assistance that has already been provided represents the first phase of a two-phased approach.[188] Agreement in principle has been reached between the US and the Ministry of Justice to proceed with the second phase which will also include support to provide independent legal experts within the Special Investigative Cell. [189]

Staff members at UNOCI have also provided support directly to the Special Investigative Cell. The UN Security Council has directed UNOCI “to continue to support national and international efforts to bring to justice perpetrators of grave abuses of human rights and violations of international humanitarian law in Côte d’Ivoire, irrespective of their status or political affiliation” in a manner that is consistent with its authorities and responsibilities.[190] Assistance ranges from logistical support—including escorting investigating judges to western Côte d’Ivoire, providing equipment, and technical support on exhumation—to strategy advice on policy questions.[191]

The EU is one of the largest donors to justice reform efforts: to date, this support has totaled 18 million euros (about US$24 million).[192]There are a number of areas where the general support to the judicial sector can benefit defendants in cases of serious international crimes. For instance, as discussed above, the EU is supporting efforts to improve fair trial guarantees by revising provisions in the Code of Criminal Procedure relating to preventative detention and the cour d’assises.[193] However, the EU is not providing assistance specifically aimed at supporting the prosecution, investigation, defense, or trial of serious international crimes.[194]Consultations are currently underway between the EU, Ivorian government officials, and civil society to identify priority areas to support with the next funding cycle of the European Development Fund (2014-2020).[195]

UNDP’s rule of law assistance has been primarily focused on access to justice and land rights.[196] On the subject of access to justice, at present, the legal aid system which exists under Ivorian law does not function in practice. As such, the UNDP, together with UNOCI, the United Nations Children's Fund (UNICEF), and the EU, is working to put in place six legal clinics throughout the country to offer legal advice and representation with a focus on women and children.[197] The project also includes working with members of the bar association and Ministry of Justice officials to revise legislation to make it easier to access legal aid as needed (for instance, by clarifying definitions about who is eligible to receive assistance and putting in place a more practical system for reimbursement).[198] However, there is no specific support aimed at assisting victims or defendants of serious international crimes.[199] France, another large donor to the justice sector in Côte d’Ivoire, has not directed any of its funds to specifically support capacity building efforts for serious international crimes.[200]

We urge Côte d’Ivoire’s international partners to think proactively about how assistance designated for justice sector reform could more directly 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 ongoing capacity development of those prosecutors and judges handling violent crimes committed during the crisis. Training sessions could be designed to match existing needs when it comes to developing skills to facilitate the prosecution and trial of these cases (such as how to build cases using linkage evidence, ways to conduct investigations with maximum discretion, and how to effectively protect witnesses and minimize trauma). Similarly, legal aid assistance programs could direct a portion of already designated funding to support nongovernmental organizations (NGOs), paralegals, and local lawyers dealing with cases of serious international crimes. The provision of such funding could be conditioned by attendance of local lawyers to adequate training on legal representation of victims (for civil parties) and substantive international criminal law, including defenses. Donors could also provide valuable financial and technical support in the areas of witness protection and judicial security.

The assistance should go beyond immediate training to be effective. Donors should consider developing prior definitions of relevant departure points to evaluate results when it comes to cases of serious international crimes. These departure points could be identified in different ways. For instance, since the National Commission of Inquiry report identified more than 1,000 incidents involving possible crimes against humanity or war crimes, donors could require the investigating judges, judicial police, and prosecutors that have received specific training to conduct a specific number of investigations or prosecutions within a set period of time. Of course, when it comes to providing support and developing departure points, buy-in by the national government is essential—which presumably exists in Côte d’Ivoire, at least in the government’s rhetorical commitment to impartial justice to date. Given the strong donor coordination that exists in Côte d’Ivoire, international partners could make a significant impact when it comes to working with the government to improve domestic capacity to handle serious international crimes.

Diplomatic Support for Independent and Impartial Justice

Through private and public diplomacy, international partners in Côte d’Ivoire have an important role to play in helping to encourage a political climate that favors the pursuit of independent and impartial justice. A number of diplomatic officials interviewed by Human Rights Watch indicated that they had repeatedly engaged in private diplomacy with the Ouattara government on both the importance of justice and the need to pursue all allegations, regardless of the author of the crime.[201]

Strategic use of public diplomacy at appropriate times can help build pressure on the government to more robustly support accountability efforts. The EU High Representative Catherine Ashton issued a statement in April 2011 underscoring the need for justice for all perpetrators of human rights abuses.[202] In October 2012, European Commission President Jose Manuel Barroso called for a “wide and frank dialogue that will open the path to real national reconciliation” and “impartial justice.”[203] In December 2012, Ivan Simonovic, UN assistant secretary-general for human rights, stressed the need for accountability for human rights abuses to avoid future violence.[204] The same month, US Ambassador to Côte d’Ivoire Philip Carter III underlined the need for impartial justice as a necessary ingredient for reconciliation.[205]

These statements are important, and can contribute to building a sense of momentum around prioritizing accountability for all perpetrators of serious international crimes. However, as more time passes with action against only one side, diplomats should press the government on the specific steps the government should take (including those identified in Section III) to deliver results at the national level. UN bodies, in their reporting functions, can play a role in this regard.

In his first report to the UN Human Rights Council, the UN independent expert on the human rights situation in Côte d’Ivoire took note of local and international opinion against victor’s justice, but did not delve into the issue further.[206] In his second report to the UN Human Rights Council, he provided deeper analysis about the problem and its impact, as well as the structural problems that compromise the fair trial rights of defendants. The independent expert also organized a conference in Yamoussoukro from February 21-23, 2013 on impunity and impartial justice in Côte d’Ivoire, after which he provided recommendations to the Ivorian government on addressing the country’s legacy of serious international crimes.[207] Diplomats should take note of the independent expert’s in-depth analysis and recommendations to advance discussions on impartial justice with the Ivorian government.

Similarly the UN secretary-general’s reports to the UN Security Council offer an important opportunity to showcase progress—or lack thereof—on the issue of accountability and impartial justice, but the approach to date has been inconsistent.[208] Notably, the June 2012 report by the UN secretary-general made no reference to the lack of impartial justice. The absence is startling since the previous report—issued just three months before—noted with concern the perception of “one sided justice” and urged the government to ensure “that investigations are independent and impartial, and to ensure individuals are brought to justice, irrespective of their political affiliation.”[209] In addition, the July 2012 UN Security Council resolution extending UNOCI’s mandate through July 2013 acknowledges the need for impartial justice but only mentions the work of the National Commission of Inquiry and the Dialogue, Truth, and Reconciliation Commission in this regard; there is no reference to the role of the Special Investigative Cell.[210] The omission of the Special Investigative Cell in this context—while mentioning the other two transitional justice pillars established by President Ouattara—leaves the impression that the UN Security Council views criminal justice as somehow less important.

More recently, in his January 2013 press briefing, the UN secretary-general’s special representative in Côte d’Ivoire denounced ongoing impunity in the country and helpfully flagged the importance of justice for all sides. However, the publicly available December 2012 report of the UN secretary-general makes only passing reference to the need for “equitable justice” without any expression of concern about its absence to date.[211] Consistently flagging concern regarding the lack of impartial justice is essential to maintain pressure on the government to take action to remedy the situation. Human Rights Watch therefore urges the UN secretary-general, in preparing future reports, to provide more details about the government’s pursuit of impartial accountability, including his analysis about the obstacles to its realization.

Indeed, the government’s vague promises of impartial accountability are insufficient to suppress the rising sense of frustration that has emerged due to the gap between rhetoric and reality. As more time passes without concrete action to combat perceptions that the government is only pursuing victor’s justice, Côte d’Ivoire’s international partners should amplify their private and public efforts on the need for accountability for all authors of serious crimes. Donors should step up their engagement to press the government to make concrete progress, including in the areas identified in this report: supporting judicial independence, strengthening capacity in investigations and prosecutions, improving fair trial rights of defendants, establishing a system of witness protection, and promoting judicial security.

In addition, diplomats should continue to stress both privately and publicly their support for the ICC and the importance of the Ivorian government’s cooperation with the institution in its ongoing investigations and cases.

The International Criminal Court

As outlined in Section III, the ICC’s pursuit of only one side of the conflict to date—the losing side—has created perceptions that the ICC has been used as a tool of the government to get rid of its enemies. In addition to compromising the ICC’s credibility, the sequencing approach has been mimicked in Côte d’Ivoire, which has fueled rather than eased tensions. Human Rights Watch therefore urges the ICC prosecutor to continue investigations in Côte d’Ivoire against both sides of the conflict with a view to bringing forward cases against individuals from the pro-Ouattara forces who, evidence permitting, are 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 forces would go a long way in rehabilitating the ICC’s credibility in Côte d’Ivoire as an impartial institution, and could help create the space for Ivorian judicial and prosecutorial authorities to do the same. The lack of action by national authorities against the pro-Ouattara forces only underscores the urgency of doing so.

In addition to pursuing evidence and bringing forth charges against pro-Ouattara forces, the ICC can provide valuable support to domestic justice efforts in several cost-neutral ways. First, ICC staff can help by flagging gaps in capacity so that donor support can be directed to best effect.[212]Second, during planned missions to Côte d’Ivoire, ICC staff could seek out opportunities to provide informal training or workshops for national staff in areas where weaknesses have been identified, such as witness protection. Indeed, the ICC has indicated that some training on witness protection has already been provided to staff in the Dialogue, Truth, and Reconciliation Commission (CDVR).[213] Third, given the need to map the post-election crimes as noted in Section III, the Office of the Prosecutor can share its analysis of the conflict and other non-confidential materials to facilitate investigations by national authorities. While this information can be derived from public sources, the analysis may be of significant value to national prosecutors and investigating judges with less experience handling serious international crimes. Such information may also facilitate national efforts to develop a more comprehensive prosecutorial strategy.

The ICC plans to open a field office in Abidjan that will include representatives of the court’s registry handling outreach and communications as well as victims’ participation and reparations. [214] At this writing, the office had not yet opened. While the commitment to establish a field office is welcome, it is disappointing that this commitment has not yet been operationalized nearly 16 months since the opening of the investigation.

In the meantime, ICC staff members have been involved in training Ivorian journalists and NGOs about the ICC’s mandate and its work in Côte d’Ivoire. [215] These efforts notwithstanding, many negative perceptions about the ICC’s work in Côte d’Ivoire have been allowed to take root and thrive throughout the country. Human Rights Watch looks forward to the intensification of the court’s outreach and communications efforts once the field office is operational. Traveling outside Abidjan—including to refugee camps in Liberia, for instance—will be essential 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.