V. Legal Framework
The procureur de la république and the military prosecutor have initiated cases under Ivorian criminal law for some of the serious international crimes committed during the post-election crisis. There are three main provisions covering serious international crimes in the criminal code: genocide,[216] crimes against the civilian population,[217] and crimes against prisoners of war.[218] In terms of applicable punishments, the 2000 Ivorian constitution abolished the death penalty, although references to it still exist in the criminal code.[219] Human Rights Watch opposes the imposition of the death penalty in all circumstances as an inherently cruel and unusual punishment.
There are a number of differences between the domestic provisions and the definitions under international law. For instance, the intent to partially or totally destroy a political group is included in the definition of genocide under Ivorian law, unlike in the Rome Statute and the Genocide Convention.[220] The UN independent expert on the human rights situation in Côte d’Ivoire has raised concerns about the vagueness of the Ivorian definition of genocide.[221] To date, Ivorian authorities have charged a number of people with genocide for acts allegedly committing during the crisis, including former First Lady Simone Gbagbo.
In addition, a finding of “crimes against the civilian population” requires that the crimes were committed during a time of war or occupation. By contrast, proving crimes against humanity under the Rome Statute requires evidence that the crimes committed against the civilian population are widespread or systematic; they can be committed outside of a formal conflict.[222] Further, “crimes against prisoners of war” under Ivorian law is more limited than the definition of war crimes under the Rome Statute and the Geneva Conventions, both of which include crimes committed against civilians during a time of war.[223]
Côte d’Ivoire ratified the Rome Statute in February 2013.[224] Since Côte d’Ivoire is a monist country, once an international treaty is adopted and published, it theoretically has a higher normative status than national legislation.[225] As such, provisions of the Rome Statute could be used domestically to prosecute and try cases where the elements of the crimes in the treaty are met.[226] Further, the Ivorian government has recognized the ICC’s jurisdiction since September 19, 2002, first under a declaration under article 12(3) of the Rome Statute submitted by then-President Gbagbo, which was later confirmed by President Ouattara in December 2010 and again in May 2011. As such, the Rome Statute definitions—as clearly defined expressions of customary international law recognized by the Ivorian government—could be applied domestically to crimes committed since September 2002 without violating the principle of non-retroactivity.[227] Article 15 of the International Covenant on Civil and Political Rights, to which Côte d’Ivoire is a state party, makes it clear that individuals can be tried and punished for any act or omission which, “at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.”[228]
Prosecutors and judges should use the Rome Statute when doing so would extend the reach of justice. For instance, it may be advantageous to use the Rome Statute in cases involving alleged “masterminds” of serious international crimes who may otherwise escape accountability because they were not physically present at the scene of the crime. The Rome Statute offers modes of liability not available under Ivorian law, including command responsibility. Command responsibility can be useful to capture the responsibility of senior officials, as it encompasses military and civilian commanders whose subordinates commit international crimes, and who knew or should have known about these crimes and failed to prevent them or hand over those who carried them out for prosecution. While Ivorian law includes complicity as a mode of liability, which would address the liability of those who contribute to the commission of a crime without being physically present, it does not cover the full scope of command responsibility.[229]
Using the Rome Statute definitions of the crimes would also allow prosecutors, defense counsel, and judges to draw from the jurisprudence of the international tribunals, which would contribute to the consistent development of the legal analysis of these crimes. The Rome Statute definitions are not subject to any statute of limitations, unlike domestic crimes.[230] Since judges in Côte d’Ivoire do not have a tradition of referring to international law in their decisions, at the request of the government or lawyers working on serious international crime cases, donors should consider providing support for practical training sessions on the Rome Statute and how it could be applied domestically to most effectively address impunity.[231]
[216] Criminal Code, art. 137.
[217] Criminal Code, art. 138.
[218] Criminal Code, art. 139.
[219] 2000 Ivorian constitution, art. 2.
[220] See Convention on the Prevention and Punishment of the Crime of Genocide (“Genocide Convention”), 78 U.N.T.S. 277, entered into force January 12, 1951, art. 2; Rome Statute of the International Criminal Court (“Rome Statute”), U.N. Doc. A/CONF.183/9, July 17, 1998, entered into force July 1, 2002, art. 6. During the drafting of the Genocide Convention, the main disagreement regarding the scope of the definition of the crime was whether political groups should be included in the definition of genocide. Many subsequent commentators viewed the exclusion of political groups in the final draft of the Convention as a compromise intended to secure ratification from states that feared external interference in the suppression of internal dissents. See Machteld Boot, Genocide, Crimes Against Humanity, War Crimes: Nullum Crimen Sine Lege and the Subject Matter Jurisdiction of the International Criminal Court (Antwerp: Instersentia, 2002), p. 426; Kok-Thay Eng, Genocide Watch, “Redefining Genocide,” undated, http://www.genocidewatch.org/images/AboutGen_Redefining_Genocide.pdf (accessed January 29, 2013), p. 2.
[221]2013 report of the UN independent expert, para. 66.
[222]Rome Statute, art. 7.
[223] Rome Statute, art. 8; Geneva Convention relative to the Protection of Civilian Persons in Time of War, adopted August 12, 1949, 75 U.N.T.S. 287, entered into force Oct. 21, 1950, ratified by Côte d’Ivoire on December 28, 1961.
[224] “Côte d’Ivoire ratifies the Rome Statute,” ICC Press Release, February 18, 2013, http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/pr873.aspx (accessed February 24, 2013).
[225] 2000 Ivorian Constitution, art.86. See also Armand Tanoh and Horace Adjolohoun, “International law and human rights litigation in Côte d’Ivoire and Benin,” in Magnus Killander, ed., International law and domestic human rights litigation in Africa (Pretoria: Pretoria University Law Press, 2010), p. 110.
[226] This approach has been adopted by the military courts in Democratic Republic of Congo, which is also a monist country. See Avocats Sans Frontières, “The Application of the Rome Statute of the International Criminal Court by the Courts of the Democratic Republic of Congo,” 2009, http://www.asf.be/wp-content/publications/ASF_CaseStudy_RomeStatute_Light_PagePerPage.pdf (accessed January 29, 2013), pp. 14-18.
[227]Human Rights Watch two separate interviews with civil society actors, Abidjan, September 10 and 12, 2012.
[228] The European Court of Human Rights, in interpreting the same provision in the European Convention on Human Rights, has repeatedly held that it does not prevent the prosecution of serious crimes under international law even if at the time they were committed they were not codified under domestic law. See, for example, European Court of Human Rights, Papon v. France, (Application No. 54210/00), Judgment of 25 July 2002; Reports 2001-XII, available at www.echr.coe.int; European Court of Human Rights, Touvier v. France, (Application No. 29420/95), Commission Decision of 13 January 1997, Decisions and Reports 88-B, available at www.echr.coe.int, p. 161; European Court of Human Rights, Kolk and Kislyiy, (Application Nos. 23052/04 and 24018/04), Decision of 17 January 2006, Reports 2006-I, available at www.echr.coe.int/echr (accessed January 29, 2013). Consistent with this approach, international and hybrid criminal tribunals have allowed prosecution of war crimes and crimes against humanity for conduct prior to the creation of the applicable statutes, and several domestic jurisdictions have done the same. See, for example, Prosecutor v. Norman, Special Court for Sierra Leone (SCSL), Case No. SCSL-2004-14-AR72, “Decision on Preliminary Motion Based on Lack of Jurisdiction” (Child Recruitment) (Appeals Chamber), May 31, 2004, http://www.scsl.org/CDF-decisions.html (accessed September 21, 2007); and Prosecutor v. Hadzihasanovic, ICTY, Case No. IT-01-47-PT, “Decision on Joint Challenge to Jurisdiction” (Trial Chamber), November 12, 2002. (The Hadzihasanovic decision was reversed in part by the Appeals Chamber. See Prosecutor v. Hadzihasanovic, ICTY, Case No. IT-01-47-PT, “Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility” (Appeals Chamber), November 27, 2002. See also R. v. Finta, Supreme Court of Canada , [1994] 1 SCR 701, March 24, 1994. For a discussion of this case see Judith Hippler Bello and Irwin Cotler, “Regina v. Finta,” The American Journal of International Law, vol. 90, no. 3 (July 1996), pp. 460-476.
[229] See Criminal Code, arts. 25-30, 140. It also may be possible to pursue senior officials as “intellectual authors” of the crimes, although this mode of liability is not specifically outlined in the criminal code. Human Rights Watch telephone interview with international expert, December 26, 2012.
[230] Criminal Code, art. 135.
[231] See Armand Tanoh and Horace Adjolohoun, “International law and human rights litigation in Côte d’Ivoire and Benin,” in Magnus Killander, ed., International law and domestic human rights litigation in Africa (Pretoria: Pretoria University Law Press, 2010), p. 114.
