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7. JUSTICE FOR COTE D’IVOIRE – INTERNATIONAL ENGAGEMENT ESSENTIAL

Human Rights Watch takes the view that national courts have primary responsibility for prosecutions of crimes committed within national borders.  However, when national justice systems are unwilling or unable to prosecute serious violations of international law, alternative judicial mechanisms, such as an international or mixed national-international tribunal may be necessary to ensure that justice is done.  In assessing whether using the Ivorian national courts would be appropriate, there must be careful consideration given to the government’s ability and willingness to try the cases, the government’s effective control over the territory where some of the crimes took place, and the current political and social context within which the trials would take place. Several other crucial factors within the Ivorian national justice system which must be given careful consideration include their adherence to international fair trial standards; independence and impartiality of the chambers and prosecution; relevant experience of judges, prosecutors and investigators; witness protection; and security.

Human Rights Watch believes that justice for victims of serious human rights crimes in Côte d’Ivoire, including war crimes and crimes against humanity, can not be achieved without significant support and engagement from the international community.

Some of the reasons for this are as follows:

1) The Ivorian government has demonstrated very little political will to hold accountable members of the security forces, political parties or militias believed to be responsible for serious crimes.

2) Within the rebel-held part of the country – thought to be at least fifty percent – there are no legally constituted courts, nor has the rebel leadership established a legitimate judicial authority. The rebel leadership has shown no political will to try serious crimes where their commanders or combatants are implicated. There have been numerous reports of rebels summarily executing suspected looters and rapists without trial and of suspected criminals and rival combatants dying in detention. The rebel leadership is very unlikely to subject themselves or their subordinates to the jurisdiction of Ivorian government courts, without significant international involvement.

3) While the Cote d’Ivoire constitution provides for an independent judiciary, the Ivorian judiciary has in practice succumbed to pressure from the executive branch and outside influences, most notably corruption. More politically sensitive cases are reported to be subject to pressure from the executive branch, ruling party or ethnic interests. Fairness in criminal cases are often undermined by corrupt magistrates and judges.¹⁵ There are also concerns that the overt political activity or affiliation of some justice ministry personnel might create the perception of bias or, in some cases compromise their independence in politically sensitive cases.

4) There are frequent, albeit not systematic, cases of arbitrary arrest and detention, and pre-trial detention in both criminal and politically sensitive cases often exceeds the statutory limit.¹⁶ While not systematic, Human Rights Watch has documented numerous cases of civilians and unarmed combatants who have been brutally tortured, raped, “disappeared,” forced to confess and sometimes killed while detained within police and gendarme stations.¹⁷ Also, while the judicial system provides for court-appointed counsel, there are very few public defenders to provide this service.

5) The security situation in the country remains polarized along ethnic, religious and political party lines, which is also the case in the justice system. This creates huge challenges for the adequate protection of witnesses and other court staff. On several occasions the security forces have been either unwilling or unable to control attacks on judicial and government institutions. For example on March 10, 2004, scores of  youth from a pro-government militant group called the “Young Patriots,” stormed the Ministry of Justice in Abidjan to protest recent appointments made by the Justice Minster, who is also the president of one of the key opposition parties.

As one Ivorian lawyer living in exile explained, “The problems within the Ivorian judicial system reflect the same divisions and weaknesses that characterize Ivorian society today. Independence and impartiality of our judges and magistrates are severely compromised not only by corruption, but also by ethnic favoritism, political party affinities and religious prejudice. The society is divided by deep ethnic rivers and these rivers flow through the judicial system itself. ”¹⁸