Laurent Gbagbo is preparing to (possibly) become the first former head of state to be tried by the International Criminal Court. The former Ivorian president concluded a pre-trial hearing on Thursday; ICC judges will now decide whether to proceed with a trial against the leader on charges including crimes against humanity during the violent aftermath of Cote d’Ivoire’s November 2010 presidential election.
Regardless of whether Gbagbo goes to trial, the proceedings at the Hague court are already historic. In its ten years of existence, the ICC has only issued three arrest warrants for a current or former head of state (the other two — Moammar al-Qaddafi, killed by a mob in Sirte, Libya and Sudan’s Omar al-Bashir, who continues to evade arrest — were never taken into ICC custody). For the ICC, which has faced widespread criticism for numerous issues including its dismal conviction rate, the Gbagbo case will be especially important in proving its utility on the international stage. This goes double for the court’s new prosecutor, Fatou Bensouda, who faces an uphill battle in demonstrating the court’s credibility.
As a test case for the ICC, Gbagbo’s appears to be a solid choice on the surface. The charges filed against him by the court echo accusations leveled by numerous human rights organizations and international bodies, including the United Nations Operation in Cote d’Ivoire (UNOCI) and the Office of the High Commissioner for Human Rights. The violence that engulfed Cote d’Ivoire after 2010’s disputed election, in which Gbagbo ran against current Ivorian president Alassane Outtara, was well documented by a variety of international and local rights groups. Additionally, the international outcry against him was, in a rare instance, largely unified: both European countries and African neighbors joined the call for Gbagbo to step down. In short, Gbagbo is hardly a polarizing target for the court’s first major prosecution.
There are still, however, major concerns the court must address in its prosecution of Gbagbo — and beyond.
The first serious issue the ICC must work to overcome is the perception that the court has chosen sides in the Ivorian conflict by only going after Gbagbo and not his opponents, who were also shown to have committed atrocities in the aftermath of the 2010 election. Indeed, this argument has already been leveraged against the court during the pretrial hearings by Gbagbo’s attorney Emmanuel Altit, who called his client a “scapegoat” for the violence. It is not in the court’s interest to be seen as doling out “victor’s justice“– and the fact that Cote d’Ivoire ratified the Rome Statute, which officially gives the ICC jurisdiction in the country (the court has held jurisdiction since 2003 on technical grounds), only as Gbagbo was set to go to trial in the Hague gives the impression that the court is serving as a political vehicle for Gbagbo’s opponents. (The arrest warrant issued for Gbagbo’s wife Simone Gbagbo, who has been accused by the court of acting as her husband’s “alter ego,” does not do much to dispel the perception, even if it’s deserved.)
More broadly, the ICC has been dogged by criticisms of its overall record on prosecutions. Since it was founded in 2002, the ICC has so far only successfully convicted one person, Congolese warlord Thomas Lubanga. Coming almost a decade after the court’s founding, the March 2012 Lubanga verdict rightly raised questions about the efficacy of the body. The court has been widely criticized, as well, for focusing almost exclusively on prosecuting crimes in Africa. All of the eight countries in which the ICC is currently carrying out investigations are in Africa, reinforcing accusations that the court is targeting the continent. The court’s new prosecutor, the Gambian-born Bensouda, has rejected criticisms of a “so-called Africa bias” by pointing to preliminary inquiries her office has made in other parts of the world. Though the African Union showed broad support for Bensouda’s appointment to the position, the court’s record is undeniably dominated by Africa-focused prosecutions and the high-profile Gbagbo case would do little to alter the perception of bias, even if the prosecution is successful. All of which complicates the ICC’s need to slam dunk on the Gbagbo trial. (After the disappointing loss of one of its biggest targets, Qaddafi, to mob justice — and with the continuing embarrassment of Bashir’s freedom from arrest — the body badly needs success.) And though it’s unlikely that the case will be tried quickly (the court still has up to 60 days to decide whether to even take the case to trial), should the trial proceed and yield a successful outcome for the prosecution, it will have already gone a long way in asserting the credibility of the court and establishing an important precedent: namely that heads of state are not above the law.
The function of the ICC is a significant one — or rather, it could be. Should Bensouda be successful in broadening the scope of the court’s prosecutions beyond Africa and guiding more countries towards signing and ratifying the Rome Statute — global heavyweights like the United States, Russia, and China are all non-signatories — the court could play a potentially powerful role in deterring state-sponsored political violence. While this idea is probably of no comfort to civilians in Aleppo at the moment, the possibility of holding a leader like Bashar al-Assad to account at the Hague should provide incentive for international players like the U.S. to get behind the court and support efforts to expand its reach and improve its functionality. For a gifted and powerful communicator like Bensouda, that case can be made — but doing so would require Gbagbo to be successfully (and too long of a delay would be almost as bad as outright failure on that point) prosecuted first.