PROSECUTOR v. LAURENT KOUDOU GBAGBO
Case No. ICC-02/11
International Criminal Court
Pre-Trial Chamber III
Decision on the Prosecutor’s Application Pursuant to Article 58 for a warrant
of arrest against Laurent Koudou Gbagbo
November 30, 2011
Presiding Judge Silvia Fernández de Gurmendi
Judge Elizabeth Odio Benito
Judge Adrian Fulford
Gender Keyword(s): Rape; Sexual Violence
Procedural History: On October 3, 2011, the Pre-Trial Chamber III (the Chamber) authorized an investigation in Côte d’Ivoire ( 1). On October 25, 2011, the Prosecution filed an application for a warrant of arrest against Laurent Koudou Gbagbo alleging individual criminal responsibility as an “indirect co-perpetrator” for four counts of crimes against humanity: murder, rape and other forms of sexual violence, persecution, and inhumane acts for alleged conduct committed during the post-election violence from November 28, 2010 onward in Abidjan and elsewhere in Côte d’Ivoire ( 4, 6). The Prosecutor submitted that Gbagbo and his supporters adopted a policy of attacking his political opponent, Alassane Dramane Ouattara, members of Ouattara’s political group, and civilians who were believed to support Ouattara, and that this policy was allegedly implemented by pro-Gbabgo forces—led by Gbagbo and his cohorts—through the commission of widespread and systematic attacks on civilians ( 8). This is a digest of the Chamber’s November 30, 2011 decision on the Prosecutor’s application for a warrant of arrest for Gbagbo.
Disposition: The Chamber first addresses whether the Court has jurisdiction and whether the case is admissible under Article 19 of the Rome Statute ( 8). The Chamber decides that having met the preconditions of subject matter, temporal, and territorial jurisdiction, Gbagbo’s case falls under the Court’s jurisdiction ( 8- 16). The Chamber declines to exercise its discretion in assessing the admissibility of the case ( 24). Next, the Chamber addresses whether the Prosecution’s application satisfies the Article 58 requirements for issuance of a warrant of arrest, that there are “reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court” and that the arrest of the accused is necessary to ensure the accused appears at trial, does not compromise the investigation, and/or ceases to commit the crimes for which the arrest warrant is issued ( 80). The Chamber concludes that “there are reasonable grounds to believe that in the aftermath of the presidential elections in Côte d’Ivoire pro-Gbagbo forces attacked the civilian population in Abidjan and in the west of the country, from 28 November 2010 onwards. They targeted civilians who they believed were supporters of Mr. Ouattara, and the attacks were often directed at specific ethnic or religious communities” ( 36). The Chamber also finds that there are reasonable grounds to believe that the pro-Gbagbo attacks were part of an organizational policy and that the attacks were widespread and systematic ( 54). With regard to Gbagbo’s alleged responsibility for the attacks, the Chamber notes that “it is premature to decide, certainly with any finality, whether Article 25(3)(a) of the Statute is the correct basis for proceeding against Gbagbo… or whether the various elements of the prosecution’s theory of ‘indirect co-perpetration’ are relevant to, or applicable in, this case,” but finds the evidence of Gbagbo’s role in the common plan that led to the commission of the alleged crimes sufficient to issue the arrest warrant ( 74-77). Finally, the Chamber finds that “the continued arrest of Mr. Gbagbo is necessary to ensure his appearance before the Court” because of Gbagbo’s continued political and economic support, which could help him abscond; evidence that “forces close to him” have obstructed the investigation of serious crimes by the United Nations; and his access to weapons, which creates a threat of violence if he is released ( 86-87). Thus, the Chamber “decides that the conditions established by Article 58(1) of the Statute in order to issue a warrant of arrest against Lauren Koudou Gbagbo are met in relation to his alleged criminal responsibility within the meaning of Article 25(3)(a) of the Statute for the crimes against humanity of (1) murder under Article 7(1)(a), (2) rape and other forms of sexual violence under Article 7(1)(g), (3) other inhumane acts under Article 7(1)(k) and (4) persecution under Article 7(1)(h) of the Statute committed in the territory of Côte d’Ivoire during the period between 16 December 2010 and 12 April 2011” (p. 45).
Key Gender-Based Holdings:
• The Prosecution alleged the crime against humanity of rape and other sexual violence under Article 7(1)(g) of the Rome Statute in its application for an arrest warrant for Gbagbo ( 58). Specifically, the Prosecutor alleged that between November 28, 2010, and May 8, 2011, “pro-Gbagbo forces committed multiple attacks against civilians… during which they were responsible for … over 35 rapes” ( 31). However, the specific evidence offered by the Prosecution in support of this count was redacted from this decision ( 59). The Chamber finds that, “[o]n the evidence, there are reasonable grounds to believe that the crime against humanity of … rape and other forms of sexual violence under Article 7(1)(g) [was] committed in Côte d’Ivoire during the period between 16 December 2010 and 12 April 2011” ( 69).
• As noted above, the Prosecutor’s application requesting an arrest warrant for Gbagbo alleged Gbagbo’s individual criminal responsibility for four crimes against humanity, including rape and other forms of sexual violence pursuant to Article 7(1)(g) of the Rome Statute, but the evidence offered by the Prosecutor in support of this charge has been redacted from this decision ( 58-59). The Chamber finds that, “[o]n the evidence, there are reasonable grounds to believe that the crime against humanity of … rape and other forms of sexual violence under Article 7(1)(g) [was] committed in Côte d’Ivoire during the period between 16 December 2010 and 12 April 2011” ( 69).