In this week’s review, news about Gbagbo and Blé Goudé’s acquittal and dissenting opinion, the Trial Chamber’s decision and Prosecution’s appeal on immediate release, and the Appeals Chamber’s decision to maintain custody and schedule a hearing; Questioning of former KLA members at the Kosovo Specialist Chambers and a decision on Yekatom’s language proficiency
ICC Trial Chamber issues decisions in Gbagbo and Blé Goudé
On Tuesday 15 January, Trial Chamber I of the International Criminal Court (ICC) issued its decision in the case of Prosecutor v Laurent Gbagbo and Charles Blé Goudé, acquitting both accused on all charges of crimes against humanity alleged to have been committed between 2010 and 2011 in Côte d’Ivoire based the ‘no case to answer’ applications made by the defence. While the full reasoned decision has not yet been issued, a press release from the ICC states that the Chamber, by majority, held that the Prosecutor had failed to submit sufficient evidence of responsibility of both accused for the conduct constituting the charges.
It found that the Prosecutor had failed to prove “several core continuative elements of the crimes as charged, including the existence of a common plan to keep Gbagbo in power, which included the commission of crimes against civilians ‘pursuant to or in furtherance of a State or organisational policy’; and the existence of patterns of violence from which it could be inferred that there was a ’policy to attack a civilian population’.” As a result, it found that there was no need for the defence to call evidence. This decision follows applications from both defence teams that the accused have no case to answer, which were filed in July and August 2018. Hearings on this issue were held in October and November 2018.
Following the decision, Trial Chamber I rejected by majority the Prosecution request for conditional release of Gbagbo and Blé Goudé. It found that no exceptional circumstances existed preventing their immediate release. Following their acquittal, an order for their immediate release was delivered in court on 15 January 2019, and the Prosecution requested the Chamber to impose certain conditions on their release. The Prosecution argued that it anticipates filing an appeal against the acquittal decision and that a concrete risk exists that Gbagbo and Blé Goudé would not appear for the continuation of the trial should the appeal be successful. Due to the flight risk and the non-execution of the possible second warrant of arrest, the Prosecution suggested that Gbagbo and Blé Goudé be released to a country which is a state party to the Rome Statute other than Côte d’Ivoire.
The Request outlined the underlying exceptional circumstances supporting the conditional release. These include the serious nature of crimes with which Gbagbo and Blé Goudé were charged, the pending ICC Warrant against Simone Gbagbo, Gbagbo’s influence and authority within his party and the well-organised network of Gbagbo’s supporters inside and outside Côte d’Ivoire. The Chamber in its order requested assurance from the Defence counsel for Gbagbo and Blé Goudé that they would ensure their clients’ return to the Court if necessary.
On 16 January, the Prosecution appealed the Trial Chamber’s order for immediate release of Gbagbo and Blé Goudé to the Appeals Chamber, and urgently requested suspensive effect of the Trial Chamber’s order. On 18 January, the Appeals Chamber decided by majority that Gbagbo and Blé Goudé should remain in ICC custody pending the Appeals Chamber’s decision on the appeal of the Prosecution on the Trial Chamber’s decision to immediately release the two following the issuance of their acquittal decisions. Judges Morrison and Hofmański dissented to the Appeals Chamber’s decision on maintaining custody of the two acquitted accused. The Appeals Chamber also scheduled a hearing for 1 February to hear submissions on the Prosecution’s appeal concerning release; ordering appeals submissions from the Prosecution by 23 January and from the Defence and Victims by 29 January.
Judge Herrera Carbuccia’s Dissenting Opinion of Chamber’s Acquittal of Gbagbo and Blé Goudé
In disagreement with the majority decision to acquit Mr Gbagbo and Mr Blé Goudé, Judge Herrera Carbuccia filed her dissenting opinion on 15 January 2019. The reasons for her dissent are twofold. Firstly, the delivery of the acquittal decision without providing a full and written reasoning and secondly, the conclusion by the majority that there is no evidence capable to sustain a conviction against Mr Gbagbo and Mr Blé Goudé. In reference to Article 74(5) of the Rome Statute, Judge Herrera Carbuccia argued that by providing an oral summary of its decision, the majority acted arbitrarily and in violation of fair trial rights. The judge, reflecting also on previous practice of other chambers at the ICC, maintained that a decision on the innocence or guilt of an accused shall contain a full and reasoned statement.
To do otherwise would, in her opinion, lead to an infringement of the right to a fair trial. Providing a duly reasoned judgement, the judge wrote, protects the parties from arbitrariness. In the present case, this would mainly affect the other party’s right to seek immediate appellate review, if it wished to exercise this right. In the same vein, the dissenting opinion challenged the majority’s decision to provide written reasons “as soon as possible” without stating a concrete date, and so infringing the right to know the reasons for the judgement and the right of appeal. Regarding the second part of her dissent, the Judge disagreed with the standard applied by the majority in finding that the evidence on the record is not sufficient to sustain the accused’s conviction. She contended that the correct standard is “whether there is evidence on which a reasonable Trial Chamber could convict.” Following such standard, in her opinion, would lead to the conclusion that “there is sufficient evidence upon which a reasonable Trial Chamber could convict both accused for crimes against humanity.” (ICC Dissenting Opinion)
Former Commanders of the Kosovo Liberation Army Face Questioning at the Kosovo Specialist Chambers in The Hague
Two former commanders of the Kosovo Liberation Army (UCK), Rrustem Mustafa and Sami Lushtaku, have been interviewed by the Kosovo Specialist Chambers in The Hague this week, regarding their role in Kosovo’s war of independence from Serbia. Mustafa and Lushtaku have been politically active in the democratic party for past 20 years and the Kosovar Prime Minister Ramush Haradinaj, who was twice acquitted of crimes against humanity and war crimes before the ICTY, has spoken out in support of the two men and the UCK. Many Serbians, however, allege that the UCK committed atrocities against Serbian minorities in Kosovo during the war.
Mustafa has already served a four-year sentence of imprisonment after being found guilty by a Pristina court of torturing wartime prisoners. A spokesperson for the Prosecutor’s Office, Christoper Bennet, stated that the court will investigate all allegations of human rights abuses by UCK officers contained in a 2010 report by the Parliamentary Assembly of the Council of Europe. Mustafa and Lushtaku are cooperating with the investigation and other former UCK members have been invited to interviews with the Court in the coming days. (Radio Free Europe, Balkan Insight)
ICC decides on language proficiency of Yekatom
On 11 January, Judge Rosario Salvatore Aitala, presiding as the Single Judge in ICC Pre-trial Chamber II (PTC) over the case of Alfred Yekatom, rejected the request of the Defence team to have the permanent assistance of a French-Sango interpreter and that that all filings in the case be translated into French as a matter of course. However, in the interests of fairness, and with a view to increasing Yekatom’s comprehension of the evidence, it was held that Yekatom has the right to have, on an ad hoc basis, the assistance of a French-Sango interpreter when reading the witness statements (rule 76(3) of the Rules), if he so wished. In addition, the interpreter was permitted to visit Yekatom for the purposes of the preparation of his defence and the visiting rules applicable to counsel and the Defence team members were held to apply equally to the interpreter, regardless of whether counsel is present during the visit. A warrant for Yekatom’s arrest was first issued on 11 November 2018 and on 17 November 2018 he was surrendered to the court. On 23 November 2018, Yekatom appeared before the Chamber and stated that he spoke Sango “perfectly” while his French was “not very good”.
His proficiency was then assessed at the request of the Prosecution which sought to have Yekatom declared fluent in French for the purposes of the Statute, Rules and Regulations. The ICC’S Registry Language Services Section (the “LSS”) concluded that Yekatom was fluent in colloquial French, expressed himself well and clearly, and was able to communicate effectively and to the point. In her reasoning, the Single Judge recalled that the assessment of the language abilities of any suspect must be made on the basis of the facts on a case-by-case basis and that other pre-trial chambers had consistently held that suspects did not have an absolute right to have all documents translated into a language which they fully understand and speak. As such, the Single Judge found that the right of Yekatom to be “informed promptly and in detail of the nature, cause and content of the charge, in a language which [he or she] fully understands and speaks” as per Article 67(1)(a) of the Statute, did not extend to his counsel and members of his Defence team. Rather, Article 67(1)(a) of the Statute required that the assessment of the general language abilities of the suspect. There, having regard to the information at hand, the Single Judge concluded that Yekatom was proficient in French for the purposes of the proceedings. (ICC PTC Decision on Language Proficiency)