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  • Writer's pictureNicoletta Fagiolo

From Bouaké to The Hague, justice denied

The Hague-based International Criminal Court (ICC), when it decides to open an investigation into grave human rights abuses writes up a situation report, which analyses the patterns of violence on the ground and identifies those most responsible for committing the crimes within a given crisis.

In the current Laurent Gbagbo and Charles Blé Goudé ICC case however a recently leaked French diplomatic document reveals that on the 11 April 2011, five months before the opening of an investigation, the ICC’s Prosecutor Luis Moreno Ocampo requested that Laurent Gbagbo, the President of the west African country Cote d’Ivoire, be kept imprisoned until a country refers the case to the ICC. Twenty high level French diplomats were copied on the e-mail sent by the Africa director of the French Ministry of Foreign Affairs Stephane Gompertz, and were thus aware of the political manoeuvring taking place to discard Laurent Gbagbo, a very popular President, from his country.

Cote d’Ivoire saw a five months post-election crisis which followed the 28 November 2010 election run-off[i] between the incumbent President Laurent Gbagbo, a historian, socialist and the founding father of the multi-party system in Côte d’Ivoire and Alassane Ouattara, who was Prime Minister under the dictatorial regime of Félix Houphouët-Boigny from 1990-1993 and then pursued a career in international diplomacy at the Central Bank of West African States and the International Monetary Fund.

To this day it is still not clear who won the elections, but Laurent Gbagbo at the time had been declared the winner by the country’s Constitutional Council and was officially sworn in as President. He had also asked for a recount of the votes, which the United Nations refused. President Jocob Zuma, who was mandated at the time by the African Union as part of a high level Panel of Experts to act as mediators in the Ivorian crisis, was claiming Gbagbo had won the elections. Why he subsequently did not push for a peaceful solution to the crisis remains a mystery. A military intervention by the UN and French Licorne forces, as well as Ouattara’s Forces Nouvelles rebels ousted Gbagbo on the 11 of April 2011 and arrested him.

Hours after Gbagbo’s arrest the incriminating French Foreign Ministry e-mail was sent. The subject of the e-mail is also revealing: an instruction to French diplomats that they should deny any French involvement in the dislodging operation.

Commenting on the ICC leaks international criminal law lawyer Joseph Bemba said on French radio RFI, “it's serious. If this is the case, it means that the ICC did not act strictly within the framework of the law, but followed political negotiations.” Canadian International criminal law lawyer Christopher Black commented: “of course this e-mail, if it is authentic, is explosive. It shows that Gbagbo's arrest was for political reasons, that the charges against him are thus fabricated, the defence team should demand a halt to the trial, call for Gbagbo’s immediate release and open an investigation into this criminality.”

Prosecutor Luis Moreno Ocampo confirmed to the German magazine Der Spiegel, part of the European Investigative Collaborations (EIC) network that revealed the ICC leaks, that his emails had been hacked.

Despite the confirmed authenticity of the email leaks no action has been taken by any NGO or UN organisation to denounce the grave breach of due process. Human Rights Watch, who even sent a witness to the ICC trial, also stated they had no comment to make[ii]. NGO Justice Monitor also said they had nothing to say, as they are only following the trial (although they have stopped writing briefs on this trial, with no explanation as to why the most high-level ICC trial is no longer monitored by them).

If the case was flawed from the beginning also the information collected by the ICC was misleading. In fact a ICC Registry report on Victims’ Representations dated 29 August 2011 by Silvana Arbia and Didier Preira stated they were not able to provide the Chamber with any assurances or even estimates regarding the representativeness of the information gathered during the exercise. For example no refugees - thousands of whom had fled the country after the military attack of Ouattara’s Force Nouvelles rebels - were included.

As for the crimes committed during the war by Ouattara’s Forces Nouvelles rebels such as the Duékoué massacre of 800 civilians in just one day on 29 March 2011, the worst incident of the crisis, exposed at the time by the International Committee of the Red Cross (ICRC), the ICC has not issued any arrest warrants against these perpetrators.

Who is Laurent Gbagbo? When Gbagbo became President in 2000, he had 30 years of nonviolent struggle behind him and had witnessed the achievement in 1990 of the first point of his program, a multi-party system. In 2008 when I was working on a documentary about African cartoonists on the frontline in the defence of freedom of expression, Résistants du 9ème Art (Rebels of the 9th Art), I also had some images of the Ivorian satirical magazine Gbich!. The deputy editor Mendozza Y Caramba, told me an anecdote: one day he received a phone call that announced the arrival of the President. Mendozza, whose comic strip was very critical of Gbagbo, Les Habits neufs du Président (“The President’s new clothes”) laughed, thinking at first that it was a joke. Instead Laurent Gbagbo arrived after 10 minutes at their office, praised their work, complimenting them, despite their biting satire against him. I was struck. I had already encountered a similar anecdote about another famous African president, Nelson Mandela, which I decided to use in the film. Mandela had called Jonathan Zapiro, who had been a cartoonist in the forefront of the anti-apartheid struggle and told him “great work, you’re doing your job” even if Zapiro, now that Nelson Mandela’s party, the African National Congress (ANC), was in power, attacked it fiercely with his cartoons. But I did not forget that Gbagbo had had the same spirit as Mandela.

South African President Thabo Mbeki, who was a mediator in the crisis in 2004 as well as 2010, wrote the article What the World Got Wrong on Côte d’Ivoire, where he recalls how the United States ambassador in Abidjan, Wanda L. Nesbitt, had already warned her government in 2009 that without some basic requirements fulfilled – a territorial and fiscal reunification of the country, the return of the national administration to the north, and especially the total disarmament of the Forces Nouvelle rebels implanted in the north since 2002 – no democratic elections could be held. More recently Mbeki pointed out the illegal decision on the part of the ICC, which did not drop the case against Gbagbo although two judges out of three had in 2014 declared at the pre-trail stage that there was not sufficient incriminating evidence to begin a trial.[iii]

The European Investigative Collaborations (EIC) Court Secrets project published articles on an eventual honey trap dinner that Angelina Jolie wanted to organise in order to capture rebel Lord's Resistance Army Joseph Kony; Prosecutor Ocampo’s off shore accounts, most probably legal and as new Libyan client of his which has ties to General Khalīfa Haftar (whom all articles already define as a war criminal, thus breaching the presumption of innocence). Ocampo’s efforts, after he left the ICC, to have President Uhuru Kenyatta case withdrawn for lack of evidence, is also reported by the EIC as a lack of integrity on the part of the former Prosecutor, yet the EIC journalists do not then go on to question the legality of Kenyatta’s arrest in the first place. The clear breach of due process on the part of the ICC in the on-going Gbagbo trial, which should according to some experts call for an immediate closure of the trial, was only reported by French investigative site Mediapart and not picked up by any of the other major European newspapers of the EIC network, leaving one to wonder why gossip is privileged over breaking news.

In October 2017 the ICC denied for the twelfth time an interim release to Gbagbo. Amnesty International (AI) denounced this as a violation of the presumption of innocence of the accused that has already spent seven years behind bars for his trial. Yet the illegality of his detention, following the evidence of a machination revealed for the first time by the ICC leaks, was downplayed by AI.

The April 2011 regime change in Cote d’Ivoire, heavily denounced at the time by Russia and India at the United Nations Security Council, was actually a continuation of previous attempts to reverse Gbagbo in 2002 - when rebels crossing the boarder from Burkina Faso occupied the northern part of the country- and again in 2004.

Since the Forces Nouvelles rebels had refused to disarm since 2002 despite the peace agreements that had called for their disarmament, Gbagbo planned to liberate the north from the rebels and reunify the country. He was successfully disarming the rebels after just two days of military intervention when on November 6, 2004, two Sukhoi 25 aircraft belonging to the Ivorian armed forces (FANCI) and piloted by Belarusian mercenaries bombarded the French military camp in Bouaké killing nine French soldiers, an American civilian, as well as injuring forty-nine French soldiers in the attack. The French, accusing Gbagbo of the incident, destroyed the country’s entire aviation force. What followed was another attempted French coup d’état stopped only due to the extraordinary non-violent resistance movement led by youth leader Charles Blé Goudé’s who called millions of people onto the streets[iv]. The French forces shot at Ivorian demonstrators à mains nues (unarmed), which saw the death of 67 people and injuring over one thousand, but could not intervene militarily due to the crowds of people protecting the Presidential residence.

On the 31 of October 2017 lawyer Jean Balan, who represents 22 of the families of the French victims of the 2004 Bouaké bombing incident, sent a letter to the French Parliament to raise attention on what he thinks, after thirteen years of investigations, was a French orchestrated manipulation that begs urgent legal attention. Balan asked that the French Parliament take action as he feels the proceedings were gravely hindered, and although they had established that former Defence Minister Michèle Alliot-Marie had lied under oath, no further action was taken and the case still remains pending, with no trial date in sight at the high court of Paris.

The examining magistrate Sabine Kheris has requested to also hear Dominique de Villepin (then Interior Minister), Michèle Alliot-Marie (then Defence Minister) and Michel Barnier (then Foreign Affairs Minister) before the Court of Justice of the Republic. This is also pending to this day, thirteen years after the incident.

Published 30 November 2017

The Mercury and Cape Times, South Africa

[i] Background on the November 2010 elections and a two part film on the elections and

[ii] On HRW role in this trial

[iii] Thabo Mbeki on Gbagbo case (after minute 10)


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