Prosecuting Presidents

On November 28, 2010, Laurent Gbagbo, the president of the small West African nation of Côte d’Ivoire, lost a runoff election he had expected to win.

Faced international insistence that the voting had been fair and that his challenger’s victory was legitimate, Gbagbo arranged for the results to be invalidated, and he had himself sworn in for another term as president. Alassane Ouattara, Gbagbo’s rival, also took the oath of office, raising a rebel military force from his base of support in the north and sending it against Gbagbo’s garrisons in the capital Abidjan.

In April 2011, Gbagbo’s residence was finally surrounded. The president himself was arrested and imprisoned, albeit on relatively minor property-crime charges arising under Ivorian law. Seven months later, Gbagbo faced trial before the International Criminal Court in The Hague. This Tuesday, prosecutors formally accused Gbagbo of participation as an “indirect co-perpetrator” in four counts of crimes against humanity, including murder, rape, persecution, and “other inhuman acts” of violence against Ouattara’s supporters in the months following the disputed election.

Gbagbo’s case is particularly interesting because of the precedents it might set: the ICC is a relatively new court, and Gbagbo will be the first former head of state it has ever tried. Charles Taylor, the former president of Liberia, was tried, sentenced, and convicted last May by a specially convened international tribunal for Sierra Leone, but the ICC is a separate institution—one with a much broader grant of jurisdiction. In January 2011, the ICC issued an arrest warrant for Libya’s Muammar al-Qaddafi, but he was captured and killed before that warrant could be executed. Earlier this week, Carla del Ponte, a member of the United Nations Human Rights Council’s investigative commission on Syria, suggested that the U.N. Security Council refer Bashar al-Assad and his allies to the ICC, which would be legally empowered to prosecute them for war crimes.

As a pressure tactic, threats of international indictment are controversial: to the extent that they diminish the incentive for violent leaders to leave office peacefully, they can sometimes prolong rebellions and increase the toll associated with civil conflict. The international community’s stance on matter has until now been scattershot: arrest warrants for violent heads of state are so hard to act upon that they are generally issued for essentially declarative purposes—they tend to function more as a specialized kind of diplomatic sanction than as effective elements of an on-the-ground conflict resolution strategy.

Even when a targeted leader survives the fall of his regime, he’s not always guaranteed an ICC trial: generally, the Court will not hear a case if representatives can prove that a respective nation is both willing and able to prosecute its former leader domestically. ICC prosecutors have, for instance, spent the last several months politely disputing the Libyan authorities’ right to try Qaddafi’s son and his intelligence chief. And even though the chances of a fair post-revolutionary trial are not promising for two men so closely associated with the former regime, there’s very little the Court can do if Libya refuses to hand them over.

A trial at the ICC is, after all, an intensely political matter, and the feasibility of proceedings depends almost entirely on the strength of a given post-revolutionary government, as well as the relative peacefulness and stability of a given transition.

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