ICC: Laurent Gbagbo and Blé Goudé Vs the Prosecutor.

There has never been a Common Plan to commit crimes: Here is why.

Mr Laurent GBAGBO, former President of the Republic of Côte d’Ivoire (Source: Google images).

The rendezvous of 01 October 2018 that we were waiting impatiently to celebrate national unity if Laurent Gbagbo and Blé Goudé were released has just passed, leaving behind several million hearts of Ivorians and Africans bruised; we will have to wait another 40 days, or 960 hours, to hope to know the epilogue of a crisis which continues to divide the Côte d’Ivoire and to crystallize, worldwide, the positions between the pros and the anti-ICCs. This delay, which certainly gives the defence team times to examine in depth the 1093 pages and the 6000 footnotes to them submitted by the prosecution is a real ordeal for the Ivorians, a much more punishment to which will be added, undoubtedly, a few more weeks that will be devoted to the judges’ deliberation.

This delay, all the stress it causes and all the misery it is bringing about, is not helping strengthen the process of reconciliation in Côte d’Ivoire that is just waiting for the good news of the release of Laurent Gbagbo to bear fruits. Meanwhile, its negative effects will continue to ravage the Ivorian social fabric because, a court, the ICC, which continues to suffer repeated assaults from the United States, but that is desperately dubbed by the neo-colonialist France, conspired a virtual Common Plan in its vain attempt to justify the application of Article 25 (d) of the Rome Statute to crucify a former African president and his minister. Since 2016, the prosecution is trying unsuccessfully to demonstrate the existence of this plan to highlight the commission of crimes against humanity which, in reality, have never been committed by the accused.

According to the Office of the Prosecutor, this plan was put in place by Laurent Gbagbo and his closest associates to commit serious crimes against the pro-Ouattara to maintain power. The question raised by this allegation refers us to the identity of those Gbagbo’s collaborators whom the prosecutor’s team constantly refers to. What are their ethnic origins? This question is paramount because to commit a crime under the jurisdiction of the ICC, one must have acted; either alone or jointly with one or more persons or through one or more persons (Article 25-3a). But, it is important to emphasize that the perpetrators of this kind of crime have often had (this is verified historically) a common identity or shared ideological values which may be political, religious, philosophical etc …

The question of the identity of the accused’s immediate entourage is also of interest to us because international law does not define genocide according to the number of victims, but according to the identity of the perpetrators and the methods they use to reach their end. According to the Treaty of Rome, they must especially have planned their crimes and the victims must have been targeted because of their ethnicity, political, religious, philosophical etc … In the Ivorian case, to set up a common plan, Gbagbo and his immediate entourage would have needed a common identity and shared ideological values. In Africa, the common identity that underlies mass crimes has often been ethnicity.

In this case, we are told of a group of people who have met regularly at the accused’s home to prepare criminal activities against their political opponents, particularly those from the North Côte d’Ivoire. According to the assistant prosecutor, Mac Donald, these people have subsequently carried out their activities through Ivorian regular forces or with the help of the self-defense groups. But more than that, Mr Gbagbo and the people in question have encouraged and supported the commission of the alleged crimes, assert the prosecution. This is why Bensouda, the chief prosecutor, and her team accuse them and call for the continuation of the trial at a time when the defence team, with the support of the Chamber in charge of the case, pleads for the dismissal of the case.

However, Article 25-3d (ii) of the ICC Statutes, to be enforced, requires that Laurent Gbagbo and his collaborators must have acted with full knowledge of the intent to commit the alleged crimes. Which implies that Gbagbo’s close associates who participated in the crisis meetings and to whom the prosecution was referring to during the hearings of October 1, 2 and 3, 2018 must have known that the meetings were, indeed, gatherings that were preparing crimes against pro-Ouattara; In clearer terms, this means, in the understanding of the article quoted above, that political personalities such as Aboudramane Sangare, Koné Boubacar, Koné Katinan, Touré Moussa Zéguen, Konaté Navigué etc … all citizens from the north of Côte d’Ivoire, knew clearly that they were conniving, at the various crisis meetings, to commit mass crimes against northerners. Has it really been the case? The prosecutor answers yes without showing any evidence. But, from our point of view, this allegation is implausible and totally absurd.

How can members of the elite of the Ivorian north conscientiously prepare a plan to carry out crimes against their own people? We want the prosecutor to tell us clearly what interest these intellectuals would have in doing so. No, Madam Prosecutor, the northerners in the entourage of President Gbagbo have never contributed to the commission of some kind of crimes against their brothers and sisters. Moreover, to my knowledge, crimes committed with the victims’ relatives in the front lines of the chain of responsibility have never occurred in Côte d’Ivoire or anywhere else in the world.

The genocide of Tutsis (1994) resulted from an armed confrontation between two peoples from the same nation: Rwanda. On one side there were Hutu and on the other, Tutsis. In this East African country, one people (Hutu), has organized to neutralize another (Tutsi) on the basis of an alleged “racial” difference inherited from Western colonization and to achieve its political goal. In this conflict, the members of each camp were bound by a strong cultural identity; some were Hutus, others, Tutsis, two distinct ethnic groups.

In Germany during the Second World War, the Nazis defended the racial superiority against the Jews. In Hitler’s political program presented in a 1925 book titled Mein Kampf (My Struggle), the leader of the Nazi party already clearly advanced the idea of superiority of the German people over other peoples. This allowed the Germans from 1933 to commit atrocities on Jews from Germany and Europe to keep the purity of the Aryan race. Testimonies of the presence of Jews alongside German racists during the Holocaust are controversial until now because the so-called Jewish collaborators were actually only mixed Germans. With regard to the Armenian Genocide (1915-1916), which France finally recognized by Law No. 2001-70 of 29 January 2001, it resulted in massacres, planned and executed by the Young Turks, the party in power in the Ottoman Empire at the time of the atrocities. French historian and writer Philippe Videlier states that “there was a desire [among young Turks] for ethnic cleansing to restore Turkish purity”.

In these three cases cited, there was on one side the oppressor, the Hutus, the Nazis and the Muslim Turks, clearly identified who each availed themselves of an ideology relating to the race (Hutus and Germans) or religion (Young Turks). It is these “values” that the members of these three social organizations had in common that led them to exercise the power of life and death over their respective victims.

Let us return to ICC and examine further the prosecutor’s allegation under the above-mentioned provisions and examples cited with regard to individual criminal responsibility (Article 25). This Article 25 of the Rome Statute refers to the famous Common Plan.

For the avoidance of doubt let us remind that close collaborators of Mr Gbagbo who have concocted this alleged plan with their leader have always been mostly those we commonly call the Dioulas in Côte d’Ivoire; they are nationals of the far north of Côte d’Ivoire. It is essential to specify at this stage of our analysis that I do not point out this fact to show some kind of opposition to Gbagbo’s choice of collaborators, but I take this step to shed more light on the imprecision that Mrs Bensouda and her Office continue to maintain in an affair which jeopardises the future of the Ivoirian nation.

The impressive number of Dioula intellectuals around Gbagbo completely destroys the Common Plan thesis that the prosecution continually raises to meet the requirements of Article 25a of the Rome Statute. But it does so without answering the following relevant question: These northerners, close to Gbagbo, could they be part of a Common Plan to carry out systematic and targeted attacks against their own people? This crucial question is a real obstacle that the prosecution will have to lift in order to hope for the continuation of the trial; it deserves a clear and honest answer from the Office of the Prosecutor.

While waiting for the Prosecutor’s answer, which may never come, my answer to the question is clearly NO. No, the Dioulas close to Gbagbo, nationals of the north and Muslims, could not be actors of a set of strategies which aimed to neutralize in a systematic and targeted way the members of their own ethnic group.

If there had been only one or two northerners around Mr Gbagbo during the crisis, your allegation might have earned some kind of credibility. Unfortunately for you, Gbagbo’s collaborators from northern Côte d’Ivoire have always outnumbered those of other ethnic groups including those from the region of the accused.

The indisputable reality that shows that the former president’s closest collaborators have always been mostly members of the ethnic group of the victims who are the only ones of interest to you in this trial alone is enough to conclude that there has been no common plan. The assertion of the assistant prosecutor Mac Donald would have had a weight if Gbagbo was surrounded only by Bétés (his ethnic group) or at least by southern elite relatively to the line of demarcation traced during the period of crisis (2002-2011). Fortunately, this has never been the case. That is why it is not honest to speak of a common plan in the case of Laurent Gbagbo & Blé Goudé against the prosecutor. The prosecution is desperately struggling to meet the requirements of Article 25 of the Rome Statute to demand the continuation of the trial, but alas, it cannot even put together the actors’ puzzle of the so-called common plan. The prosecutor’s challenge to provide to the Chamber pieces of pieces of evidence beyond any reasonable doubt reveals itself as the accusation’s real nightmare.

It is worth recalling again before concluding my analysis that mass crimes like the ones we are alluding to here are almost always based on ideologies and their preparations are done in a complete discretion, far from public places such as the residence of the head of state, stadiums or any other public places as alleged by the prosecution in this case. For Hitler, the ideology that underpinned his criminal campaign against the Jews was the superiority of the German race, for the Young-Turks regime, the crimes committed by the Muslims were aimed at neutralizing the Christian Armenian minority. In Côte d’Ivoire, we are still waiting for the prosecutor’s office to give us the ethnic and/or ideological base on which its famous common plan against pro-Ouattara would have been based.

We expect the prosecutor to tell us what Gbagbo and his collaborators have in common so strongly; was it ethnicity, culture, region, religion? If the elites of the north, close associates of Gbagbo, have really contributed directly or indirectly to the commission of crimes against pro-Ouattara, as the prosecutor alleges, they must certainly have in common a strong ideological conception with their leader. What might be this common ideology? Is it so strong that Dioulas elites have denied their origin?

There were certainly many victims during the Ivorian crisis between 2002 and 2011, but Mr Gbagbo and his immediate entourage are not the perpetrators. And, the French historian Hippolyte Taine (1828-1893), in his letter of September 7, 1870, to the American colonial painter John Durand (1822-1908), places responsibilities so well in such circumstances when he states that “The true aggressor is the one which makes war inevitable”. Since crimes of aggression are among the four international crimes falling within the ICC’s jurisdiction ratione materiae, the court should look for who was the aggressor during the Ivorian crisis. As a reminder, while Ouattara was calling for war, Laurent Gbagbo was recommending the peaceful way to resolve the post-election crisis.

The only crime against humanity for which the victims and their parents are still waiting for justice is that committed in Duékoué in March 2011 by a horde of traditional hunters from the north, all from the same tribe, against the Wê people in the West of Ivory Coast.

At a time when the case of Laurent Gbagbo and Blé Goudé against the prosecutor seems to be coming to an end, we ardently hope that the judges will not let the prosecution’s arguments prosper. Doing so will clearly violate the relevant provision of Article 51 of the United Nations Charter; a provision which guarantees the right to self-defense to its member-states in the event of armed aggression against their institutions and which, moreover, is almost taken up again by Article 31c of the grounds for exoneration of the criminal responsibility of the Rome Statute. These articles thus make legal and legitimate the various crisis meetings held by Mr Laurent Gbagbo and his immediate entourage as well as the peacekeeping operations conducted by the regular forces against rebel attacks.

Finally, we think that the rigour of the judges will allow politics to leave the courtroom to allow the law the chance to be told so that our two personalities recover freedom. Doing otherwise would be a way to finally convince all those who hitherto hesitated to realize that the imprisonment of Gbagbo is justified by the obtaining of his tormentors of a greater good: the maintenance of Mr Ouattara in power. Such an option would not be consistent with the notion of justice as fairness as described by the political philosopher John Rawls in the “Theory of Justice”.

In light of the above, we call on the wisdom of the ICC’s judges; they must seize the opportunity offered to them by the defence team to disqualify all the charges and pronounce an unconditional acquittal of Laurent Gbagbo and Charles Blé Goudé. We trust them.

Arsene DOGBA, Political scientist

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