The International Criminal Court’s (ICC) chief prosecutor was given permission to investigate possible war crimes and crimes against humanity committed in Ivory Coast related to the post election violence last year. Although the election recognized Alassane Ouattara as the winner, Laurent Gbagbo, the incumbent, refused to give up his position. A period of violence followed the political tension in which the ICC prosecutor’s office suggests at least 3,000 people were killed, 72 disappeared, 520 were subject to arbitrary arrest, and 100 cases of rape were reported. Ivory Coast was not a party to the Rome Statute and this would be the first instance in which the ICC opens a case against a country that was not a party to the statute. The Ivory Coast has accepted the ICC’s jurisdiction in this matter, but groups such as Human Rights Watch urge the ICC to delve further and investigate the violence during years of civil war. Human rights violations have been indicated as far back as the 2000 election, allegations ranging from sexual violence to the implementation of child soldiers under the watch of Gbagbo and the current prime minister Guillaume Soro.
The violence over the last decade in Ivory Coast, particularly the most recent events following the election of Ouattara, demonstrate the serious and tragic difficulty the nation has encountered in the implementation of democratic government. Considering the widespread violence resulting from the election outcome along with the refusal to accept the results of the election, is democracy destined to create horrific situations in nations like Ivory Coast? Can a democratic government be successful when the people it is intended to protect endure the impact of such extreme political standoffs? Is Gbagbo’s refusal to withdraw from his position a remote occurrence or is his behavior doomed to be repeated? How can the international community aide in facilitating Ivory Coast’s democratic model in a manner that safeguards the people of the nation? Does the international community have an obligation to become involved given the tragic circumstances? Would Ivory Coast’s political autonomy be threatened by international involvement?
Additionally, should the ICC extend its probe back further in time to include the human rights violations dating back to 2000? Does Ivory Coast’s consent to jurisdiction of the ICC include the potential previous events? Should the consent extend?
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Extending the temporal jurisdiction of the ICC is not that simple a premise. Article 22(1) of the Rome Statute reads: ‘A person shall not be criminally responsible under this Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court.’ This provision as it applies to non-party states raises two important questions: Is it a crime “within the jurisdiction of the Court” if Cote D’Ivoire has not yet ratified the Rome Statute? How can the non-party state’s nationals be put on notice as to the criminality of the act in the absence of the state’s ratification?
To extend the temporal jurisdiction further back than 1 July 2002 would be to assume that all nationals of Cote d’Ivoire were on effective notice of the illegality of all ICC crimes despite the fact that the government of Cote d’Ivoire had not taken action internationally or domestically to establish that illegality and put its nationals on notice. Can the international community be comfortable with that premise?
I have long believed that democracy is not for everyone. Not every nation can institute a democracy. Some nations simply aren’t prepared after years of totalitarian rule to do an about-face and wholeheartedly adopt democracy. It starts first with education. The young need to be educated in the tenets of democracy so that they understand how to implement it. The older generations, only understanding “how they have always done things”, will have a hard time making the transition. The youth, educated in democracy will not have these troubles.
Some nations will never be able to adopt democracy. Their societal structures are simply too at odds with the concept. In Afghanistan, for example, loyalty to one’s clan is the most important thing to most individuals, so a strong national democracy is not a real possibility. While the human rights abuses on the Ivory Coast should not be tolerated, perhaps that nation is simply not ready for a democracy. Although that nation has not signed the Rome Statute, the perpetrators of violence should be prosecuted. Democracy may not always be the answer, but neither is violence.
Louis brings up a very valid point regarding the difficulties in transitioning to democracy, especially for a country that is accustomed to decades, even centuries of totalitarian rule. It is easy to say that the international community should step in to facilitate such a change, but do we really have any right to? First states do have a right to self-determination in pursuing their own political ideals. Furthermore, the UN Charter only allows intervention in instances where there is a threat to or breach of international peace, stability and/or security. Unless the problems in the Ivory Coast can be shown to destabilize the region, the UN does not have standing to get involved. Even intervention to stop the human rights abuses is a tenuous position. First humanitarian intervention is not explicitly provided for by the UN Charter. Some argue that human rights atrocities that “shock the conscience” by their very nature create a threat to international peace and stability, however, the threshhold for this level of abuses is not clear. Even assuming that the abuses committed in the Ivory Coast do rise to that level, humanitarian intervention, in accordance with the Responsibility to Protect Doctrine, can only be undertaken when it is the sole purpose of the intervention is to stop the abuses. Put another way, the international community can’t get involved in the Ivory Coast in the name of humanitarian intervention with the actual goal to be to facilitate regime change or establish a democratic government. While it might seem ideal for the international community to get involved and come to the aid of the Ivory Coast, the legality of doing so is tenuous at best.
Many residents of the Ivory Coast feel that Gbagbo should be brought before the Ivorian court instead of the ICC stating that it would help restore confidence in the country’s legal system. However, so does Gbagbo, he wishes to be judged by his own people instead of an international tribunal. Some domestic courts have already begun prosecuting post election was crimes however they have been very one sided. About 118 Gbagbo supporters have had charges filed against them, while no Ouattara supporters have any filed against them.
The ICC action is supported largely by the people of the country and encourage the court to continue to widen the investigation. Currently the court is investigating crimes committed by both parties and the court has broadened the scope to crime since 2010. Additionally, the court has asked for information on crimes committed since 2002 which signals that they may continue to widen the scope of the investigation. A waiter from Abidjan expressed his interest in having the scope of the investigation widened as a way to “elucidate what really happened. But they shouldn’t just look into what happened since December. They should go back to 2002 to see how we ended up here. Before that, Ivorians didn’t know guns.” This is a very surprising statement given the recent history of violence and human rights violations in this county. Other supporters say that the investigation needs to span the full term of the violence in order to have the maximum impact.
It is also notable that the Ivory Coast’s new government launched a Truth and Reconciliation Commission, similar to the one that was in South Africa. It is aimed at creating peace in the aftermath of all of the violence of the past decade.
This case marks the seventh investigation of this court in Africa, however, so far verdicts have yet to be reached in any of the cases. Arrest warrants have been issued for numerous warlords, however, there are no police to carry out these warrants.