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Is justice for egregious international crimes best served at the national domestic level or at the International Criminal Court (ICC)?

Thought Leader, Mail&Guardian
16 March 2015
Angela Mudukuti

Is justice for egregious international crimes best served at the national domestic level or at the International Criminal Court (ICC)? The March 9 2015 domestic conviction and sentencing of Ivory Coast’s former first lady, Simone Gbagbo, has raised this and other important questions. Wanted by the ICC for her role in the orchestration of post-election violence in 2010, she is the first woman to be indicted by the ICC. The Ivory Coast government refused to transfer her to The Hague indicating that she would stand trial in Ivory Coast and face the music for violence that resulted in the deaths of an estimated 3 000 Ivorians and the displacement of 500 000 more.

Violence erupted after former president Laurent Gbagbo refused to accept defeat in the 2010 presidential elections. As part of his refusal he waged a violent campaign against supporters and suspected supporters of his victorious rival Alassane Ouattara. His wife was identified by the ICC as a key member of his inner circle who played a crucial role in ordering the perpetration of rape, persecution and sexual assault. Justice in her case has been swift and unforgiving. She was sentenced to 20 years in prison for undermining state security, disturbing the peace, forming and organising armed gangs.

Laurent Gbagbo was arrested and transferred to The Hague in November 2011 where he awaits trial, set to commence in July this year. The Gbagbos were both charged with crimes against humanity including rape. The ICC’s brief track record shows that the average trial can take anything from 4 to 10 years. It is a long time. The ICC has previously faced criticism about the long, drawn-out trials having only secured its first conviction after 10 years of legal wrangling. In the face of the speedy conviction and sentencing of Simone Gbagbo one cannot help but compare her trial to that of her husband.

In addition, the fact that the Ivory Coast authorities declined to transfer her to The Hague despite the ICC’s request also shows how easily the court is defied. To add insult to injury, the Ivorian authorities conducted a swift trial, which brings into focus just how slowly the wheels of justice turn at the ICC.

While this does bring the ICC into the unrelenting spotlight (yet again) it could give the court’s image a much-needed facelift. Allow me to explain. The ICC was founded on the principle of complementarity, which means that its role is to try perpetrators in the event that the country with jurisdictional primacy is unwilling or unable to conduct a fair trial.

In a perfect world, the ICC would cease to exist as domestic jurisdictions would step up to the proverbial plate and fairly administer justice. Much of the ICC’s work is premised on this principle of complementarity and via the situation in the Ivory Coast we see complementarity in action. This speedy trial could give credit to the founding tenets of the ICC’s Rome Statute, which could help people understand that it is not a court designed to swoop in and save the day, but an institution aiming for the comprehensive and holistic administration of justice, domestically and internationally.

Though justice was indeed swift in this case, questions about fairness and impartiality have been raised. The politically charged nature of the case automatically means that controversy was inevitable. For example, the sentence handed down was double that requested by the prosecutors. This has fueled speculation of political bias.

Where does this leave the quest for justice for the perpetration of crimes that shock the conscience of humanity? Perhaps justice is best served at the domestic level by national courts. If domestic systems are willing and able to conduct fair and impartial trials then let justice be served at the national level. Seeing as this is not always the case — enter from stage left — the ICC. With any luck the ICC will find a happy balance between judicial efficiency and transparent, well-conducted trials.

Angela Mudukuti is an international criminal justice lawyer at the Southern Africa Litigation Centre, a Johannesburg-based human rights NGO.


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