“The International Criminal Court is weakening itself”

FAU international law expert Prof. Dr. Christoph Safferling about decisions taken at the ICC and what they mean for its future

The International Criminal Court (ICC) has acquitted Laurent Gbagbo, former President of Ivory Coast, and Charles Blé Goudé, the former youth minister of the country. It is already the second acquittal by the court during the last eight months. The pair were acquitted due to procedural errors and insufficient burden of proof. What do these verdicts mean for the credibility and the future of the International Criminal Court? Prof. Dr. Christoph Safferling, Chair of Criminal Law, Criminal Procedure and International Law at FAU, gives his opinion.

After the spectacular acquittal of the former Vice President of the Democratic Republic of Congo, Jean-Pierre Bemba, two defendants from Ivory Coast were also acquitted by the ICC yesterday. How did this unusual increase in acquittals come about?

Bemba, who at that time was the highest-ranking politician ever to face trial at the ICC in The Hague, was released by the Court of Appeals in June 2018 after 10 years in detention pending trial. Yesterday, Laurent Gbagbo and Charles Blé Goudé from Ivory Coast were acquitted of accusations of crimes against humanity after a trial lasting three years and more than seven years of detention pending trial. Legal questions were at the foreground of Bemba’s case. It was not possible to prove that the militia leader personally took arms and fought during a conflict. As an ‘armchair perpetrator’ in Congo, he directed his troops in the Central African Republic, where they committed war crimes. In a surprise move, the judges tightened the legal requirements for criminal responsibility – to what extent, for example, did Bemba know what the soldiers were doing? To what extent was he able to influence the behaviour of the soldiers in this situation? And then the judges acquitted him. The case against Gbagbo and Blé Goudé was rather weak from the outset. Violence erupted after the presidential elections and Gbagbo, as one of the election candidates, was accused of inciting this violence. The judges of the Court were apparently not convinced by the proof of the chief prosecutor and ended the trial. There is still the possibility of an appeal.

What do these acquittals mean for the future of the International Criminal Court?

Acquittals shed a positive light on a state governed by the rule of law. They are a sign of the independence of the judiciary. This also applies to the International Criminal Court. However, we must still be able to raise questions about the quality of the work of the Court as a whole and the Office of the Prosecutor in particular. The Chief Prosecutor is apparently unable to prepare these cases in such a way that she can convince the judges that the defendants are guilty. At the same time, the judges change the legal requirements from case to case, making it difficult for the prosecutors to prepare the cases appropriately. 20 years after passing the ICC statute and 15 years after starting its work in The Hague, the international community can surely expect that all the legal and organisational frameworks at the Court are up and running properly. This is not the case. Only one single case is currently being heard at the ICC. This is a very poor result for an annual budget of more than 140,000,000 euros.

Is the Court’s position being strengthened or weakened by these acquittals?

The ICC is weakening itself. The ICC started its work in 2003 with great, and certainly partially overly optimistic, expectations. It has yet to meet any of these expectations. So far, only a couple of small-scale militia leaders from Congo have been prosecuted due to their deployment of child soldiers. The ICC’s special form of victim participation and compensation was hailed as a revolution in criminal procedure. But what happens to the thousands of victims who are strongly encouraged to take part in these trials when the defendants are acquitted? Victims then also lose their right to compensation. The emotional stress associated with the loss of victim status caused by these acquittals is unimaginable. The ICC continues to lose credibility.

Further information:

Prof. Dr. Christoph Safferling
Phone +49 9131 8522247
christoph.safferling@fau.de