Case Name: The Prosecutor v. Laurent Gbagbo

Date: June 12, 2014

Alleged Violations: Crimes against humanity, Murder, Rape, Inhumane Acts, Attempted Murder, Persecution

On June 12, 2014, a majority of Pre-Trial Chamber I of the International Criminal Court confirmed the charges against Laurent Koudou Gbagbo under Article 61(7) of the Rome Statute, thereby committing him to trial before the Court. Specifically, the Chamber found sufficient evidence to establish substantial grounds to believe that Gbagbo, the former president of Côte d’Ivoire, is responsible for the crimes against humanity of murder; rape; other inhumane acts, or, in the alternative, attempted murder; and persecution based on acts carried out against civilians in the months following the contested Ivorian presidential election of late 2010. Judge Christine Van den Wyngaert dissented from the decision.


The charges against Gbagbo stemmed from four major incidents occurring in and around Abidjan, the former capital of Côte d’Ivoire, between late November 2010 and April 12, 2011. The first was the use of force by members of the Forces de Défense et de Sécurité (FDS), militias, and mercenaries against unarmed civilian protesters demonstrating at the Radiodifusion-Télévision Ivoiriene (RTI) building on December 16, 2010, which resulted in the killing of at least forty-five civilians, the rape of at least sixteen women and girls, and other injuries against at least fifty-four additional individuals. The second was an attack by the FDS on a women’s demonstration demanding Gbagbo’s resignation on March 3, 2011, which led to the death of seven women and the injury of three. The third was the shelling of the Abobo market and other densely populated areas on March 17, 2011 by pro-Gbagbo forces, which killed at least sixty civilians and wounded at least forty more. Finally, there was a series of simultaneous attacks by pro-Gbagbo forces on various centers of support for Gbagbo’s political rival, current Ivorian president Alassane Ouattara, on or around April 12, 2011, leading to the deaths of at least seventy-five people, the rape of at least twenty-two women, and injury to at least two additional civilians.

Elements of the Crimes

In its legal analysis, the Chamber first considered whether the elements for each crime against humanity charged by the Prosecution had been satisfied. Citing evidence of killings and rape across the four incidents described above, the Chamber determined that the elements of the crimes against humanity of murder and rape were met. With respect to the alternative charge of other inhumane acts as a crime against humanity or attempted murder, the Chamber found the elements of each were satisfied by evidence that pro-Gbagbo forces injured at least eighteen persons and that these acts caused great suffering and serious bodily harm. It therefore confirmed both charges in the alternative, leaving it to the Trial Chamber to determine “the correct legal characterisation of these criminal acts.”[1] Lastly, turning to the charge of persecution, the Chamber found that the victims of the killings, rapes, and beatings carried out by pro-Gbagbo forces were “targeted by reason of their identity as perceived political supporters of Alassane Ouattara.”[2] The Chamber specifically noted that the attacks took place at pro-Ouattara demonstrations or in areas known to be inhabited largely by Ouattara supporters. In addition, the Chamber found that acts of violence were carried out on ethnic grounds against groups originating in the north of Côte d’Ivoire, such as Dioula and Baoulé; national grounds, against nationals of other West African countries and Ivorians of West African descent; and religious grounds against Muslims. The Chamber thus confirmed the charge of persecution as a crime against humanity on political, national, ethnic, and religious grounds.

“Course of Conduct”

The Chamber then analyzed whether the contextual elements of crimes against humanity had been satisfied, explaining that Article 7(1) of the Rome Statute requires that crimes against humanity be carried out as part of a widespread or systematic attack directed against a civilian population. It further noted that, under Article 7(2), the definition of “attack” requires “a course of conduct involving the commission of multiple acts pursuant to or in furtherance of a State or organizational policy.”[3] Beginning with the question of whether an “attack” had been carried out, the Chamber observed that the phrase “course of conduct” “embodies a systemic aspect as it describes a series or overall flow of events as opposed to a mere aggregate of random acts.”[4] Thus, as other Pretrial Chambers of the Court have held, the expression “implies the existence of a certain pattern[,] as the ‘attack’ refers to a ‘campaign or operation carried out against the civilian population’, which involves the multiple commission of acts… directed against any group distinguishable by nationality, ethnicity or other distinguishing features, including (perceived) political affiliation.”[5] According to the Chamber, this means that the commission of multiple acts is not the only consideration relevant to establishing a “course of conduct.” Rather, because there must also be “a certain ‘pattern’ of behavior, evidence relevant to providing the degree of planning, direction or organisation by a group… is also relevant to assessing the links and commonality of features between individual acts that demonstrate the existence of a ‘course of conduct.’”[6]

Here, the Chamber found that a course of conduct was established by evidence that multiple acts of violence were carried out over the course of several months against a targeted population by like-minded perpetrators, and that the various incidents forming the basis of the attack shared a number of common features “in terms of their characteristics, nature, aims, targets and alleged perpetrators, as well as times and locations.”[7]

“A State of organizational policy”

Next, the court considered whether the course of conduct was carried out in furtherance of a State or organizational policy to commit an attackThe Chamber cited to earlier jurisprudence holding that an “attack which is planned, directed or organised – as opposed to spontaneous or isolated acts of violence – will satisfy the policy criterion,”[8] noting that “there is no requirement that the policy be formally adopted.”[9] In this case, the Chamber found that Gbagbo and his inner circle had contemplated using violence to protect Gbagbo’s role as president even before the 2010 election.

The Chamber also addressed two interpretations of the requirement that the policy be attributed to a State or organization. On the one hand,  previous Pre-Trial Chambers have held that any group that has the capacity to carry out a widespread or systematic attack against a civilian population will qualify as an “organization” for purposes of Article 7(2) of the Statute. Conversely, dissenting opinions have expressed that the relevant group must possess state-like characteristics.[10] However, because the Chamber found that the evidence in this case supports a finding that Gbagbo and his inner circle, together with the FDS, militia, and mercenary forces that they controlled, formed an “organization” within the meaning of Article 7(2) under either of these two views, it did not need to choose one interpretation over the other. Alternatively, the Chamber found support for the Prosecution’s claim that the relevant group “comprised part of the State apparatus” at the time it adopted its policy of violence, and thus held that Article 7(2) could also be satisfied with a finding of a State policy to carry out the attack.

Widespread and Systematic

Completing its analysis of the contextual elements of crimes against humanity, the Chamber determined that the attack against civilians was both widespread and systematic. In support of the former, the Chamber noted that the attack was large-scale in natureand involved a significant number of acts carried out over an extended period of time against many victims across a broad geographic area. In support of the latter, the Chamber cited to the fact that preparations for the attack were made in advance, the attack was planned and coordinated, and that there was a “clear pattern of violence directed at pro-Ouattara demonstrators or activists,” as well as those merely perceived to be Ouattara supporters.[11]


In terms of modes of liability, the Chamber began by explaining that the Prosecutor had charged Gbagbo under several alternative theories of responsibility, including indirect co-perpetration under Article 25(3)(a) of the Rome Statute, ordering under Article 25(3)(b), contribution to the commission of crimes under Article 25(3)(d), and superior responsibility under Articles 28(a) and (b). Before analysing the various allegations, the Chamber expressed that “when alternative legal characterisations of the same facts proposed by the Prosecutor are satisfactorily established by the evidence, it is appropriate that the charges be confirmed with the various available alternatives, in order for the Trial Chamber to determine whether any of those legal characterisations is established to the applicable standard of proof at trial.” In the Pre-Trial Chamber’s opinion, this approach is “desirable” because “it may reduce future delays at trial, and provides early notice to the defence of the different legal characterisations that may be considered by the trial judges.” As the Pre-Trial Chamber found substantial grounds to support Gbagbo’s direct responsibility for the crimes under various theories of liability, it confirmed each of the charges, in the alternative, under Articles 25(a), (b), and (d) of the Rome Statute. By contrast, the Chamber was not convinced by the evidence that the accused bears responsibility based on a “mere failure to prevent or repress the crimes committed by others” pursuant to Article 28.[12] Specifically, the Chamber determined that the evidence put forward by the Prosecution supporting a failure on the part of the accused to prevent violence or punish those who carried out crimes “taken as a whole, demonstrates that this failure was an inherent component of the deliberate effort to achieve the purpose of retaining power at any cost, including through the commission of crimes.”[13] As such, the Chamber continued, “the consideration of Laurent Gbagbo’s responsibility under [A]rticle 28 of the Statute would require the Chamber to depart significantly from its understanding of how events unfolded in Cote d’Ivoire during the post-electoral crisis and Laurent Gbagbo’s involvement therein.”[14]  Accordingly, the Chamber declines to confirm the charges under Article 28.


In her dissenting opinion, Judge Van den Wyngaert explained that, while she did not doubt that “horrendous crimes were committed against civilians by forces loyal to Laurent Gbagbo,” she did not find sufficient evidence regarding the accused’s responsibility under the modes of liability confirmed by the majority.[15] Regarding indirect co-perpetration, Judge Van den Wyngaert disagreed that the evidence created substantial grounds to believe either that there was a concerted plan to facilitate the perpetration of violence against civilians or that pro-Gbagbo forces were intentionally used by the accused – alone, or with members of the inner circle – to commit crimes against civilians. Additionally, Judge Van den Wyngaert added that the context of insurgency against Gbagbo could not be ignored. While it could be argued that, by sending troops into densely populated civilian areas, Gbagbo accepted the risk to civilian life, she argued that this is not equivalent to instructing or instigating troops to target civilians. Similarly, Judge Van den Wyngaert did not find sufficient evidence that the accused “ordered or otherwise deliberately prompted the commission of any of the crimes against civilians,” or that he implicitly induced the commission of those crimes.[16] Finally, Judge Van den Wyngaert rejected the notion that Gbagbo bears responsibility under Article 25(3)(d) because: (i) she found no evidence of a group acting with a common purpose, and (ii) even assuming the existence of such a group, she was unconvinced that the necessary “contributions” were made to this group by Gbagbo with knowledge of the group’s criminal intent.

[1] ICC-02/11-01/11-656 at para. 203.

[2] ICC-02/11-01/11-656 at para. 204.

[3] ICC-02/11-01/11-656 at para. 208.

[4] ICC-02/11-01/11-656 at para. 209.

[5] ICC-02/11-01/11-656 at para. 209

[6] ICC-02/11-01/11-656 at para. 210

[7] ICC-02/11-01/11-656 at para. 212

[8] ICC-02/11-01/11-656 at para. 215

[9] ICC-02/11-01/11-656 at para. 215

[10] ICC-02/11-01/11-656 at n. 517.

[11]ICC-02/11-01/11-656 at para. 225

[12] ICC-02/11-01/11-656 at para. 263.

[13] ICC-02/11-01/11-656 at para. 264.

[14] ICC-02/11-01/11-656 at para. 265.

[15] ICC-02/11-01/11-656-Anx 12-06-2014 (Van den Wyngaert, J., dissenting) at para 12.

[16] ICC-02/11-01/11-656-Anx 12-06-2014 (Van den Wyngaert, J., dissenting) at para 7.