Does Conflict Produce Winners and Losers? Or Just Survivors?

Ivory Coast is bypassing the courts as it recovers from a decade of violence—posing a challenge to the international justice system.
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Refugees mourn the death of a relative at a camp in western Ivory Coast during the country's post-election violence in 2011. (Reuters/Luc Gnago)

ABIDJAN, Ivory Coast—At 5 a.m. on a recent Sunday, I ate grilled chicken and drank Solibra beer with friends at an outdoor stand along a road that connects the vast working-class district of Abobo with the more upscale Angré neighborhood in this metropolis of 5 million, the economic capital of Ivory Coast. It had been a long night, nothing unusual in Abidjan, where entertainment, informal commerce, and street life rumble on around the clock. Clusters of early-morning eaters sat near us at low wooden tables. The road traffic was light at that hour, but plenty of orange taxis passed by, slowing in search of a fare.

There wasn’t a police officer in sight—nor, for that matter, a soldier or vigilante. The scene felt normal and safe. But just three years ago, it had looked starkly different. Ahmed, a friend at our table, gestured down the road and then back to us. “We’re drinking here now,” he said. “You should have seen this place during the crisis. Abobo emptied out. All along this street, there was nothing but people walking, carrying whatever they could.”

***

Between December 2010 and April 2011, political violence paralyzed Abidjan, killing an estimated 3,000 people and scattering more than 370,000 as the city—the second-largest in West Africa, and a major port and business hub—nearly imploded. Committing executions, rapes, and disappearances, security forces swept through opposition strongholds and local militias skirmished. The crisis began when the incumbent president, Laurent Gbagbo, refused to concede defeat in a November 2010 runoff to his rival Alassane Ouattara, the winner according to the country’s election commission. Defying the United Nations and most of the international community, Gbagbo clung to power until former rebels, in control of northern Ivory Coast since a 2002 civil war, advanced south, picking off loyalists with the support of French and UN troops. Gbagbo was finally extracted from his fortified residence in April 2011, leaving Ouattara to assume control of a country in utter disarray.

A woman dries palm seeds in Dabou, 30 miles from Abidjan. (Reuters/Thierry Gouegnon)

Today, life in Abidjan shows remarkably few traces of these events. Ouattara is presiding over 9-percent growth and a revival of Ivory Coast’s political and economic clout, which was once considerable in the region but has shriveled over the last decade. Investors are flocking back, attracted by the country’s rich agriculture—it’s the world’s largest cocoa producer and exports many other crops—and mining potential. French, Chinese, and Tunisian firms are completing infrastructure projects, including Abidjan’s long-awaited third lagoon bridge. The African Development Bank is moving back to its Abidjan headquarters. As the country comes back to life, Gbagbo and two of his closest allies face charges of crimes against humanity before the International Criminal Court (ICC). Ivory Coast’s courts, meanwhile, have charged 150 civilian and military figures for crimes committed during the crisis, and a truth commission is hearing victim testimonials.

But in Ivory Coast (officially known as Côte d'Ivoire), the delivery of post-conflict justice appears to be at odds with the restoration of peace and economic development. While investors and creditors praise the government’s performance, human-rights groups warn of “winner’s justice”—of the ICC and Ivorian courts prosecuting only Gbagbo’s camp while leaving warlords and militia leaders who supported Ouattara unpunished. And now, even this one-sided justice may be in jeopardy. In the last few months, the government has cut a series of political deals, freeing key Gbagbo aides and luring others back from exile. Instead of bolstering the norms of post-conflict justice that institutions like the ICC were set up to enforce, the still-fragile revival of this crucial West African nation may do just the opposite. And that’s not necessarily a bad thing.

***

The need for post-conflict justice in Ivory Coast was identified as soon as the crisis ended, not only by groups such as Amnesty International and Human Rights Watch, but also by the new government, which requested an ICC investigation as early as May 2011. The purpose of the ICC, which was set up in 2002 under a treaty that now counts 122 members, is to prosecute war crimes and crimes against humanity when local prosecution is unlikely or difficult. In October 2011, the ICC determined that the post-election events met its standard for prosecution, in a report that detailed numerous atrocities—the majority by pro-Gbagbo forces, but many by pro-Ouattara forces as well—that had occurred in Abidjan and a volatile region of western Ivory Coast. The prosecution indicted Gbagbo soon after—as an “indirect co-perpetrator” responsible for murder, rape and sexual violence, “persecution,” and “other inhuman acts”—and he was transferred to The Hague in November 2011. The court later issued indictments on similar charges for Gbagbo’s wife, Simone Ehivet Gbagbo, and the militia leader Charles Blé Goudé. The ICC has left open the possibility of prosecuting atrocities committed during and after the country’s 2002 civil war, but for now it is limiting itself to the 2010-11 post-election events, which it says may yield additional indictments.

The Gbagbo case is one of the most high-profile the ICC has ever undertaken: He is the first former head of state to appear before the court, and the only one it has ever held in custody. (The detention facility in The Hague has also hosted Serbia’s Slobodan Milosevic and Liberia’s Charles Taylor, but separate international tribunals tried their cases.) And the proceedings against the former Ivorian leaders have moved relatively quickly. Most recently, the prosecutor, Gambian jurist Fatou Bensouda, submitted a hefty file of additional evidence that the judges had requested, and this week, the defense submitted confidential counter-arguments for dismissing the case. The judges will now either set a date for Gbagbo’s trial or dismiss the charges if they deem the prosecutor’s case insufficient.

Former Ivory Coast President Laurent Gbagbo attends a pre-trial hearing at the International Criminal Court. (Michael Kooren/Reuters)

Evaluated on its own merits, the Gbagbo case thus far encapsulates the ICC’s mission. First, it holds a leader responsible for atrocities committed down the chain of command. Second, it affords the defense a meticulous and smooth process to respond to the charges that in principle should assure a fair trial. In these ways, it upholds standards of post-conflict justice that have their roots in the Nuremberg trials after World War II and have become more defined over the last two decades with the formation of special international tribunals after the conflicts in Yugoslavia, Rwanda, and Sierra Leone, ultimately producing a permanent body in the form of the ICC. Indeed, even though some major powers (notably the U.S., China, Russia, and India) refuse to join the ICC because they do not want to expose their nationals to prosecution, the court’s broad membership—including most of Europe and Latin America, and much of Africa—testifies to the spread of these standards. The core idea that justifies the existence of the tribunal is that acts of violence against civilians during conflicts are crimes, and warrant prosecution and punishment.

But not everyone supports the ICC and this underlying norm. The court has been criticized because all eight country “situations” on its docket are in Africa, suggesting that officials are discriminating against the region when conflict-related atrocities occur around the world. Writing in the court’s defense in January for The New York Review of Books, Kenneth Roth, the executive director of Human Rights Watch, argued that “the focus on Africa largely reflects current limits on the reach of international justice,” as the ICC can only prosecute crimes committed by a citizen of, or on the territory of, a member state, and most non-African countries that have experienced conflict recently are not members of the court. Roth also pointed out that African leaders instigated or applauded several of the African cases before the court, including the Ivory Coast investigation. If African countries resist or withdraw en masse from the ICC, Roth argued, “this could be devastating for international justice.”

But the more fundamental criticism of the ICC is that the entire premise of post-conflict justice is a misbegotten and counterproductive one. In this view, expressed notably by the Columbia University scholar Mahmood Mamdani, conflict resolution should be a political matter solved by negotiation among warring parties, not a judicial mattered settled by trials and imprisonment. Writing in The New York Times last month, Mamdani and Thabo Mbeki, the former South African president, pointed out that Reconstruction in post-Civil War America, the leadership transition in post-apartheid South Africa, and settlements in post-conflict Uganda and Mozambique all rejected trials in favor of political resolutions that allowed “yesterday’s mortal enemies” to become “mere adversaries.” “Mass violence is more a political than a criminal matter,” Mamdani and Mbeki wrote. “What we need is a political process driven by a firm conviction that there can be no winners and no losers, only survivors.”

***

In Ivory Coast, the resolution of the post-election conflict appears to be shifting from a high-minded judicial approach to a pragmatic political settlement. Ever since Gbagbo’s transfer to the ICC in late 2011, the Ivorian government has shown reluctance to move cases to trial—be it at the ICC or in local courts. While rights groups warn that “winner’s justice” is taking hold, leaving Ouattara partisans free from prosecution, the more likely prospect is that few if any suspects from either camp will face trial.

A telling sign of this evolution has been Ivory Coast’s ambivalent engagement with the ICC ever since transferring Gbagbo to the international court. The warrants for the arrest of Simone Gbagbo and Blé Goudé were made public in November 2012 and September 2013 respectively, having been issued under seal earlier. But the government has only just agreed to transfer Blé Goudé, whom it has held since his January 2013 extradition from Ghana, to the ICC. And it has so far refused to send Simone Gbagbo to The Hague, despite holding her since the regime’s fall in April 2011. Until the its recent decision on Blé Goudé, the Ivorian government had argued that the country’s courts were sufficiently restored to handle both cases, making ICC procedures unnecessary, and that local proceedings against the two figures were taking shape.

But the cases in local courts against pro-Gbagbo figures are barely moving forward. A special prosecution unit charged with investigating crimes committed by these actors has been drained of its staff in the past year, with the number of investigators dropping from 20 to four. And in the last few months, the government has released a substantial number of the several hundred Gbagbo allies in its custody. In August 2013, it released 14 high-profile detainees including Pascal Affi N’Guessan, a former prime minister and interim head of Gbagbo’s Ivorian Popular Front (FPI), and Michel Gbagbo, the ex-president’s son. Between January 27 and February 5, another 130 prisoners were released. In principle, cases are still pending against these individuals. However, Affi and others have made statements that acknowledge Ouattara’s legitimacy as president, and they have resumed political activity unimpeded, even convening an FPI congress in late February.

Other high-level Gbagbo allies are trickling back from exile. They include several military officers and, most recently, Marcel Gossio, former head of the Abidjan port authority and a key member of Gbagbo’s inner circle. Gossio is widely considered to have helped Gbagbo bypass the UN arms embargo on Ivory Coast, and has been named as a suspected organizer of attacks that took place as recently as 2012. In response to that incident, the EU froze his assets and Ivory Coast issued a warrant for his arrest. Despite all this, Gossio, who was living in Morocco, made his way back to Abidjan on January 17, citing Ouattara’s call for exiles to return. “I inscribe myself fully in the peace and reconciliation process,” Gossio told reporters. Several government ministers met him after his return, and an official informed RFI that charges against him are “no longer relevant.”

There are many reasons why détente with the Gbagbo camp, even if it means shelving court cases, makes sense for the Ivorian government. Ouattara will run for re-election in 2015 and requires a credible opposition; participation by the FPI, which boycotted the country’s 2011 parliamentary election, would add legitimacy to the outcome. Second, co-opting as many Gbagbo allies as possible has the obvious benefit of isolating the die-hards, who are dwindling in numbers but remain vociferous. Third, overlooking the crimes of Gbagbo allies enables the government to do the same for its own camp, including former rebel leaders accused of atrocities during or after the 2002 civil war. Fourth, avoiding the polarized climate that would come with trials allows the government to keep its focus on re-energizing the economy.

A man clears rubble outside a destroyed bar on Princess Road, in the Yopougon district of Abidjan, in 2011. (Reuters/Thierry Gouegnon)

It’s easy enough for Ivorian officials to allow local court cases to wither, though doing so will invite criticism from governance advocates. But the ICC prosecutions, which the government initially welcomed, will prove thornier. So far, Ivory Coast’s leaders have adopted a stance somewhere between compliance with and defiance of the international tribunal, responding to ICC requests as and when they see fit. But case against Laurent Gbagbo is now well beyond its control, and nearing a crossroads. A trial could revive the ethnic, political, and regional tensions that have bedeviled the country for the last two decades and only now appear to be at bay. If Gbagbo is instead released, presumably into exile (South Africa is a possible destination), it could embolden his partisans, with similar results. Neither outcome is likely to please an Ivorian government that seems increasingly committed to sweeping the past under the rug.

As this approach gains strength, so does the risk that the 3,000 deaths and many other abuses of the post-election crisis—let alone those from earlier spasms of conflict in Ivory Coast—will go not only unpunished but unacknowledged. There is a truth and reconciliation commission in the country, but it has spent two years analyzing structural causes of the conflict and only recently began collecting victim testimonials. Human-rights groups and associations representing victims’ families have begun to sound the alarm: “Reconciliation without justice would be delusional,” Yacouba Doumbia, head of a leading Ivorian human-rights group, told IRIN. “The post-election crisis was very brutal and deadly. There’s an absolute need for some justice at the very least.”

As things currently stand, post-conflict resolution in Ivory Coast is in something of a limbo. The government doesn’t seem to be seeking catharsis in the courts, but it hasn’t entirely rejected the judicial strategy, either. At the same time, the emerging political settlement is ad hoc and piecemeal. It falls short, for now at least, of the kind of formal, deliberate political agreement between parties that Mamdani and Mbeki might advocate. If the country’s leaders manage to establish the conditions for economic and social development though a series of bargains, no matter how improvised and opportunistic, the Ivory Coast case could become a useful object lesson in practical governance after conflict, challenging the notion of the ICC as the fulcrum of conflict resolution. Regardless of the outcome, a Gbagbo trial will be a risky venture for the country. It could just as easily upset the peace as consolidate it.

In the meantime, Abidjan is bustling with renewed activity. But the pain lingers. In Niangon, a working-class section where militias went door-to-door in search of opposition supporters after the country’s disputed election, and pro-Gbagbo elements held out even after he fell, I saw bullet holes in buildings, rooftops where snipers had perched, and a drainage canal near a minibus station that had served a grim purpose. “No one knows how many bodies were thrown in there,” a resident told me. Across the city, everyone had stories—of beatings, rape, murder, looting, harassment. Many people I spoke to voiced frustration at the growing sense of impunity, and sadness that so many victims—there is no list—will remain unknown, denied the dignity of recognition and memory.

But as long as the economy is roaring ahead, those who speak for the victims will have trouble getting heard. In this, Mamdani and Mbeki are right: After conflict, there are only survivors.

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Siddhartha Mitter is a freelance journalist based in New York.

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