By William Burke-White.THE ATLANTIC .Dec 3, 2012
The former first lady of Cote d’Ivoire is the first woman to be indicted by the International Criminal Court—and a rare example of a person outside the formal hierarchies of power to be held responsible for a government’s actions.
On November 22nd, the International Criminal Court (ICC) unsealed the indictment of Simone Gbagbo, wife of the former president of Cote D’Ivoire, Laurent Gbagbo. Laurent Gbagbo is already in detention in The Hague, awaiting trial at the ICC, charged with orchestrating a campaign of violence in an effort to remain in power after losing an election. The ICC has now indicted Simone Gbagbo for her involvement in that post-election violence, asserting that she was personally responsible for crimes against humanity, including murder, rape, and persecution. Significantly, this is the first indictment of a woman by the ICC, perhaps signaling a change in the role of gender in international justice. Yet, the case’s most important legacy may instead be the ICC’s new willingness to look beyond formal governmental and military hierarchies in identifying those most responsible for serious international crimes.
This first indictment of a woman in the ICC’s decade-long existence charges that Simone Gbagbo was the creator, in part, of a plan to perpetrate brutal attacks—including murder, rape, and sexual violence, on her husband’s political opponents in the wake of the 2010 election. For the first time, a woman stands before the ICC accused of orchestrating and ordering crimes against humanity. The indictment is, therefore, an important symbol of unfortunate fact from a humanitarian perspective: women, as well as men, plan and commit horrific acts of violence.
While there may be fewer examples of women committing these most heinous crimes, men are not the only ones capable of ordering such brutality. This indictment recognizes that reality and lays a marker that international criminal courts will hold any perpetrator—regardless of gender—responsible for his or her actions.
Simone Gbagbo’s indictment includes charges of rape and sexual violence as a crime against humanity. That aspect of the indictment marks an important shift in the uneasy relationship between sexual violence and international criminal justice. Since the establishment of the Yugoslavia and Rwanda tribunals (ICTY and ICTR) in the early 1990s, international criminal law has sought to hold accountable the (usually) male perpetrators of sexual violence against the (usually) female victims of that violence.
In 2000 I was working at the Yugoslavia Tribunal on the Foca case, in which three Bosnian Serbs were accused of running a rape and sexual slavery “camp” in Bosnia. I recall the moment when the victims of the Foca rape camp stood in the courtroom of the United Nations tribunal before international judges. They told their story, engraving unimaginable acts in public record. In a moment of horrific courtroom drama the accused perpetrators defended themselves with belligerent arrogance, arguing that these women had consented to their enslavement and rape. The ICTY had to test the credibility of the victims and the accused and grapple with the definition of rape in international law. Eventually Dragoljub Kunarac and his co-conspirators were convicted of crimes against humanity, including rape. In the process the victims, one can hope, found some solace, some vindication, some justice.
The Foca case, however, reflects an archetype of sexual violence and international justice that has dominated the past two decades. It is a model in which the prosecutors of international criminal tribunals offer a form of recourse and retribution for the (usually) female victims of sexual violence that, while as much as a court of law can provide, is rarely adequate. It is a model that, due to lack of court capacity or inadequacy of evidence picks but a few cases, leaving too many victims without justice and too many perpetrators at large. And it is a model that could be seen to portray the sole role of women, as viewed through international criminal law, as powerless victims of conflict.
The Rwanda Tribunal has already recognized that this model is inaccurate and, perhaps, unhelpful. That tribunal indicted a woman, the former Rwandan Minister of Family Welfare, over a decade ago on charges including sexual violence. The indictment of Simone Gbabgo at the ICC for rape and sexual violence as a crime against humanity may indicate that the ICC is finally catching up to the regional tribunals. International tribunals are beginning—even if slowly—to move beyond gender in prosecuting sexual violence. In this new and more realistic approach, women and men can be both victims and perpetrators. Perhaps, a post-gender model of international criminal justice may be emerging in which women and men are held accountable for crimes—sexual or otherwise—without gender itself being the focus.
Notwithstanding the symbolic importance of the ICC’s first indictment of a woman, the gender framing of the indictment of Simone Gbagbo may be the wrong one. Her indictment reflects perhaps an even more significant change in who international criminal tribunals deem most responsible for crimes and, therefore, indict. Most of the indictments handed down by international courts to date have focused on those at the top of standard hierarchies of power—military commanders, governmental officials, or the leaders of armed rebellions. In contrast, Simone Gbagbo held no official position in government; she wore no military uniform; she did not personally commit any of the crimes charged. Yet, the ICC Prosecutor alleges that Simone Gbagbo was part of “Mr. Gbagbo’s inner circle,” that she “participated in all the meetings during the relevant period,” and that she “instructed pro-Gbagbo forces” to commit crimes against individuals who posed a threat to President Gbagbo’s power.
The ICC was established to hold accountable those “most responsible” for international crimes. In many cases, those most responsible will be senior military commanders, heads of state, or other government officials. International criminal law has developed several legal mechanisms, such as command responsibility and joint criminal enterprise, to hold individuals at the top of formal hierarchies to account for the crimes they ordered or were allegedly committed by their subordinates. The Statute of the ICC reaffirms, numerous times, that “official capacity…. as a government official…. shall in no case exempt a person from criminal responsibility.” As demonstrated by the ICC’s indictments of former Libyan head of state Mummar Qadafi and Sudanese president Omar al-Bashir, the tribunal has been able to work its way legally and practically up chains of command to hold senior government officials who ordered, rather than directly committed, international crimes to account. But, in focusing on such high profile heads of state or senior officials, international criminal tribunals may have overlooked those whose influence is not sourced in formal authority. The indictment of Simone Gbagbo, however, recognizes that those most responsible for international crimes may not be government leaders or militia commanders, but rather civilians with extraordinary influence.
Ultimately, the indictment charges that Simone Gbagbo acted as the “alter ego of her husband.” That claim, of course, is a gendered one in and of itself. The fact that Simone Gbagbo was married to Laurent Gbagbo should be legally irrelevant. No one should be criminally responsible for his or her marital choices—even very, very bad ones. The ICC’s indictment might better have been written to say that she was the “alter ego of the president,” regardless of whether she was married to him. Looking beyond semantics, the indictment recognizes that the responsibility for post-election violence in Cote d’Ivoire did not follow traditional lines of military hierarchy, political office, or even group membership. In the Simone Gbagbo indictment, the court reaches beyond these hierarchies to recognize de facto power and influence. The relevant question in determining who is most responsible and should be held accountable is not one of official rank, but rather who conceived of the plan, who was in a de facto position to order the attacks or even to whisper that they should be conducted. Given the realities of violence and conflict today, shifting legal and popular understandings of responsibility from hierarchies of command to de facto authority and influence is an important move toward ending impunity.
As a legal matter issuing an indictment is relatively easy. The real challenge will be proving Simone Gbagbo’s role in the violence that brought such horror to Cote d’Ivoire in 2010. The ICC prosecutor will have to bring forward evidence—likely difficult evidence to find—that proves Simone Gbagbo was instrumental in developing and implementing a common plan of violence. If the prosecutor succeeds, the Simone Gbagbo case may have broad and long-lasting legal significance, far beyond being the first indictment of a woman by the ICC. The case may mark a shift in international justice beyond focus on formal authority and toward a more subtle understanding of political influence and responsibility. In so many of the cases of violent international crimes today&mdashlranging from Kosovo to Congo, Syria to Libya, lines of authority are unclear, rebel groups and even government armies are fragmented or divided. The revised understanding of responsibility for international crime suggested by the Simone Gbagbo indictment reflects those new realities. And holding those outside of formal hierarchies to account ensures that those most responsible cannot escape accountability by hiding in the shadows of power or whispering their orders through informal channels of authority.