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6. THE WAY FORWARD FOR JUSTICE IN COTE D’IVOIRE

Key international actors working to resolve the crisis in Côte d’Ivoire, namely France, the United Nations, the African Union and the Economic Community of West African States (ECOWAS), must work to develop a concrete strategy to bring to justice those who bear the greatest responsibility for the most serious human rights crimes committed in the country since 1999. Only then can the rule of law be established and political stability take root. Justice is an indispensable element to building long-term stability and sustainable peace in Côte d’Ivoire. Symbolic gestures, like those employed by the Ivorian government in the past, will do nothing to stop the vicious cycle of violence that has engulfed the country.

Members of the United Nations have at several levels and on numerous occasions asserted the importance of seeking accountability for serious crimes committed in Côte d’Ivoire. The connection between ongoing violations and accountability was most recently noted in the August 27, 2004 Second Report of the Secretary-General on the United Nations Operation in Côte d’Ivoire which stated that, “While there have been some recent positive political developments, there remain deep concerns about the human rights situation throughout the country…. It is only by ensuring that the perpetrators of those atrocities are brought to justice and through effectively addressing the prevailing culture of impunity that a significant improvement in the country’s human rights situation will be achieved.”¹⁰  The Linas-Marcoussis Agreement also calls for perpetrators of summary executions and other serious international crimes by “death squads” and those who ordered them to be brought to justice “before an international criminal jurisdiction.”¹¹

For its part, the United Nations has taken a proactive role in investigating serious international crimes committed in Côte d’Ivoire. Since 2000 the Office of the United Nations High Commissioner for Human Rights (OHCHR) has dispatched three independent commissions of inquiry into the grave human rights situation in Côte d’Ivoire; the first following the election violence of October 2000; the second following the violent crackdown of an opposition demonstration in March 2004; and the third, following a request by all parties to the Linas-Marcoussis Agreement to investigate all serious violations of human rights and humanitarian law perpetrated in Côte d’Ivoire since September 19, 2002, which began in July 2004.

However diplomats working to resolve the Ivorian crisis have expressed concern that pursuing justice could undermine the precarious peace process. One diplomat interviewed by Human Rights Watch said, “Accountability is too much to bring as a priority to a divided country. It simply can’t be done now.”¹² Another diplomat was more direct, “Justice sounds great, but making it happen presents very difficult political dilemmas. At present, the most important thing is getting Accra III moving; getting the peace to hold. For now, justice should take a back seat.”¹³ Yet another speculated that the United Nations assertions about the importance of holding those responsible for violations accountable might be just a tool to encourage the warring parties to more fully cooperate with the peace process. As one diplomat put it, “We believe threats of sanctions and judicial action are now motivating both sides to be more cooperative. Do we proceed with justice and jeopardize the entire peace process by indicting them? And besides, the militant youths are still active. Do we want to put the United Nations operations at risk of further attacks for the sake of pursuing justice right now?”¹⁴

In the August 2004 Report of the Secretary-General on “The rule of law and transitional justice in conflict and post-conflict societies,” Secretary-General Kofi Annan asserts that, “Justice and peace are not contradictory forces. Rather, properly pursued, they promote and sustain one another. The question, then, can never be whether to pursue justice and accountability, but rather when and how.”  Human Rights Watch recognizes that sequencing the pursuit of peace and justice must be carefully done. However, delaying justice can deepen the culture of impunity, embolden perpetrators, and create increasingly negative sequelae which render the pursuit of peace and stability ultimately more complicated.

In light of these concerns, there is much anticipation about what recommendations the current commission of inquiry will make. While the terms of reference for the commission did not explicitly include making recommendations on ensuring accountability, Human Rights Watch believes this to be an essential aspect of the commission’s work.

There is discussion among the international community regarding the degree of international involvement needed to achieve accountability for serious international crimes committed in Côte d’Ivoire. There appear to be several options under consideration including: 1) pursuing justice using the existing criminal justice system within Côte d’Ivoire; 2) creating a purely international criminal tribunal; 3) creating a mixed international-national tribunal similar to the Special Court for Sierra Leone; 4) establishing a chamber within the domestic justice system of Côte d’Ivoire that includes the participation of international judges and staff; and 5) prosecutions by the International Criminal Court. [Crimes falling under the jurisdiction of the ICC could be tried by the ICC if Côte d’Ivoire ratifies the Rome Statute. Prior to ratification, however, the ICC could prosecute crimes in Côte d’Ivoire if the Office of the Prosecutor decides to proceed with an investigation following the lodging by Côte d’Ivoire of an ad hoc declaration accepting the exercise of jurisdiction by the ICC with the ICC Registrar pursuant to Article 12(3) of the Rome Statute.  The Security Council could also refer the situation in Côte d’Ivoire to the ICC.] 

Reports, declarations and statements from different United Nations bodies, including the Security Council and OHCHR, have so far differed in their recommendations regarding which option would be most appropriate for achieving justice for serious human rights crimes in Côte d’Ivoire:

• The recommendations in the April 29, 2004 OHCHR Report of the Commission of Inquiry on the Events Connected with the March Planned for 25 March 2004 in Abidjan recommended a high level of international involvement and stated that the international community “should give priority attention to…[t]he establishment of a mixed human rights court, with the participation of international judges, mandated to prosecute all past massive human rights violations including those committed prior to 25 March 2004….” (Paragraph 90.)
• In a May 25, 2004 statement, the President of the Security Council reiterated its demand that the Ivorian government “bring to justice those responsible for those human rights violations.” The statement “expressed its complete readiness to encourage possible international assistance to the Ivorian judicial authorities towards that goal and asked the Secretary-General to submit recommendations on the various possible options for such assistance.”
• The Security Council’s Report of the Security Council Mission to West Africa, 20-29 June 2004 issued on July 2, 2004, affirms that following the issuance of the international commission of inquiry’s report, ‘the Government [of Côte d’Ivoire] should ensure that those responsible for human rights violations are identified and brought to justice. The Security Council should encourage possible international assistance to the Ivorian judicial authorities to this end” (Paragraph 21(i).)