The warrant, unsealed Thursday, described Simone Gbagbo as the suspected indirect co-perpetrator of crimes against humanity – namely, murder, rape and other sexual violence, inhumane acts, and persecution – allegedly committed in Côte d'Ivoire from 16 December 2010 to 12 April 2011. Consistent with the most basic of fair trial rights, Gbagbo's innocence must be presumed unless she is convicted following a fair and impartial trial; however, the issuance of the warrant is noteworthy for several reasons.
► First, there is the fact that Côte d'Ivoire is not a state party to the ICC, although it has accepted the jurisdiction of the Court for a finite period.
In 2011, Pre-Trial Chamber III approved Prosecutor Luis Moreno-Ocampo’s request to use his propio motu powers to open an investigation into crimes committed in Côte d'Ivoire since 28 November 2010. In February 2012, the Chamber authorized an expansion of the investigation by the Court back to 2002. (The unsealed warrant, issued by the Chamber composed of Presiding Judge Silvia Fernández de Gurmendi along with Judges Elizabeth Odio Benito and Adrian Fulford, is dated 29 February 2012.) Cases stemming from investigations into the Côte d’Ivoire situation, including the potential case against Simone Gbagbo, are therefore creating an important precedent for the Court in engaging with a non-party state, albeit one that has accepted the ICC’s jurisdiction.
► The warrant is also in itself groundbreaking.
Simone Gbagbo is the first woman to potentially face charges before the ICC. Should her case go to trial she will be one of a very few women charged in the history of international tribunals. (Prior IntLawGrrls post)
No women were tried in the first proceedings at Nuremberg and Tokyo, although, as Diane Marie Amann has posted, numerous women stood trial in subsequent post-World War II proceedings. Recent ad hoc tribunals have tried just two women: the Yugoslavia tribunal convicted Bosnian Serb politician Biljana Plavšić of persecution as a crime against humanity, while the Rwanda tribunal convicted a former Rwandan government minister, Pauline Nyiramasuhuko, of genocide and crimes against humanity (including rape). An effort to prosecute a woman leader, Ieng Thirith, before the Cambodia tribunal has ended because she suffers from dementia.
► The relative novelty of the arrest warrant against Simone Gbagbo – and any future case against her – is important because it disrupts the “normal” gender archetypes in international criminal law, thereby making those archetypes suddenly visible.
Charging a woman with international crimes sparks questions about gender that we seldom ask when the subject of the proceedings is a man. It illuminates long-held assumptions embedded in law and in society about who the “normal” suspects/accused in international crimes are. It undermines the usual view of men as the agents and women as the victims of crime. It challenges the dichotomy that sets up men, masculinity and violence on one side and women, femininity and passivity on the other. It upsets the archetype of women as vulnerable, ‘rapeable’, and incapable of wielding power.
|Laurent Gbagbo and Simone Gbagbo|
Should this case get to trial, the ensuing ICC case law has the potential to unsettle our assumptions about men’s and women’s roles in conflict situations.
► At the same time, any case against Simone Gbagbo could also serve to reinforce gender stereotypes.
Even though the arrest warrant specifies Gbagbo’s alleged individual culpability for crimes against humanity, her relationship as the wife of a powerful man could be used to cast her as a faithful delegate rather than as an independent actor.
There seems already to be a struggle to define Gbagbo’s identity. She is referred to as “Mrs Gbagbo” in the ICC press release, “Ms Gbagbo” and the “alter ego” of her husband in the warrant itself, and the “wife of former Côte d'Ivoire president” in the press release issued by the Coalition for the International Criminal Court.
In conclusion, the unsealing of the arrest warrant for Simone Gbagbo is an important moment for the ICC. Whether it extends and nuances our understanding of the role of men and women as perpetrators and victims of war and conflict, or whether it reinforces existing gender norms, is yet to be seen. It certainly has the potential to do the former. But all the actors involved at the Court, including the prosecutorial staff and defence counsel, judges and advocates, will need to tread carefully so as not to further entrench existing stereotypes which contribute to the perpetuation of conflict – particularly, sexual violence in conflict – in the first place.