President Cyril Ramaphosa has managed to convincingly tip the balance of power in the top structures of South Africa’s governing African National ... Congress in his favour, with last week's suspension of the party’s secretary general, Ace Magashule, who on 13 May moved to court to challenge his suspension.
Accused of committing war crimes and crimes against humanity during the post-election crisis of 2010-2011, which left more than 3,000 people dead, the Ivorian former president was arrested on 11 April 2011 in Abidjan by President Alassane Ouattara’s forces.
After eight months of detention in Korhogo, he was transferred to The Hague at the end of 2011. Gbagbo was imprisoned in Scheveningen penitentiary until his acquittal at the first instance in January 2019. In total, he spent almost eight years behind bars, plus two years on parole in Brussels.
A “grave and manifest miscarriage of justice”
Now definitively acquitted, Gbagbo can claim damages from the ICC for the time he’s spent behind bars. The Rome Statute, which governs the functioning of this international jurisdiction, provides for this type of appeal.
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Article 85(3) of the ICC Rules of Procedure and Evidence states that “in exceptional circumstances, where the Court finds conclusive facts showing that there has been a grave and manifest miscarriage of justice, it may in its discretion award compensation, according to the criteria provided in the Rules of Procedure and Evidence, to a person who has been released from detention following a final decision of acquittal or a termination of the proceedings for that reason.”
In order to benefit from this compensation, applicants must refer to Rule 173 of the ICC Rules of Procedure and Evidence. The text states that “Anyone seeking compensation on any of the grounds indicated in Article 85 shall submit a request, in writing, to the Presidency, which shall designate a Chamber composed of three judges to consider the request. These judges shall not have participated in any earlier judgment of the Court regarding the person making the request.”
The Bemba precedent
The application must be made within six months of the Court’s final decision on the case, therefore by 31 September for Gbagbo. It must also indicate “the grounds and the amount of compensation requested”.
Once formalised, “a request for compensation and any other written observation by the person filing the request shall be transmitted to the Prosecutor”, who “shall have an opportunity to respond in writing”. The Chamber then deliberates on the case and informs both parties of its decision.
These claims for damages are often confidential. This is also the case for Gbagbo, whose legal team refuses “for the time being” to comment on the request that they have sent to the judges in The Hague.
Comparable precedents exist in the arcane world of the ICC. After more than a decade in detention, former vice-president of the Democratic Republic of Congo Jean-Pierre Bemba was acquitted in June 2018 of war crimes and crimes against humanity that he was accused of having committed in the Central African Republic in 2002-2003. His lawyers then claimed more than €68m ($82m) in compensation and damages.
But, according to an ICC statement issued in May 2020, the judges “did not feel that Jean-Pierre Bemba had sufficiently established that he had suffered a serious and manifest miscarriage of justice” and therefore refused to grant him compensation. However, the former Congolese detainee has not given up and has launched a new procedure with his lawyers.
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