Practice Relating to Rule 158. Prosecution of War Crimes
Côte d’Ivoire’s Teaching Manual (2007) provides in Book I (Basic instruction):
Lesson 4. Breaches and repression of violations of IHL
The texts on the law of war distinguish two categories of breaches in the case of violations of the rules of IHL:
- Grave violations or grave breaches, called war crimes;
- Other violations.
I. Grave violations
They are enumerated by the Geneva Conventions and the Additional Protocols, as well as by the Ivorian Penal Code.
The State is under the obligation to search and to try the perpetrators of these grave violations. To do this, it can act in two ways:
- bring the perpetrator before its own courts,
- bring the perpetrator before an international jurisdiction.
These sanctions can be disciplinary, administrative, statutory and/or penal.
In Côte d’Ivoire, the Penal Code has provided for the repression of certain violations …
II. Other violations
Regarded as other violations are those violations which are not determined as grave violations. The majority of these violations are contained in the service and general discipline regulations.
Example: the fact of exercising light violence against an enemy prisoner.
These violations are punished in conformity with the military regulations. These disciplinary sanctions can range from a warning to the dismissal of the person concerned.
In Book II (Instruction of non-commissioned officers and officers), the Teaching Manual provides:
II.2.1. Repression of grave violations
The grave violations of IHL can be repressed on the national level as well as on the international level.
On the national level, these grave breaches of IHL are judged by:
- the military tribunal,
- the civilian courts.
In Book III, Volume 2 (Instruction of second-year trainee officers), the Teaching Manual provides:
Lesson 3. Obligations and responsibilities
The authors of the Conventions were conscious of the fact that there can be no respect for the law of armed conflicts [LOAC] without knowledge of the rules of that law. This is a necessary but not sufficient condition. In fact, it still needs the will of the authority to respect these rules, to ensure their respect and to punish perpetrators of grave violations.
The law of armed conflicts contains a series of obligations to which States have subscribed by its ratification. They are mainly:
- the obligation to punish violations of the LOAC.
II. Obligation to punish
The Geneva Conventions and Additional Protocol I lay down clearly the responsibility of States in the area of repression …
“The High Contracting Parties and the Parties to the conflict shall repress grave breaches, and take measures necessary to suppress all other breaches, of the Conventions [or] of this Protocol which result from a failure to act when under a duty to do so.”
Confronted with a grave breach of the law of armed conflicts, a State must therefore ensure the penal repression of the perpetrator of that breach:
- by punishing the infraction in its own courts; or
- by ensuring that the perpetrator of the breach is transferred to a foreign or international jurisdiction.
If it is a breach of the LOAC not qualified as grave, the State must take all measures necessary for the suppression of that breach. These measures can comprise sanctions of a penal, disciplinary, statutory or administrative nature.
Lesson 4. Violations and repression
II. Repression of breaches
II.1. National repression
According to the Geneva Conventions and Additional Protocol I, a certain number of particularly grave violations must be criminally prosecuted.
In the presence of an alleged grave breach of the Geneva Conventions or Additional Protocol I, a criminal prosecution must obligatorily be started against the suspect, unless he is handed over to a third State which opens an investigation. It is up to the States to provide for criminal or disciplinary consequences equally for the violation of other provisions of international humanitarian law.
Since criminal prosecution can only be undertaken if national law provides a sanction for the act committed, has determined the punishment and the procedure, it is indispensable that rules implementing international humanitarian law be incorporated into the national legislation. This is an obligation of each State party.
In order to fulfil the obligation to punish the perpetrators of violations of international humanitarian law, States can use different legislative techniques:
- create specific repression by promulgating new legislation which for each grave breach of IHL fixes a specific penalty;
- provide a single sanction for war crimes, i.e. a minimum and a maximum between which the judge is free to assess the punishment;
- proceed by analogy, i.e. by searching for each grave breach of the LOAC the corresponding breach – and therefore the punishment provided – in internal law. In certain cases, the level of the punishment risks being inadequate in relation to the extent of the crime (e.g. number of victims). On the other hand, certain breaches are specific to the state of war and have nothing corresponding in ordinary internal law (e.g. deportation of a population, attacks on cultural property, etc.).
Grave breaches of international humanitarian law need to be prosecuted not only by the detaining power, but by each State in the power of which the presumed culprit finds himself. One therefore speaks of universal jurisdiction. States must therefore give mutual legal assistance, for example by extraditing an accused if a State renounces criminal prosecution, or by transmitting means of evidence.
II.3. Specifics on repression
II.3.1. Universal competence of tribunals
States are bound to search and punish grave breaches, without regard to the nationality of the perpetrators (nor the victims), nor to the place where the breach was committed.
Côte d’Ivoire’s Penal Code (1981), as amended in 1998, in a chapter dealing with offences against the law of nations, provides for the punishment of certain acts committed “in time of war or occupation”, such as “crimes against the civilian population” (Article 138) and “crimes against prisoners of war” (Article 139). It further provides for the punishment of the illegal use of distinctive signs and emblems (Article 473).
Côte d’Ivoire’s Penal Code (1981), as amended in 2015, states: “Whoever commits a war crime is punished with life imprisonment.”
The explanatory statement of the 2015 draft law amending the 1981 Penal Code notes:
Côte d'Ivoire’s ratification of the  Rome Statute, which created the International Criminal Court, imposes upon it obligations to adapt its legislation to the provisions of this treaty. …
Indeed, articles 5, 6, 7 and 8 of the Rome Statute provide for offences such as the crime of genocide, crimes against humanity and war crimes, the punishment of which must be effectively ensured, first and foremost, by the States Parties, through measures taken at the national level.
Law No. 81-640 of 31 July 1981 instituting the Penal Code, the main Ivorian repressive legal arsenal, certainly provides for genocide, crimes against the civilian population and crimes against prisoners of war. However, it does not exhaustively contain all these offences that today constitute the field of intervention of international criminal justice.
In this respect, the main purpose of the present reform of the penal code proposed through the present draft law is to take into account this new requirement, therefore referring to all incriminations under denominations used by the Rome Statute.
In 2009, in its report to the UN Human Rights Council, Côte d’Ivoire stated: “[T]he political and military crises faced by Côte d’Ivoire since 1999, exacerbated by the war which broke out in September 2002, have had many grave consequences in the political, economic and social spheres.”
Côte d’Ivoire also stated:
The repeated mass violations suffered by the Ivorian public during the military and political crisis, which have gone unpunished and dismembered the State, testify that peace is the primordial condition for the respect and promotion of human rights in every country. As soon as the process of emergence from the crisis is complete, Côte d’Ivoire will undertake a … policy of consolidating the rule of law [and] combating impunity.
In 2013, in its initial report to the Human Rights Committee, Côte d’Ivoire stated:
193. Numerous extrajudicial executions were committed by police forces, armed forces, militias and armed groups after conflict broke out in 2002, peaking after the 2010 presidential election.
194. The National Commission of Inquiry, set up on 20 July 2011 to investigate violations of human rights and international humanitarian law committed during the post-election period from 31 October 2010 to 15 May 2011, identified 2,018 cases of summary executions carried out for political and/or ethnic reasons.
Measures taken to prevent further violations
197. The Government has opened judicial and non-judicial inquiries in all cases, conducted by the national authorities and by intergovernmental and non-governmental bodies. Great stress is also being laid on national reconciliation.
210. A special investigation unit was created by interministerial order in June 2011 to examine the post-election crisis in order to shed light on the atrocities and various crimes perpetrated after the results of the second round of the presidential election on 28 November 2010 were announced. Its investigations are ongoing.
211. The National Commission of Inquiry created by Decree No. 2011-176 of 20 July 2011 to investigate violations of human rights and public freedoms in the aftermath of the presidential election held on 31 October and 28 November 2010 was given the task of conducting non-judicial investigations into breaches of human rights and international humanitarian law in the period from 31 October 2010 to 15 May 2011.
212. The Commission submitted its report to the country’s President in August 2012. The report identified the abuses committed in the period from 30 October 2010 to 15 May 2011 inclusive. According to its investigations, of 3,248 people killed, 1,452 were murdered by “pro-Gbagbo forces” (including 1,009 summary executions), 727 by the FRCI (including 545 summary executions) and 200 by “Dozos”.
213. The report also singles out pro-Gbagbo “self-defence groups” or militia members, while attributing 57 other killings to what the Commission calls “miscellaneous persons”. The report also identifies 3,248 cases of “violations of the right to life”, 8,141 cases of “violence to the person”, 345 cases of “torture”, 194 cases of “rape”, 265 “forced disappearances” and 260 cases of “arbitrary detention”.
233. The arrest of the former President of Côte d’Ivoire, Laurent Gbagbo, and his wife was the first in a wave of arrests among political and military leaders from the former regime. Military and civilian prosecutors had brought charges against at least 118 of these, including Charles Blé Goudé, General Guiai Bi Poin and General Bruno Dogbo Blé.
234. The civilian public prosecution service has essentially limited its charges to financial crimes and crimes against the State, particularly where the former President is concerned, while military prosecutors have included murder, rape and other violent crimes in their arraignments. Conversely, at the time this chapter was drafted not a single member of the pro-Ouattara forces had been charged with crimes committed during the post-election crisis.
235. The State of Côte d’Ivoire has taken measures against human rights violations attributable to members of the defence and security forces in the performance of their functions. Disciplinary actions and criminal prosecutions have been brought against those concerned by the Military Tribunal.
236. Amnesty laws and/or presidential pardons issued in the course of political negotiations specify that they are not applicable to the perpetrators of acts of violence against the person and serious human rights violations.
237. Internationally, collaboration with the International Criminal Court has resulted in the former President of Côte d’Ivoire being transferred to The Hague.
238. However, the actions of the country’s own justice system have been criticized by Ivorian and international organizations, as no charges have been brought against certain individuals accused of human rights violations.