Recall however that both defendants, by his position could have prevented. Let us also remember that, as in the Bemba case and the Ruto and Sang cases, the charges against Gbagbo and Ble Goudé were considered confirmed in light of the investigation provided by the Prosecutor's Office on June 12, 2014. The Office of the Prosecutor has appealed for the release of the accused under article 83 of the Rome Statute, alleging the possibility that it would be extraordinarily difficult to make them appear later, the lack of cooperation of Côte d'Ivoire and their disagreement with the circumstances alleged by the Chamber for the acquittal as well as for the application of "no case to answer". Subsequently, a new decision was issued imposing certain conditions upon release, by oral communication, announcing that it would subsequently issue a written decision. Once again the victims, in this case the 82 people who facilitated their testimony by video, are left helpless.
It is important to review the arguments of Judge Herrera Carbuccia in her dissenting opinion. Alleges that the acquittal and release does not accord with the provisions of art. 74 of the Rome Statute because there is a lack of exposition of the reasons and the analysis of the facts and the evidence that led the judges to make that decision. Herrera also alleges that the obligation imposed by the same article in section 5 has been infringed, considering the oral form totally opposed to the principles that should govern the process.
We have pointed out that there is a underlying problem that is the enormous influence of the "common law" in the ICC, despite the fact that, from the beginning, the two great traditions of criminal procedure were harmoniously combined in the Rome Statute. However, it was imposed in practice by the Anglo-Saxon countries in which the prosecution is the responsibility of the prosecution and in which the victims are not part and, despite the progress made to give these victims the maximum role is that without having a procedural status, its weight is random.
The other fundamental problem, which has to do with the lack of the necessary balance between the rights of the accused and those of the prosecutor's office as a party, is to demand a rigor in the test that is practically impossible in the type of crimes that the Court prosecutes. Therefore, fraud should always be assessed indirectly or in a related manner, with a detailed analysis of the causality, under the provisions of arts. 25 and especially 28 of the Rome Statute. Both in the cases of Ruto and Sang, Bemba and those of Blé Goudé and Gbagbo, the Prosecutor's Office has been criticized for the little consistency of the evidence when relating the direct or indirect responsibility of the accused with the crimes. A rigor in legal technicalities that seems to repeatedly ignore the difficulties faced by investigations, threats, coercion and often bribes on witnesses and victims and more specifically the practical impossibility of prosecuting direct perpetrators.
There is also concern about the introduction, we might say insidious, of a figure in the legal tradition of the "common law", which is not provided for in the Rome Statute or in the other norms that govern the Court, but which was already used in the proceedings against William Ruto and Joshua Sang, prosecuted as responsible for the violence unleashed in Rif Valley, Kenya, during the 2007 elections and who were also acquitted. In that case, the Appeals Chamber introduced the "no case to answer" procedure that allows the defendant to be acquitted without reaching the end of the process when it is appreciated that the evidence does not seem likely to lead to a conviction. The issues raised by this procedure that allows to conclude a trial with acquittal without the analysis required by the process and above all, after the fact that in the admission phase it was considered that the facts described by the prosecution in their investigation were constitutive of the beginning of a trial against the accused or accused, are remarkable and contradict the provisions of art. 74.2 of the ER. This is what the Public Prosecutor alleges when stating that "in the phase of a request for" no case to answer ", (-" insuffisance des moyens à charge in French-, and that could be translated by inconclusive evidence) in that phase then, the test is less demanding than the test beyond a reasonable doubt that occurs in the final phase of the procedure. "
As Judge Herrera Carbuccia points out, the rights to a trial without undue delay like the other rights inherent in a fair and impartial trial, correspond to the accused but must also guarantee respect for the interests of justice and apply to the defense but also to the Office of the Prosecutor and also constitute a moral obligation with respect to the victims. It is worrisome to think that the rights of the victims constitute a "moral" obligation. It is a perspective that focuses on retributive justice, based on the conviction of the guilty. However, this condemnation should be focused as a means of the real objective of justice, which is to compensate victims for the damage suffered by establishing the truth, recognizing their suffering and restoring, as far as possible, their lives. . Thus the sentence would be a condition of justice but not an end in itself. Unfortunately it seems that the judges of the ICC are getting closer and closer to becoming entangled in the technicalities presented by the big law firms of the defenses that of the principles that led to the establishment of an International Criminal Court.