The Burden of Proof at the International Criminal Court: Laurent Gbagbo and Charles Blé Goudé Acquittal upon Motion of No Case to Answer

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On 20 March 2011, the United Nations Security Council adopted Resolution 1975, which deemed the Cote d’Ivoire crisis “a threat to international peace and security” and called upon the United Nations Operation in Cote d’Ivoire to use all necessary means to protect civilians and to employ those required for the arrest of Laurent Gbagbo and Charles Blé Goudé.[1] This crisis was mainly about a dispute over the result of the presidential election in 2010 in which the incumbent president (Laurent Gbagbo) refused to step down while another candidate (Alassane Ouattara) claimed the election. During the five months of post-election violence,there were an estimated 3,000 deaths and 150 cases of rape.[2]

The situation of Cote d’Ivoire was later brought before the International Criminal Court (“ICC”) and covers four major incidents: (1) between 16 and 19 December 2010 in Abidjan during and after a pro-Outtara march on the RTI headquarters (“RTI Incident”); (2) on 3 March 2011 in a pro-Ouattara women’s demonstration in Abobo (“Abobo Demonstration”); (3) on 17 March 2011, the shelling a densely-populated area (“Abobo’s Shelling”); and (4) between 25 and 28 February 2011 and 12 April 2011 for the attack in the Yopougon commune of Abidjan (“Yopougon Incident”).

During the confirmation of charges hearing on 12 June 2014, the Pre-Trial Chamber held there were reasonable grounds to believe that Laurent Gbagbo was liable for crimes against humanity.[3] Namely, for (i) the murder of at least 160 persons during the four incidents mentioned above; (ii) the rape of at least 38 women and girls during the RTI and Yopougon Incidents; (iii) other inhumane acts or attempted murder and (iv) persecution during all four incidents. He was deemed to be individually criminally responsible under Article 25(3) of the Rome Statute (“ICC Statute”) for joint perpetration and indirect co-perpetration.[4] In the alternative, he was found responsible for ordering and soliciting or contributing to the commission or attempted commission of the crime.[5] The Pre-Trial Chamber dismissed the command and superior responsibility charges against Laurent Gbagbo since these charges were inherently put forth as a deliberate effort to retain Laurent Gbagbo’s power at any cost—not as a failure to prevent or investigate and punish.[6]

Meanwhile, Charles Blé Goudé was held liable for his involvement as Minister of Youth and Sport of Ivory Coast and for his actions within the “inner circle” of Laurent Gbagbo.[7] This was confirmed by the Pre-Trial Chamber on 11 December 2014; he was held responsible with an alternative mode of liabilities covering his indirect co-perpetration,[8] ordering, soliciting or inducing,[9] and aiding, abetting, or otherwise assisting the commission of the crimes.[10] The crimes charged against Charles Blé Goudé encompasses (i) the murder in Yopougon Incident, RTI Incident, Abobo’s Demonstration, and Abobo’s Shelling; (ii) the rape in Yopougon Incident and RTI Incident; (iii) other inhumane acts or attempted murder; and (iv) persecution in all four incidents. It is worth noting that Charles Blé Goudé was confirmed independently for the Yopougon Incident on the 25 through 28 February 2011, and jointly with Laurent Gbagbo, for 12 April 2011 incident. Due to the factual similarities in each case and in the interest of expediency, the two cases were joined on 11 March 2015.

On 15 January 2019, the Trial Chamber granted the defense’s Motion for “no case to answer”, which led to the acquittal of all charges against Gbagbo and Blé Goudé. The Motion was brought on the basis that the evidence presented by the prosecution was exceptionally weak, and thus, the defense had no obligation to answer the charges (“Motion”). The Trial Chamber expressed its decision as follows:[11]

“[…..] The Chamber, having thoroughly analysed the evidence and taken into consideration all legal and factual arguments submitted orally and in writing by the parties and participants, finds, by majority, Judge Herrera Carbuccia dissenting, that there is no need for the defence to submit further evidence as the Prosecutor has not satisfied the burden of proof in relation to several core constitutive elements of the crimes as charged.”

In particular, the majority of the Trial Chamber found that the Prosecutor failed to establish that the charges committed pursuant to or in furtherance of a policy to attack the civilian population and the alleged policy per se, a common plan between Laurent Gbagbo and his inner circle, and whether the public speeches made by them amounted to ordering, soliciting or inducing or otherwise to prove their knowledge and intention. [12]

It is noteworthy that the Trial Chamber opted to issue an opinion, dissenting opinion, and reasons as opposed to a full written judgment. The Trial Chamber did state that the majority’s analysis could be found in Judge Henderson’s judgment. In response, the Prosecutor submitted an appeal based on alleged errors of law and procedure regarding the assessment of the evidence. The appeal focused on (i) the applicability of Article 74 of the Statute; and (ii) the standard of proof at the Motion stage. The Appeal Chamber rejected all grounds put forth by the Prosecutor. However, the rationale behind the rejection of the second ground of appeal (i.e., the Motion) warrants further discussion.[13]


For the record, ICC Statute and its procedural rules do not explicitly use legal terms of “no case to answer.” As a result, there have been different views between the Trial and Appeal Chamber on which article renders the Motion.   

By Judge Henderson’s reason, the Trial Chamber specifically rejected the relationship between Article 74 of the Statute with the Motion merely because the Motion led to an acquittal. The Judge adopted a clear stance on this issue, stating,[14]

“While the practical effect of a decision that there is no case to answer leads to an acquittal, it has not been settled in the Court’s jurisprudence, whether or not such a decision ought to be rendered pursuant to article 74 of the Statute. Article 74 titled ‘requirements for the decision,’ does not expressly indicate whether ‘the decision’ refers to one necessarily rendered only at the conclusion of the trial after having received all the evidence from the parties. Notwithstanding this, given the issue to be determined in this procedure, Article 74 does not appear to provide the appropriate basis to render such decisions on motions for ‘no case to answer.”

Furthermore, as this Motion heavily concerns the failure of the Prosecutor to present sufficient evidence to support a conviction, the proper basis for the decision on the Motion is Article 66(2). The Chamber also admitted that the decision for the acquittal was based on the Motion and is not a formal judgment. It has an equivalent effect in that the accused is formally cleared of all charges.[15]

On the other hand, the Appeals Chamber had a different interpretation of the article as described below:[16]

“Further to the above, the Appeals Chamber finds, contrary to the arguments put forward on behalf of Mr. Blé Goudé,218 that Article 66(2) cannot be the legal basis for the decision in the present case. That provision puts the onus upon the Prosecutor to prove the guilt of the accused. It is an essential provision which applies throughout the proceedings, including at this stage, in much the same way as other provisions that protect the rights of the accused, such as the remainder of Article 66 and Article 67. However, it does not regulate the contents of a decision further to an acquittal nor the procedure for the issuance of that decision. Nor is there any other related subsidiary provision to Article 66(2) which does so. The only provision in the Statute that sets out the requirements for a decision of acquittal is Article 74(5).”

The paragraph above might not touch directly upon the debate relating to the finding of the Trial Chamber; however, the Appeals Chamber remained consistent in concluding Article 74 as the basis for the Motion.[17] In the end, the Appeals Chamber acknowledged that there is room for debate about the legal basis for the decision, yet they still proceeded to reject the Prosecutor’s argument.[18] Even though a specific reason for this stance was nowhere to be found, we could see the possible background in this issue in the applicable law of the court. Article 21(1) of the ICC Statute does not limit the Court to only rely upon the Court’s Statute or rules; there are applicable treaties and rules of international law, general principles, and jurisprudence in ICC.[19] This is illustrated when the Appeals Chamber noted particular international criminal tribunal jurisprudence and Statute in the Motion.[20]


As stated above, an acquittal upon the Motion is not a final decision taken by the Court—as the traditional way would proceed—after hearing a presentation from both the prosecution and defense. This procedure results in the discontinuation of proceedings and release of the accused from all charges. In this regard, the Trial and Appeal Chamber have no discrepancy. The Appeals Chamber complements the Prosecutor’s argument on whether the Trial Decision must be completed in a full hearing of parties and the allegation that the acquittal was premature.

The Appeals Chamber specifically asserted:[21]

“It is, of course, possible to envisage a worry that the assessment of the evidence on the standard of proof beyond reasonable doubt, at a stage before the conclusion of the case for the defence, may entail prejudgment of the case for the defence—in the event of an unsuccessful outcome of a motion of no case to answer. On a closer look, however, the worry is more apparent than real. […]”

“Yet, the imperatives of a fair and impartial trial do not require a trial chamber to prolong the trial in any case in which the prosecution evidence, seen in ‘its best light’ – in the sense of being undistracted, unobstructed or unopposed for the time being by evidence introduced on behalf of the defence – is unable to satisfy the standard of proof beyond reasonable doubt […].”

These explanations affirmed that the test in this stage is based solely on the strength of evidence and narratives, nothing more. The Appeals Chamber even reiterates the use of different terms of “could” other than “would” to denote that the evidentiary standard at this stage is intended to leave the possibility open that future evidence that might be brought before the Court by the prosecution, let alone the defense.[22] On the other hand, this understanding could create some confusion as the Court also demands the prosecution meet the standard “beyond reasonable doubt” in relation to presented evidence. Initially, such question may be countered on the description embraced by the traditional practice of this stage, as the Trial Chamber noted from previous jurisprudence that the evidence is taken to its highest value. This means the Chamber must assume that all evidence in that particular time is reliable and credible and then focus on assessing the case’s merits. Nevertheless, the Appeals Chamber emphasized that, by pointing out the Trial Chamber position, an admissibility ruling in this stage cannot be dismissed.[23] 


The Trial Chamber, by a majority, stressed the holes in the Prosecutor’s narrative as they were relying almost entirely on circumstantial evidence that was not balanced and was inconclusive.[24] Among other grounds, the Trial Chamber highlighted that the nature of the systematic and widespread attack was noticeably missing from the prosecution’s crimes against humanity argument. One of the failings in their argument was the 24 incidents (five charged incidents and 19 uncharged incidents) referred to by the Prosecutor.[25] The Trial Chamber could not conclude, based on the prosecutor’s submission, the link between incidents and the impact of the incidents on the whole civilian population as required in the elements of the crime.[26]

In the same manner, the Appeals Chamber rejected the Prosecutor’s argument that the evidentiary standard of the Trial Chamber is overly rigid but prevented themselves from assessing the core of the factual basis in the case. In general, the Chamber did not find Trial Chamber’s decision was in contradiction of the burden of proof set at the respected stage inter alia beyond a reasonable doubt.[27]


Laurent Gbagbo and Charles Blé Goudé were two individuals that the United Nations Security Council and the international community believe responsible for the Cote d’Ivoire 2010-2011 crisis, at least before their cases entered the trial stage. It was until one Motion turned the table, leaving thousands of victims and almost one decade of prosecution in wonder. The accused’s defense counsel submitted a motion, namely “No Case to Answer”, meaning they believe that the prosecutor failed to establish the burden of proof even before they delivered its narrative.

In the trial judgment of Gbagbo and Blé Goudé, Judge Henderson presented the majority opinion, noting that the Motion was rooted in Article 66(2) of ICC Statute; however, this point of view was corrected in the Appeals judgment. In the Appeals judgment, Article 74 of ICC Statute was mentioned by the Chamber as the proper basis of the Motion. Even though the Chamber admitted such diverse reference of the Motion is subject to a debate, the Chamber rejected the Prosecutor appeal concerning an error of law by the Trial Chamber. Indeed, ICC Statute does not use the legal term of “no case to answer,” but it also does not limit the Court’s authority to other sources such as the jurisprudence of prior tribunal, which has recognized and exercised the Motion. In addition, both Trial and Appeals Chamber agreed that the Prosecutor, at a minimum, shall be able to sustain the conviction in reaching beyond reasonable doubts at the time the Motion comes into the picture. This suggests, at any time, the Defense Counsel could force the prosecution to lose its case without preparing its own evidence. To add to the burden, the respective Chamber initially established that the onus on the Prosecutor is to sustain the conviction, or the collected evidence must be taken at its highest value. The Appeals Chamber re-stated Judge Henderson’s reasoning that the evidentiary assessment at this stage would not set aside the process of weighing the credibility and value of the evidence. In conclusion, the Prosecutor Team is now dealing with a newly established challenge called “No Case to Answer”, meaning their case will be dismissed, and their evidence will be re-evaluated at any moment during the proceeding. 

Ardya Syafhana holds a law degree from the Faculty of Law of Universitas Islam Indonesia. She has worked in Jakarta International Law Office and is presently serving as a legal assistant in a law firm in Jakarta and as a Blog writer at Platform for Peace and Humanity. Ardya has participated in several international moot court competitions and Model United Nations conferences.

[1] United Nations Security Council Resolution [UNSC Res] 1975 (30 March 2011) UN Doc S/RES/1975; UN News Service, “UN forces begin operation in Ivorian city in response to the attack by pro-Gbagbo forces,” 11 April 2011, <> accessed 20 January 2022. 

[2] Human Rights Watch, ‘Cote d’Ivoire: Justice for 2010-11 Crimes Stagnates’ (Human Rights Watch, 8 May 2019) <> accessed 20 January 2022. 

[3] Prosecutor v. Laurent Gbagbo (Pre-Trial Judgement) ICC-02/11-01/11 (12 June 2014) [266]-[278]

[4] Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 38544 (ICC Statute) art 25(3)(a).

[5] Ibid, art 25(3)(b) and (d).

[6] ICC Statute, art 28(a) and (b); Ibid, [262]-[265].

[7] Prosecutor v. Charles Blé Goudé (Pre-Trial Judgement) ICC-02/11-01/11 (11 December 2014) [194].

[8] ICC Statute, art 25(3)(a).

[9] Ibid, art 25(3)(b).

[10] Ibid, art 25(3)(c) and (d).

[11] Prosecutor v. Laurent Ggbagbo and Charles Blé Goudé (Trial Judgement) ICC-02/11-01/15 (16 July 2019) [28].

[12] Ibid.

[13] Prosecutor v. Laurent Gbagbo and Charles Blé Goudé (Appeal Judgement) ICC-02/11-01/15 A (31 March 2021) [378], [380].

[14] Prosecutor v. Laurent Gbagbo and Charles Blé Goudé (Judge Henderson’s Reasons) ICC-02/11-01/15 (16 July 2019) Annex B [13].

[15] Ibid [17].

[16] Appeal Judgement (n 13) [121].

[17] Ibid [122] – [124].

[18] Ibid [246].

[19]  ICC Statute, art 21(1).

[20] Ibid [104]-[105], [302].

[21] Ibid [310]-[311].

[22] Ibid [309] – [310].

[23] Ibid [326]; Judge Henderson’s Reasons [3], [41].

[24] Judge Henderson’s Reasons [78], [81]-[82], [2038].

[25] Judge Henderson’s Reasons [88]-[91]

[26] Judge Henderson’s Reasons [1888]-[1889].

[27] Appeal Judgement [305]-[308].

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