Lessons from Gbagbo’s failed ICC prosecution

Has the Office of the Prosecutor of the International Criminal Court (ICC) finally exorcised the ghost of the Laurent Gbagbo case in its confirmation of charges (COC) presentation against former President Rodrigo Duterte? Gbagbo was the first former head of state to stand trial before the ICC for crimes against humanity. Prosecutors alleged that during Côte d’Ivoire’s postelection crisis between 2010 and 2011, he joined a common plan to retain power through violence, coordinated within an “inner circle” and carried out by state forces. Charges were confirmed and the case initially appeared formidable.

Yet at trial, the prosecution collapsed.

The trial chamber granted a No Case to Answer (demurrer) motion, finding a weak link between presidential authority and the killings and holding that proof of a coherent criminal plan and documentary linkage was insufficient and relied too heavily on contextual inference. Gbagbo was acquitted on Jan. 15, 2019, and the appeals chamber affirmed the acquittal on March 31, 2021.

The lesson was stark: A compelling narrative at confirmation of charges is not proof beyond reasonable doubt.

Gbagbo and Duterte show uncomfortable parallels. Both face accusations that as heads of state, they were behind violence on the ground that formed part of a campaign framed as necessary for political stability; that their violent rhetoric signaled or encouraged lethal action. Both cases involve proving that violence reflected a policy attributable to the highest level of leadership under the theory of indirect co-perpetration.

The ICC does not require a written criminal policy to establish crimes against humanity. Judges, however, look for coordinated conduct, patterned incidents across regions, and concrete evidence linking leadership to implementation. The Gbagbo case illustrates how fragile an indirect co-perpetration theory can be when proof of control over the crime is thin. Showing that a leader exercised essential control over a coordinated apparatus requires more than speeches and contextual reconstruction.

Often overlooked in news reports is that the Duterte charges (as in Gbagbo) advance alternative modes of liability—in this case, indirect co-perpetration (Article 25(3)(a)), ordering or inducing (Article 25(3)(b)), and aiding or abetting (Article 25(3)(c)). Even if common control over the crime is not proven, liability may still attach if the suspect ordered, induced, or substantially facilitated the crimes. Indirect co-perpetration requires proof that the accused exercised control over the crime through an organized apparatus. Ordering or inducing focuses on whether instructions or encouragement had a direct and substantial effect. Aiding or abetting examines whether practical assistance or encouragement substantially facilitated the crimes with knowledge that they would occur.

Gbagbo was tried only for indirect co-perpetration. The Duterte case rests on a denser record: official statements, memorandum circulars, and operational plans tied to “Operation Plan Double Barrel” and its later “Reloaded” version—the “smoking gun” defense counsel Nicholas Kaufman tried to discredit. But indeed, a written enforcement plan is not automatically a criminal one. Judges must decide whether the framework itself embodied a policy to kill civilian targets without due process, or whether abuses were deviations from lawful operations.

Prosecutors link these materials to enforcement data and representative cases allegedly showing nationwide implementation of a plan first developed in Davao City. References to “kill lists,” structured sweeps, and the use of state machinery are cited as evidence that the antidrug campaign became a systematic attack on civilians. Duterte allegedly reinforced the structure by appointing members of his Davao circle to key law enforcement posts. Prosecutors argue this meets the COC’s “substantial grounds” standard—robust prima facie evidence that could support conviction if unrebutted.

The Gbagbo acquittal reminds prosecutors that context cannot replace proof of linkage. Yet the Duterte case appears built on a heavier documentary and evidentiary foundation.

Kaufman attempted to challenge that narrative, pointing to the unresolved constitutional challenge before the Supreme Court to the 2016 memorandum authorizing the “neutralization” of drug suspects. But victims’ lawyers Joel Butuyan and Gilbert Andres—who have litigated the issue for nearly a decade—were prepared for that line of attack.

Gbagbo’s ghost remains a caution. This time, however, prosecutors appear determined to anchor their case in documentary proof while preserving alternative legal pathways if one theory fails. Whether that will satisfy the beyond-reasonable-doubt standard at trial remains to be seen.

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Romel Regalado Bagares is vice chair of the Philippine Judicial Academy’s international law and maritime law department.