The Hague – International Criminal Court prosecutors agreed Friday to the conditional release of Laurent Gbagbo provided the former president is not allowed to return to Ivory Coast.
Former strongman Gbagbo and his aide Charles Ble Goude were cleared last month of charges of crimes against humanity, committed during post-election violence in the west African nation in 2010-2011.
But the Hague tribunal is deciding whether the 73-year-old ex-strongman should be kept behind bars pending an appeal by the prosecution against last month’s acquittal.
"The chamber can order release on conditions instead of detention," senior prosecutor Helen Brady told ICC appeals judges.
Prosecutors say they fear Gbagbo and Ble Goude will not return to court if judges order a retrial, and suggested that they be released into the custody of a country near the Netherlands and give up their passports.
Belgium has been floated as a possible option, as happened when the ICC released former DR Congo warlord Jean-Pierre Bemba in 2018.
"If Mr Gbagbo and Mr Ble Goude cannot meet the conditions imposed… or breach these conditions… in common law ‘breach bail’, they could be sent back into detention," Brady said.
Gbagbo’s lawyers say he should be released without any conditions and free to return to Ivory Coast.
"It is impossible to limit the freedom of an innocent person," where there are no exceptional circumstances, chief defence lawyer Emmanuel Altit told the court.
Judges are expected to postpone their decision on releasing Gbagbo until a later date.
Gbagbo and Ble Goude had been on trial for two years, accused of orchestrating a wave of violence after Gbagbo refused to concede defeat in an election to bitter rival and now-president Alassane Ouattara.
Atrocities were allegedly committed on both sides as the bloodshed turned Abidjan into a war zone and destabilised the African economic powerhouse, the world’s largest cocoa-producing nation.
The crisis claimed around 3,000 lives.
Gbagbo was captured in 2011 by Ouattara’s troops, aided by UN and French forces, and sent to stand trial at the International Criminal Court.
ICC judges, by a two-to-one majority, stopped the trial midway on January 15 citing an "exceptionally weak" prosecution case.
They also ordered the immediate release of Gbagbo and Ble Goude but prosecutors successfully applied to have Gbagbo kept in detention.
They argued at the time that he should either be kept behind bars pending an appeal, or released with strict conditions.
Prosecutors now appeared to be leaning towards the softer of those two options.
Even if judges do make a decision to free Gbagbo on Friday, it would take several days to complete the administrative procedures and logistics for his release.
The Gbagbo acquittal was a severe blow for ICC prosecutors after similar failures with Bemba last year and Kenyan leader Uhuru Kenyatta in 2014.
ICC prosecutors had cited the case of Gbagbo’s wife Simone as an example of why he is a flight risk, saying that despite an outstanding ICC warrant for her arrest, the Ivorian government has not surrendered her.
The delay in Gbagbo’s release at least puts off, for now, the political uncertainty over his possible return.
His acquittal comes at a sensitive time with Ivory Coast facing fresh elections in 2020 to elect a successor to Ouattara, who has said he will not stand for re-election after serving two five-year terms.