Laurent Gbagbo, the former president of the Ivory Coast, has been acquitted of all crimes against humanity charges at the International Criminal Court (ICC) and may be released tomorrow.

In a ruling delivered this morning, judges determined that there was no need for the defense to present its evidence since the prosecution had failed to satisfy the burden of proof in relation to several core elements of the case.

Judges ordered Gbagbo’s immediate release but later suspended the order until tomorrow morning, when the prosecution will have studied the ruling and decided whether it will lodge an appeal.

Article 81(3)(c) of the court’s Rome Statute provides grounds under which, in case of an acquittal, the accused may not be released immediately if the prosecutor so appeals. They include the concrete risk of the accused fleeing, seriousness of the offence charged and the probability of success on appeal. In such instances, the Trial Chamber, at the request of the prosecutor, may maintain the detention of the person pending the prosecution’s appeal.

Reading a summary of the ruling, presiding judge Cuno Tarfusser said the majority of judges found that the prosecutor had failed to demonstrate that there was a plan to keep Gbagbo in power, or that there was a common plan to attack civilians so as to maintain him in power.

In addition, a majority of judges determined that the prosecution had failed to demonstrate that public speeches by Gbagbo and his co-accused, Charles Blé Goudé, constituted soliciting or inducing the alleged crimes, or that the accused knowingly contributed to the commission of such crimes. Blé Goudé, a former youth and sports minister in Gbagbo’s government, was also acquitted.

Today’s acquittals present yet another setback to the ICC prosecution office, whose cases against the most high profile individuals have failed. The cases against Kenya’s president Uhuru Kenyatta and vice president William Ruto were terminated in 2015 and 2016 respectively, while former Democratic Republic of Congo vice president Jean-Pierre Bemba was last year acquitted on appeal.

Gbagbo, 73, has been in ICC detention for seven years and two months, having been transferred to The Hague in November 2011, seven months after his arrest by Ivorian and French troops. His trial for four counts of crimes against humanity commenced in January 2016 and saw the prosecution call 82 witnesses, the last of whom testified last January.

In the no case to answer motion filed by Gbagbo’s lawyers last July, they argued that the prosecution had failed to produce sufficient evidence to sustain a conviction. The defense argued in the appeals that the prosecution’s case hinges on “the uncorroborated testimony of a few patently incredible witnesses, and an inordinate amount of hearsay evidence” whose credibility and reliability judges are unable to evaluate.

However, the prosecution maintained that its evidence was strong enough to sustain the case to the end of the trial stage. As deputy prosecutor James Stewart argued at a hearing last October, “The accused should be put upon their defense and this trial should proceed to its conclusion with a determination on the merits of their guilt or innocence.”

Gbagbo was arrested together with his wife Simone, for whom the ICC had also issued an arrest warrant. However, Simone has never been transferred to the ICC, as the Ivorian government preferred to try her domestically. The February 2012 warrant for Simone’s arrest accused her of the alleged crimes against humanity of murder, rape and other forms of sexual violence, and persecution.

In 2015, an Ivorian court convicted Simone for undermining state security and handed her a 20-year prison sentence. In 2017 she was acquitted of crimes against humanity charges in a process reportedly marred by fair trial concerns and a critical lack of evidence. But last August, president Ouattara pardoned her as part of a larger Ivorian amnesty process, just as the country’s Supreme Court had overturned the acquittal and sent the case before another criminal court.

Since Simone was tried and sentenced in a local court, ICC judges are reviewing whether the former first lady can still be tried in The Hague.

At a hearing tomorrow morning, the prosecution is likely to ask judges to keep Gbagbo and Blé Goudé in detention pending its appeal.