Judges ruled Friday that Gbagbo and former government youth minister Charles Ble Goude must remain in custody until judges issue a decision on a prosecution appeal against their unconditional release.
Both men were ordered released this week after their acquittals on crimes against humanity charges linked to their alleged involvement in violence that left more than 3,000 people dead after Ivory Coast's disputed 2010 presidential election.
Prosecutors plan to appeal the acquittals and say the men should only be freed under strict conditions designed to ensure they return to court for appeal hearings. In a 3-2 majority ruling, the appeals judges suspended the order to release Gbagbo and Ble Goude and scheduled a Feb. 1 hearing to discuss the appeal against their release.
Two judges argued that prosecutors did not have the right under the court's founding statute to appeal against the decision to free the men. Gbagbo has been in the court's custody since November 2011 and Ble Goude since March 2014. Lawyers for both men argued that they should be allowed to walk free now following their acquittals.
Prosecutors said that if they are unconditionally released there is a risk they will not return to court when their acquittals are appealed. Gbagbo's trial marked the first time the ICC put on trial a former president. It was seen as a milestone in efforts to bring to justice the highest-ranking leaders accused of atrocities.
It turned into the latest defeat for the embattled court's prosecutors. The case against Kenyan President Uhuru Kenyatta, who was accused of involvement — before he became president — in post-election violence collapsed in December 2014. Last year, appeals judges acquitted a former Congolese vice president, Jean-Pierre Bemba, of crimes allegedly committed by his militia in neighboring Central African Republic.