ADVOCATES OF THE CAMEROON BAR
Taku Chambers
SENIOR ADVOCATE:
Chief Charles A. TAKU, Esq. (Head of Chambers)
Lead Counsel, UNICTR
Lead Counsel, Special Court for Sierra Leone, Counsel ICC
Honorary Member of the Law Firm of Angus Gloag and
Jonathan Goodman and Co.
ADVOCATES
Caroline MUNGE TIME
Shufai Blaise SEVIDZEM B
Chief NJI Jerome FOTULLAH
AWUNGNJIA Tetchounkwi
Lawrence LYONGA NGANDA

Taku's Chamber

Fighting for the Voice of the Voiceless

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THE WAR ECONOMY, IMPUNITY AND THE CRISIS OF PRIMITIVE ACCUMULATION

Posted by Moderator on July 3, 2020 at 7:05 PM Comments comments (0)

By Chief Charles A. Taku

The persistent call by the Secretary-General of the United Nations and significant peace advocates, among them, Nobel Peace prize laureates for a cease-fire in the ongoing war of attrition and genocide in the Southern Cameroons, to allow peace efforts to be explored and access to victims in dire need of humanitarian assistance during the covic-19 pandemic has been ignored by the Government of Cameroun. What brazen insensitivity and impunity!

It is left to be seen how the international community will react to the impunity with which the rampaging hordes of assassins have been unleashed to perpetrate genocide, to loot, rape, pillage and swim in the blood of the innocent victims; women, children men of all ages. I have incessantly called on the civilized world to put an end to the carnage, genocide and impunity, lest the blood of the innocent blur the collective conscience of humanity, in our time, and on our watch.

The question is worth asking: What emboldens the masterminds of genocide, crimes against humanity and war crimes to disregard the calls for a ceasefire, to get to the negotiation table to address the root causes of the crisis without preconditions requested by the international community? And how come it that there has so far been no consequences for this blazon impunity?

The answer to these questions may among several reasons reside on the influence and impunity of reckless primitive capitalist accumulation in the war economy. Borrowing from the distinguished Professor Ekor Toyor, the international community needs to understand the essence, processes, contradictions, historical pressures and cultural emanations of primitive capitalist accumulation to understand the politics underpinning the politics and the impunity of the genocidal predators.

The Southern Cameroons case crystalizes around the interpretation of United Nations Resolution 1608 (XV). A British Minister in the Commonwealth and Foreign Office very recently made bold to anchor the case of his government on a flawed interpretation of Resolution 1608(XV) in a widely publicized letter to a Member of the House of Commons. An enduring resolution of the Southern Cameroons/Ambazonia conflict, rests on the accurate interpretation of this UNGA Resolution and the consequences of non-compliance, the violations of the sacred trust embedded in the UN Charter and the sanctity of universal erga omnes obligations towards the people the Southern Cameroons.

If since October 1, 1961, the matter was as simply a a matter of the interpretation of the UNGA Resolution 1608 (XV) as the Hon Minister now purports, why then has Great Britain the Trust Administering Power, LRC , the colonising power or the UN not taken up the matter to obtain expert interpretation to ascertain if the intendment of the resolution and UN Charter obligations were respected and implemented? Why vacillate for over 59 years during which period genocide, crimes against humanity and war crimes claiming the precious lives of over 13000 and the deportation of hundreds of thousands to Nigeria and many countries in West Africa has occurred with impunity; and for economic gain, and the corruption of the consciences and gratification of the economic interests of colonial and neo-colonial interests ? Why have they not activated the mechanism for the resolution of conflicts through the international rule of law enshrined in the UN Charter to interpret the Resolution; provide a comprehensive solution to the conflict, abate the genocide and crimes and hold the masterminds accountable pursuant to founding objectives for which the UN was founded?

I cannot at this point in time conclude that the UN will do nothing or will act in a manner that will encourage tacitly endorse or encourage the ongoing genocide and impunity. The UN internal mechanisms have been activated and the competent organs are constantly briefed while some of its personnel and ancillary organs are engaged; each at its own pace, although the intensity of the carnage warrants an urgent and robust intervention.

However, the impunity and reluctance of LRC to hasten to respect the call of the civilized world to abate the slaughter and impunity has been aggravated by the devastation of the covid-19 pandemic. The benefits to its war economy has demotivated Cameroun from respecting the request for a ceasefire and calling its forces back to barracks to allow humanitarian and healthcare assistance to war victims in the forests and bushes of the Southern Cameroons. Cameroun and its colonial master have benefited from the spoils of annexation and colonisation of the Southern Cameroons since the night of September 30, 1961 and finds it hard to disengage from a territory and people it has exploited for almost six decades with impunity.

Fon Gorgi Dinka termed the deal which led to the annexation and colonisation of the Southern Cameroons the Mc McLeod slave deal. By this deal, Her Majesty’s Government in the night of September 30, 1961 folded the Union Jack and handed over the instruments of sovereignty over the Southern Cameroons to a war criminal Ahmadou Ahidjo . At the time, he was intensifying the slaughter of nationalists in his own country, LRC. Britain knew that the war criminal would slaughter, jail and plunder the Southern Cameroons in enforcing the slave deal; as indeed he did, and his successor has intensified with sadistic impunity.

Ambazonia however kept the international legality of surrounding its fate and date with history, on October 1, 196. On October 1, 1961, it was its elected government that was in place and all symbols of state and UNGA Resolution 1608(XV) have survived the thievery for posterity to plead and defend its case and sovereignty until the last man standing. The impunity and complicity in the Alibaba booty was explained by Ahmadou Ahidjo in a speech to the National Assembly of LRC on August 11, 1961. He discounted the usefulness of signifying a treaty of union with the Southern Cameroons after it attained independence on October 1, because for him, the Southern Cameroons was merely returning to LRC’s motherland. He intended to adjust LRCs constitution of 4th March 1960 to accommodate its territory to the LRC motherland. It is this arrogance of impunity and the fulfilment of the criminal qui pro quo that took place at the Tiko Airport in the night of September 30, 1961 that led this criminal mastermind to make the fundamental mistake of believing that through terror of impunity he would annex and colonise the Southern Cameroons with no consequences. History has proved that he was wrong and will always be wrong.

There concealment of the spoils of the slave deal were wrapped in deception and shameful lies. The British argued that the Southern Cameroons was poor and could not survive economically on its own. This shameful status-evaluation was false. History has proved that the British and the French knew about the extensive mineral and natural resources potential of the Southern Cameroons. The British managed the CDC, PAMOL, exploited the Southern Cameroons Maritime Economy. Britain exploited the strategic and regional security potential of the Southern Cameroons. The Southern Cameroons had significant hydro-electric potential, Sea Ports and Airports.

Lately a British Firm signed an oil exploitation deal in the territory at the heart of the genocide to help LRC in its genocidal war efforts. An official British Government statement announced and praised the deal. An attempt by LRC to auction extensive forest and agrarian ancestral lands covering almost half of the territory of the Southern Zone of Ambazonia with the complicity of puppet chiefs and fringe power elites was strongly resisted by the people. The internationalisation of the protest forced the land grabbers to withdraw but the land grabbing crusade of the invaders remains unabated.

The peaceful resistance, resilience and gallantry in the fight against the plunder led to the declaration of a vicious war against the armless civilian population by President Paul Biya of LRC. This led to the ongoing slaughter and genocide; the prosecution of which has led to the exponential increase of the benefit derived from its the war economy.

The bourgeoisie class of colonial puppets to whom power was handed over in LRC after the slaughter of pro-independence nationalists in that country, sustained colonial power overseers over French colonial vassal and neo-colonial war economy. To sustain the war economy and exact maximum benefits, through systemic terror, asphyxiation of the so-called power elite, supposed academic and faculty opportunists, mystical initiations, systemic corruption, masturbation of the intellect etc, allegiances are compelled and human consciences subdued. Houses of worship and clerics are freely rented to perform rituals and praise worshipping to glorify not the living God but the god of their pecuniary desires.

The spoils of the war economy recruited some clergy on the side of those who are baying for and wasting the precious lives of people whom God created in his image and for whom these supposed anointed ones were commissioned to lead in their salvific sojourn towards the Kingdom of God. I am consoled by the fact that the Church of God is holy. It must not be abused and conflated with cursed Alibaba caves of earthly treasure that some are showcasing in the context of the war economy. Christians and persons of faith in the Lord must therefore, intensify prayers and leave Alibaba treasure seekers to play their acquired roles in the circus of earthly power and primitive capitalist accumulation.

The apparent senselessness and futility of the unwinnable war and genocide in the Southern Cameroons by LRC would reasonably have led to a withdrawal of its troops from the territory to the barracks and sought a negotiated settlement. The history of armed conflicts in Africa requires a respectable decision to stop the genocide, the carnage, looting, rape and indignities to victims. The war in Sierra Leone went on for 10 years, ending in the Lomé Peace Accord. A combined force of the Sierra Leone Army, ECOMOG, UNAMSIL, Executive Outcomes mercenaries brought by the Government of Sierra Leone did not defeat the Revolutionary United Front for Sierra Leone in the battlefield. Cameroun cannot win this senseless war of choice in the battlefield. It must end in an international negotiation table where internationally recognized experts, will examine the root causes of the conflict without pre-conditions has an overwhelming majority of international opinion has stated.

This reality is not lost on Cameroun’s leaders, its civilian and military commanders but the gain derived from the war economy is driving their urge to continue the war, regardless of the consequences and loss of human life. This is what is driving the impunity and urge to continue a losing war with the magnitude of the genocide, crimes against humanity and the ferocity of the war crimes.

This war is also about a policy of slaughtering civilians to sustain annexation, cultural genocide also called national integration which President Paul Biya confessed in France early this year has failed. The founding underpinning of the war is economic which was the basis of the annexation and colonisation in the first place. Inspired by this ideological orientation and motivation, the war is a cash cow for the enrichment of a colonial bourgeoisie puppetry at the evening of its life; but intent to drawn in the blood of Southern Cameroonians and sink with its natural resources and subsistence economy. These are the dire consequences of the war economy, impunity and the crisis of primitive accumulation.

There are two important obstacles standing between the Southern Cameroons and the unimpeded prosecution of this policy: Resistance, spiritual purity, the strength and the justice of its case around UNGA Resolution 1608 (XV) as well as the fact that the price of impunity will be fully paid now or at some point in time. In this regard, every pin of blood unjustly taken away will be accounted for and every victim, dead or alive will cry for and obtain justice.

 

 

 

 

 

 

 

 

PROFESSOR ALI MAZRUI CONFRONTED CULTURAL GENOCIDE

Posted by Moderator on June 6, 2020 at 12:10 AM Comments comments (0)

December 15, 2014

By Chief Taku

A major contribution of Professor Ali Mazrui was to reawaken and affirm the humanity of the black race and the underlying liberating values that sustain this reality. An enduring effect of centuries of crimes that were perpetrated against the black race from the slave trade, to the “Berlin Bazaar”, colonialism, neo-colonialism and other variants of international conspiracy that are ongoing is cultural genocide. In this cultural genocide, African cultures were vandalized; interdicted and sub-human foreign values imposed in their place. A hallmark of the cultural genocide first to destroy the humanity of the black race was to impose an image of God that was totally foreign to the black race. In this situation, while other races recognized God in themselves and in their own cultures, Africans did the contrary. The result is that the creative genius in the black race that inspired the marvelous inventions and developments in the sciences, architecture, arts, religion, and philosophy was suppressed or simply lost. The evidence of this is found in a fragmented continent, lost kingdoms, endangered human species, a devastated cultural heritage, valuable artifacts and precious treasures in western museums, palaces, universities, religious sanctuaries and imperial homes. This is explained or depicted as the glorious prizes of gallantry at wars against savage black people living in the caves of the Dark Continent. African intellectuals were trained or taught to participate in the destruction of their own cultures, to resent indigenous values, to abdicate their own cultural identity and forsake their common spirituality. Franz Fanon in his classic book, The Wretched of the Earth (1966), laments that during the period of decolonization, certain colonized intellectuals began to dialogue with the bourgeoisie of the colonialist countries and during this period, the indigenous population was discerned only as an indistinct mass. Fanon posits that during the period of liberation, the colonialist bourgeoisie feverishly looked for contacts with the elite to carry out rearguard action with regard to culture, values, techniques etc. According to Fanon, the most essential value for the people is land because it brings bread and above all dignity; dignity which has little to do with dignity of the human person for natives can be arrested, brutalized, starved, and dehumanized and no professor of ethics, no priest, ever comes to be beaten in his place or share his bread with him. Fanon sees the so-called elite and black intellectuals as either mere opportunists or agents of oppression. Nwafor Orizu in “The Corrupting Influence of the West” casts the so-called colonial educated intellectuals, among them lawyers, for considering African cultures and traditions as heathenism which they surveyed with high contempt, obeying no laws, and observing no rules. Ali Mazrui broke ranks with these categories and took upon himself the responsibility of researching, studying, and presenting to the world, the distinct supreme human values in African cultures and their unique contributions to world civilization. Like Franz Fanon, he identified the humiliating and dehumanizing predicament of the black race and Western vampire proclivities that threatened and continue to threaten the very existence of the black race. This dehumanizing predicament was brought about by a policy of cultural genocide which aimed at destroying the Africans, in whole or in part, on the basis of their culture and race. With his towering intellectual acumen, he led the crusade to marshal the contributions of African intellectuals towards the study of African cultures and values for the amelioration of the African condition. He critically legitimized the creation of cultural awareness among Africans in particular, and the black race in general, as critical tools for our freedom, liberation and collective survival. He taught the world that the cultural, environmental, spiritual, socio-economic and political attributes that Africa possessed like the hydra shall rise to serve and save humanity. In this he was profound, relevant and commanded with significant success the battle for the re-conquering of black humanity as the very canon of its own collective survival and existence. At the time of his death, Ali Mazrui had eternalized the fight to roll back the cultural genocide that was ongoing for several centuries, an impressive legacy for the present generation and posterity. The battle is ongoing with intensive ferocity. However, looking at the record and legacy of Professor Ali Mazrui, I am hopeful that the future of a peaceful, prosperous world belongs to the cradle of human existence, Africa. In his television series, “The Africans: A Triple Heritage,” he was optimistic about this. So am l.

*Chief Charles A. Taku is a Pan-Africanist lawyer, writer and author of books and professional articles on international law. He led counsel at the United Nations International Criminal Tribunal -UNICTR, Special Court for Sierra Leone and the “ICC Continuing investigation in the Republic of Kenya for Dr. David Matsanga. With co-counsel, Betty Lyons, he obtained a remarkable acquittal in the Military II trial at the ICTR.

 


Why we laugh at politicians and give them names (to Chief Charles Achaleke Taku, UN Attorney)

Posted by Moderator on June 6, 2020 at 12:00 AM Comments comments (0)

By Dr Bate Besong

 

In our ‘White Collar Delinquent’s Democracy’

Where the monopoly of power is

the birthright of those

who get it by crook

and the state apparatus is

and instrument of personal vendetta;

elections are won

under the ogogoro of

Monsieur Chirac’s distillery

Many southern Cameroonians have been misled by

their opinion;

their wrong ideas have warped

their judgement

They want to count the raindrops or

the sand along

Victoria beach

They refuse to change, to be converted.

Tadpole armies and their Brigadier Generals will

realize the self-appointed

Commanders-in-chief are nothing

more than the works of human hands

Everything made by racketeers of power

will decay and perish, along

with the thieves who made it.

The people who build the world are the ones

who do not follow the example so the kokoro insect

feeding fat

under the leaf of

the vegetable

Wounds can be

bandaged and insults can

be forgiven,

but if you betray a

confidence it is hopeless just

as thieves will suffer disgrace freelance mutants

of power will suffer severe condemnation

The lord Mayors of the Ewondos died and all he then

possessed are flies worms and maggots

Injustice, arrogance and wealth cause federations

to fall from

power and others then rise to take

their place

The Sultan of ‘‘Go-if-you-don’t like it-here’’ is despised

while he is on the throne think

how much Ahmadou Ahidjo’s corpse will be flogged

in it’s Re-unification Qui-or-

Yes caskets; Where thieves will wander in and help

themselves

No one should ask why things are as they are

These questions will be answered at the right time.

August 31, 2006 at 10:37 AM

 

THE JUDGMENT OF THE FEDERAL HIGH COURT OF NIGERIA ABUJA

Posted by Moderator on June 6, 2020 at 12:00 AM Comments comments (0)

UMASKING ANOTHER INTERNATIONAL CONSPIRACY: HAIL THE RULE OF LAW.

BY Chief Charles A. Taku

 

The judgment of the Nigeria Federal High Court in Abuja on March 1, 2019, declaring illegal and unconstitutional, the abduction and deportation to Cameroun of the President of the Interim Government of the Southern Cameroons/Ambazonia Sisiku Ayuk Tabe, members of the Interim Government and several Southern Cameroons refugees carries significant symbolic weight.

The judgment has comprehensively determined the legal status of the abductees which was in controversy since Cameroun characterized them as terrorists on the account of alleged crimes committed against Cameroun from the territory of Nigeria; so, the Isa Tchiroma and the Court-martial alleged. The Federal High Court of Abuja Nigeria on the territory of which the crimes alleged in the court-martial were allegedly committed has decided that they are persons who were legally in the territory of Nigeria as refugees under the protection of international conventional law at the time of their abduction and deportation. They were not therefore terrorists nor did their presence and activities constitute terrorism to warrant their being characterized as terrorists to warrant abduction and deportation to face a court-martial. Even if they were terrorists, international law still outlawed the abduction and deportation without compliance with the municipal and international rule of law.

This judicial determination settles a key issue in the subsequent case brought against the victims by Cameroun, the state to which they were deported. The failure of the court-martial in Cameroun where the abductees are forcefully subjected over their objections, to take judicial notice of the Judgment of the Abuja Federal High Court will have bilateral relations and multilateral treaty obligations consequences on the two countries, in the short and long term. Nigeria and Cameroun are state parties to the 1951 United Nations Convention on Refugees and its Additional Protocol 1967. Both countries are state parties to the OAU 1969 Convention Governing the Specific Aspects of the Refugee Problem in Africa which came into force in 1974.

The refugee problem globally and in Africa is a matter of significant international emergency, if not a humanitarian crisis. Without the existing multilateral treaty regime to manage this humanitarian crisis, millions, of the world’s vulnerable refugee population will be pursued across international boundaries and slaughtered by the murderous regimes and criminal squads from whom they fled in the search for protection. International law mandates state parties to the Refugee Convention to open their frontiers to allow refugees fleeing from wars, genocide, crimes against humanity and other life-threatening conditions to their lives to provide them protection. International law outlaws the abduction, deportation, rendition or the refoulement of persons who have sought refugee status to the countries from which they fled. Once the status of refugees is sought or obtained, the person concerned becomes a ward of international law under the Refugee Convention and its Additional Protocol. State Parties to the Refugee Convention are mandated to ensure compliance and indeed are obligated to submit periodic reports on compliance with their treaty obligations under the convention. Nigeria and Cameroun had a multilateral obligation to ensure that the refugee status of the abductees in Nigeria was respected and protected. Their mandate and responsibility are to the international community, since the 1951 Refugee Convention has near world wide membership. By engaging in criminal conduct to abduct and deport the victims to face a court-martial that applies the death penalty to Cameroun, Nigeria and Cameroun betrayed, violated and endangered the multilateral treaty regime and a protected international human rights value system.

The Federal High Court Judgment provided an opportunity to Nigeria to explain to the world, the rationale and legality of the abductions. It is significant that Nigeria did not convince the court that the abduction and deportation was informed by any compellable reasons justifiable in municipal and /or international law. Nigeria did not convince the court of any legally justified reason to violate with impunity the Nigeria Federal Constitution (1969), its multilateral treaty obligations under the UN Refugee Convention and its Additional Protocol, the African Convention, the International Covenant on Civil and Political Rights and the Rome Statute. There is no compelling reason to explain why Nigeria mortgaged its reputation, its influence in Africa and its claims to lead and represent Africa as a world power at the UN Security Council to fulfil the dictatorial and criminal proclivities of a regime baying for the blood of millions of Southern Cameroonians. Hundreds of thousands of Southern Cameroonians have been deported by Cameroun from their ancestral home which are systematically torched as a deliberate government policy as senior military commanders and civilian government officials have admitted, across the border with Nigeria. The victims who at a great risk of a genocide sought international protections within the territory of Nigeria are living under continuing threat of abduction and assassination, after Nigeria provided support to Cameroun to pursue the commission of international crimes against them in the territory of Nigeria.

The answer as to what endeared President Mohammadu Buhari to place Nigeria at the centre of an unfolding genocide, rather than acting as a facilitator of negotiations and peace may not be answered in this one critical historic judgment. Yet the judgment has the merit of laying an enduring foundation for answers to be provided within the compelling injunction of history. The truth, it is said, will never die with those who thought they could imprison it with sheer political chicanery and stealth transborder corrupt operations. Truth is as stubborn as a rock. Nigeria and Cameroun are aware, and this is important, that the underlying cause of the war declared by Paul Biya as a proxy of France, are the resources within the territory of the Southern Cameroons. These minerals are the umbilical cord to the perennial Nigeria misadventure that has devasted the Niger Delta, its ecosystem, maritime resources, economy and human health. Time will reveal if there are a convergence of economic and hegemonic interests by the known yet, invisible political god fathers enforcing the genocide using Nigeria and Cameroun proxies.

I learnt from my years as a lead counsel at the Special Court for Sierra Lone, in the case of the Revolutionary United from for Sierra Leone (RUF)-Morris Kallon that minerals are the curse of Africa. That is why Central Africa Republic has never been at peace since independence despite its mineral rich capabilities. The Democratic Republic of the Congo is one case in point; so also, Burundi where abundant mineral resources have attracted the interest and wrath of neo-colonial economic and natural resource predators.

The bazaar auctioning of the Southern Cameroons at independence as my late friend Dr Bate Besong stated, or the Mc McLeod slave deal, as the father of Ambazonia Fon Gorgi Dinka described it, was intended to silence the liberating ambition of Ambazonia patriots. For the record, the slave and bazaar dealers did not know that Ambassbay from which Ambazonia derived its name, stood watch over the liberating spirit of its Ambazonia offspring. Ambassbay is a natural environment for the sharks in the Ambazonia sea as opposed to the neighbouring sea which is inhabited by “crayfish”. Those with a good sense of aquatic life know that a shark is not an ordinary fish, surely not a crayfish. And this is where the difference lies.

This judgment of the Abuja Federal High Court conveys an underlying message to the abductors that the abduction of Southern Cameroons leaders and citizens will have consequences that may potentially threaten peace and security in the Gulf of Guinea. That Nigeria has become a key ally of the state actor that declared the war of choice that have the capacity of igniting a conflagration in the Gulf of Guinea affecting its own citizens and interests on both sides of the borders, is a matter of profound concern.

The judgment is a municipal judgment on compliance by Nigeria of its multilateral treaty and constitutional obligations. Finding that Nigeria violated its municipal laws and treaty obligations, is an important contribution to international law. This judgment therefore must be served on the United Nations Secretariat, the United Nations High Commissioner for Refugees in Geneva, all the permanent and non-permanent members of the Security Council through their permanent representations in New York, all ECOWAS state parties through their diplomatic representations in Abuja, the EU state parties present in Brussels, the AU Commission, and give wide publicity.

This judgment negates the charge by Cameroun that the abductees were and are terrorists. Nigeria did not make this charge before and during the hearing. Nigeria should be concerned that persons found to be refugees by its own judiciary are facing a court-martial based on international and municipal violations of its own government. With this judgment, the blood of the abductees and other Southern Cameroonians will lay on the hands of Nigeria should they be further held in violation of this judgment or should they be executed pursuant to the court-martial.

International law mandates that any offence committed on the territory of Nigeria can be investigated and prosecuted by Nigeria failing which Nigeria can send the refugees to a third country willing to accept them but not to the country from which they fled and sought refuge in Nigeria. Will Nigeria submit itself to a court-martial in Cameroun to provide evidence of acts alleged in the charges before the court-martial that were allegedly committed in Nigeria? Does Nigeria recognize a court-martial for civilians which is international human rights jurisprudence has characterised as torture and thus illegal? Does Nigeria by the abductions give legal approval to the crime of abduction which criminalised under the Rome Statute which Nigeria is a state party? Is abduction of civilians not one of the crimes alleged against Boko Haram in which hundreds of thousands of Nigerian civilians have lost their lives? The Abuja High Court trial was an occasion for Nigeria to prove that abduction is legal when conducted by a state actor but illegal when carried out by non-state actors. Nigeria failed to prove this or even convince the court that this crime may be legal under such or other circumstances.

Nigeria under President Mohammadu Buhari tends to disobey court orders and indeed disobeyed the order of the Federal High Court in Abuja made by Justice Gabriel Kolawole dated December 2, 2016 ordering the release of Ibrahim el Zazaky the leader the Shiite Muslim Movement who was abducted by the DSS on December 13, 2015. The DSS alleged that he was detained at his own request for protection. The Judge was unpersuaded on the grounds that protective custody was unknown to law or National Security Agencies Act establishing the DSS. Since December 29, 2015, Colonel Abubakar Malami former National Security Adviser of President Goodluck Jonathan has remained in jail despite court orders for his release.

However, in a suit brought by a constitutional lawyer Johnmary Jideobi praying the court to void the SAN of the Attorney General of the Federation, Abubakar Malami for professional misconduct for advising the Federal Government to disrespect court orders, the Attorney General refused being held accountable for advising the Federal Government to disrespect court orders and that he was not informed about the detentions and so his advice was never sought in the cases. The Attorney General argued in his defence that in cases where his advice was sought, he advised, and the Federal Government complied with court orders. He cited the release on bail of Mazi Nnamdi Kanu the leader of Independent People of Biafra (IPOB) and that of the survivals of an attack on an uncompleted house in Abuja which was stormed and murdered by some operatives of the National Intelligence Services after the Nigeria Human Rights Commission ordered that victims and their dependents be compensated.

This defence by the attorney therefore begs the questions, if he was never informed how then did, he enters appearance to defend the illegal actions of the Nigeria Government?

Africa, and African leaders should hail the Judgment of the Federal High Court of Nigeria in Abuja and pressurise Nigeria and Cameroun to execute it without delay. This judgment protects the municipal and international protections of refugees afforded by multilateral treaties and municipal constitutional provisions. The international multilateral treaty regime has been tested and proved to be critical in checking the excesses and exactions of the world refugee crisis and the humanitarian calamity that is rocking the conscience of humanity. In their imposed inhuman dungeons Sisiku Ayuk Tabe and the Ambazonia abductees represent the face of humanity at risk. This judgment protects that human value represented by Sisiku Ayuk Tabe. African leaders and the international community should applaud this judgment and pressurise Nigeria and Cameroun to obey and execute it.

This judgment should be a shock reminder to everyone, the powerful and the weak, that a refugee is a protected ward of humanity and the legal regimes emplaced to protect him or her attest to this fact. Abducting and deporting refugees to be court-martialled or placing them in harm’s way tantamount to driving a sword on the collective conscience of humanity. This should not be allowed to happen without consequences.

I have a message for those responsible for the abduction and court-martial of civilian victims. Respecting this judgment may be the only opportunity for them to avoid placing their own poisoned chalices to their own lips. Babatoura Ahmadou with the use of terror pursued nationalists who sought refuge in foreign lands but died a refugee himself in solitude in distant Senegal. The refugee status he imposed on others and pursued, abducted and killed or assassinated them was the status that protected and sustained him until he died. In 1968, Joseph Desire Mobutu otherwise called Mobutu Sese Seko lured and murdered Pierre Mulele over strong world-wide appeals and condemnation. Mobutu died a miserable refugee in Morocco. The extensive empire he acquired through, murder, looting and plundering the mineral resources of his country are in ruins. The blood of the thousands he slaughtered to keep himself in eternal power still haunts the memory of him. His countrymen and women are even traumatised, turning his extensive empire into the memorial for his innocent victims.

This recorded history may already have extended a hand of invitation to the actors in the theatre of criminality and violations that the Federal High Court High Court in Abuja addressed in this judgment. Whether they will on their own volition abide by this judgment, is not known to me. However, this judgment is addressed to the collective conscience of Humanity represented by the multilateral treaty regime which the court found was violated. The multilateral treaty regime must demonstrate that it has teeth and that it must not condone or encourage the impunity of state violators of their treaty obligations, lest it wrongly encourages non-state actors. Nigeria itself has a refugee problem in far and distant lands, including Cameroun. It will be unfortunate if Nigerians allow their government to determine their fate through the legitimisation of the violations found in this judgment.

I wish to conclude by addressing a few words to Ambazonians who should be strategizing on how to rely on this judgment to highlight their predicament worldwide where ever they find themselves. I am appalled by how much social media activism and sideshows are distracting them from following the rapidly evolving events that may determine their fate yet again while they are asleep or self-destructing in search of power. While internal squabbles must be addressed, that cannot override rallying behind the Interim Government that instructed the lawyers working on this and other cases to raise the profile of the cases to the highest levers of international intervention. While not trivialising the complaints or matters which some components of the struggle may hold dear to their hearts, and I will not and never get involved in such squabbles, I strongly advise all Ambazonians, to henceforth recognize that the Abuja abduction of Sisiku Ayuk Tabe and others and their deportation to Cameroun requires a strong international legal intervention. It is a crime against the Rome Statute which Nigeria is a state party. The unwritten underpinning of the Judgment indeed has this implication. It has violated the UN multilateral treaty regime and that of the AU.

Social media activism alone will not get this judgment executed, enforced. It will not rely on the judgment to pursue all international crimes and violations in which hundreds and thousands of civilians are systematically exterminated and civilian settlements, places of worships and hospitals are torched and reduced to rubbles. It is therefore advisable to support the IG to move quickly to fulfil these tasks while other weighty issues are internally reviewed and quickly redressed without the intension of rocking the boat for the sake of power. Protracted disagreement empowers adversaries. Clearly established areas of agreement should be identified, and prioritised and collective action sought to attain the position outcomes while perennial disagreements struggle for institutional solutions. What cannot wait even for a minute are contributions intended for the collective good, the protection of victims, refugees, vulnerable categories and preventive and protective strategies.

Chief Charles A. Taku

 

PIERRE DESIRE ENGO JUDGEMENT

Posted by Moderator on June 4, 2020 at 1:25 PM Comments comments (0)

U.N. Doc. CCPR/C/96/D/1397/2005

Communication No. 1397/2005

22 July 2009

HUMAN RIGHTS COMMITTEE

Ninety-sixth session

13 - 31 July 2009

PIERRE DÉSIRÉ ENGO



VIEWS


BEFORE: CHAIRPERSON: Mr. Yuji Iwasawa (Japan)

VICE-CHAIRPERSONS: Ms. Zonke Zanele Majodina (South Africa); Sir Nigel Rodley (United Kingdom); Mr. Jose Luis Perez Sanchez-Cerro (Peru)

RAPPORTEUR: Ms. Iulia Antoanella Motoc (Romania)

MEMBERS: Mr. Abdelfattah Amor (Tunisia); Mr. Mohammed Ayat (Morocco); Mr. Prafullachandra Natwarlal Bhagwati (India); Mr. Lazahri Bouzid (Algeria); Ms. Christine Chanet (France); Mr. Ahmed Amin Fathalla (Egypt); Ms. Helen Keller (Switzerland); Mr. Rajsoomer Lallah (Mauritius); Mr. Michael O’flaherty (Ireland); Mr. Rafael Rivas Posada (Colombia); Mr. Fabián Omar Salvioli (Argentina); Mr. Krister Thelin (Sweden)

PermaLink: http://www.worldcourts.com/hrc/eng/decisions/2009.07.22_Engo_v_Cameroon.htm

Citation: Engo v. Cameroon, Comm. 1397/2005, U.N. Doc. CCPR/C/96/D/1397/2005 (HRC 2009)

Represented By: Charles Taku

______________________________________________________________________________


The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,

 

Meeting on: 22 July 2009,

 

Having concluded its consideration of communication No. 1397/2005, submitted by Pierre Désiré Engo under the Optional Protocol to the International Covenant on Civil and Political Rights,

 

Having taken into account all written information made available to it by the author of the communication and the State party,

 

Adopts the following:

 

VIEWS UNDER ARTICLE 5, PARAGRAPH 4, OF THE OPTIONAL PROTOCOL

 

1. The author of the communication, dated 30 March 2005, is Pierre Désiré Engo, a Cameroonian national who is currently being held in the Centre Province Prison in Yaoundé. He claims to be a victim of violations by Cameroon of article 9, article 10 and article 14, paragraphs 2 and 3 (a), (b), (c) and (d), of the International Covenant on Civil and Political Rights. He is represented by counsel, Charles Taku. The Optional Protocol entered into force for Cameroon on 27 September 1984.

 

ACCOUNT OF EVENTS

 

1. 2.1 The author was managing director of Cameroon's national social security fund, the Caisse Nationale de Prévoyance Sociale (CNPS), until 3 September 1999, when he was arrested. Since that date, he has been held in the Centre Province Prison in Yaoundé.

 

2. 2.2 CNPS and the company Six International founded Prévoyance Immobilière de Gestion de Travaux (PIGT) to manage property owned by the Fonds National d'Assurance (National Insurance Fund). On 1 July 1998, Mr. Atangana Bengono, who at the time was manager of PIGT, resigned following allegations of embezzlement. CNPS then decided to suspend all banking operations by PIGT in order to forestall any other act of corruption, such as those alleged to have occurred at PIGT. The author claims to have been the target in a number of trials relating to these matters.

 

2.3 On 11 December 1998, in the first proceedings, Mr. Atangana Bengono lodged a complaint against the author for attempted misappropriation of public funds, misappropriation of public funds, withholding evidence, forgery and falsification of records and brought criminal indemnification proceedings in respect of those charges (Public Prosecutor and Mr. Atangana Bengono and CNPS v. Mr. Engo et al.). On 23 December 1998, the author himself lodged a complaint and a claim for criminal indemnification against Mr. Atangana Bengono and others for attempted misappropriation of public funds, withholding and fabricating evidence and forgery and falsification of private business and banking documents. The examining magistrate opened a judicial inquiry on 19 February 1999, at which CNPS lodged a complaint against the author for misappropriation of public funds and registered a claim for criminal indemnification. The examining magistrate decided to try the cases separately. In the first trial, on 26 August 1999, following a preliminary examination, the author was charged and released without bail. On 3 September 1999, during the examination of the merits, the examining magistrate, according to the author, found that the same complaint entailed two further offences (trading in influence and abuse of functions). The author was charged and placed under a detention warrant. After examination of the expert reports, the results of an international request for judicial assistance, documents requisitioned from banks and witness statements, the judicial inquiry established that there was sufficient evidence to try the author for misappropriation of public funds, favouritism, trading in influence and corruption. The judicial inquiry was closed and the author committed for trial to Mfoundi Regional Court. The trial was adjourned several times: the approach adopted by the President of the Court was to suspend the session at intervals until the conclusion of the case in order to avoid the normal practice of adjournments, which were considered too time consuming. On 23 June 2006, the Mfoundi Regional Court found the author guilty of complicity in the misappropriation of public funds, favouritism and corruption and sentenced him to 15 years in prison. The court also denied Mr. Atangana Bengono's application for criminal indemnification as unfounded.

 

2.4 The second trial (Public Prosecutor and Ayissi Ngono v. Messrs. Engo and Atangana Bengono) was based on a petition by Mr. Ayissi Ngono concerning the issue of an uncovered cheque on 29 December 1998. At the author's request, Mr. Ayissi Ngono and Mr. Atangana Bengono were summoned to appear before the same court to answer charges of extorting a signature, attempted fraud and blackmail. The two proceedings were combined on 18 May 1999. On 18 January 2000, the Yaoundé Court of First Instance sentenced the author to six months' imprisonment for issuing an uncovered cheque, and to payment of 10 million CFA francs in damages to Mr. Ayissi Ngono. It also issued a detention warrant against the author during the course of the hearing. All the parties appealed against this decision, the author on 23 February 2000. According to the author, no appeal hearing was ever held, for reasons unknown. On 24 August 2000, the author requested to be released from prison, since he had served his term, but no action was taken. According to the State party, the record of the trial is currently being passed to the Centre Province Court of Appeal.

 

2.5 The third trial (Public Prosecutor and CNPS v. Engo, Dippah et al.) arose out of a complaint lodged on 27 December 1999 by CNPS against a Mr. Dippah and others for forgery, falsification of records and misappropriation of public funds. On 23 May 2000, the government procurator opened a judicial inquiry into forgery, falsification of records and misappropriation of public funds with reference to the author and Mr. Dippah, among others. They were held in custody, while the other accused were left at liberty. The author received a committal order on 11 April 2002. On 22 November 2002, the Mfoundi Regional Court handed down a ruling finding the author guilty of involvement in misappropriation and sentencing him to 10 years' imprisonment and payment of damages. The author lodged an appeal on 22 November 2002. On 27 April 2004, the Centre Province Court of Appeal upheld the judgement against the author. The author lodged an appeal in cassation the same day, and the file was passed to the Supreme Court on 19 January 2005. On 22 June 2006, the Supreme Court dismissed the appeal in cassation. The author indicates that his counsel were not called to attend the Supreme Court hearing.

 

2.6 The fourth trial arose from a writ of summons issued by Mr. Atangana Bengono against the author on 15 and 18 October 2001 to answer charges of making tendentious comments, disseminating false information and defamation. In support of his case, Mr. Atangana Bengono stated that, on 11 December 1998, he had lodged a complaint and a claim for criminal indemnification against the author for attempted misappropriation of public funds. The newspaper La Nouvelle Presse was reporting on the trial while the case was still under investigation. On 10 April 2003, the court ruled that the prosecution had lapsed as the plaintiff had withdrawn his charges on 29 April 2002, and ordered him to pay costs. The government procurator's office appealed against that ruling on 17 April 2003. The file of the trial is being passed to the Centre Province Court of Appeal.

 

2.7 The fifth trial arose from the international request for judicial assistance issued by the examining magistrate in the case Public Prosecutor and Mr. Atangana Bengono and CNPS v. Mr. Engo et al. (see paragraph 2.3), with a view to determining the source and the amount of the money held in the author's accounts in Paris. It related to a transfer of 250 million French francs and, in view of the size of the sum involved, the prosecutor's office took over the case and opened a new judicial inquiry. On 15 February 2005, the prosecutor issued a new detention warrant against the author, and charged him with misappropriation of public funds. An international request for judicial assistance was issued on 7 March 2005.

 

THE COMPLAINT

 

3.1 The author claims that his right to liberty and security of person (article 9 of the Covenant) has been violated. He contends that he was arrested without a warrant and was arbitrarily detained in poor conditions, in violation of article 10, paragraph 1, of the Covenant, and without being informed of the charges against him in the various cases. In that regard, following his imprisonment in 1999, the author's state of health deteriorated. He developed glaucoma. Despite his need for medical treatment and his repeated requests to the prosecutor and other authorities to that effect, he was prevented from contacting his doctors during the first two years of his detention. It was not until the Red Cross intervened that he was examined by his doctors. Because he was denied medical treatment, his eyesight has deteriorated. The author wrote a number of letters to the authorities in order to draw attention to his medical problems and detention conditions.

 

3.2 The author also maintains that his right to a fair hearing (article 14, paragraphs 2 and 3 (a), (b), (c) and (d)) has been violated by the State party. He also contends that the rights of the defence and other requirements of the right to a fair trial were violated in his case, chiefly as a result of his excessively long detention, the harassment to which his lawyers were subjected, the refusal to let him see the forensic reports, the seizure and confiscation of documents intended to be used in his defence and the fact that the State did nothing to put a stop to the media campaign portraying him as guilty before he had been tried.

 

3.3 The author indicates that, in January 2000, his lawyer and the lawyer's assistant were followed and stopped by four armed men, who threatened them and stole all the documents pertaining to Mr. Engo's case. The day after this incident, the offices of the author's second Cameroonian lawyer were searched and ransacked.

 

3.4 On 24 March 2001, the author consulted two lawyers from the Paris Bar. He informed them that, among other things, he had discovered that the government procurator was investigating his Paris and Brussels bank accounts with the help of the French judicial authorities, even though he had never been formally notified that such action was being taken. On 4 May 2001, the complainant, Mr. Atangana Bengono, wrote to the Embassy of Cameroon in Paris to ensure that the lawyers' visa requests were denied. The lawyers were thus prevented from defending the author. In June 2001, the author requested the government procurator and the court to allow his lawyers to visit him. No action was taken on this request. In May 2002, the Embassy of Cameroon in Paris denied a visa to another lawyer who had been contacted by the author. Also in May 2002, after the Cameroonian authorities had refused to grant a visa to one of the author's Paris-based lawyers so that he could represent him in Yaoundé, all the author's Cameroonian lawyers refused to represent him in court as long as their Parisian colleagues were not authorized to travel to Cameroon.

 

3.5 On 3 March 2003, the deputy government procurator wrote a letter blocking a bank account held by the author. This undermined the author's ability to pay lawyers' expenses and fees and impaired his right to a defence. On 22 October 2003 and 12 April 2004, without a warrant, the government procurator searched the author's cell and his home, and confiscated documents that were to be used for his defence.

 

3.6 The author has also been the target of other public accusations in the press. On 29 August 2003, the newspaper La Nouvelle Expression published an article accusing the author of arms dealing. According to the author, the investigation into this charge is apparently still under way, although the State party indicates that no judicial proceedings are under way against the author for arms dealing. Moreover, the State media are continuing their propaganda campaign against the author, despite numerous requests to the prosecutor, the Minister of Justice and the managing director of Cameroon Radio Television to put a stop to it. The author, who has long remained faithful to the Government of Cameroon, attributes his imprisonment to the fact that he was held in increasing esteem by the population. He states that, in 1994, he had founded a non-governmental organization to help the poorest people in Cameroon and that, in 1999, he had announced that his foundation would shortly be opening offices throughout the country. During the same period, Transparency International criticized the Government for its failure to combat corruption. The author considers that he is being used as a scapegoat in the Government's campaign against corruption.

 

3.7 With regard to the exhaustion of domestic remedies, he made an application for release pending trial on 27 October 1999 to the Minister of Justice, who did not reply. On 10 January 2000, the author lodged a complaint with the Minister of Justice concerning the violation of his rights by the Yaoundé government prosecutor. No action was taken by the Minister. On 7 June 2000, the author's lawyers issued an application addressed to the government prosecutor to set aside the detention warrant, which they considered violated the principles of the law with regard to jurisdiction, inasmuch as the examining magistrate cannot include new facts in his inquiry himself or act on his own motion.

 

3.8 On 3 September 2001, the author lodged another complaint before the government prosecutor concerning the unreasonable delay in the proceedings and the length of his time in custody, basing his argument on article 9, paragraph 3, of the Covenant. He requested a speedy trial or release pending trial. A further application for his release was made to the government prosecutor attached to the Yaoundé courts, indicating that the author had been in pretrial detention since 3 September 1999, i.e., for over two years at the time the application was made. [FN1] The author claims that all domestic remedies have been exhausted.

 

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[FN1] There is a copy of the application in the file, but it gives no date and no details of the outcome.

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STATE PARTY'S OBSERVATIONS ON ADMISSIBILITY AND THE MERITS

 

4.1 On 17 November 2005, the State party challenged the admissibility of the communication, primarily on the grounds that all the proceedings initiated against the author are still under way in the domestic courts. The delays noted were rather the fault of his lawyers, who, with their numerous pleas and release applications, had acted as a brake on the proceedings and caused considerable delays. In the alternative, the State party contends that the communication is unfounded and contains no evidence of a violation of the Covenant.

 

4.2 With regard to the author's arrest and detention, the State party claims that, since the author was placed under a detention warrant and taken to the Centre Province Prison in Yaoundé following his indictment on the basis of a judicial inquiry properly opened against him, his imprisonment cannot be termed "arbitrary".

 

4.3 The State party maintains that, as the acts of misappropriation of public funds with which the author is charged constitute an offence under the Cameroon Criminal Code, he cannot claim release as a matter of right under the Code of Criminal Investigation, in view of the nature and gravity of the offences in question. His applications for release were rejected in accordance with the procedures and timescales laid down by law. Moreover, the State party maintains that the author failed to refer the matter to the Regional Court, as prescribed by Ordinance No. 72/4 of 26 August 1972 in cases where the examining magistrate denies an application for release on bail.

 

4.4 The State party rejects the author's argument that legal proceedings were brought against him for offences for which the decision on whether to prosecute lay with the government prosecutor, noting that article 63 of the Code of Criminal Investigation provides that "any person who considers him or herself harmed by a crime or offence may lodge a complaint in that regard and register a claim for criminal indemnification with an examining magistrate". The complaint lodged by Mr. Atangana Bengono thus constitutes a legal remedy in exercise of the public right of action. Moreover, the case before the examining magistrate was an action in rem and was not concerned with the characterization of the offences listed in the complaint. Furthermore, whereas the absence of a legitimate interest makes a civil action before a trial court inadmissible, the same does not apply to criminal proceedings, which are automatically set in motion once a deposit is paid by the complainant.

 

4.5 As for the "invalidity of the procedure whereby the examining magistrate allegedly acted on his own motion in taking up the case", the State party states that, pursuant to the provisions of articles 128 and 133 of the Criminal Investigation Code, the examining magistrate is not bound by the classification at law by which the complainant believes he can characterize the alleged acts as criminal. Moreover, under article 134 of the Code, the examining magistrate conducts the judicial inquiry against the persons named in the complaint and any others identified at a later stage. The author was thus properly indicted. As for the author's allegations that the non bis in idem principle was violated, he cannot claim that the actions brought against him related to the same acts. He was originally tried on the charge of issuing an uncovered cheque and subsequently prosecuted on various counts of misappropriation of public funds, attempted forgery and falsification of records. These acts, which are offences under articles 253, 184 and other articles of the Criminal Code, are completely different from one another. The judicial inquiry opened in relation to specific acts uncovered new facts, such as the transfer of 25 billion CFA francs, and the government prosecutor therefore acted correctly in opening a separate judicial inquiry.

 

4.6 With regard to the question of the violation of the rights of the defence, the State party contends that the forensic reports and all the other documents on which the examining magistrate relied were sent to the author, and that his comments were recorded before the termination of the proceedings. Regarding the alleged seizure of materials in the case file, the State party claims that the materials in question were contentious accounting records. The seizures had been carried out with full respect for the law, both at the author's home and in his prison cell. With regard to the obstacles, threats and attacks to which the author's lawyers were subjected, the State party argues that the matter was not referred to any court of law and that, furthermore, one of the author's lawyers was granted an entry visa for Cameroon on two occasions (22 July and 6 September 2002) in order to assist his client at the hearings of 2 August and 10 September 2002.

 

4.7 With regard to the conditions in which the author is detained, the State party maintains that the author is an ordinary prisoner and has been treated in a humane manner, like all Cameroonian prisoners. The State party is striving, so far as it can and taking into account its level of development, to uphold minimum standards for prisoners. It adds that the author's allegations that he needed regular medical treatment are unfounded, given that he has always chosen to disregard the advice of the prison doctor. Concerning the alleged obstacles to his medical care, the State party adds that he has received, and continues to receive, treatment from the doctors of his choice.

 

AUTHOR'S COMMENTS ON ADMISSIBILITY AND THE MERITS

 

5.1 In his comments of 22 January, 17 March and 30 June 2006 on the question of the exhaustion of domestic remedies, the author contends that the State party did not clearly indicate what domestic remedies were available to him. The State party does not challenge the authenticity of the documents provided by the author to substantiate his claims. Nor does the State party provide any documentary evidence in support of its statements or details of the cases and trials it claims to have initiated, in the form of case numbers or copies of judgements. This will prevent the Committee from ruling on the effectiveness and reasonableness of these remedies.

 

5.2 The author claims that, at his second trial, he did not have access to effective remedies within a reasonable time [FN2] (see paragraph 2.4). The State party did not reply to the author's allegations that he had had no access to remedies as a result of a denial of justice. Moreover, the State party does not explain the delays in the proceedings. To support his claims, the author indicates, inter alia, that the appeal against his six-month prison sentence for issuing uncovered cheques, filed in May 2000, is still pending before the Court of Appeal, even though he completed his sentence on 16 November 2000. He also considers that he has exhausted domestic remedies with regard to release on bail, and that the remedies mentioned by the State party had no prospect of success and were not available. [FN3] Moreover, the sheer number of arrest and detention warrants issued during the proceedings described in paragraphs 2.3 and 2.7 made access to remedies difficult. He was held in detention in connection with another pending case, in violation of the presumption of innocence and the rights of the defence, and thus of articles 9, 10 and 14 of the Covenant.

 

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[FN2] Counsel draws attention to communication No. 113/1981, C.F. et al. v. Canada, declared inadmissible on 12 April 1985, and communication No. 164/1984, G.F. Croes v. Netherlands, declared inadmissible on 7 November 1988 ["In the absence of any clear indication from the State party concerning other effective domestic remedies which the author should have pursued, the Committee concluded that it was not precluded by article 5, paragraph 2 (b), of the Optional Protocol from considering this case" (para. 6.3)]. He also draws attention to the case law of the European Court of Human Rights.

[FN3] He draws attention also to communication No. 210/1986, Pratt v. Jamaica, and communication No. 225/1987, Morgan v. Jamaica, Views adopted on 6 April 1989; communication No. 220/1987, Kalvez v. France, declared inadmissible on 8 November 1989; and communication No. 229/1987, Reynolds v. Jamaica, Views adopted on 8 April 1991, with reference to the fact that it is not necessary to exhaust domestic resources if they have no objective prospect of success.

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5.3 The author reiterates that his arrest and detention were arbitrary and that he was arrested without a warrant. He points out that the State party does not contest these facts; nor does it contest the material included in the case file as proof of his deteriorating health, which requires specialist medical care not available in prison. He again invokes articles 9 and 14 of the Covenant and contends that his detention on various grounds prevents him from preparing his defence. In that connection, he points out that his bank accounts have been blocked, which prevents him from choosing his lawyers, that his lawyers are not informed of adjournment dates of cases in progress and that his French lawyers withdrew in protest on 29 March 2006.

 

ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE

 

CONSIDERATION OF ADMISSIBILITY

 

6.1 Before considering any claim contained in a communication, the Human Rights Committee must, in accordance with rule 93 of its rules of procedure, decide whether or not the communication is admissible under the Optional Protocol to the Covenant.

 

6.2 The Committee has ascertained that the same matter is not being examined under another procedure of international investigation or settlement, in compliance with the provisions of article 5, paragraph 2 (a), of the Optional Protocol.

 

6.3 The State party argues that the author has not exhausted domestic remedies. In his turn, the author asserts that he has no effective domestic remedies available to him and that in any case the remedies and appeals still under way have been unreasonably prolonged. In the Committee's view the issue of delays in the exhaustion of domestic remedies is closely bound up with the claim of unreasonable delays in consideration of the merits of the case and ought consequently to be taken up in the context of the merits.

 

6.4 The Committee finds that the author has substantiated his claims under articles 9, 10 and 14 sufficiently for the purposes of admissibility and therefore declares them admissible.

 

CONSIDERATION OF THE MERITS

 

7.1 The Committee has considered the present communication in the light of all the written information made available to it by the parties, as provided for in article 5, paragraph 1, of the Optional Protocol.

 

7.2 With regard to the complaints of violations of article 9, the Committee notes that the author was placed under a detention warrant on 3 September 1999, following a complaint accompanied by the lodging of an application for criminal indemnification, the initiation of a judicial inquiry and questioning. The Committee considers that he was therefore deprived of his liberty on grounds and in accordance with the procedure set out in the law, and that no violation of article 9 occurred in respect of the allegations of arbitrary detention. In respect of the allegations of arbitrary detention during the first trial, the author has been in detention since 3 September 1999, and an initial judgement was handed down on him by the Mfoundi Regional Court on 23 June 2006 (in the case Public Prosecutor and CNPS, Atangana Bengono v. Engo et al.), that is, almost seven years after he was imprisoned. The Committee considers that this in itself constitutes a violation of article 9, paragraph 3, of the Covenant.

 

7.3 Concerning the author's allegations that he was not promptly informed of the charges against him in each of the trials, the Committee notes that the State party has not replied specifically on this point, but that it merely states that the author was placed under a detention warrant and taken to prison after being indicted, on the basis of a judicial inquiry properly opened against him, and that his imprisonment cannot therefore be termed arbitrary. In the absence of detailed information from the State party establishing that the author was informed promptly of the grounds for his arrest in each of the cases, the Committee must give full weight to the author's claim that he was not promptly informed of all the charges against him. In this respect, the Committee finds a violation of article 9, paragraph 2, of the Covenant.

 

7.4 In respect of the author's allegations that existing remedies for challenging his detention are neither effective nor available, the Committee points out that the author and his counsel requested his release from prison, and subsequently his release pending trial, on several occasions. According to the State party, his requests for release were rejected in accordance with the procedures and timescales laid down by law, and the author has not exhausted all available remedies, as he did not apply to the Regional Court for his release pending trial. Yet the Committee notes that, for example, the application of 3 September 2001 for release pending trial was addressed to the government prosecutor attached to the Yaoundé courts. The Committee also notes that the author indicates that the prosecutor refused on four occasions to release him pending trial. In this case, the Committee considers that the author had the right to seek remedies in order that the State party should rule on the lawfulness of his detention, as provided in article 9, paragraph 4, of the Covenant, and that the material in the files does not reveal a violation of article 9, paragraph 4, of the Covenant.

 

7.5 The author also maintains that the conditions of his detention have been inhumane, particularly owing to the fact that the authorities have denied him access to appropriate medical care, leading to the severe deterioration of his eyesight. The State party argues that the author receives appropriate medical care, which is provided by the prison doctor. However, the State party fails to address the author's claims relating to his need to have access to more specialized medical care, nor does it deny that the CNPS ophthalmologist, who is the author's attending physician, reports a severe deterioration of the author's eyesight. In the present case, the State party has not demonstrated that it has provided the medical care appropriate to the author's condition, despite the author's requests. In the Committee's view, this constitutes a violation of the provisions of article 10, paragraph 1, of the Covenant.

 

7.6 With regard to the allegations of violations of article 14, notably article 14, paragraph 2, the Committee notes first that the author claims that his right to the presumption of innocence has been violated. To support his claim, he cites the information about him published in the State media. The author wrote letters to the competent authorities requesting them to put a stop to the publication of such information; however, these letters met with no response. The State party does not contest these facts. The Committee recalls that the accused's right to be presumed innocent until proved guilty by a competent court is guaranteed by the Covenant. The fact that, in the context of this case, the State media repeatedly portrayed the author as guilty before trial and published articles to that effect, is in itself a violation of article 14, paragraph 2, of the Covenant.

 

7.7 The Committee notes that the author claims to have waited several months to be informed of the charges against him and to be given access to the case file. The State party failed to reply specifically to this point and merely states that the author had access to all the material in the case, without adducing any evidence. In this respect, the Committee finds a violation of article 14, paragraph 3 (a).

 

7.8 With regard to the obstruction of the author's preparation of his defence, the Committee notes that the State party replies that a lawyer from Paris received two visas in order to assist his client at two hearings in 2002. The State party does not, however, respond to the allegations that two of the lawyers from the Paris Bar appointed by the author were prevented from travelling to Cameroon to assist their client in May 2001 and May 2002, which prompted the Cameroonian lawyers to refuse to represent him in court. Neither does the State party challenge the authenticity of the letter dated 4 May 2001 in which one of the author's accusers requests the Ambassador of Cameroon in Paris to stop the lawyers coming. Persons charged with a criminal offence have the right to communicate with counsel of their own choosing; this is one guarantee of a fair hearing provided for in article 14, paragraphs 3 (b) and (d), of the Covenant. The State party does not contest the author's right to be represented by French lawyers or that those lawyers were authorized to represent him in the State party's courts. The fact that the author encountered considerable obstacles in his efforts to communicate with these lawyers therefore constitutes a violation of the procedural guarantees provided for in article 14, paragraphs 3 (b) and (d).

 

7.9 The Committee also notes that only one final judgement has been handed down in respect of the author, who has been in custody since 1999, in one of the cases against him (see paragraph 2.5), namely the ruling by the Supreme Court on 22 June 2006, and that one judgement was passed by the Regional Court on 23 June 2006, against which he seems not to have appealed (see paragraph 2.3). Article 14, paragraph 3 (c), of the Covenant guarantees individuals the right to be tried without undue delay. The State party justifies the delay in the various proceedings against the author by citing the complexity of the cases and, in particular, the numerous appeals filed by the author. The Committee points out that article 14, paragraph 5, of the Covenant guarantees the right to appeal, and that the exercise of this right cannot be used as justification for unreasonable delays in the conduct of the proceedings, since the rule set out in article 14, paragraph 3 (c), also applies to these appeal proceedings. [FN4] Consequently, the Committee considers that, in the circumstances of this case, the fact that a period of eight years elapsed between the author's arrest and the delivery of a final judgement by either the court of appeal or the court of cassation, and that a number of appeal proceedings have been in progress since 2000, constitutes a violation of article 14, paragraph 3 (c), of the Covenant. [FN5]

 

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[FN4] Communication No. 27/1978, Pinkney v. Canada, Views adopted on 29 October 1981, para. 22.

[FN5] Communication No. 1421/2005, Francisco Juan Larrañaga v. the Philippines, Views adopted on 24 July 2006, para. 7.2.

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8. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it reveal a violation of article 9, paragraphs 2 and 3, article 10, paragraph 1, and article 14, paragraphs 2 and 3 (a), (b), (c) and (d), of the Covenant.

 

9. Pursuant to article 2, paragraph 3 (a), of the Covenant, the State party has an obligation to provide the author with an effective remedy leading to his immediate release and the provision of adequate ophthalmological treatment. The State party is also under an obligation to prevent similar violations in the future.

 

10. Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether or not there has been a violation of the Covenant, and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy in the event that a violation has been established, the Committee wishes to receive from the State party, within 180 days, information about the measures taken to give effect to the Committee's Views. The State party is also requested to publish the Committee's Views.

 

[Adopted in English, French and Spanish, the French text being the original version. Subsequently to be issued also in Arabic, Chinese and Russian as part of the Committee's annual

 

Made public by decision of the Human Rights Committee.

 

 

Rules of Engagement in Asymmetric Warfare and Security Operations: Need for Compliance with Local and International Law.

Posted by Moderator on June 4, 2020 at 1:20 PM Comments comments (0)

By Chief Charles A. Taku

Introduction

Excellencies members of Government and the peoples’ representatives of the Republic of Liberia, Excellencies Ambassadors and Heads of diplomatic missions and International Organisations, the Hon President and members of the Governing Council of the African Bar Association, the Honourable President of the African Bar Association and members of the Executive Council of the African Bar Association, the Honourable President and members of the Liberian Bar Association, distinguished participants at this historic workshop,

Permit me to pay special homage to the Government of Liberia and the Liberia Bar Association for hosting this workshop which is intended to discuss a subject of great importance to the continent of Africa. I wish to thank the African Bar Association and its international partners for inviting me to present this opening address.

This address comes three days to the 20th anniversary of my uninterrupted international law practice which commenced at the International Tribunal for Rwanda on the 25th October 1999 in Arusha Tanzania. Tanzania and Africa were in grief when I arrived because of the death of Mwalimu Kambarege Julius Nyerere who had died a week earlier on October 14, 1999.

Africa will always celebrate with pride, its pantheon of freedom, Mwalimu Nyerere who provided strong leadership in the struggle for the liberation of some embattled colonial African countries. Under his leadership, Arusha Tanzania became a laboratory for reconciliation, peace and justice on the African continent are African.

I am honoured to be invited to present this address at the threshold of this memorable anniversary, in an event of great continental importance in this beautiful country of pioneers, hosted by the African Bar Association, its international partners and the Liberian Bar Association that was created in 1907, the remarkable year of the Second World Peace Conference.

 

Complexity of African asymmetric armed conflicts

My knowledge of armed conflicts in Africa; and my experience with conventional forces, non-conventional forces and victims in armed conflicts in Africa are united by their shared African origin. This is one reason why asymmetric armed conflicts in Africa are complex, rendering its prosecution through conventional war operations alone difficult. The African origin of these conflicts may conceal the involvement of non-African states and non-state actors. In one armed conflict situation, I identified the capricious foreign non-state actors involved in the conflict as “weapons for minerals merchants”.

The reach of justice mechanisms mandated to investigate and prosecute atrocity crimes that are committed in these conflicts has fallen short in addressing the role of these capricious actors. This failure gives tacit blessings to the arrogant impunity fuelling these conflicts. Without these weapons for mineral weapons merchants, many armed conflicts in Africa and the ocean of blood generated, will be limited or abated.

It is common knowledge that African warring actors do not manufacture weapons. The proliferation of small and lethal weapons in Africa, continues unabated in violation of the United Nations Global Programme of Action to Prevent, Combat and Eradicate the illicit Trade in Small Arms and Light Weapons in All its Aspects (PoA) 2001 which the United States opposed and did not ratify, Ecowas Convention on Small Arms and Light Weapons, their related Ammunitions and related Materials done in Abuja on June 14 2006 and related elaborate multilateral and bilateral treaty regimes emplaced. Boko Haram for example, does not manufacture the weapons that it deploys to terrorise and exterminate armless civilians. Armed militias in the Democratic Republic of Congo and elsewhere in the continent do not manufacture the weapons that they use to kill and maim armless civilians.

The challenges

The distinguishing features of belligerents in asymmetric warfare are discernible in the organization, objectives, training, logistics, strategy and tactics. There is a proliferation of militia groups, resistance movements, insurgency groups, rebel groups, and armed bands fighting for all sorts of causes in the continent of Africa. These causes may be ideological, religious, political, activist, separatist, economic, piracy, mercenary, cultural and terrorists etc.

The drafters of the United Nations Charter in 1945 did not foresee the fact that nonstate actors would rise to prominence and play a significant rule in international relations and pose significant peace and security challenges that are facing the world today. There is no provision in the UN Charter, including article 51, that identified and recognized nonstate armed actors as key players in international relations. Overtime, this omission has come to be costly.

Nonstate actors have risen on the watch of the civilized world to pose significant threats on world peace and security. Terrorism has emerged as a leading threat to world peace and security without an appropriate, effective universal response. The world is still struggling with an acceptable legal definition of terrorism.

This universal phenomenon complicates the peace and security situation in Africa. It is further aggravated by a plethora of challenges such as acute endemic diseases, environmental hazards, climate change, precarious economic trends, debilitating food insecurity, political instability, excruciating poverty, and the proliferation of new technological tools of warfare and mass destruction.

The paucity of adequate health and food security resources aggravates the mounting security challenges that are confronting the continent. This dire situation aggravates and complicates the conventional duties of African military and security leaders. The list of challenges that the African military and security leaders must confront in other to fully realize their mandate of defending their countries and providing security to the people is on the increase while the resources available to confront these challenges are dwindling, misappropriated, siphoned through corruption or misallocated to wrong causes and objectives.

Collaborative initiative

The solution to these challenges must not be left in the hands of African Governments, Military and Security Leaders alone. The maintenance of peace and security in full respect of the fundamental rights of Africans and persons within this continent is the collective duty of all. I stand here today, in all humility to state with pride, that this duty is an essential mission of the African Bar Association.

Pursuant to this mandate, the African Bar Association conducted essential official engagements in Zimbabwe, Nigeria, Burundi, Cameroon, Gabon, Nigeria, Sierra Leone, Sudan, Libya and many African countries to initiate dialogue as an alternative to armed conflicts. African Bar Association also conducted fact finding missions to verify serious allegations of the violation of international human rights against civilians and protected persons within the territories of some these countries.

The objectives of these interventions were neither activist nor political. They were aimed at fulfilling its mandate of promoting and protecting the respect for the international rule of law, constitutional democracy, peace, justice, human rights and core human values that are holding our common humanity together.

These fact-finding missions aimed at verifying the truthfulness or falsity of serious allegations of atrocity crimes. The commissions also aimed at sensitising the parties in conflict to abide by the international law of armed conflicts.

In Nigeria for example, the military leadership invited the African Bar Association to assist in its ongoing mission to ensure compliance by the military of international law and international human rights laws in its operations.

In Burundi, a fact-finding mission led by the President of the African Bar Association conducted a visit of locations which some foreign non-governmental organisations insistently alleged were mass graves. The fact-finding mission moved to the alleged locations with video cameras and discovered to its dismay that the allegations were unfounded. Since the African Bar Association published its report, those spurious reports have since not been repeated.

These examples among many, show that the African Bar Association is a faithful partner in ensuring compliance with local and international law in the formulation and implementation of rules of engagement in asymmetric warfare and security operations in Africa.

Upon request as Nigeria and Burundi did, African Bar Association stands ready to conduct independent professional verification of alleged atrocity crimes to ensure that allegations of atrocity crimes are well founded and are not politically motivated or recklessly made for blackmail or malign legitimate armed combat or security operations.

This workshop, it is hoped, will mark the beginning of an enduring relationship between the African Bar Association, its partner-organisations and African military and security sector, to provide workshops and specialized professional training to African militaries and security personnel to ensure compliance with local and international law in the establishment of rules of engagement that are consistent with national and international law during asymmetric warfare and security operations.

International law and human rights protections in armed conflicts

You may be aware that armed conflict exists with or without a formal declaration of war. This may occur whenever there is a resort to armed force between states or between a government and organized armed groups within and /or out of a state. When this situation occurs, the laws of armed conflict are automatically triggered.

The law of armed conflict protects civilians and armed combatants who are no longer taking part in the armed conflict from direct attacks and dangers arising from combat operations conducted by the belligerents.

The law of armed conflict differs from terms or rules of engagement. The rules of engagement are operational command rules that are constantly reviewed based on international, national, political and /or military assessment intended to accomplish a military operational objective.

Formulation and implementation of rules of engagement in asymmetric warfare and security operations must be consistent with nation law, international law of armed conflicts and international human rights law; failing which the high command and senior commanders may bear the greatest responsibility for atrocity crimes committed by the forces under their command during armed military operations.

This year marks the 70th anniversary of the Geneva Conventions (1949) and the 43rd year of its additional protocols. These anniversaries provide an opportunity for state parties and non-state parties, state actors and non-state actors, policy makers, military commanders, scholars, victims of armed conflicts, civil society organisations and the world at large to reflect on the state of compliance with the Geneva conventions.

Through this workshop, the African Bar Association and its international partners have provided a platform for a candid discussion on the operation of the elaborate multilateral treaty regime emplaced by the international community to regulate armed conflicts and security challenges facing this continent and humanity at large. Asymmetric armed conflicts which are intranational and transnational in nature, are afflicting most countries on the African continent and thus, require attention due to its expansive occurrence and the atrocity crimes committed in the prosecution of these wars.

The preamble of the United Nations charter specifies that fundamental peace, security, human rights and justice are the motivations for the creation of the United Nations whose purpose was:

To save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and

To reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and

To establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and

To promote social progress and better standards of life in larger freedom.

Whereas the peace and security objective of the UN is addressed in Article 1(1), 24, 2(7) and Chapter VII Security Council mandate of the Charter, its human rights objectives are addressed in Articles 1(3), 13,55(3), 62 and 76

The United Nations Charter regulates the relations between states. However, the UN Charter on human rights provisions and its elaborate human rights regime, that includes the Universal Declaration of Human Rights (1948) and the International Covenant on Civil and Political Rights (1966) impose obligations that are applicable to state parties and all persons.

International human rights obligations in armed conflicts

Military, Security Agencies and Armed Groups in armed conflicts belong to different categories but they are obligated to comply with the laws and customs of war during armed conflicts, whether internal or international. They are bound to promote, protect, observe and respect the human rights of civilians not taking part in armed conflicts. The rules of engagements developed by army commanders as well commanders in armed groups must specify this clearly.

Human Rights are peremptory norms, therefore, jus cogens. They are fundamental principles that are acceptable by the international community as norms from which there is no derogation. Treaties or laws that are inconsistent with human rights are void. Human Rights possess and are said to possess an erga omnes character because human rights are rights or obligations which are owed toward all.

Human rights obligations recognized in general public international law are owed to the international community as a whole and that is why they are said to impose erga omnes obligations. These rights and obligations bind everyone, irrespective of status. It binds each addressee simultaneously with regards to all others. The respect of human rights of all persons by all persons, military or civilian, armed combatant or insurgent in times of peace or war is a mandatory obligation in international law with a universal enforceable mandate.

International law regulates the circumstances under which states may use armed force known as jus ad bellum and the way in which armed force is used, known as jus in bello or the law of war. We are concerned with the law of war jus in bello.

For our purpose today, an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organised armed groups within a State.

The potential causes of war or armed conflict are many. The use of war or resort to the use of arms to resolve conflict situations in state or interstate conflicts are no longer the monopoly of state actors. Unfortunately, as I have stated earlier, the United Nations Charter in its Article 51, did not anticipate the possibility that non-state actors would greatly influence international relations, and in significant ways pose serious challenges to international peace and security.

Unable to learn from the past, emerging live-threatening natural and human made security threats to the collective survival of humanity appear to have caught the world, unprepared and /or in denial unaware. The ability and capacity of non-state actors to conduct destabilising armed conflicts in which atrocity crimes shocking the conscience of humanity would be committed was not reasonably anticipate. These challenges separately or in aggregate, leaves the world with the security task of devising means of saving humanity from itself and from nature or from both.

Unregulated responses to these threats in robust armed military operations, may lead to serious atrocity crimes being perpetrated by the parties to the conflicts. The right by a state to deploy its army to armed combat activities within or out of its national territory is not a blanket authority or license to exterminate civilians who are not participating in the armed conflicts. It is not a license to commit atrocity crimes under the pretext of a legitimate resort to war for self-defence or other legitimate purposes. No matter the justification or legitimacy of a resort to force, individual members of the armed forces must act pursuant to the law of armed conflict failing which they or their commanders will be held accountable for the crimes committed.

The main purpose of the law of armed conflict is to protect combatants and non-combatants from unwarranted suffering, and to protect the fundamental human rights of civilians and persons who are not taking part in the conflict. These include persons who are hors de combat, prisoners of war, the wounded and the sick. The Hague Regulations which regulates military operations and the Geneva Conventions which protects civilians in armed conflicts have now been merged giving that they have a common focus.

The Law of Armed Conflicts binds states and regulates the conduct of individuals in armed conflicts. A violation may occasion state responsibility and the prosecution of individuals, their military and civilian commanders. The International Military Tribunal in Nuremburg decided on September 30, 1946, that “crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced”. Trial of the Major War Criminals before the International Military Tribunal (IMT), Vol XXII,477.

Responsibility for international violations

The individual criminal responsibility of armed groups and members of armed forces taking part in armed conflicts is well entrenched in international criminal jurisprudence that has been developed at the Ad Hoc International Tribunals for the Former Yugoslavia and Rwanda, the Special Court for Sierra Leone, the Grand Chamber of the Tribunal for Cambodia, Leste Timor and also at the International Criminal Court.

The jurisprudence on superior command responsibility is well developed and entrenched. A commander may he held criminally liable for the violations arising from the orders he gives to forces deployed by him and under his command or for failing in his command obligations to prevent the crimes or punish the perpetrators. This responsibility is engaged only when the commander knew or had reasons to know that crimes were about to be committed and did not prevent them or had the material ability to prevent or punish but did not do so. How far the knowledge and information about the crimes or violations going up the chain of command determines the superior criminal responsibility of the commander.

The law presumes that the high command of an army, a militia or armed group engaged in armed conflict bears the responsibility for establishing the terms of engagement and defining the enemy that its forces are deployed and ordered to take out. The rules of engagement and the choice of methods and means of warfare are circumscribed by military necessity, humanity, distinction and proportionality. The enemy is not defined to include protected persons and property under the Geneva Conventions. The choice of weapons for the prosecution of the war is not outlawed by the Conventional Weapons Convention 1980 and Chemical Weapons Convention 1993 etc.

The civilian and military commanders responsible for deployments in violation of international law may bear both individual and superior command responsibility for the violations and potentially other forms of criminal responsibility.

Rules of engagement in international law

It is necessary to explain further the following four principles: The definition of the enemy, humanity, distinction and proportionality.

The definition of the enemy is a fundamental responsibility of the high command of every military. The definition of the enemy is regularly revised in times of peace and in times of war. It is the heartbeat of the security system of nations and even non-state armed actors. A deployment of armed combatants without defining the enemy subject of the military operation, may potentially lead to the commission of atrocity crimes against civilians and protected non-military targets.

The principle of humanity in warfare prohibits the infliction of suffering, destruction or injury that are unnecessary for the attainment of legitimate military purposes. There is no military purpose to continue to attack or kill a wounded or captured enemy combatant. Civilian populations, targets and objects that are not contributing to the war efforts or participating in the war are protected and immune from attack. During war, incidental civilian casualties and damage may occur from legitimate attacks on enemy military targets. Provided that these casualties are not excessive to the direct military advantage sought, this may be excused.

Distinction: Principle of distinction or discrimination also known as identification imposes an obligation to clearly and identifiably make a distinction between armed forces and civilians or combatants and non-combatants, protected objects and objects that are the focus of legitimate military operations. This depends on the quality of intelligence available to the commander who is obligated to make every available reasonable effort and conclude in good faith that he is attacking a legitimate military target in order to be absolved of criminal responsibility.

Proportionality: The principle of proportionality is linked to the principles of military necessity and humanity. This principle requires that losses from a military operation must not be excessive to the anticipated military advantage.

Precautionary measures

All organised armed groups and units which are under an identifiable command responsible for the conduct of subordinates are considered as parties to a conflict, even if not represented by a government, or an authority or are not recognized by the other party. The group must be subjected to an internal disciplinary mechanism capable of complying with the laws applicable in armed conflict. An armed guerrilla or resistance movement that meets this requirement are parties to a conflict.

In the case of resistance movements, operating in occupied territories, the formal recognition of the government is not a requirement and thus unnecessary. What is required is that the commander should bear responsibility for the acts of his subordinates and he should take orders from the authority that appointed him.

Apart from the requirement that an armed force must be under a command responsible to a party in armed conflict, the armed force must be subject to a disciplinary regime which facilitates compliance with the laws of armed conflict. Where an armed group is not subjected to an effective disciplinary regime it may lose recognition as an armed group under international law and subjected to prosecution and punishment as non-combatants participating directly in armed hostilities. This is one compelling reason why armed groups and resistance movements involved in armed conflicts must submit themselves under reasonable command and disciplinary regime to deserve recognition as armed combatants or parties to an armed conflict under international law whether they are recognised as such by their protagonist or not.

Armed combatants have a responsibility to distinguish themselves from the civilian population when engaged in military operations or attacks. The purpose of this is to protect civilians from being conflated with armed combatants engaged in combat. Parties to armed conflicts must carry their weapons openly to clearly identify themselves. Irregular forces in armed conflict due to the paucity of distinctive uniforms, are known to wearing distinctive head or arm bans to identify themselves from civilians.

The parties to a conflict must to the extent possible give notice to civilians to vacate the potential zones of attacks prior to military operations. The use of civilians in overt or covert military operations; as spies, infiltrators, armed civil militias and mercenaries which is prevalent in African conflicts is outlawed. When used in the war efforts by the armed forces, they lose their civilian character along with the protections afforded in international law.

African Armed Conflicts.

Excruciating poverty, endemic diseases, climate change, corrupt and reckless exploitation of mineral and natural resources, systemic injustices, corruption, historical wrongs, the politicization of the military and security forces, the militarization of politics and the politicisation of justice are among the identifiable causes of armed conflicts in Africa. Unaddressed historical wrongs and egregious violations are strong catalysts of atrocity crimes such as genocide, crimes against humanity and war crimes. Addressing them require a strong political will and not military might.

It is hard to enumerate the reasons for the proliferation of asymmetric armed conflicts in Africa. The complexity of armed conflicts in Africa makes the monitoring of compliance with international law and human rights in the prosecution of the conflicts difficult. Brigadier General R. A. Adeshina in his book “The Reverse Victory: Story of Nigeria Military Intervention in Sierra Leone.

Identified four broad phases in every military campaign: 1) The decision phase, 2) the mobilization phase,3) the execution phase and 3) the withdrawal phase. Citing Carl Von Clausewitz, in discussion the decision phase which he states occurs at the political level, he concluded that “War is merely the continuation of politics by other means”.

Commenting on the deployment of the Nigeria expeditionary military contingent in Sierra Leone, General Adeshina doubted if the politicians in his country subjected the military intervention by his country to the time-tested scrutiny required for the Sierra Leone military expedition. He wondered why the “Nigerian government for many reasons decided to utilize the military option rather than the continuation of diplomatic options which the rest of the sub-region favoured”.

Nigeria decided to resort to an internal peace mechanism to attempt to resolve the asymmetric armed conflict in its Niger Delta. The origins of the armed conflict could be traced to alleged environmental, economic, political and historical wrongs. Nigeria rightly ascertained that the escalation of armed conflict alone would never diffuse the potential powder keg that was likely to destabilize the maritime and oil economy of that strategic region of the Gulf of Guinea.

The submission of military command to constitutional civilian command is not subject of reasonable controversy. The exercise of civilian authority over military command must be consistent with the national law, international law and the multilateral treaty obligations of each country. Army commanders who are charged with the execution of war decisions made by their civilian commanders must ensure compliance with international law on armed conflicts, humanitarian law and international law of armed conflict. Commanders of a professional army engaged in military operations must take responsibility for international crimes committed under their command.

In Cameroon for example, there are largely concordant reports of the systemic attacks and destruction of internationally protected objects such as hospitals, places of worship, schools, palaces and the extermination of thousands of civilians not taking part in the armed conflict. The century old palace where the tombs of my own ancestors are resting, has been occupied, desecrated and transformed into a Government military camp. The looting of centuries old arts from our palace is rivalled only by the looting carried out by German expeditionary forces who attacked and looted priceless arts of a spiritual and religious value including the legendary Bangwa Queen which is currently in a Western Museum in France.

The torching of more than 200 civilian settlements killing the aged and the sick in their ancestral homes, the deportation of hundreds of thousands of civilians across the border to Nigeria and hundreds of thousands more internally displaced are systemic atrocity crimes begging for an urgent international response to avert the ongoing humanitarian calamity of unimaginable proportions. The use of armed force to abate peaceful protests seeking solutions to long standing historical wrongs, has plunged the restless sub-region into an unwinnable war with potentially profound consequences on the conscience of humanity.

The multinational efforts aimed at confronting Boko Haram and armed groups in the Sahel must comply with the laws and customs of war, in full respect of international human rights and international multilateral treaty obligations. War is necessary to combat international terrorism and destabilizing armed groups in the continent, but war alone cannot tackle the root causes of armed conflicts or provide durable and acceptable solutions to armed conflicts in Africa.

A good faith and candid examination of the root causes of armed conflicts in each Africa situation, may provide durable solutions to African armed conflicts. Doing so requires the political will of political leaders who in some situations benefit from the war economies generated from the prosecution of these wars. Others rely on the wars to eternalise political power.

The rule law deficit in Africa is clearly established by the disrespect of court orders by many African governments. The paucity of credible justice mechanisms in African countries makes armed conflicts attractive alternatives to the rule of law. Justice by the barrel of the gun is causing so much bloodletting on the continent. Justice through unfair judicial processes are just as harmful as the atrocity crimes the judicial processes were established to redress. I am impelled to invite everyone present here today and everyone in the continent of Africa to harken to the appeal Africa to harken to the appeal made Ben Ferencz the last surviving Chief Prosecutor of the Nuremburg trials in a lecture to Students of Emory University on humanity to “stop glorifying war, and begin glorifying peace. You cannot kill an ideology with a gun. You have to have a better ideology”. (Emory School of Law, 2 Jan. 2015).

A campaign against the glorification of war will have limited chances of success in Africa if the rule of law is impeded by the politization of national and international justice that have rendered fair trials and the rule of law mere political slogans.

The “never again” pledge that the civilized world made after the second world war has not been realized making the world progressively unsafe. Does that make it an empty slogan? To the extent that the Geneva Conventions, its Additional Protocols, the multilateral international human rights regime and the resolve of a determined majority of humanity are firmly on the side of the founding objectives of the United Nations which I spelt out earlier in this speech, that pledge will remain a living testament on the individual and collective conscience of humanity. This is the resolve to which the African Bar Association and its international partners who organized this conference are firmly committed.

Conclusion

In conclusion, permit me to pay homage to Africa’s monumental contribution to international dispute resolution and international law through the Truth and Reconciliation Justice Mechanism. For want of a better language, I will call the truth and reconciliation mechanism, Africa at its best. The civilized world has seen merit in it. Victims of atrocity crimes especially historical wrongs may require no more than an admission of responsibility, an apology and a symbolic remedy to restore their lost humanity and dignity. This is not too much for African governments and armed groups to fulfil. The time to abate the bloodletting in this continent is now.

Thanks, so much for your attention.

 

Bio of Chief Charles Taku

 

 

Charto_us@yahoo.com

chartous@gmail.com

Chief Charles A. Taku specialises in International Criminal Law, International Humanitarian Law and Human Rights Law and Practice.

He is the immediate past President of the International Criminal Court Bar Association (ICCBA). He is a member for life of the Executive Governing Council of the African Bar Association (AfBA).

At the International Criminal Court for Rwanda, Chief Taku was Lead Counsel for Laurent Semanza and thereafter Lead Counsel for Major Francois Xavier Nzuwonemeye, the Commander of the Reconnaissance Battalion (Military II case) where he and a noted champion of fair trials in International Courts Beth Lyons obtained an acquittal on appeal.

Lead counsel for the Deputy Leader and Commander Morris Kallon of the Revolutionary United Front for Sierra Leone (RUF) at the Special Court for Sierra Leone.

Lead Counsel for Samuel Kargbo member of the Armed Forces Revolutionary Council of Sierra Leone (AFRC) in the Contempt proceedings.

Lead Counsel for Narcisse Arido in the case of Jean Pierre Bemba (Situation in Central Africa Republic) at the ICC.

Lead Counsel in the investigation of Dr David Matsanga (Situation in the Republic of Kenya) at the ICC.

Counsel for Mr Dominic Ongwen (Situation in Northern Uganda) at the ICC.

Lead Counsel for General Banda at the ICC (Situation in Darfur).

Victims Counsel at the African Court on Human and Peoples’ Rights.

As President of the ICCBA, presented an address on behalf of the association before the ICC Plenary at the 20th anniversary of the Rome Statute on July 17, 2018.

As President of the ICCBA presented an address on behalf of the association during the plenary of the Assembly of State Parties Conference on 6 December 2018 in the Hague, Netherland.

He delivered a keynote address at the National Association of American Administrative Judges in Washington DC on July 17, 2007 during the annual luncheon of the distinguished association.

 

 

 

Speaking Points for Video Address to NCBL CLE Program on Representing Defendants before International Tribunals

Posted by Moderator on May 30, 2020 at 3:45 PM Comments comments (0)

Speaking Points for Video Address to NCBL CLE Program on Representing Defendants before International Tribunals

 


• Hello and greetings from The Hague, in the Netherlands. I am Chief Charles Achaleke Taku, President of the International Criminal Court Bar Association. It is my great pleasure to be able to address you today as part of this important program on the topic of Representing Defandants before International Criminal Tribunals.

 

• I will briefly provide an introduction on the ICC Bar Association – its mandate and activities – and then address the following topics: 1) the qualifications for admission to the List of Counsel and the List of Assistants to Counsel at the ICC; 2) Jurisdictional issues under the Rome Statue of the ICC; and 3) Issues relevant to the representation of victims before the ICC.

 

1) ICCBA

 

• The International Criminal Court began operating in 2003, following the adoption of the Rome Statute on 17 July 1998. There are currently 123 States Parties to the Rome Statute, and the Court has ongoing investigations in 11 Situations, as well as several preliminary examinations under consideration.

 

• The ICC Bar Association, on the other hand was not established until July of 2016, more than thirteen years after the Court opened its doors, following a long-standing goal to establish a much-needed representative association of legal practitioners focused on matters relevant to the work of List Counsel and legal Support Staff before the ICC.

 

• The ICCBA has been recognised by the Assembly of States Parties – the Court’s governing body – as the main representative of counsel before the Court. The Bar Association is fully independent, and its operations are funded by the dues of its members.

 

• It serves as a collective voice for Counsel and Support Staff who represent victims, defendants and other actors – such as witnesses – before the ICC, and provides a range of support and services to its membership, as well as serving as a forum for discussion on all matters pertaining to the ICC. To give just a few specific examples of the ICCBA’s activities:

o We have provided a range of trainings on specialised topics related to the practice of international criminal law both in The Hague and internationally.

o We have advocated on behalf of our membership and provided in-depth reports on the reform of the ICC’s under-funded and bureaucratic legal aid system as well as on the complicated issue of the international taxation of counsel and support staff.

o We have issued a Declaration on the Obligations of legal practitioners under the ICC Code of Conduct as relates to harassment and hostile working environments and are currently putting in-place a harassment hotline and complaint mechanism to serve our membership.

o The Bar Association has also formally called upon the Assembly of States Parties to initiate a thorough, effective and independent investigation into serious allegations of improper and potentially illegal activity by former ICC Prosecutor Luis Moreno-Ocampo.

 

• I welcome and encourage you to visit our website for more information on the ICC Bar Association as well as a wealth of resources on the ICC – www.iccba-abcpi.org - or simply search for us on Google. I also ask you to consider joining the ICCBA as Full, Associate or Affiliate member. The ICCBA is a global-minded organisation, and we would very much welcome an expansion in our North-American ranks.

 

2) Qualifications for Lists of Counsel and Assistants to Counsel

 

• Turning to the ICC itself, what are the qualifications for an attorney who wishes to represent a client before the ICC, or to be a member of an ICC legal team?

 

• Detailed information and applications for seeking admission to the ICC Lists are available on the website of the ICC on the webpages for Victims and for the Defence. Relevant links are also available on the ICC Bar Association’s website.

 

• Counsel: In order to be admitted to the ICC List of Counsel as a Lead Counsel one must have 10 years of relevant experience. For a co-counsel the requirement is 8 years. The core requirements for admission to the List of Counsel are as follows:

o 1) Established competence in international law or criminal law and procedure;

o 2) The necessary relevant experience – 10 years or 8 years – in criminal proceedings, whether as a judge, prosecutor, advocate, or in another similar capacity.

o 3) One must also be fluent in English or French – the working languages of the Court – and have no convictions for serious criminal or disciplinary offences considered to be incompatible with the nature of the office of counsel before the ICC.

 

• Legal Assistants: In the event you do not have sufficient experience to be admitted to the ICC List of Counsel, you may be able to apply to the ICC List of Assistants to Counsel, which is primarily aimed at two categories of individuals:

o 1) Those who may serve in the capacity of a ‘junior counsel’ in the event they have at least 5 years of relevant experience in criminal proceedings.

 

o 2) Those who have relevant expertise in international law or criminal law – such as professors and other academic experts.

 

• Case Managers: Lastly, for those who are earlier in their careers, you may apply to be a Case Manager on an ICC Victims or Defence Team. There is no formal application or qualifications for the position of Case Manager, though most Case Managers at the ICC are law school graduates. Case Managers serve a vital role in organising the usually very extensive case files at the ICC, assist counsel in the presentation of the case in the ICC’s electronic courtroom, handle logistical and administrative matters for the team, and often times also assist on legal issues including witness interviews, legal research and the drafting of filings.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

3) Jurisdictional & Admissibility Issues under the Rome Statute

 

• The ICC is a treaty based organisation with 123 States Parties to date that have acceded to or ratified the Rome Statute, the international agreement that established the ICC. Because the ICC is a treaty based organisation, and pursuant to Article 12 of the Rome Statute, the ICC’s primary bases of jurisdiction arise from States that are members of the Court – namely territorial jurisdiction where a crime within the jurisdiction of the Court has allegedly been committed on the territory of a state party – or personal jurisdiction where the accused person is a national of a State Party.

 

o It should be noted that pursuant to a recent decision of Pre-Trial Chamber I of the Court concerning the situation of the Rohingya people of Myanmar, the ICC may exercise jurisdiction over conduct that occurred in a non-state party where that conduct is part of an alleged crime that took part in a State Party. The Chamber was specifically considering the alleged deportation of the Rohingya people from Myanmar – a non-State party – to Bangladesh – a State Party.

 

• The ICC may also exercise jurisdiction over alleged Rome Statute crimes where the UN Security Council has referred a Situation of apparent ICC crimes to the ICC Prosecutor, even where the State where the crimes were allegedly committed is not a State Party. This has occurred twice with UN Security Council resolutions referring the Situation in Darfur Sudan (2005) and in Libya (2011) to the ICC.

 

• Lastly, the ICC may exercise territorial and personal jurisdiction with respect to a State not party to the Rome Statute where the State has lodged a declaration with the Court accepting the jurisdiction of the Court. This was the case with the Situation in the Ivory Coast.

 

• Temporal jurisdiction: Pursuant to Article 11 of the Rome Statute, the Court only has jurisdiction with respect to Rome Statute crimes that were committed after entry into force of the Rome Statute on 1 July 2002. However, if a State becomes party to the Rome Statute at some point after its entry into force, the Court only has jurisdiction with respect to crimes committed after the State became a Party, unless the State files the previously mentioned Declaration granting the ICC jurisdiction.

 

• Exercise of Jurisdiction:

o Apart from the previously mentioned UN Security Council referral mechanism, the Court may exercise jurisdiction over alleged Rome Statute crimes where a State Party refers a Situation in another State Party – or itself – to the ICC Prosecutor, or, when no such referral is forthcoming, when the Prosecutor user her propio motu authority to seek the Pre-Trial Chamber’s authorisation to open an investigation in a State Party.

o State Party ‘Self-Referral’: Uganda, CAR (twice); DRC; Mali

o Propio Motu: Ivory Coast; Kenya, Georgia; Burundi

 

• Admissibility:

o Fundamental operating principle – complementarity. The Court shall only act where a State with jurisdiction over the alleged crimes in question is unwilling or unable to genuinely investigate or prosecute.

 Case of Abdallah Al-Senussi (Gaddafi’s former Intelligence chief) – Libya Situation – only case to date in which the Court has ruled, upheld on Appeal, that a case was inadmissible based on genuine national criminal proceedings that covered the ‘same case’ as the factual allegations in the ICC proceedings.

4) Representation of Victims at the ICC

 

• The Rome Statute of the ICC permits persons as well as qualified organisations that have suffered harm arising from the allegations in the case to participate as victims in proceedings before the ICC. This is different than the situation in most common law systems, or in the ad hoc Tribunals – the Yugoslavia Tribunal and the Rwanda Tribunal – as well as the Special Court for Sierra Leone, where victims could only participate in proceedings as witnesses.

 

• At the ICC persons who are granted victims status are represented by counsel referred to as “Legal Representatives of Victims” under the Rome Statute System. The same qualifications as for Defence Counsel, as previously discussed, apply to LRVs

 

• The practice and case law of the Court governing the representation of victims and their participation in proceedings is very much still in development, and different Chambers of the Court have taken different approaches on this important issue.

 

• From the perspective of a counsel who may wish to represent victims before the ICC, there are several key points to keep in mind regarding appointment of counsel:

 

o 1) While, under Rule 90(1) victims have the right to choose his or her own LRV, this is qualified by Rule 90(2), which provides that if there is more than one victim, which will presumably always be the case in ICC proceedings, then the victims must either choose a joint representative themselves, or, if the victims are unable to reach a decision, a Common LRV will be appointed by the Court to represent the victims.

 

o 2) Connected to the issue of the Common LRV is the fact that the Court has not established a right to legal aid for victims who choose their own LRV or Common LRV, and indeed in once case – Prosecutor v. Ongwen, the Chamber has found that there is no such right to legal aid, though the Registry of the Court may, at its discretion grant such aid. This is important as the vast majority of victims will not be able to fund the costs of their representation in view of the lengthy and high-cost nature of ICC proceedings.

 

o 3) Further, Chambers of the Court in recent years have been inclined to appoint the Court-funded but independent Office of Public Counsel for Victims (OPCV) as the Common LRV in cases on grounds of efficiency and cost-effectiveness. The OPCV also has a mandate to assist independent LRVs in carrying out their duties. The issue of the imposition of the OPCV as the Common LRV is one that has caused great controversy at the Court, and is something that the ICC Bar Association is discussing with Court officials.

 

• If you are appointed as an LRV, some critical issues to consider in carrying out your mandate include:

o Developing your case strategy:

 Consider the views and concerns of your clients – different clients within your larger pool of clients may want different things – simply to have the status of victim and participant; others may wish to give their ‘views and concerns’ in Court as permitted under the Rome Statute; others, though likely a smaller number, may primarily be interested in reparations in the event of a conviction at the end of the case.

 

 Reparations: Collect the relevant information so that you can, for each client, demonstrate and substantiate the harm he or she suffered.

 

 Other parties:

• Consider the approach of other parties – your clients may not agree with the manner in which the Prosecution has charged the case. This was the case in the Lubanga trial, where the Prosecution did not seek to formally include charges related to sexual violence, only allegations regarding the recruitment and use of child soldiers.

 

• Be able to fill gaps in or correct the OTP narrative in support of your client’s interests and instructions during questioning of witnesses and calling your own witnesses.

 

 Sentencing of convicted person: be able to identify aggravating factors.

 

o Communications strategy

 Be a bridge in a two-way communication:- victims to Court, and Court to victims. This means ensuring your clients interests, views and concerns are represented to the ICC both insider and outside court proceedings, and that you properly communicate information on the proceedings to your clients.

 

 Communicate according to your clients’ needs and wishes to the extent possible. This will be different for different cases and clients within the same case :- how often to meet in person and how big will the meetings be; how much they want to be updated on the case; which member of the team will meet them (counsel; well-trained locally based assistants, etc.).

 

o Media strategy:

 Think about how you want to communicate with the local and international media. ICC cases are high profile, and you want to ensure your clients’ narratives are properly represented in the media.

 

o Building your team:

 Have at least on person – whether a counsel, legal assistant or even case manager, who has previous ICC experience. The Court is a world unto itself – both on law, procedure and administratively.

 

 Take into account the languages of your clients and in the region.

 

 Take into account issues of ethnicity and gender, the latter may be of particular importance in cases involving sexual violence allegations.

 

 

 

 

 

Official Transcript: Charles Taku (Full Interview)

Posted by Moderator on May 30, 2020 at 3:35 PM Comments comments (0)

Interview Summary

Charles Taku discusses the failure of the ICTR to prosecute RPF members. He refers to a form of

‘judicial genocide’ through which Hutu victims are denied justice and the Tribunal perpetuates

violence through impunity. He notes that the Office of the Prosecutor (OTP) should investigate

crimes based on the acts committed rather than on ethnicity or political affiliation. Taku also

discusses the controversial principle of joint criminal enterprise which he claims has been abused by

the OTP to indict individuals without sufficient evidence.

The transcript of the interview begins on the following page.

Role: Defense Counsel

Country of Origin: Cameroon

Interview Date: 3 November 2008

Location: Arusha, Tanzania

Interviewers: Batya Friedman

Ronald Slye

Videographer: Max Andrews

Interpreter: None

Charles Taku

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Part 1

00:00 Batya Friedman: Hi, my name is Batya Friedman, I’m a professor at the University of

Washington. I’m here interviewing Chief Taku. It is November 3rd, 2008 and with me

is Professor Ron Slye from Seattle University Law School and Max Andrews who’s our

cinematographer. So, Chief Taku, could I ask you to please introduce yourself? Say

your name, your role here at the ICTR and your nationality.

00:29 Well, as you’ve rightly said, my name is Chief Charles Taku. I’m Lead Counsel in the

Military 2, 2 trial. I first came here in 1999 as Lead Counsel for Laurent Semanza. I’m

also Lead Counsel in the Special Court for Sierra Leone in the, the case of Prosecutor

versus the Revolutionary United Front for Sierra Leone. I’m Lead Counsel for Mr. Morris

Kallon. And I’m Lead Counsel here in the Military 2 trial as I’ve just said. I come from

Cameroon.

01:05 BF: Thank you.

01:06 Note: Gap in Interview. Gaps occurred due to interruptions during the interviews,

technical issues, or corrupted data files.

01:10 BF: So can you tell us a little bit about your role as, as Lead Counsel? And when you

say Lead Counsel, you mean Lead Counsel for the defense?

01:18 Yes, I’m Lead Counsel for the defense.

01:20 BF: Yes.

01:20 I first came here on the 23rd of October 1989 as co-counsel on the case of Prosecutor

versus Laurent Semanza. And a few months after, I became Lead Counsel and I’ve been

Le-, Lead counsel all along. The case of Semanza ended in sometimes in 2004, and I was

appointed Lead Counsel in 2005 at the Revolutionar-, for the Revolutionary United

Front for Sierra Leone. That’s for Major Mo-, Morris Kallon.

01:56 And two months after I was appointed here again as Lead Counsel in Military 2, as Lead

Counsel for Major François Xavier Nzuwonemeye who was the commander of the

Reconnaissance Battalion of the Rwandan army.

02:13 And I work as Lead Counsel and actually coordinator for a legal team constituted by

the, the tribunal to defend the accused persons. And I have under me co-counsel and I

have a number of legal assistants and investigators. And Lead Counsel, I direct the

team, the defense team as it were.

02:41 And now Beth Lyons, whom you know, became co-counsel about more than a year ago.

I met her here on a visit from the US and when I was doing Semanza, she was sitting in

the gallery. And when she went back she sent a card to me and I found that very, very

touching because many (_______) thousand who come and nobody does that. And I

said this must be a very good lawyer so I invited her to come back here and join the

team.

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03:14 Unfortunate for me, when she came, my former co-counsel Alao, Barrister Alao, he’s

from Benin Republic, he had become a Lead Counsel for Colonel Aloys Simba. So he was

fast, faster than me and he got her as co-counsel in that team.

03:32 And when the, the case ended, I was happy enough to bring her back to come and work

with me. So, as I say, Lead Counsel’s the one who coordinates the entire defense of an

accused person and that’s the role I play either here or in Sierra Leone.

03:49 BF: Mm-hmm. So, I’d like to take you back to the spring of 1994.

03:56 Yeah.

03:57 BF: And, so in 1994 in the spring, where were you and what were you doing at that

time?

04:05 Well, about that time I was in Cameroon. I, I followed the story like every other person,

about what was happening in Rwanda unfortunately. Of particular interest to me was

the fact that the elements that led, the factors or the elements that led to the, the

calamity in Rwanda are present in many African countries, including my own country.

04:36 The conduct of the politicians, excruciating poverty, economic factors, and of course

the duplicity of international community in situations like these. So I followed the

events and I followed the events painfully as I watch over the television or listened to

the news. There was nobody there to do anything to, to help these people of Rwanda

to solve this problem.

05:11 And most striking of all was the fact that United Nations was actually there on the spot.

And what came to my mind was what use is the United Nations? What use is United

Nations that even their presence cannot pre-empt a calamity of that nature? So I was in

Cameroon but later (_________) that I would play a role in the, one way or other at

some point in time.

05:36 BF: So, and what were you doing in Cameroon at, at that time, in your country?

05:42 Well, in Cameroon at the time, we, we were facing a serious crisis at the time because I

come from the English-speaking part of Cameroon. And these were two Trust

Territories who were under the British and the, the French majority were under the

French. And were, as Trust Territories, that the UN had a mandate to lead to

independence.

06:07 It was never foreseen in the UN charter that, well, it could lead to what at the time we

thought was annexation – that instead of leading our own part of the country to

independence, because we're a former German colony and a Trust Territory of Great

Britain, the, the (______) brought us into what we considered as some form of

annexation in that our own party was just annexed to the French Cameroons.

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06:36 And the people, population was agitating at that time. Thousands of people were

agitating that they want independence, not (_____) independence. The, the policies of

the, the, the majority in power, the French majority in power, were very oppressive.

06:52 And, at that time I had been on the bar council, (_____________) of the bar council and

also one of the perhaps very visible lawyers at the time because a lot of people were

arrested, many of them died in detention.

07:07 And at least in ‘92 people were brought before the military court and they were being

indicted before the military court, civilians of course, for treason. That carries

mandatory death sentence under the Cameroonian military court.

07:26 And I was Lead Counsel defending these, these, these people. The case was going on

around the time that this was ha-, was happening and we just thought that oh, maybe

this crackdown may lead to some other serious crisis.

07:43 At that time we need also not just to defend the courtroom but to get international

support, because we thought that the, the military people were not people who can do

justice to civilians, especially as there was no reason to bring them to military court in

the first place. These were civilians; they were not armed. There was, there was no

reason to bring them there.

08:06 More importantly but because they were arrested from the English-speaking part of

Cameroon and carried over to the French-speaking part to be subjected under different

legal system and to be tried in a language they didn’t understand.

08:18 And we were busy trying to rally international support, the embassies in Yaoundé. And

at some point in time I left and went to Washington and thought that we could, the

press in Washington could help us.

08:30 I went to the Voice of America. Scott Steel was still a very young reporter at the time

preparing at the time to come to the Great Lakes. So, he was asked to interview me and

I was there with him in the program "English to Africa" for over a week highlighting the,

the problems with this trial, that the, the fair trial issues. And of course he did a very

effective job.

09:01 At the end, when we came back, this, the Voice of America actually helped us in really

propagating, I mean, our own side of the story, because back home the media is

controlled by the government, so nobody could have known that whole story. When I

came back now, almost, most of the people were acquitted but a few of them (__),

some 20 years, some 15 years, I think one or two life here.

09:29 And for us in, under the circumstances, it was a victory – thanks to the Voice of

America, thanks to the international community because the US Embassy in Yaoundé

also they were very interested in the case. They came to me at every turn and they

were in court at every session of the trial. So these, these two events were going on

simultaneously with what was happening in Rwanda.

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09:52 And the, the – we were telling the journalists at Voice of America, was telling the

Cameroonian government, “Let there not be another Rwanda. This is leading to

another Rwanda; this is leading to genocide,” and so on and so forth. And therefore

you will be surprised that it is my performance on that case that cleared the role in me

being called upon, shortly thereafter, to come and defend here.

10:15 BF: Mm-hmm.

10:16 Yeah.

Part 2

00:00 BF: So how, how did that happen, how did you end up here at the ICTR?

00:06 It was surprise. My name was not on the list of, of lawyers because I didn’t know the

procedure at that time. But after that case in Cameroon I came over here. And I said

“Look” – I heard that sub-, subsequently, I heard that the court had been constituted –

and I said “Look, let me have this experience, because this may well happen to us at

some point in time as long as our problems subsist, and as long as the momentum is

building that will lead to this.”

00:40 “So let me come.” So I came to Arusha and when I came here, I met one of the

secretaries and I said, “Look, I want to know how to, one can, can become a lawyer

here in these proceedings.” So she got me some forms, “Fill these forms.” I filled them

and somebody signed and my name was put on the list. And I left here and went to

Washington and I was in Washington for about three months.

01:06 And one day I got information from Cameroon that they were looking for me in Arusha.

And that I’d been called upon to come quickly to be co-counsel for one of the accused

persons. And when I came here, I didn’t know anybody here in Tanzania apart from the

(______) here, and it was very, very exciting and I met the accused and I discovered

that the accused was a former mayor.

01:36 He was no longer in command, he had no position and he was not as literate as the

others would be. And I started working for him and sometimes in February, there was

an interlocutory appeal that had been filed challenging his arrest and detention,

because the defense at the time felt that the, the arrest and detention were illegal.

There was no warrant and when they obtained the warrant for another person, they

used that warrant to arrest him and he was brought here.

02:11 So the, the Lead Counsel withdrew from the case and the appeal chambers had

indicated that they were going to come here two weeks thereafter to, to hear the

interlocutory appeal. And they wrote to me and said, “Well, you have to be prepared.

We’re coming, we, we cannot postpone the session so you should prepare for the

interlocutory appeal.”

02:37 So I went on reading the transcripts and preparing the briefs and, and when I did the

arguments and it was good, one of the judges, Judge (________) was very impressed.

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Of course on the other side I had the, the Prosecutor with seven prosecutors, Carla Del

Ponte herself. And the, and the advantage I had is that all the seven of them decided

to, to argue the appeal and I found a lot of contradictions.

03:02 It was easy when the other, the other person got up, he contradicted the other person

and that was the situation. In the end, the remedies I, I was seeking that he should be

set free, we didn’t get that, but we heard midway that (______) the trial proceed.

03:20 If he’s convicted, they should take into consideration the arrest, the illegal arrest and

detention, and that should affect in the sentencing. And that is why I think at the end of

the day that, that we benefited from that.

03:34 BF: So when you first came to the tribunal and you wanted to participate here as a

lawyer, did you clearly say, “I want to participate on the side of the defense,” or did

you, were you open to being both a prosecutor on the prosecution side and the

defense? What, what was your thinking?

03:54 My thinking was to be on the side of the defense and the reason is very, very clear. I

already knew that there was some politics involved in the court by the f-, mere fact that

the UN was present in Rwanda and they did nothing. And I knew that if the very UN

should constitute a court to try the alleged perpetrators, they would try to hide their

role or the role of the UN officers who were in the field.

04:22 I already knew and, or suspected this, and therefore I told myself, I went on the side of

the prosecutor I’ll be complicit in this. Let me be there so that I can have the

opportunity to see through this case and see all the complexities of this case. See all the

politics about that case. So in case that it happens again, I will be in a position from that

(_____) to be able to take part in trying to point out the, the politics of that.

04:53 It is this suspicion of the political intrigues that might have informed the creation of the

court especially from the standpoint of the UN. And my suspicions were proved right

thereafter, because the UN from inception, from the Security Council, from the

Secretary General report, now characterized the conflict as an internal arms conflict,

but you know this is a major component of war crimes.

05:26 The evidence now points otherwise. It points that Uganda was involved. It points even

to the mere presence of the UN itself, some of its officials. Now which (_________) that

they were trying to conceal, to pre-empt any attempt to litigate the role of the UN and

that of some of the neighboring countries and some of the superpowers that were

complicit in one way or other, either by commission or omission, to the thing that took

place in Rwanda.

05:54 So my suspicions were right in that, although I didn’t have the picture as this, but as

evidence unfolded and people now feel more comfortable to testify (____). But the

court cannot (_______) finding because their hands are tied; the Security Council

including the court, Secretary General, all they said was an internal arms conflict.

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06:13 And of course ordinarily an independent court should be in the position to disagree

with the Security Council – that in spite of your position that it’s an internal arms

conflict, the evidence points otherwise. Of course that’s another issue.

06:29 It all depends if the judges themselves who are United Nations appointees, Security

Council appointees from different member states, if they’re bold enough to go that far.

That’s another issue but my suspicions exceptionally have been proved right.

Part 3

00:00 BF: So if, thinking about tribunals in the future and you can imagine that we may

have others, other situations that arise where a tribunal is needed – we might not

want that but that might be the case – what kinds of checks and balances would you

put in place in how other tribunals are constituted to try and address this problem?

00:23 Well, in the first place, the statute here guarantees the independence of the judges.

The statute also guaranteed independence of the Office of the Prosecutor. And I think

this independence of the Office of the Prosecutor has been abused to the extent that

the Prosecutor in refusing to indict the RPF perpetrators, even when the Security

Council mandate directed clearly that all the people without distinction, that per-,

perpetrated the crimes should be indicted.

01:01 In spite of the fact that the, the RPF itself has admitted – in spite of the fact Prosecutor

himself has said so many times that, “We’re investigating the RPF, they will be

indicted.” The fact that the Prosecutor is unable to do this, presumably due to other

influences, and he can hide behind prosecutorial independence, I think it’s an abuse of

the notion of independence.

01:28 There should be an, an organ, an organ to hold the prosecution to account. To say,

“Look, your mandate, you’ve not been able to meet the, the, your mandate. You’ve not

been able because, you’ve turned the tri-, the, the court into a victors’ court,” and that

at the end of the tribunal, the c-, the, the, the – at the end of the tribunal, there’s every

indication that the violence will start all over, as long as one of the parties believe that

they too were victims.

02:13 They believe that justice has not been totally done, (_____) victor’s just-, justice. And as

the, the, the factors that led to the crisis in the first place remain with thousands and

thousands, no, millions of Hutus now as refugees, not in the sub-region but across the

world, they will be telling they want to come back to Rwanda.

02:36 They want to regain their land, the land issue remains unresolved. They, they, they

want free and democratic elections – one man, one vote under international

supervision. They want that this injustice should, should be, sh- – of course we know

exactly that the, the conflict is still playing out now in the Congo.

02:58 Now, as long as the Prosecutor cannot prosecute the RPF, the perception that the

tribunal has condoned impunity will remain. And therefore that will be a viable factor

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to start the war again, (______) tribunal. As long as the tribunal is here, and the ability

to arrest, it serves as some form of – it pre-empts.

03:30 You see, people will look at the tribunal as it is on the continent, not only in Rwanda,

but in the African continent. It serves as a monument to people who may like to, to, to

take up arms and kill people at that massive scale. That, “Oh, look, that could be you.

Those people there, that could be you.”

03:49 But as long as the tribunal is not and as long as the many dictators in the continent can

continue to, to stonewall in ratifying even a treaty of the ICC or if there were to be a

special tribunal of this nature, they will use all sort of limitations of – I mean they’ll

(________) to limit their participation to, to, to make sure that they can't, they’re not

held accountable.

04:26 They’ll put the politics of it ahead. As long as the African Union remains a club for

dictators on the continent, they don’t really have the power to say no. I believe that

that, that act of impunity that has been condoned by not going after all the perceived

perpetrator of the crimes, will remain. It will remain a scar, a (________) on the

conscience of this tribunal.

05:01 And I say so for good reason, because one of the reasons why the, the, the – it has been

ruled that this is a genocide is because of the fact that the Tutsis were targeted. Now

when you have a tribunal that targets the Hutu, it becomes a sort of judicial genocide,

sort of judicial genocide.

05:24 And the, the tribunal and United Nations, did they do, do, do justice? No, they didn’t do

justice, as long as that perception remains very, very strong, especially on the majority

of Rwandans. Not just the majority of Rwandans but majority of people of the ethnic,

the same ethnic composition of the Tutsi-, the Hutus in Congo, in Congo Brazzaville, in

Central Africa, in Cameroon.

05:49 And the, the Tutsi that constitute the Himas in Uganda or other places, the wider, the

wider ethnic configuration as long as it remains, it remains a major problem for the – so

I believe that if another tribunal were to be set up, yes there should be independence

of the, the Prosecutor’s office, but it should be well-defined to say that we will hold you

accountable at some point in time, in order for you to justify that you carry out your

mandate consistent with United Nations resolution, with the statute.

06:24 With the judges, there is very little you can do because these come from member state

of the UN. And if I can say this from the African continent and some of the smaller

states where at the moment (__) war is going on, I doubt whether the government of

these countries will submit to the Security Council the name of a judge who is truly

independent. It must be someone who has rendered service or rendered service to the

regime in power in the respective countries.

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07:00 You can count, look, look at the countries and the background of the judges. I, I, I say

with due respect; some of them are very, very good. Some are very fair minded. Some

of them have transcended the limit of being subservient to their respective countries.

07:16 But so many of them are still very, very – especially some on the African continent and

some of the oth-, some from the Asian countries, some from the, the islands, some of

them you find out their background, just read their CV and find out their background.

07:38 You’ll find that it is very, very difficult. They come with that concept in mind and the,

the potential for influence, political influence, is still very, very great. If you look at the

first judgments that we had from here and the, the, the judgments we are having lately,

you find that they have overturned themselves several times because some of the, the

notions were just (________).

08:05 The notion of joint criminal enterprise, developed right from the Tadić case, have been

so much abused to sign a conviction by association. There has been so much abuse and

if this tribunal should close down and perhaps the tribunal for Yugoslavia, without them

putting that notion into context, and if it were to be a jurisprudence not only at the

international tribunal level but also in national jurisdiction, imagine what dictatorships

can make of that.

08:44 So some of these later notions that were conceived in order to address particular

situations now have a potential to be a weapon in the hands of dictators to perpetrate

further genocide, judicial genocide in the community, in the country in which they

preside or as tools of oppression in order to remain in power.

09:10 BF: So back to . . .

09:10 So, so, so my suggestion is that there should be a potential apart from this, that apart

from just having a review of the cases, the UN should put in place a structure that can

review some of these decisions, and really have a, a good debate about that, so that

the tribunal (______) some of the judges will know whether they succeeded – one, in

meeting their mandate and two, if the legal pre-, pre-, the legal precedent that they

laid out for the international community are going to do good or bad for international

justice.

Part 4

00:00 BF: So I want to make sure I, I understand what you’re saying. The, with respect to

the Prosecutor, the Prosecutor’s choices about where, who to prosecute – so, you’re

saying that the issue here is not so much that the people who are prosecuted should

not have been prosecuted . . .

00:21 Exactly.

00:22 BF: . . . but that they’re an incomplete set. Right.

00:25 Exactly. Yeah.

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00:26 BF: And when you say that they’re an incomplete set, one thing you could say is,

“Well, it is the Tutsis, the RPF, that also need to be prosecuted.” But maybe I also

heard you say that beyond that, there are people beyond those say in Uganda or

elsewhere, that you’ve felt should also be prosecuted here as part of this tribunal?

00:53 I really hesitate to say, to put the, the, the parties in this compartment – Hutus, Tutsi.

01:03 BF: Mm-hmm.

01:04 Because we, w-, a notion has emerged where you have a group of people called Hu-,

‘Hutsi,’ because of etymologies (___) they’re now called ‘Hutsi,’ Hutu Tutsi. And the,

the, (______) they’re people that speak the same language, they live in the same hills,

they know themselves for so long. The RPF was not Tutsi, just as the government of

Rwanda was not Hutu. They, they were mixed.

01:29 So we find now, now. You see the, the, the pattern in which people are fleeing the

country even now, you find so many Tutsi who were in the RPF fleeing the country

today. You find even the king, who is now in the U.S., the, the, the, who was Tutsi. He’s

in the U.S. He can’t come back to the country, because Kagame is saying, “You come

back as an ordinary citizen.” Yet this was the symbol of power before the revolution

1958.

01:58 And it’s more acceptable even to the Hutus now than even the Tutsi. So I hesitate to

put it that way. I just say that ‘the perpetrators of the crimes that were committed by

the RPF.’ And the RPF, you find that they were soldiers of the National (_______),

Registered Army of Uganda, that, that, that front part of RPF.

02:21 You find also that what, when (________) was investigated, the assassination of the

three Tutsi presidents; two of Burundi, and one of Rwanda. If the Prosecutor – because

it falls within the mandate of the Prosecutor to investigate and go after the

perpetrators. If that were to be done, if they were to prosecute some RPF . . .

02:47 Take note, before April 1994, the soldiers of the Rwandan army then did not control

the entire territory. Large portion of the territory was under the control of the RPF. Yet

thousands were massacred there. Somebody ought to be held accountable for that.

03:07 The United Nations tried to organize an election there, and all the Hutus who won

elections – the RPF lost – all of them were killed. And in the course of this trial you had

many RPF officers coming to testify in closed session for their own protection. “Yes, we

were asked to killed these number of people.”

03:31 Or, in Burumba, Kagame 250,000 people in the stadium, Kagame asked to kill all of

them. Or immediately after the, the, the shooting down of the plane, Kagame left

Mulindi the north, and came to Mosha, near Kigali. Kigali (_____). And he sent a

company of 160 soldiers that cleared this corridor. “Any person you find, clear the

corridor,” for him to be able to come close to the capital, to (_________).

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04:04 Now this is evidence which the Prosecutor was hiding for so long. You must have heard

about the decision we had on the 23rd of September, 2008. Exculpatory evidence that

the Prosecutor was hiding.

04:20 Trial Chamber II ordered that this exculpatory evidence should be disclosed to the

defense forthwith, and held the Prosecutor in contempt by saying that, “You are the

minister of justice, you should be seen as doing justice, not only in this trial but to

international community.” And that he should be (______) personally.

04:39 Now he has disclosed some of the material. What does the material contain? Crimes of

the RPF. Why has he not prosecuted them?

04:47 BF: Mm-hmm. And then (________) . . .

04:49 Crimes ascribed to the accused in this case; you committed these murders. This

disclosed material now shows that that witnesses from whom we took statements in

2002 are saying that he got statement from them, statement about the perpetrators of

the crime by the RPF.

05:06 The assassination of Habar-, Habyarimana. The evidence matched. The witnesses come

in closed session, “we were the ones who were on the spot. We were the ones who

took part in the assassination.” He kept the information. Why has he not prosecuted

them?

05:24 The only answer is this: that he’s submitting himself to political influence. There can be

no other, no other explanation for this. At least officially, the tribunal is going to end,

perhaps this year, perhaps next year.

05:42 The official statement from the, heard from the Prosecutor every day is that, “We are

investigating the RPF. Do not mind, we (__), the indictments will come.” That is the

official statement. If he said that, “I’ve found no evidence at all,” one would

understand. But that’s not the case here.

05:56 So we’re not saying that the Tutsi or Hutu – no. We’re saying that the perpetrators –

crimes have no ethnicity. Criminal is a criminal. There’s a presumption of innocence

though, for everyone until they’re found guilty. But if there’s any (___) of, leads to the

fact that crimes have been committed, or may have been committed, (__), we want at

least the prosecution to be able to say no.

06:22 BF: And from your . . .

06:22 The Prosecutor should be accountable to someone. If he didn’t do this.

06:25 BF: Mm-hmm. And . . .

06:26 It cannot be, it cannot be independence of the Prosecutor’s office. Cannot, cannot

(_____) impunity on the part of the Prosecutor.

Part 5

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00:00 BF: And so, from your point of view, from the things you’ve seen and heard, then you

would say, “Well, clearly the RPF, the pro-, there, there should be some prosecutions

there.” And are you also of the view that beyond the RPF there are other parties that

should be prosecuted or possibly investigated for possible prosecution?

00:21 I wouldn’t put the blame on the Prosecutor here . . .

00:24 BF: Yes.

00:24 . . . with the (___), countries like Uganda that provided army and arms, and things like

that because the Security Council and presumably some of the superpowers, the

United States and perhaps a country which is not a superpower but a very, very

important country in Europe and the world, Belgium.

00:48 By virtue of being the heart; the depository of the secret of the western world, NATO,

European Union, (_______). They're a very small country, but so important, more

important than even some of the superpowers for that matter. They play a major role

in this; the evidence leads to them at every turn.

01:09 Their own ambassador testified here in open session and said, “We are more interested

in getting out our people and that was the right thing to do because we didn’t care

about the (_____).” That’s what he said at the opening session. Those were his

transcripts (_______) reading a few days ago.

01:24 My problem is this, they were the ones United States sitting there in the Security

Council. They drafted the statute that was brought to us. And we filed a report saying,

“Look, this was an internal arms conflict.” Now if this an internal arms conflict,

automatically no matter what amount of evidence you leaked in regard to this case,

with regard to the international character of the conflict, it’s not going to be

considered.

01:54 In other words they make it impossibly for anybody to enquire into their own role. In

Semanza I applied to get one – Professor Max Hilaire of Morgan State University as an

expert witness on the role of the international community in the Rwandan con-,

conflict. He prepared a report and the court at the end of the day said, “No, we will not

allow the evidence.” They said, “We’ll not allow the evidence.” Why? No reason was

given.

02:28 And the only reason can be found in the Secretary General report to the Security

Council at the time. So when the constituting elements and the travaux préparatoires

themselves have limited the scope of the evidence and the, the inquiries, state of the

inquiry you can’t put that blame on the Prosecutor.

02:50 It is the Security Council and when the Security Council we know means some of the

superpowers. I will never know for sure why, for example, the United States would take

that position. But what I can guess now is because Carla Del Ponte, was a former

Prosecutor, has said that a lot of influence was put on her not to conduct investigation

against RPF, not to indict them even though she has enough evidence.

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03:14 Her spokesperson has written a book saying the same thing and whom do I believe? I

believe Carla Del Ponte if she says that that influence is there. And if – and that she

even says the reason why they removed her as a prosecutor of this court was because

she insisted on going ahead with the prosecution.

03:33 If her predecessor takes over, and doesn’t prosecute, it will mean that he was a more

convenient person through which they could hide this. But the question is, in this

particular context, can they actually hide? No.

Part 6

00:00 BF: So one last question before I will turn to my colleague. Is your perception that of

your colleagues very broadly here at the tribunal – so not just the defense but among

the prosecutors, perhaps judges, Registrar’s office – do you think the vast majority of

your colleagues in some way share your view that, th-, that a broader prosecution

would have been better for the tribunal?

00:27 Well, in answer to that question let me just give you one promise. When the tribunal

closes down, in order to prove that they share my view, wait and see what many of the

prosecutors are going to write. I’m perfectly aware about the position of most of the

prosecutors who are very good lawyers; ordinary prosecutors, very good lawyers.

00:47 And some of them who have said, “Look, when we started these trials, we didn’t know

that this where the evidence leading to.” And some of them have said, “No, this

inadmissible.” And, and I, and I promise you this, that most of them are very, very fine

lawyers, good lawyers and they said, “Look, we cannot be seen as being complicit in

this.”

01:05 And probably even before the end of the trial, most of them must have left because of

this. Also try to talk to some of the investigators because you find many are in America,

some in Canada and among the, the, the prosecutors, talk to some of the African

prosecutors and others, and also some from Europe.

01:25 And now they are covered by the six months. The UN, after six months when you are

still (____) you cannot talk. But let me tell you. They share these views. I think we

talked to the Prosecutor and put the question to him, “Why have you not prosecuted

RPF?” I don't know how he is going to respond, but maybe he’ll tell you, “We are still

investigating,” because he cannot reverse himself on that.

01:49 And I think that most of us are very, very frustrated. I, coming from the continent, from

Africa, I being a traditional ruler in my community, I know very, very well that this

impunity will just exacerbate the conflict. Not necessarily only in Rwanda but in the

sub-region. There’s absolutely no doubt about that.

02:11 The indicators, the elements that led to the conflict is this, if anything that’s been

exacerbated by the fact that the end structure put in place to redress these crimes has

failed woefully in its mandate. Now, ask, I asked, I put this question to the former

President of the court Judge Møse. I said, “Look, Judge, how do you think, rightly or

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wrongly, the people who are indicted, there are some people, probably so many people

out there looking, thinking that they are their leaders.

02:46 They now symbolize the identity of an-, any group to the extent that the prosecution is

ethnic-, is, is influenced by ethnicity, or perceived to be so. What do you think Judge if

this tribunal should close down one day, would I say to a Tutsi? Why don’t you think

that these people would just say, 'This world, this Rwanda, this new Rwanda that the

tribunal has left behind. It’s not worth living. Let us take up arms and do justice to

ourselves.' Don’t you think so?”

03:27 I said, because my perception, my question is informed by the fact that the Gacaca

proceedings in Rwanda target the Hutu. The tribunal ICTR target the Hutu. The

Rwandan legal system targeted the Hutu; the (_______) across the world targeted the

Hutu.

03:46 So where can the Hutu victims find justice? Absolutely nowhere. Well, only France and

Spain have tried because of their citizens who were killed, to make a reasonable and

principled attempt in order to indict these individuals, issue warrants. Now, the

tribunal, what is your position about this? Originally your spokesman joined Rwanda in

condemning the French and the Spanish.

04:21 It's only when a trial chamber in the case of Munyakazi when the Prosecutor tried to

transfer some of the cases to Rwanda, and the trial chamber said, “Look, there can be

no justice in Rwanda.” And among other reasons it said, when the French judges

indicted some RPF soldiers, when Spain indicted them, they insulted and threatened

those judges. If they did that to foreign judges, what about the Rwandan ju-, judges if

they intended doing justice? Even worse.

04:58 And I was the person – I addressed the court about that in our own trial and said,

“Look, to hand over any of these people to Rwanda, by the procedure of this court, we

only harden the perception that indeed it exists the policy of this court to hand over

these people to the victor to immediately sentence them to life imprisonment in

isolation.” Every time there is a conviction here the government of Rwanda intervenes.

But when there’s an acquittal, they condemn.

05:37 Say, “That person ought to be convicted.” They have never shown, neither the

Rwandan justice nor the government of Rwanda has shown that they are ready,

Kagame is ready, to behave and act as a president for all Rwandans. He’s behaved as

the president for some of the Rwandans, not all Rwandans by his conduct towards this

tribunal and towards the Hutu majority and towards the accused in this trial.

06:02 And I pointed this out to the judge, and I pointed this to the court. So, my point of view

is that probably at this point in time, if you ask the Prosecutor, ask the judge, (____), “If

we are to close down today, what would be the hallmark, what would be the legacy?”

06:22 They will name a series of cases, “We tried this (___), we tried this.” Yes, but what are

the principles of law that we’ve laid down in the trial of this case? Yes, some of the

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principles are balanced, some are consistent with the attainment of international legal

principles but some have done a lot of harm.

06:44 And I say joint criminal enterprise has a potential that if anybody should put your name,

say, “Well, you were never there, you were in America,” joint criminal enterprise it is a

web that can sweep just any person depending on the whims and caprice of the judge,

that particular judge where he stands. No, that is not a legacy. That is not even the

principle that can help the world. It would do more harm.

Part 7

00:00 Ronald Slye: You mentioned a number of criticisms of the tribunal. On balance, do

you think that it was a positive or a negative institution with respect to justice and

reconciliation?

00:17 Let me say the mere fact that the institution was created and existed and has operated

on the continent is very, very positive, because for once in our own century, our own

times, dictators on the continent now know that they can be (____), held accountable

for crimes perpet-, perpetrated by them.

00:45 More important, people to whom, people have, who have been elected or people who

have held up themselves as commanders, army officers, others whose major role was

to protect the people, to rule the different countries, now know that if they turn

around and kill their own people or they fail to protect their own people when they had

the capacity to do so, they will be held accountable.

01:21 On that, I can say that it’s positive. And I can say that the mere existence of the tribunal

per se outweighs any other criticism as far as the African continent is concerned. As far

as international justice is concerned, it came too late in the day because there was a

possibility of pre-empting the crisis. So was the Security Council with this (__________)

did this just in order to hide its face and therefore – but better late than never and

today it stands as positive.

02:05 On the development of international law, yes the jurisprudence on rape as a war crime

is a major development. I think it is one of the greatest legacies that this tribunal will

leave, because personally, women and v-, people, vulnerable groups ought to be

protected from warfare. And for them to use women and the vulnerable groups as

instruments of war, it is wrong.

02:35 Whether as the facts evolve the law applies to particular factors is another issue but

the mere principle itself is good. With the, the, the precedents that were laid out in

Nuremberg and Tokyo, this tribunal has followed those precedent to the extent that

the, the, the "victor’s justice" concept has been followed to the letter.

03:02 And that’s a bad precedent that happened so many years ago from 1945, ‘46, ‘47, so

many years ago. And it has set, it set a bad precedent for the world and this tribunal

has just walked along those lines and it’s unfortunate.

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03:18 Now, may, do, do we have another tribunal or wait for another tribunal to come and

put an end to, to, to this, to, to this conduct, to these principles? I do not know. But

again, just as we were saying, in Nuremberg the world was saying, "never again," you

now know why. That, that "never again" was an empty slogan to the extent that we

have victor's justice and to the extent that it has been repeated in this particular court,

it remains an empty slogan.

03:53 And in anything, it leaves us with a perception that whenever victor’s justice is applied,

it enhances impunity for the, the party that feels aggrieved. That they can always take

up arms and repeat the same crimes. To that extent, I think this court, this tribunal has

failed woefully on that.

04:16 And as you say, in order for them and I see this development – unfortunately

development that was developed in the Tadić case, I see that unfortunate development

of joint criminal enterprise as was just another means by the court in order to enhance

the victor’s justice principle was extended further.

04:36 If you can’t get them in any form of accomplice liability, then why not extend this

notion of joint criminal enterprise? Know that it is a web that once you throw it wide

open, the person will be caught somehow – jailed by association.

04:55 So, so, I mean look at Article 6(1) of the statute on individual criminal responsibility.

Because there is no joint criminal enterprise in the statute, how do you fit it, how do

you fit joint criminal enterprise under 6(1)?

05:14 When 6(1) enumerates the conduct, that the enumerated conduct is there. How do you

fit it? Of course they say they fall back on customary international law. But if it

(___________) customary international law and they move back to Nuremberg again

and to the Tokyo trials, where the principle was first admitted but not as in the concept

in which you find it.

05:39 And the manner in which it was discussed in Tadić you find out that even there, it is

victor’s justice looking for a means of criminalising and convicting the particular

individual when it pleases them to do so.

05:58 So on that score, the tribunal has failed because it has set a bad precedent for the rest

of the world or it has developed further a bad precedent that has its origin from

Nuremberg then Tadić, and continues.

06:13 RS: Those who defend joint criminal enterprise, sort of raise the problem of dealing

with atrocities that a lot of people are involved in, and that, that you only have

genocides or crimes against humanity if there’s a very large organizational structure

with both very high level people and mid-level people and low level people involved.

06:40 RS: Do you think that, leaving aside the legal issue you raised about the origins or

the, the legitimacy of joint criminal enterprise in the ICTR statute, do you think as a

general principle it is a good principle or a bad prin-, principle in terms of individual

liability?

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07:00 If it were, if it were applied very restrictively it could be good. Because you know,

especially criminal genocide, the specific intent, specific intent has, it has a higher

threshold. So if we were to, to, to apply it as, in that concept, how do you – especially

with the system, the systemic form of joint criminal enterprise – how, how, how do,

how do you, how do you, how do you get the (_________) on specific intent?

07:34 So, you know, it is has been abused, it has been abused. In fact, I think it might have

been conceived in order to, to, to, in order to remedy a mischief, the way you put it,

but the fact that it has been abused in rare cases.

07:52 And in that, in that, in that particular situation, you find that the judges are so divided,

some of the judges (_____) say that, “We can never apply it,” in the same, in the same

court. Different appeal chambers have come to different conclusions.

08:08 (_______) appeals chamber (_______) followed by the idea (________) – and the

danger for us is this: In this concept, if these courts must be modelled and these

concepts, these principles were applied to a national jurisdiction, in the African context

in the hands of the dictators in power, believe me, you would do substantial injustice. It

would lead to war. It would target just about any person who is perceived to have

taken part in an alleged joint criminal enterprise in any of the three forms. And that is

our worry.

08:48 And that’s why in, in Sierra Leone I pointed out that the judges of the Special Court

should take note that joint criminal enterprise is not part of the statute of the Special

Court for Sierra Leone. They cannot create another form of criminal liability, which is

neither in the statute nor flows from the statute. They were out of their mandate.

09:13 I, I’m waiting for, for what, whatever decision they’ll say about that but I’ll raise it. In

other words, what you’re saying is correct. It was, it was perceived to redress a

perceptible mischief but the fact is that from Tadić it has been abused. It was poorly

applied in Tadić and in many other cases that here these couple of people were

acquitted of all other forms of liability except the joint criminal enterprise. How can

that be?

09:42 RS: Well, in Tadić there were three different categories, right, of joint criminal

enterprise, and the third is the most controversial.

09:47 Yes.

09:48 RS: Let me ask you if you were advising somebody setting up a new tribunal, now, so

you could write the statute, would you include any form of joint criminal enterprise in

that statute whether the first, the second or the third?

10:03 Well, ordinarily there, there’s a problem here. You see like in the case of Mpambara

here, the judges in that case expressed the fear that there’s some form of confusion

between joint criminal enterprise, especially the first and second forms, with other

forms of accomplice liability, in aiding and abetting.

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10:26 And as long as we have on the statute books all forms of aiding and abetting and of

course, and that’s why they derived the notion of criminal enterprise – aiding and

abetting. There’s a lot of confusion there, the law is not certain there and the courts are

not certain there.

10:43 At this time, at this point in time no, at this point in time for me, no. But if they could

really reconcile themselves, maybe and say okay the first form of cr-, of joint criminal

enterprise, maybe even the second, we can incorporate into the laws, there will be no

problem. But the third form is the most controversial, I mean the most controversial of

all.

Part 8

00:00 RS: Let me, let me shift gears. You, you mentioned that you’ve also worked at the

Sierra Leone tribunal.

00:05 Exactly yes.

00:06 RS: You also mentioned that you’re a traditional ruler . . .

00:08 Yes, yes.

00:09 RS: . . . and so we have sort of three different types of models that you may be

familiar with – the international model, the ICTR; the hybrid model, the Sierra Leone

tribunal; and then we have the Gacaca courts, a sort of more traditional form of

justice. Do you think that – which, which one of those is better suited to dealing with

these sorts of atrocities?

00:36 Let me say one thing, the, the model that we have in ICTY (__________) have been the

best because of the fact that you don’t have the, the country in which the crimes took

place interfering unnecessarily either with the court or witnesses.

00:53 But Sierra Leone has emerged as a more successful model. And surprisingly I would say

so because in terms of – I, I mean actual performance, in the sense that the, the

prosecutions are taking place in Sierra Leone and the government has not inter-,

interfered that much. Why? Because all the parties to the conflict were prosecuted.

01:24 You had the Kamajors, CDF Kamajors, you have AFRC and you have RUF and of course

lately Charles Taylor. So, probably this is what I’m (____) about the stability of the

proceedings, that the citizens of Sier-, Sierra Leone see the same fairness in that all the

parties are prosecuted.

01:45 Maybe if they were to prosecute only the AFRC or RUF or the Kamajors, maybe the

potential for instability after that would have been there. But I have been there and I

find that the government cooperates when they subpoena the, the former president

came, the Sierra Leone government.

02:08 Even though they had – the, the, the Special Court is very, very unpopular among the

Sierra Leone people. Because they had a Truth and Reconciliation Commission and even

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though shortly before the elections the, the former vice presidential candidate opened

the doors of the prison and, and set free all the, all the suspects who were there

because they played a major role in the elections and were somehow popular.

Especially the rebels played a major role.

02:35 That will not be a model that anybody want in any other country because all other

African countries are not Sierra Leone and secondly, yes, if this model had all the

parties in the conflict, Yugoslavia has been somehow successful also because all the

parties to conflict have been prosecuted.

02:55 In terms of stability, in terms of the ability of the international community to foresee,

to foresee ten years, 20 years from now, is there potential for conflict? They can see.

Can you see the same about Rwanda? No, so this model remains the best, but for the

fact that all the parties in the conflict (______) and that, that is the difference. So I think

the Yugoslavia model remains the best.

03:23 RS: And why do you think the Yugoslavia model and the Sierra Leone model were

better in that regard than the Rwanda tribunal?

03:30 In the first place, if you find time and, and read some of the proceedings in the, in the

Sierra Leonean, the judges are actually, they actually try to be fair. They give all the

possibilities for the parties to be heard. They conduct joint trials but they make it

known from inception that each accused is being tried as if he were being tried

separately.

03:57 And they will not let a co-accused incriminate another accused in the course of the trial,

because that would lead to a mistrial. Because if they were tried separately that would

never happen. If you sit in this court you will find that the so-called completion strategy

is a factor that has been taken into consideration by this court. And the court has put a

lot of tension, especially on the defense, and the comple-, the completion strategy has

done a lot of injustice.

04:26 They’ll cut the number of witnesses, they cut the cross examination, they (______)

even to look for witnesses. I mean of, of course the international community, the

defense is not always very, very popular with them. They can provide all the resources

with the Prosecutor but with the defense they will not. So they try the completion

strategy here.

04:43 In Yugoslavia there are few cases, yet the international community have told them,

“No, you can close 2010.” But here they put a lot of pressure to stop. Stop. Now, come

to think about it a problem arises, when Yugoslavia, when the trial in Yugoslavia

started, when the trials in Yugoslavia started – when the conflict started, I’m sorry, the

international community jumped in and Bill Clinton . . .

05:19 . . . the bombing, you remember the bombing and you know very well that at the IC-, at

the ICJ, they attempted bringing action against all the states involved but the statute of

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the ICJ, ICJ did not permit them, that they can bring them collectively, NATO countries –

so they had to bring cases against all of them, even though again they didn’t succeed.

05:42 But, the, at – under the same circumstances in Rwanda they look away and pull out

their troops. The same situation now is repeating itself as we move towards the end of

the tribunal. Much as they are trying to say, “No, stop Rwanda, end quickly, do

everything to end quickly.”

06:00 They are asking Yugoslavia tribunal, “Take your time. See that you can, justice is done”

(_______). But you ask yourself what informs this conduct on the part of the

international community? In this type of situation I don’t have the answer, they have

the answer.

06:19 But it’s unfortunate because that perception is there, that you were, you weren't there,

you left the Rwandan, you abandoned them when they most needed you. Now you are

trying to abandon them again to rush the defense of these people or rush other cases,

close the case quickly. The Yugoslavia that has few work cases, you give them more

money, you give them more time.

06:50 What? I cannot really give you an answer to that because I would be speculating if I

were to give any answer to that. But the circumstances are there, the circumstances

are there for one to see. At the end of the day, Rwanda, the quality of justice that is

here will be rushed.

07:12 They will cut one witnesses to about 50, some who had 100 and something when they

cut them to about 50. The Prosecutor has been prosecuting for the past six years,

cutting witnesses. Now in under a year you want the defense to end in some of the

cases.

07:29 And the ambassador at large, UN Ambassador at large at that time was Pierre Prosper;

he came. He held a meeting. I was present in the meeting. Pierre Prosper was telling us,

“Oh I came here, nothing else, the end game. Let me know. So what are you people

doing in order to close the cases?” Of course it is only now of late that Carla Del Ponte’s

spokesperson in his book clearly says that (__) went to the State Department, met

Pierre Prosper, with Carla Del Ponte and he said, “Don’t touch these files, the RPF files.”

08:04 I’m not the one saying it, it’s in the book. So at the time he came here and spoke to us

and I was in a meeting, for me it was, it was, I thought that was, was in good faith. I’m

not saying that what Carla Del Ponte’s spokesperson has written is right, but I’m saying

that at least this is the Prosecutor saying this. This has come from the Prosecutor.

Part 9

00:00 RS: Should we – do you need to?

00:01 No, no, no, proceed.

00:03 RS: You’re okay?

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00:03 Yeah. I, when we finish I will stop them, I will let them wait in here.

00:08 RS: Okay. One of the audiences of this sort of interview, which was mentioned

before, may be school children in India, China, Rwanda. One of the questions they

might have for someone like you is that you are defending people who have been

accused of some of the worst atrocities that we have known. How do you explain

that? How do you justify that to them?

00:34 I would tell them that it is in the interest of, it’s in their interest and the interest of the

international community to know the truth of what happened. And, if the persons ar

Fidel Castro: Africa has lost a /friend

Posted by Moderator on May 30, 2020 at 3:35 PM Comments comments (0)

Fidel Castro: Africa has lost a /friend

November 26, 2016

by Chief Charles Taku

Fidel Castro will go down in history as a revolutionary leader who strongly supported the liberation struggle in Africa. The courage with which he withstood and confronted years of intimidation and threats from the gatekeepers of the “might is right” ideology, and on his own terms, inspired and will inspire the alternative world of genuine hope and freedom.

Fidel Castro and Julius Nyerere talk with a Cuban worker in 1977. – Photo courtesy Julius Nyerere Archives

His tenacity in leading the ideological war through sacrifice and action, against imperial domination of the poor and exploited peoples of the world, will lead us on long after him. For the better part of 18 years, I travelled to almost all the corners of Africa, our beloved great continent. I have found the traces the Cuban presence and the admirable sacrifices made to help us free ourselves, first from mental enslavement and then from colonialism and neocolonialism.

I had an opportunity to visit and sit in the chair where Mwalimu Kambarage Julius Nyerere sat to sign the Arusha Declaration. That was for me a powerful moment of meditation about the plight of Africa.

On the wall, I saw a picture of Mwalimu and Fidel Castro. I saw the picture of other great African revolutionaries who symbolized the spirit of Ujamaah, when the African spirit of freedom and resilience sent apartheid crashing into the gates of hell. Mwalimu addressed the South African Parliament and called on Africa to reject the eternal curse of indebtedness imposed on us.

He enjoined Africa to deny foreign debts and foreign aid and to renegotiate cooperation agreements on our own terms and not as slaves with imperial guns to our heads. Well, Fidel and Che Guevera had warned Africa against these tools of colonial enslavement. They did so on good moral grounds.

Fidel Castro will go down in history as a revolutionary leader who strongly supported the liberation struggle in Africa.

Cuba proved the policy of sanctions and enslaving economic policies futile when Cubans turned to their nature-endowed human qualities for their individual and collective survival. Africa can do the same. Indeed, Africa must do the same for the survival of its people. Our God given natural resources cannot and must no longer be the curse of the continent and the blessing of others.

I was in Accra in Ghana during the 50th anniversary of the independence of Ghana. As I lay prostrate on the tomb of Osegyefo Kwame Nkrumah, I again meditated profoundly about the direction Africa was going despite the prophetic call to the conscience of the Black race made by the Osegyfo. Luckily our generation and posterity heard Osagyfo and heard him loud. As Africa struggles for its soul, the liberation ideology that Osagyfo brought to us will continue to guide us and posterity towards the shores of freedom and human dignity.

Chief Charles Taku at home in Cameroon

And so therefore, when a colossus in human history like Fidel Castro dies, those of us who are adherents of the total emancipation ideology of human freedom must recommit ourselves to the struggle for a fair world economic, environmental, political, racial and cultural order free from discrimination on the basis of race, religion, gender and socio-economic status.

I missed travelling to Cuba in 2008 to attend the Conference of the International Democratic Lawyers Association because the American government then had a ban on travel to Cuba. My friend John Philpot from Quebec just returned from another conference in Havana and hopefully acknowledged our debt to Cuba on behalf of those of us who were greatly inspired by Castro as a result of his great contributions to our liberation struggles in Africa.

The Cuban miracle in the field of medicine is unmatched worldwide. I am so sure that those who imposed an unjust embargo on Cuba will soon be struggling to go to Cuba to study the miracles of the ingenuity and the creative genius of a people that made a critical choice of sacrifice over domination and enslavement. The tactical and strategic operational genius of the Cubans helped free ideologically inspired Africans in Mozambique, Angola, Guinea Bissua, Zimbabwe, South Africa, Namibia and elsewhere to defeat the forces of bigotry and economic exploitation by countries that lived on the sweat and blood of the Black race for centuries.

Fidel is gone, leaving so much work to do. He is the pathfinder who lit the torch of freedom for us and posterity. In honor of this great man, let us intensify the struggle for the total emancipation and freedom of Africa and the Black race. Let us reject imposed foreign currency, imposed foreign armies and wars, let us reject arms-for-minerals merchants; indeed, let us reject the angels of death and their local lackeys who have stolen the soul of the Black race.

Fidel is gone, leaving so much work to do. He is the pathfinder who lit the torch of freedom for us and posterity.

Fidel is dead – but alive because the revolution he led is eternal in our spirit and that of posterity.

Chief Charles A. Taku, advocate and criminal defense counsel, can be reached on Facebook.

 

 

The Marginalized Intruder: Defence Perspectives on Progressive Development of International Justice

Posted by Moderator on May 30, 2020 at 3:35 PM Comments comments (0)

Charles A. Taku

Lead Defence Counsel UNICTR, SCSL & ICC

The Marginalized Intruder: Defence Perspectives on Progressive Development of International Justice

Almost 70 years after the Nuremberg trials, the defence in international criminal courts is still treated as a marginalized intruder by the systemic and structural relations within international justice mechanisms.

With the exception of the Special Court for Lebanon, the defence is almost an “after thought,” despite the fact that there is Rights of Accused sections in ICC, ICTR, and ICTY Statutes. Like the UNICTR, The ASP of the ICC foresaw no role and no place for the defence in the statute of the ICC.

One example is the treatment of the acquitted persons: it is as if no one expected there to be acquittals of defendants, and they now live under “house arrest” essentially although they are “free.”

Another example: equality of arms does not exist: unequal resources and budgets to Prosecution and Defence.

Why is this a problem? Why is it so important to vigorously defend those accused of the most heinous crimes??

International courts are expected to be platforms of fairness, independence and equality from which to assert and proclaim the primacy of the rule of law over impunity and international criminality.

But this is not the norm at international courts:

The real issue is that lack of equality of resources is an overt attempt to undercut the defence, and wither away at the fair trial guarantees of the Rome Statute.

Rather than address this problem, the defence is perceived as a marginalized intruder drafted on occasion to formalized egregious affronts on the tenets of the legal profession and the minimum guarantees of fair trials afforded accused in international criminal trials.

As I speak, the institutional arrangements that the judges at the ICC wisely put in place to mitigate the perverse impact of this institutional embarrassment may be under considerable threat.

The ReVision proposal wants to a) consolidate the Office of the Public Counsel for the Defence (OPCD) and Counsel Support Section) CSS into one unit.

This effectively puts Defence issues under the Registry, which eviscerates any appearances of independence of the Defence from the administrative arm of the ICC.

The Revision Project outline states: “The new Defence Office would be responsible for exercising the Registrar’s duty to promote the rights of the defence and will have the capacity to carry out the full range of defence-related functions, except for actual representation…..” (p. 3 of Registry Revision Project)

There is no problem with the Registry promoting rights of the Defence…in fact; we would expect the Registry to promote the rights under the International Covenant on Civil and Political Rights, etc. etc. However, this does not mean that the Registry should usurp the office of the Office of Public Counsel for the Defence (OPCD), and consolidate its power within the ICC Registry structure.

A second example: b) Revision Project implicitly suggests that all defence be represented by one organization, which is to be an “interlocutor for the Registry.”

The issue of how counsel are organized, and under what auspices and for what objectives is an issue for counsel to decide….and should not be part of a ReVision Project.

At stake is the independence of counsel and its organizations, and counsel’s right to determine its own course of action.

The fight against impunity in all its forms is meaningless without a credible institutional mechanism that guarantees the independence of the defence, the presumption of innocence and all the minimum fair trial guarantees contained in the Statutes of the Courts.

The institutional status of the defence as a marginalized intruder portrays the ICC as a limping giant of international criminal justice struggling to fulfil an elusive mandate.

 

 


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