Politics

By Chief Charles A. Taku

The preamble of the United Nations Charter, establishes conditions under which“justice and respect for the obligations arising from treaties and other sources of international law” can be maintained for “promoting social progress and better standards of life in larger freedom”.To underscore this commitment, Article 1 of the United Nations Charter specifies that collective peaceful measures required for the prevention and removal of threats to peace; the maintenance of international peace and security should conformto “the principles of justice and international law”. The “right to defense and legal assistance of choice” before “competent, independent and impartial tribunals established by law” constitutes one of the minimum guarantees afforded by the UN System, multilateral and bilateral treaties for the attainment of this goal. The trials that were organized after WW II were a major test of the collective resolve of the civilized world to attain this goal. Was this goal attained? If it did, why then is the recognition of the defense as an independent organ of international tribunals and courts still elusive almost some 75 years after this stated goal? The main function of criminal trials is to establish the guilt or innocence of accused through fair processes.  According to Professor JeniaIontcheva Turner, even the Nuremberg proceedings were expected to comply with notions of fairness and individual criminal responsibility. However, the Tribunals establish for that purpose like all other international criminal tribunals and this includesICTR whose legacy we are celebrating, had a mandate to establishedenduring standards for future trials.

It was in so doing that these tribunals could validly be said to present clear alternatives to international criminality, impunity and the scourge of war that threatened and still threatens humanity; jeopardizing our common destiny. To fulfill this purpose, the tribunals had legitimately to be seen as platforms of fairness, independence and equality from which to assert and proclaim the primacy of the rule of law over impunity and international criminality.  Fairness, independence and equality in this context required institutional independence of Judges, the Registry, the Prosecutor and the Defense. The intendment of article 1 of the UN Charter is discernablein article 14 of the Intentional Covenant on Civil and Political Rights (1966) which laid down the minimum standards for the guarantees of fair trials. The Security Council through itsremarkable recognition of the defense as an independent organ of the Lebanon Tribunal led by example in the fulfillment of this pledge and indisputably set the standard for all international courts and tribunals to follow. The statutes of theICTR, art 20, ICTY art 21, SCSL art 17, ICC art 67, East Timor, Regulation 2000/30 as amended, recognize the minimum fair trial guarantees afforded accused persons  under  article 14 of the ICCPR  but not the institutional independenceof the defense for the effective enforcement of these rights.This omission does not accord withthe“the principles of justice and international law” enshrined in article 1 and the preamble ofthe UN Charter and the minimum fair trial guarantees contained in their respective statutes.

The evolution of the Defense cannot be separated out from the implementation of all the fair trial guarantees to an Accused, under Articles 20 (ICTR), 21 (ICTY), 17 (SCSL) 67 ICC statutes.It is desirable that fora criminal trial process to be fair and seen to be fair; established values that serve the interest of humanity must be promoted and protected. To attain this goal, the principal participants in the trial process, and the defense is one, must be accorded equal recognition, independence and equal institutional status within which to function. The evolution of the defense from Nuremberg to the Special Court for Lebanon has been remarkable in some respects.  Robert Gellately in his introduction to “The Nuremberg Interviews” by Leone Goldensohn states that the main proceedings comprising “prosecution and defense presentations, lasted over nine months” and that there were four judges, and four prosecutors (with alternates), each with a team of his own, all drawn from the victorious powers-the United States, Great Britain, and the Soviet Union, along with France. The defense at Nuremberg was only recognized for its participation and presentations during the trials and not for its institutional independence, relevance and the resources provided for an effective defense. Despite the paucity of resources and the lack of recognition as an independent organ of the tribunal, the defense still managed to secure three significant acquittals; an impressive result in such circumstances.

Administrative and supervisory role of the Registrar

Lacking institutional recognition, the administration of the defense in international criminal tribunals and courts is placed under the authority of the Registrars of the respective courts. In defining the functions of the Registrar, the statutes of these courts are silent on the administration of the defense. 

The Rules of Procedure and Evidence of international criminal tribunals and courts provide for the assignment of counsel, appointment of counsel,misconduct of counsel, appointment of duty counsel, while their specific directives regulate the activities of counsel.

Roaster of competent counsel

The Registrars of different courts and tribunals have been fairly successful in attracting pools of very competent and professional lawyers from the major legal traditions of the world.

Inadequate resources

One of the most significant factors inhibiting the independence and effectiveness of the defense is the lack of resources.   Despite the fair trial guarantees contained in the statutes of many international courts and tribunals, the provision of adequate resources to the defense was and remains a significant challenge.  The Appeals Chamber of the ICTY decided in the case of Prosecutor V. Tadic that an accused person is entitled to an equality of arms in the preparation and presentation of his defense, which at minimum means that an accused have adequate time and facilities for his defense. However the Appeals Chamber held that this right is circumscribed by the availability of resources by the international tribunal.

In any case, whatever one's position; whether the defense is inside or outside the judicial institution, there must be equality of resources. Equality of arms must mean the same monies to the Defense as to the Prosecution, same number of positions and the same privileges and possibilities to contribute meaningfully to the judicial processes intended to deliver free and fair justice to accused, victims and the world at large.

Security of counsel

Despite the protections and functional immunity provided lawyers in the performance of their duties provided by The Basic Principles on the Role of Lawyersadopted by the Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders, Havana, Cuba, 27 August to 7 September, 1990”defense counsel at some international tribunals and courts were subjected to egregious violations, arrests and humiliating treatment. To their credit, the ICTR and the Special court for Sierra Leone will go down in history for affording the greatest protection possible to defense counsel in the fulfillment of their mandates. The arrest of lead counsel Gakwaya before and Peter Erlinder stand out among many. The Registrar Mr.AdamaDieng made appropriate representations to the UN and the states concerned that counsel appearing before the tribunal enjoyed functional immunity regarding the work they did relating to the defense of their clients appearing before the tribunal.The Appeals Chamber of the ICTR in the case of Peter Erlinder affirmed functional immunity and the privilege of counsel in the performance of his duties before the Tribunal and the privilege of all material relating to the case to which he was assigned. When the communication of  Charles Taylor  and his counsel were placed under surveillance and recorded at the ICC detention center at the Hague, upon appropriate representations made by  the Registrar of  the Special Court  to the President of the court,  the President made firm orders  forthe immediate removal of the surveillance camera from any conference room used for legal consultations” and that“All communication between lawyer and client shall be regarded as privileged” unless otherwise ordered by a judge or a Chamber”.

Institutional defense management mechanisms

The ICTR established a Defense Counsel Management Section (DCMS) headed by a Senior Legal Officer working under the direct supervision of the Registrar.  One enduring legacy of the ICTR is the establishment of the Lump sum system of payment of counsel professional fees after wide consultation with counsel and defense teams.   This did not alleviate the dire budgetary constraints to which the defense was subjected. However, consulting the defense on a crucial matter concerning their mandate was a significant and unprecedented act of recognition and respect. The SCSL Registrar in Rule 45 of its Rules of Procedure and Evidence established the Office of the Public Defender whose functions were to ensure an effective defense at earlier stages, assign counsel and offer assistance to counsel. The Principal Defender exercised relative independence in providing support to counsel and accused persons and standing in for counsel at trial sessions when counsel for some reason could not attend court.  The Office of the Public Defenderwas an improvement on the status of defense counsel.

Duties and obligations of the defense

Defense counsels are guided by ethical rules defined by the courts and tribunals. Defense counsels are officers of the court and thus, have duties towards their clients but also serve the proper administration of justice.  The Appeals Chamber of the ICTR decided in Prosecutor V. Jean Bosco Barayagwiza that defense counsels participate in international tribunals to defend their clients but also to ensure the fairness and integrity of trial proceedings and the interest of justice. Permit me in conclusion to state thatthe journey from Nuremberg to the Tribunal for Lebanon has been long and tedious, takingclose toseventy-five years. Nevertheless, the wisdom of the Security Council and the International Community in according institutional recognition to the defense in the Lebanon Tribunal as an independent organ of the court must be celebrated. Unfortunately this solution has not been followed by other courts; in particular theICC where theRegistrarwho was in Sierra Leone and Lebanon when the successes being celebrated were recorded who regrettably is proposing to a solution that significantly undermines the independence of the defense. Additionally, the enduring legacies established by the ICTR and the Special Court for Sierra Leone regarding the protection of defense counsel and privileged communications, the lump sum system of payment and the Witness Protection Mechanism seems also not to have been followed. Yet this legacy belongs not to these courts and tribunals but to humanity at large and posterity. A disappointing lack of institutional dialogue between the courts and tribunals seem to have inhibited the application of the Lebanon Tribunal solution to a critical institutional problem. There is no acceptable justification to struggle with this matter any longer when an acceptable solution has been provided by the Security Council applying the principles of justice and international law” in recognizing the equality,  independence, relevance and contributions of the defense to international criminal justice.

Chief Charles A. Taku is a Senior Contributing Editor of Cameroon Concord.

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Ngwa Bertrand

13.Nov.2014

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Sama Ernest

 The village of Kerawa often used by the Boko Haram fighters to fire rockets into Fotokol has been taken over by the elite force of the Cameroon army known as Le Batailon d’intervention rapide (BIR). After heavy exchange of artillery fire by both sides last night, Kerawa is now under the full control of the Cameroon military. Cameroon Concord has learnt that BIR intends to block the water corridor linking Gambaru in Nigeria and Gambaru in Cameroon. We salute the courage of our men and women in uniform in their relentless efforts geared towards keeping the country safe.

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Ngwa Bertrand

13.Nov.2014

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Rita Akana

The Nigerian Islamic sect Boko Haram yesterday fired eight rockets from Gambaru deep within Northern Nigeria into Fotokol. Cameroon Concord understands that the Cameroon military responded with heavy fire. No casualties have been reported from the rocket attacks. Meanwhile a Cameroon military briefing in the nation’s capital Yaounde ended in disarray as some journalists disputed what was made public by Cameroon’s army spokesman Colonel Badjeck Didier. Colonel Badjeck is reported to have announced during the press briefing that Cameroon has so far lost 33 servicemen in the six months of combating the Boko Haram terrorist group fighters.  Some Cameroonian news reporters covering the fighting in the North described Colonel Badjeck as a “liar”. 

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Ngwa Bertrand

10.Nov.2014

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Cameroon Concord has learnt that our military now has 15 Boko Haram commanders in its drag net. The arrests were made during military operations carried out by Cameroon elite force known as BIR in Fotokol Sub Division deep within the Logone and Chari in the Far North Region.

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Ngwa Bertrand

06.Nov.2014

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Rita Akana

The Nigerian Islamic sect, Boko Haram has fired 4 medium rockets early this morning at Fotokol as heavy fighting is reportedly going on against the Cameroon army in the Koubougue locality. Three of the four rockets targeted Cameroon military positions mounted by the country’s elite force known as BIR and the fourth struck a building very close to the Fotokol General Hospital. The Cameroon army is also involved in a mass evacuation of residence as the fighting intensifies.

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Ngwa Bertrand

04.Nov.2014

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Chad's President Idriss Deby, a wily survivor of rebellions, is looking to bolster his powerbroker role in the Sahel and his nation's own security by backing peace talks between neighbour Nigeria's government and Islamist Boko Haram insurgents. The Boko Haram rebels, whose five-year revolt has killed thousands and caused mayhem in the northeast of Africa's biggest economy Nigeria, have been threatening Chad's own frontiers and disrupting cross-border trade. With jihadist fighters prowling Libya's deserts to the north, al Qaeda in the Islamic Maghreb active in the west, and rebels and janjaweed militia battling in Sudan's Darfur region to its east, Chad already finds itself in the eye of the storm. Deby, a former fighter pilot who took power in a 1990 coup, survived offensives by Sudan-backed rebels in 2006 and 2008. He can ill afford a violent Islamist onslaught by Boko Haram in the southern Lake Chad border region of his oil-producing nation. To pre-empt this threat, Deby's government quietly started in September mediating negotiations between Nigeria and Boko Haram, aimed at securing the release of 200 schoolgirls seized in April in the northeast Nigerian town of Chibok. Nigeria's military unexpectedly made the initiative public last month. Chad says the peace talks are still on track despite a recently released video that appears to show Boko Haram leader Abubakar Shekau saying the Chibok girls had been "married off" to his fighters, contradicting an earlier announcement of a deal to release them. "We have a huge interest in resolving these talks," said a senior Chadian diplomat, adding that Boko Haram's activities in the porous frontier around Lake Chad were difficult to control."We're worried that they'll come here next."

A breakthrough on the talks would help Deby strengthen his reputation as a regional powerbroker, a role welcomed by former colonial ruler France as it seeks to stop being 'Africa's policeman' and hand that job to local African allies. "One reason for Chadian involvement is the country's posturing as a regional hegemon," said Ryan Cummings, chief analyst at crisis management group Red 24. Chad's army is considered one of Africa's most battle-ready and played a frontline role alongside the French in an operation in 2013 against Islamic fighters in Mali's desert north. Its soldiers also formed the backbone of an African Union peacekeeping mission in Central African Republic to the south, until they withdrew after U.N. accusations of killing civilians. Last year, Chad earned a seat on the U.N. Security Council and Deby has gained prominence chairing regional summits. But if the talks being brokered by Chad fall through, Deby's government not only risks losing face but also an opportunity to defuse the threat from the Nigerian militant group whose centre of activity in Nigeria's northeast Borno State is menacingly less than 100 km (60 miles) from the Chadian capital. A video, seen by Reuters, of the executions in September of Chadian herdsmen by a group identified as an offshoot of Boko Haram in Chad is viewed by local politicians and residents as evidence of the feared spillover of the Islamists' violence. The leader of the faction shown in the video, Abdel Aziz, mimics the posturing of Boko Haram leader Shekau but speaks the Boudouma language used in the border area of Chad and Nigeria. "A couple of months ago we talked about sleeper cells of Boko Haram in the lake region," said a security source in Chad working for an international organisation. "But we can't say that any more because they have started waking up." In recent months, Chad has changed its attitude to Boko Haram. Chadian forces are stepping up surveillance and have made several arrests, residents and security sources say. It has also pledged 700 troops for a cross-border force in the Lake Chad region to counter the group, due to start operations this month.

France, which uses N'Djamena as a base for its Operation Barkhane against jihadists in the Sahel, is monitoring Boko Haram activities in Nigeria and assists the Chadian army. A diplomatic resolution to the Boko Haram issue could also help Deby, serving his fourth term and with no clear rivals for the coming 2016 election, to stave off pressure from Western partners to make further steps towards democratisation. "By increasing Chad's strategic importance in the region, he has made himself an indispensable ally to key international partners who will both ease pressure on him to reform, and potentially intervene in the event that threats to his regime increase," said Roddy Barclay at Control Risks. For the moment, Chadian soldiers in camouflage sit idle beneath patches of shade on N'Djamena's sun-drenched boulevards, and the capital seems once again in tune with its Arabic name, meaning "Place of Rest". The trees outside the presidential palace have grown back but still bear the scars of Chad's turbulent past. In 2008, as Sudanese-backed rebels bore down on Deby's heavily fortified stronghold through the streets of the capital, they were hacked back to stumps to destroy any cover. A dwindling group of presidential guards fought the rebels from trenches outside the palace but at the last minute France stepped in to save Deby. It provided intelligence and logistical support for Deby's troops, giving him a critical advantage over insurgents in pick-up trucks mounted with machine guns. But pillaging by Boko Haram fighters of trade routes in Nigeria and Cameroon, two of Chad's main commercial partners, has already cut commerce to the landlocked Sahel state, in a sign of how much it stands to lose from a widening insurgency.

In the twisting corridors of N'Djamena's Grand Marche, where generators roar to power electric fans in the midday heat, shopkeepers say their livelihoods have been affected by the drop in commerce with northern Nigeria and Cameroon. Abdullah Mega, a 30-year-old shopkeeper in a silver boubou robe seated on a red prayer mat, said a seven-vehicle convoy carrying his shipment of appliances was robbed and torched on the road from the northeastern Nigerian town of Maiduguri last year. He says that he has started importing merchandise from Dubai instead, but complains the extra costs are crushing his margins. "Nigeria is an extension of our own house and that's the room where we can make the profits," he said. Cattle trading, the second biggest business for Chad after oil, has also been hurt by the deterioration in security. Ali Baigou, head of a union representing herders, says its members lost more than 8,000 cattle in two Boko Haram attacks in August in northern Nigeria as they headed to a regional market. "The government should stand up against this," he said.

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Ngwa Bertrand

04.Nov.2014

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