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Celebrating a decade of defending suspects at the ICC

Journalists for Justice / 17 November 2016

By Thomas Verfuss

Everybody knows what judges, prosecutors and defence lawyers do at the International Criminal Court, but not so a strange beast in the zoo of organs and institutions that make up the ICC called the Office of Public Counsel for Defence.

On Friday, the ICC celebrated the tenth anniversary of the OPCD. Its role is not "self-explanatory"; and it is often mistaken for what it is not -- a bar association.

A bar association is institutionally separate from the Court, whilst OPCD staff is empolyed by the Court and paid by the ICC Registry. The OPCD - a unique creation in the realm of international courts when it was set up at the ICC in 2006 - helps and facilitates the work of the various defence teams, as an independent institution, though administratively linked to the ICC Registry.

During the ceremony, defence lawyers praticising before the ICC hailed how the OPCD has been helping their work over the years with legal research and practical advice, enabling them to do their job "more efficiently and more quickly".  

Xavier-Jean Keïta, the principal counsel of the OPCD, reiterated his wish that the office be recognised as a fully-fledged organ of the ICC, like the judges, the prosecution and the registry. Speakers like Karim Khan, defence counsel for Kenyan Deputy President William Ruto, stressed that being an independent, fully-fledged organ within the ICC system might also strengthen the defence position in the annual negotiations about money, which will once again occupy the agenda of the Assembly of the States Parties (ASP) to the Rome Statute, which will hold its 15th session in The Hague from November 16th, and, among other things decide the 2017 budget. The defence is now "the weakest entity in terms of institutional standing", Khan highlighted, as opposed to the OTP with its direct access to contributing states.

Sir Adrian Fulford (the presiding judge during the first ever ICC trial, in the Lubanga case) and Bruno Cathala (the first ICC Registrar) were hailed as "founding fathers" of the OPCD during the ceremony at the ICC premises. Before joining the ICC, Cathala, a French lawyer, had been deputy registrar of the International Criminal Tribunal for the former Yugoslavia (ICTY), the first international criminal court of modern times, established in 1993, after the post-Second World War tribunals in Nuremberg and Tokyo.

At the ICTY, Cathala could see certain practical circumstances that could jeopardise the principle of "equality of arms", which is so essential to a fair trial. Suspects could choose a defence lawyer they would trust from their country of origin (Bosnia, Croatia, Serbia, etc.). But arriving at the ICTY in The Hague for the first time, those jurists would be unfamiliar with the procedure and the legal system under which the tribunal operates, which is largely inspired by the common law system developed over the centuries since the Middle Ages in England and the countries she colonised. Yugoslavia, as a country of continental Europe, used the very much different civil law system -- "le droit romano-germanique" as people will say in French-speaking countries, the law designed in the Roman Empire 2,000 years ago and then further developed in Germanic countries like Germany.

This culture clash would put the "newly arrived" defence teams at a disadvantage, as opposed to the Office of the Prosecutor that had lots of experienced staff from common law countries (US, UK, Australia etc.) that would know the ICTY system and its jurisprudence very well.

The idea was that an OPCD could help and assist newly arriving defence lawyers by "initiating" them to the ICC system (which, like at the ICTY, is largely inspired by the common law tradition, e.g. with its cross-examinations which don't exist in civil law). The OPCD would also be the "institutional memory" of the defence as far jurisprudence is concerned, which the Office of the Prosecutor already had "in-house".

 

There was another problem specific to international courts, which appeared at the ICTY. Suspects would often opt for a "mixed" defence team: one lawyer from their own country who would know their language and culture and the legal system they were used to, civil law. Next to the "familiar" jurist, they would hire one lawyer from Britain or the USA or another common law country that would be a native speaker of the predominant working language at the ICTY, English, and know common law and its procedures and judicial practices (like cross-examination).

 

That would lead to "expensive phenomena", like status conferences for which defence lawyers would come over to The Hague from places like California or New York and that would be done with in 20 minutes. Still, the United Nations would have to pay for plane tickets and hotel bills. The idea was that OPCD staff resident in The Hague anyway (as employed on a full-time basis by the ICC Registry) could sit in for the defence team during short hearings like status conferences that would be merely of a procedural and administrative nature.

 

As imperfect as the present ICC system might be, progress has been made compared to the early days of modern international criminal justice, which was reaffirmed during the keynote speech of Howard Morrison, QC. The British lawyer, who is currently an ICC judge in the Appeals Chamber, was a defence counsel during the very early days of modern international criminal justice at the ICTY. He recalled that defence lawyers then had no access to the canteen and the library, as they were not trusted, like journalists. Once they got ICTY badges to walk relatively freely in the building, "Defence" would be marked very visibly on them to "warn" other ICTY staff they would encounter in the corridors. Staff of organs like registry or OTP would be inclined to "make the sign of the cross" or "put garlic around their neck" when they would bump into a defence lawyer in the ICTY corridors.

 

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By Terry Jeff Odhiambo

Gambia stands as a testament to the glacial progress Africa is making in the sphere of human rights. With the country on the mend and efforts under way to bring former President Yahya Jammeh to justice, the African Commission on Human and People’s Rights could scarcely have found a better host country to hold its 30th anniversary.

The celebrations in Banjul, between November 1 and 4, 2017, come at a time of hope and restoration for the Gambia after the end of Jammeh’s 22-year dictatorial regime. Jammeh’s government was notorious for its disregard of international human rights norms despite ironically hosting the ACHPR. Arbitrary arrests, threats, enforced disappearances and torture were commonplace. There is still plenty of room for improvement. Attorney General Abubacarr Tambadou, who is also Justice Minister, told the opening of the 35th Forum on the Participation of NGOs in the 61st Ordinary Session of the ACHPR that notwithstanding the various strides made by nations in the application of human rights instruments, the full enjoyment of basic rights and freedoms since the adoption of the African Charter, continues to face challenges. The Justice minister reiterated that the new government of Gambia had reaffirmed its commitment to protecting human rights and to living up to its position as the human rights capital of Africa. As recently as September 2017 the Gambia, signed five international treaties on the margins of the United Nations General Assembly, including the Second Optional Protocol to the International Covenant on Civil and Political Rights, which seeks to abolish abolition the death penalty. In the coming months, Gambia is committed to ratifying more human rights treaties, including the Convention against Torture, and adopting a new republican constitution within the shortest time possible and developing a system of justice that can look into past atrocities and sustain its democracy. The NGOs Forum, which is usually held on the margins of the ACHPR Ordinary Sessions, is a platform for fostering collaboration between civil society organisations on the one hand and the ACHPR on the other, with the aim of promoting and protecting human rights in Africa.

Human rights abuses in Africa are a sad reality. The tableau of human suffering on the continent is scar on humanity’s conscience. From South Sudan[1], to the Central African Republic[2] to Egypt[3] and Ethiopia[4], abuses are increasingly being witnessed more than ever before. As one of the bulwarks against this depressing trend, the work of the ACHPR since its inception calls for evaluation. The promise by states and governments to guarantee human dignity and rights – through almost universal endorsement of the Universal Declaration of Human Rights and ever-increasing ratification of international human rights treaties – seems to have had little impact on the daily lives of millions of people in the region.

The sad reality is that the human rights situation in various African countries continues to deteriorate on the ACHPR’s watch. There has been an escalation of threats to the enjoyment of human rights on the continent, ranging from arbitrary arrests, infringement of freedom of association and assembly, police brutality and threats to human rights defenders. 

Since the inception of the ACHPR, seven states have never reported on the situation of human rights to the commission. The states -- Comoros, Equatorial Guinea, Eritrea, Guinea Bissau, Sao Tome and Principe, Somalia and South Sudan -- continue to witness some of gravest human rights violations on the continent. Twenty other states have three or more pending state reports -- including Gambia, while 16 other states have one or two pending state reports. Only nine states, namely Kenya, Algeria, Burkina Faso, Cote d’Ivoire, Mali, Mauritius, Namibia, Niger and South Africa are up to date with their state reporting obligations. The Democratic Republic of Congo[5], Rwanda[6] and Niger[7] are set to report during the 61st Ordinary Session of the ACHPR. State reporting procedure is a stock taking that serves as a forum for constructive dialogue and enables the Commission to monitor implementation of the African Charter and identify challenges impeding the realisation of the objects of the African Charter.

Some of the critiques that the Commission has received over time include the failure to implement its findings, such as decisions on: individual communications, concluding observations on State reports, country and thematic resolutions, and recommendations made in relation to missions to countries. 

The 61st Ordinary Session of the ACHPR will see the swearing in of new commissioners and the exit of those whose terms have ended. The ACHPR is composed of 11 Commissioners, who are “chosen from amongst African personalities of the highest reputation, known for their high morality, integrity, impartiality and competence in matters of human and peoples’ rights; particular consideration being given to persons having legal experience” (African Charter, Article 31).[8] They are elected by the African Union Assembly from experts nominated by States parties to the Charter. The Commissioners serve in their personal capacity and are elected for a six-year renewable term.

The upcoming 30th Anniversary celebrations are an opportunity to reaffirm the values and enduring principles enshrined in the African Charter mobilize people around the continent, and take stock of human rights today in Africa. 

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