Credibility of International Justice System in Danger

By Ruth Nabakwe

The Perspective

January 8, 2002

UN Tribunals must strive to preserve humanity's belief in international justice system.

On 10 December 2001, the entire world commemorated the 53rd anniversary of the Universal Declaration of Human Rights, a fundamental text registered as the legal heritage of humanity.

A few days earlier from December 6 to 7 delegates from some 90 bar associations representing 60 countries worldwide met in Paris, France and decided to set in motion a process geared towards the creation of a permanent international structure to represent advocates at the international courts of justice such as the ad hoc UN Tribunal for Rwanda.

The participants at the conference which was also attended by the President of the UN Tribunal for Yugoslavia, Frenchman Claude Jorda sought to concretize plans for the creation of such a structure as a matter of urgency if according to the organizers, "the credibility of the international justice system was to be assured".

Has such credibility come into question in recent years? "Yes, if what goes on at the UN Tribunal for Rwanda is anything to go by," affirmed Togolese advocate Jean Yaovi Degli, a Defense Counsel at the UN Tribunal for Rwanda who attended the Paris meeting and who was among key note speakers at the conference.

According to Degli plans for such a collective international structure to represent advocates had earlier been envisaged by the International Association of Defense Advocates headquartered in Montreal, Canada.

The association had made proposals for such a structure before the adoption of the Treaty of Rome Statutes in 1998. The Treaty of Rome which has yet to be ratified by all UN member states calls for the creation of an International Court of Justice to judge criminal offences involving massive scale human rights abuses at international level.

But according to Degli, when the vote was taken on the text of the Treaty of Rome the advocates realised that there was no designated collective structure within the statutes which represented the collective interests of Defense counsels in the envisaged International Court of Justice. The Paris meeting was therefore expected to concretize plans for such a permanent structure within the envisaged International Court of Justice to represent advocates, he said.

The advocates attending the Paris meeting considered the creation of such a structure necessary if problems, which confronted Defense counsels at international justice systems, were to find speedy solutions. The structure was expected to support Defense counsels in terms of training, promote advocates professional ethics at such international courts of justice as well as serve as a watch guard to the problems which confronted advocates at the international Tribunals in a bid to identify quick solutions.

The UN Tribunal for Rwanda and the ex Yugoslavia are ad hoc international jurisdictions created as a matter of urgency to respond to specific massive scale human rights abuses that required quick action. But according to Degli, when the envisaged permanent International Court of Justice is created by UN member states, there would be no need for such ad hoc structures in future.

According to Degli the absence of a structure to represent advocates concerns - for instance, the UN Tribunal for Rwanda as well as the UN Tribunal for Yugoslavia had led to enormous problems because there were a number of serious issues which happened at these Tribunals which in normal circumstances and in keeping with adherence to rules of international justice should not be happening in a justice system worthy of its name.

"As long as there lacks a strong, independent international organ with a mandate to fight against such negative vices at international justice systems there is a great risk of failing to deliver veritable justice, "he said.

In a bid to highlight some of these negative vices, Degli focused his remarks at the conference on what he described as " the marginalization of the Defense before the UN Tribunal for Rwanda," and "the Consequences of such marginalization".

Following are excerpts of his remarks:
Article 10 of the Universal declaration of human rights states that, " Every one is entitled in full equality to a fair and public hearing by an independent and impartial tribunal in the determination of his rights and obligations and of any criminal charge against him".

Article 14 paragraph 1 of the international pact on civil and political rights which is equally one of the fundamental instruments of the human rights of persons state that, "All are equal before the tribunal and courts of justice. Every one has the right for his case to be heard equitably and competently by a competent, independent and impartial tribunal established by the Law which will decide either the well founded accusations in terms of criminal acts against him or on his civil rights and obligations".

On the textual level, a lot of what was presented to the Paris conference participants by Degli was according to him, issues, which applied almost in the same way at both the UN Tribunal for Rwanda (ICTR) and the UN Tribunal for the ex-Yugoslavia (ICTY). The only difference he said was the manner in which the problems were experienced by the Defense Counsels before both Tribunals.

In order to be as clear and comprehensible as possible Degli focused on two aspects: The marginalization of the Defense before the International Tribunal and the consequences of such marginalization.

Marginalization of the Defense
The situation of the marginalization of the Defense is a statutory reality before the ICTR.

Article 10 of the ICTR statute defines the organs of the Tribunal as - the Chambers (three chambers of the first instance and one appeals chamber), the Prosecutor and the Court Clerk.

Nowhere does the text make reference to the Defense, which may appear normal since the Defense was an organ whose independence was fundamental. There should therefore be no question of making the advocates or Defense Counsels civil servants of the Tribunal Degli stated.

But according to the UN Tribunal Defense Counsel the danger of article 10 could be gleaned when one considered the negative consequences, which emerged at the ICTR as a result of the Prosecutor being an integral part of the Tribunal.

For starters, he said the Prosecutor participated at the plenary sessions of the judges at which the judges adopted the rules of the procedure to be used to conduct the court proceedings as well as on both the process of how the evidence was to be presented in the Trial chambers by the prosecutor in support of his charges against an accused person and the way the evidence of the Defense in support of his client was to be presented.

Unfortunately the advocates are not represented at such sessions, which define the rules on how the court process is to be conducted. The issues are dealt with by the judges and the prosecutor in total absence of the Defense.

During such plenary sessions the Prosecutor just like the judges and the court clerk, can make proposals for the rules of procedure and presentation of evidence to be amended.

Consequences of the Marginalization
According to Degli, the danger posed as a result of such marginalization of advocates at such plenary sessions has often been that the Prosecutor and the judges are privy to how the rules of conduct are to be applied during court proceedings while the Defense Counsels are kept in the dark as they have never been party to the initial definition of the procedures to be used nor on the manner of presentation of their evidence in support of their clients.

According to Degli, the UN Security Council, which created the ICTR in 1995 soon after the Rwandan genocide committed a monumental mistake as far as the need for separation of judicial, executive and legislative powers is concerned. By giving both legislative and judicial powers to the judges at the Tribunal has led to grave consequences for international justice he stated.

He said the judges should not be the ones to vote on the legislative text, which they themselves will use to conduct court proceedings as it was absolutely abnormal. Even in individual states worldwide it was normally the legislatures or parliamentarians who voted on the legislative texts that later became binding to the judges, the prosecutors and even the Defense.

"The duty of the judges should be to strictly apply the Laws as voted earlier by an independent legislative organ," Degli noted.

While some people have argued that in certain jurisdictions both the legislative and judicial powers have been accorded to the judges, it is important to note that such an exception happened when the International Court of Justice for instance adopted the text which guided the World War II Nuremberg Trials of Nazi war criminals.

The difference was that the text adopted to guide the proceedings of the Nuremberg trials remained unchanged until the end of the process, "unlike what is happening at the UN Tribunal for Rwanda and its counterpart of Yugoslavia where continuous modifications of the text by the judges and the Prosecutor have led to serious legal uncertainties for the Defense Counsels", he said.

The most serious consequences at these UN Tribunals has been the inclusion of the Prosecutor as part and parcel of the statutory organs of the Tribunal in total exclusion of the Defense leading to serious legal uncertainties for the Defense.

Legal Uncertainties
One of the most serious problems facing the Defense at the Tribunal concerns the frequent variations of the rules to be applied during court proceedings. The rules change unpredictably for the Defense not only at the textual level but also at decision-making levels.

Degli contends that Justice can only be effectively delivered on the basis of clear and pre-established rules and which are known in advance by all the different parties involved in a court process.

But at the UN Tribunal for Rwanda, uncertainties are produced when the Prosecutor at any moment presents proposals asking for a modification of the rules of procedure and those governing presentation of evidence when he feels the existing rules are not favorable to him or when he finds himself cornered by the Defense during any particular court process.

Article 6(A) governing the regulations of procedure and evidence at the ICTR stipulates that any proposition of amendment can be presented by a Judge, Prosecutor or Court Clerk. The proposal can be adopted if at least six judges are in agreement during the plenary session of the Tribunal, which meets after such a proposal has earlier been communicated to all the Judges.

During all this time the Defense has neither the right to make any proposals to amend the text of rules and procedure nor participate in the plenary session debate of the judges and the Prosecutor yet the interpretation of the text is a fundamental aspect of the judicial process.

The different attempts by the Court Clerk to try and present the proposals of the Defense Counsels to the plenary sessions have purely and simply been rejected.

Neither have the Defense Counsels had any representatives at the plenary sessions to help correct what the Defense would consider to be anomalies.

The Defense Counsels thus find themselves in a difficult situation before a jurisdiction which is expected to judge between two litigants but which has one of the litigants (the Prosecution) participating in the definition of the rules which would judge him while the other litigant, the Defense has no right to participate in the definition of those rules.

The Prosecutor is thus seemingly made to have an advantage over the Defense in that at any moment that he finds himself in a difficult position Vis a Vis the Defense during trial proceedings, he (Prosecutor) can solicit an amendment to the rules, which he finds unnerving. He cannot be blamed for seeking amendments to the rules as he is simply using the powers conferred to him by the Tribunal statutes.

In an interview later, Degli stated that what worried the Defense was that such unpredictable amendments to the rules violated human rights, international laws and had served to re-orient the court proceedings to predetermined directions known only to the judge and the prosecutor.

Such problems for the Defense were further compounded by the fact that the Prosecutor ended up knowing beforehand exactly under what conditions a particular rule was adopted or modified as well as the reasoning which preceded any such amendment as he participates in the plenary sessions where those rules are defined or amended.

"The regulation of procedure and evidence can and does orient the court proceedings at the Tribunal because we are not within a structure in which we directly apply the text on International Law but its through regulation of procedure and evidence that the proceedings are guided and considering the high possibilities of such a method re-orienting the court proceedings it is absolutely necessary that both parties (the Prosecution and the Defense) be placed on equal legal footing to ensure equity in the proceedings.”

Efforts by the Defense to seek a remedy to such problems had according to Degli hit a brick-wall. "We the (Defense) presented our concerns since September 2000 to the UN Human Rights Committee but the committee has never responded.

Degli stated that the Defense had earlier presented similar concerns to the Committee Against Torture, which sent a letter to the President of the International Association of Defense Advocates in support of the advocates concerns who in turn promptly sent a letter to the UN Commission on Human Rights.

"In response, the UN Commission on Human Rights stated that it was only competent vis a vis States which is absolutely untrue because the Commission is expected to be competent vis a vis its own organs and we do not understand why the UN Commission at Geneva can say that it is not competent vis a vis the ad hoc UN Tribunal for Rwanda, it is not normal," Degli said.

"We the Defense see such manouvres as an attempt where everyone tries to flee from his responsibilities but we feel that the UN Commission on Human Rights at Geneva should declare itself competent in order to provide statutory responses to our concerns at the UN Tribunal for Rwanda," he added.

For instance Degli stated that the UN Commission could invoke the " principle of implied powers" to allow it be able to act on violations of its principles committed by its subsidiary organizations or institutions.

According to Degli, the UN Tribunals were created as a matter of urgency in a bid to deal with situations in Rwanda and the ex Yugoslavia which horrified the entire humanity.

"Perhaps the urgency and speed within which the texts of the statutes of the two Tribunals were adopted explain the weakness of the texts expected to serve as the guidelines for the court proceedings But it should not be because the situations horrified the entire humanity that we should seek remedies through ways which equally violate the Law… we must judge those who violate the Law by respecting the Law ourselves," he observed.

"It is true that the UN Tribunals are a new phenomenon particularly in Africa and the process is evolving but the fact that they are new institutions does not justify that the Law should not be respected, on the contrary it is indispensable that the law be absolutely respected and equality of the litigants before the Law be respected for real justice to be delivered", he added.

As a result of these errors of omission and commission the judges at the two UN Tribunals who meet at plenary sessions to adopt the texts to guide court proceedings have the mandate duly accorded to them under the statutes to define the rules of the proceedings with the Prosecutors in tow to demand amendments at any moment and as many times as they feel necessary.

Where does all this leave the Defense? in total legal uncertainties as stated earlier by Defense Counsel Degli.

Degli described as "deplorable" the manner in which the texts, which guided the Tribunal proceedings were handled as respect for human rights were according to him, not honored.

"When the Law is handled in such a manner it would be difficult in the final analysis to convince an accused person that he was condemned under an equitably just system. Even if the judgment was well done an accused person would not believe that justice was equitably served and all this is because of the way the texts used to guide the court proceedings are handled."

If the Nuremberg Trials were considered exemplary, it was because the whole process was conducted in absolute respect of the Law, which took cognizant of the rights of the victims, the Defense, Prosecution and the accused.

And when those who were sentenced during the Nuremberg Trials were condemned to jail terms or to various other condemnations that the judges considered necessary, "it was clear to all and sundry that the judges who acted in absolute respect of the Law could have taken no other measure than to deliver their judgments in the way they did.

"But when a justice system itself is compromised and fails to live up to the standards expected of it, it means that there is a high risk that tomorrow there would forever be people who would continually contest the judgments delivered," Degli said.

For a country such as Rwanda where there is an urgent need to promote reconciliation, "it is absolutely indispensable to conduct the court proceedings in total respect of the Law in order to ensure the birth of such reconciliation and peace in Rwanda."

Degli contended that any actions, which fell short of respect for internationally recognised standards of the law watered down humanity’s belief in justice.

It was perhaps in recognition of this imperative that the UN Security Council, which set up the UN Tribunal for Rwanda in 1995 spelt out certain obligations for the judges in article 95 of the Tribunal’s statutes.

Article 95, which governs the regulations of the Tribunal procedure calls on the judges to take utmost care to avoid anything that would tarnish the credibility of such procedure.

However, considering the countless "procedural gymnastics" going on at the UN Tribunal for Rwanda, the judges seem to think that preserving a positive image of the entire Tribunal through the way they conduct business does not concern them.

Daily Discrimination
Statutory discrimination of the Defense at the UN Tribunal for Rwanda has further given rise to discrimination in the daily lives of the Defense according to Degli.

For starters, he says, " the Defense is seen as a veritable pest which must be kept at arms length and cut off from other aspects of the Tribunal’s activities,".

Consequently he says, the Defense Counsels are hardly ever invited to seminars or meetings organised at the Tribunal as they are perceived as the "enemy".

To crown it all, up until 1999, the budget allocated to the Defense team (advocates, assistants, Defense investigators) was limited to about 3 million US Dollars while that of the prosecutor was more that 20 million US Dollars and yet "the Defense is perceived to be the one wasting the Tribunal’s Funds".

As a result, UN auditors descend at the UN Tribunal for Rwanda in Arusha, Tanzania from New York where the invoices of the Defense are subjected to the most finicky administrative controls and yearly inquisitions from the auditors.

Each of such visits by the auditors has often had serious consequences for the Defense Counsels. The auditor’s overzealous desire to scrutinize the Defense Counsels’ bills have in most times led to a " messing up" of existing rules. For example, an activity undertaken by the Defense Counsels which was due for payment the month before such auditor’s visits may end up not being paid even in the following month.

However, according to Degli, it would be wrong to affirm that everything that happens at the Tribunal is all negative. "We must give to Ceasar what belongs to Ceasar", he added.

The arrival of a new court clerk at the Tribunal, Senegalese Adama Dieng who is considered a human rights defender of international repute has brought a positive breath of fresh air at the Tribunal in his tireless efforts including that of some of his staff to strive to boost the working conditions of the Defense.

For Degli, the positive attributes of Dieng and several of his staff coupled with the determination of the Defense Counsels to organize themselves to defend the rights for all to veritable justice would perhaps help to prevent international justice turning into a mockery.

© The Perspective
P.O. Box 450493
Atlanta, GA 31145