Institute for War and Peace Reporting | Giving Voice, Driving Change

New ICC Official Pledges Impartial Advice for All Defence Teams

The head of a new advisory office is committed to ensuring war crimes suspects are defended properly in the interests of wider justice.
By Katy Glassborow
After writing down the final answer in my interview with Xavier-Jean Keita, the new boss of an independent office set up to help lawyers tasked with defending war crimes suspects at the International Criminal Court, I put my pen down and thanked him.

Quick as a flash, Keita grabbed my notebook and said with a chuckle, "Now it is my turn to ask you some questions, starting with - why did you want to become a journalist?'"

Keita has only recently been appointed Principal Counsel at the Office for the Public Counsel for the Defence, OPCD, a new body set up to ensure that defence lawyers for suspects at the International Criminal Court, ICC have enough support and help to build robust cases against the charges put by the prosecutors.

After turning the tables on me, the snappily-dressed father of three said he wanted to use the story for a newsletter he is writing for his small team at the OPCD.

His propensity for cracking jokes is a useful quality, because he is taking on a mammoth task and is well aware that prosecutors have an automatic advantage which needs to be mitigated, as they are able to see across all the cases at the ICC.

One of the ultimate aims of the OPCD is to help with all the cases at the court and ensure that the defence teams for the various accused know about precedents set in other trials and can share the knowledge that individual lawyers pick up along the way.

Keita has worked as a lawyer for 22 years and comes to the post after a longstanding commitment to train young lawyers in Africa.

One of nine children born to a Senegalese mother and a father from Mali, he moved between the two countries during his childhood and learned to speak Bambara, the language of about six million people in Mali, Ouolof, the most widely spoken indigenous language in Senegal, and French.

He left Dakar, Senegal's capital, to join a brother and sister in Paris and to start his law studies.

From early on, said Keita, human rights issues have been very important to him. When he embarked on his studies, many African countries were facing problems of economic development and political instability.

"I wanted to observe how underdeveloped countries deal with economic problems under dictators," he explained, "because we had dictators in Africa preventing our mineral-rich continent from developing itself, and crippling countries instead."

It was, he said, "a motivation when you see people oppressed, and being jailed or even killed if they speak out against the regime".

He concluded that he needed to study international law, seeing it as a "natural obligation" to study human rights.

After graduating, Keita became one of the first defence lawyers in Paris involved in cases about the extremely controversial subject of female genital mutilation, which he saw as a question of fundamental human rights.

Keita recalled how people used to say to him, "You look like a good guy - how can you defend a person who would perform such an act?" But he said he is adamant that everyone deserves the presumption of innocence, to be treated with dignity, and afforded a fair trial.

He insists that even someone who has been convicted is not a criminal by definition, but a person who has committed some criminal acts at a particular period of time. Excessively broad notions of good versus evil "do not assist us to understand why these crimes occurred and how we can prevent them from occurring in the future", he argued.

Rather, he suggested that lawyers have a special role to play by analysing the period of time and the specific acts in question, and to judge how best to punish the perpetrator in the interests of redress and healing.

After graduating in Paris, Keita returned to Senegal and started practicing as a lawyer in 1984. He immediately noticed there were not enough resources for lawyers who were trying to progress in their careers and build their legal expertise.

Keita is proud of his native Africa because many of its countries have signed up to the ICC, and because Senegal was the first state to ratify the 1998 Rome treaty that bought the court into existence.

However, he is well aware of Africa's limited resources. "In Europe there are big schools with thorough training to prepare lawyers, but in Africa there are no such institutes," he said.

As a young lawyer newly graduated back in Africa, Keita greatly benefited from senior colleagues who gave up their time on Saturdays to share their experience and knowledge with younger, inexperienced attorneys.

This motivated Keita to share his own experiences with other young lawyers across the continent, by setting up the International Centre for Training Francophone Lawyers (Centre International de Formation en Afrique des Avocats Francophones - CIFAF) in Cotonou.

This, he claimed, was the first regional school in the world to train lawyers in the general principles of ethics, human rights and drawing up contracts. He felt the school was needed because "lawyers are involved in global issues and have to know the international law surrounding each client, as law is not isolated".

He realised that young African lawyers needed resources and a library, so he used to return to Senegal with computers he had collected in Europe, together with an array of case-law examples with which to teach the lawyers about precedents set in other countries.

"If you are a lawyer but know only the law of your country, you will only ever deal with local questions, but even local issues need a global approach – it is comparative law".

If lawyers are involved in comparative law, they can compare systems and lobby to improve their own, and as such Keita has also spent time analysing Rwanda's "gacaca" courts and how they try cases.

The 12,000 or more community-based gacaca ("on the grass") courts work in the open air, using traditional rather than formal judicial procedure. They were conceived as a way of supplementing courtroom trials because of the sheer number of cases relating to the Rwandan genocide of 1994.

"It is amazing that the [Rwandan] people have the force to organise the gacaca tribunals, with simple people coming from villages to participate in justice that leads towards reconciliation," said Keita.

After three years practising in Senegal, Keita returned to Paris, where he created a twinning system between the Paris and Senegalese bars, helping African lawyers by organising trips and scholarships.

But Keita's lobbying for the rights of defence lawyers was not limited to Africa. He was the president of the first syndicate of lawyers in France, and participated in the establishment of the International Criminal Bar, ICB, in 2002.

The ICB is a forum where defence attorneys can work together on issues such as ethics, legal aid and training, and Keita said he feels the organisation is necessary because lawyers are "stronger together than when we are alone". He said that it is important for the ICC to have "an extra eye" and advice from associations like the ICB.

Although Keita now works for the ICC, he stressed that the OPCD is independent of the court, and is there to provide impartial advice to defence counsel.

The fact that the world's first permanent international war crimes court has established such an office is an important recognition of the rights of the defence.

In The Hague, Keita says his office at the top of the one of the court's tall, white-clad buildings reminds him of Africa because of the sunshine that sometimes pours in through windows offering spectacular views across the city.

The ICC is governed by the Rome Statute and has a fairly complex set of procedural rules relating to evidence, so lawyers coming from different judicial systems may find it difficult to understand. The OPCD gives advice and pursues research in comparative law to help defence teams prepare briefs. Keita also wants to create a judicial and case-law database about crimes against humanity and a library for all teams of counsel.

Keita is proud of his small team, but he is afraid they do not have enough resources to handle a conflict of interest.

Such a case might arise if, for example, a second indictment is issued against another individual from the Ituri region of the Democratic Republic of Congo.

At the moment Thomas Lubanga Dyilo, former leader of the Union of Congolese Patriots, UPC, is the only Congolese indictee at the ICC, and stands accused of recruiting and using child soldiers in fighting.

Lubanga's UPC militia was involved in conflict in Congo's eastern Ituri province, and Keita worries that if the ICC begins a case against a rival Ituri-based militia leader, a row might break out between the two defence teams about their respective clients’ culpability for crimes.

The OPCD would then need to give both teams impartial advice in equal measure.

Keita told IWPR that he will seek additional resources to ensure that his office is equipped to provide such impartial help to all defence teams.

Katy Glassborow is an IWPR reporter in The Hague.

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