- 21/07/2023
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NewsTranscription
00:00 [Music]
00:05 July 17, 1998, that day, the statue of Rome was adopted.
00:11 25 years later, the statue of Rome is celebrated through the International Justice Day.
00:17 The judicial body that has since unleashed passions, both at the level of its detractors and its defenders.
00:24 To talk about it, we are delighted to welcome Master Xavier Jean Keïta, Chief Counsel of the Office of the Public Council for Defense at the International Criminal Court.
00:33 Master Keïta, welcome and thank you for accepting our invitation.
00:37 Hello Madam, thank you also for your invitation.
00:40 You are currently present in the premises of this Abidjan news, far, if not very far, from your offices in the Netherlands.
00:47 Can we know the reason or the reasons for your presence in Ivory Coast and whether this is related to current affairs or other important events related to this country, in our country?
00:59 I assure you, I am in Ivory Coast because I love Ivory Coast. It is a country that I love very much.
01:09 I was invited by the OIDH, the Ivory Observatory of Human Rights, which asked me to participate in a training program for high-level Ivory Coast magistrates,
01:23 for police officers, police and gendarmerie.
01:29 So, this is the main object of my presence here.
01:34 The last time I came, it was also at the invitation of the Ivory Observatory of Human Rights, which I salute for the extraordinary work that is done.
01:45 But I assure you, I am not here for any procedure.
01:49 Well, we'll talk about it a little later.
01:52 You will see.
01:53 Can you briefly explain to us what the Rome Statute is and what is the mandate of the International Criminal Court?
02:01 The Rome Statute, which was adopted 25 years ago, was adopted in 1998, with the aim of putting some security and some peace in the world.
02:22 The Prosecutor's Office, some will say, is a jurisdiction to fight against impunity.
02:29 And I, being on the defense side, I would say that it is an institution to fight for justice and for peace in the world.
02:39 The Rome Statute is a fairly original statute. Unlike previous criminal jurisdictions, it was born by the will of the parties.
02:55 And the Criminal Court was born because of the voluntary adhesion of the State.
03:00 And there is no greater act of sovereignty for a State than to renounce a part of its sovereignty by adhering to a collective system.
03:12 It is the most beautiful expression for me of its sovereignty for a State to decide that collectively, together, we are much stronger.
03:22 Indeed.
03:23 That's it.
03:24 When you talk about previous jurisdictions, you refer to the Nuremberg trial?
03:31 Yes, there is not only the Nuremberg trial. The Nuremberg trial is the ancestor of the International Criminal Court.
03:38 But I consider that it was a first in the world, with its flaws and its qualities. It was criticized a lot as a victory justice.
03:55 Because if Hitler and his allies had won the Second World War, perhaps De Gaulle, Churchill and other allies would have been judged as war criminals or criminals against humanity.
04:13 In any case, it was pursued. Then we had the so-called ad hoc jurisdictions, the International Criminal Court for Rwanda and the former Yugoslavia.
04:28 It was after local or international catastrophes that there was a reaction from the international community through a resolution of the United Nations.
04:40 So here too, we are in a reactionary justice.
04:44 So the International Criminal Court is not a justice of victory or reaction.
04:52 For the first time, not only an international criminal jurisdiction is created by a treaty,
05:00 it means that the parties sign voluntarily after negotiating, ratify and confirm internally a process that took place abroad.
05:15 So it is also the first time that an international criminal jurisdiction respects a great principle of law.
05:27 No punishment, no crime without law.
05:31 That is to say that law and the prohibitions must precede the acts.
05:37 This is why, from the birth of the International Criminal Court, on July 1, 2002, no one is supposed to ignore this new law, international, with universal vocation.
05:52 This means that what happened in June of the same year or in May cannot concern the International Criminal Court.
06:02 Very good.
06:03 Is it clear?
06:04 Very clear.
06:05 I was saying earlier that the Statue of Rome celebrated its 25th anniversary yesterday.
06:11 Yes, yesterday.
06:12 What assessment do you make of the impact of the anniversary?
06:16 Well, yes, because the Ivory Coast is a member.
06:18 Ah yes, indeed.
06:19 We are in the Ivory Coast. Happy birthday.
06:22 Happy birthday to us too.
06:23 Thank you.
06:24 So what assessment do you make of the impact of the International Criminal Court in the pursuit of international justice?
06:32 The assessment, for the moment, in my opinion, is extraordinary.
06:38 It is true that this court has aroused a lot of hope, perhaps even a little too much.
06:44 That is why some may be disappointed.
06:46 Yes.
06:47 But others, from the start, did not like it because this court has a vocation to get their nose in their business.
06:54 I would say that the first assessment is that it was created on the basis of a voluntary work.
07:02 And that changes everything.
07:04 And that gives us this great principle of law.
07:06 No punishment, no crime, no law.
07:09 That is already, from the very beginning, a first assessment.
07:14 The other assessment is that it has put in place a permanent court.
07:21 So, from the moment it was created, it has a balance.
07:24 It is not ad hoc, it is permanent.
07:28 And the four crimes that concern it, crimes of genocide, crimes against humanity, crimes of war and crimes of aggression,
07:38 these four possible pursuit leaders are prescriptible.
07:47 So, if something happens after July 1, 2002, on the basis of the International Criminal Court,
07:57 if it is not judged in 2023, it can very well be pursued in an imprescriptible way by your grandson,
08:08 who will then be the prosecutor of the CPI.
08:11 Why not?
08:12 I hope so.
08:13 Why not?
08:14 Why not?
08:15 So, that too is a particularity.
08:18 And there is another particularity that can already be included in its assessment.
08:24 It is that we can blame everything on the court, but we forget that it has put in place the system of complementarity.
08:32 Complementarity, without being too technical, is not subsidiarity,
08:37 which, for example, to have a court with a regional, European or African jurisdiction,
08:43 you must have exhausted what are called internal recourse routes.
08:48 Complementarity is imposed by the CPI in the sense that each state party is first and foremost responsible for investigating, pursuing and judging.
09:02 So, when we blame the CPI, "Yes, you are still attacking Africa."
09:07 If the court is in Africa, it is because the African countries concerned have not taken their own responsibility as complementarity,
09:19 either because they could not, or because they pretended without investigating and the court found all its competence.
09:31 So, this system, which was already put in place, including for the first time giving a space, a voice to the victims, did not exist before.
09:42 Finally, today, who can say that they do not know the International Criminal Court?
09:50 It is known and it is a law that has a universal vocation.
09:55 The parties must integrate it into their national or domestic system, and then you have an international law with a universal vocation that is dissipated with great principles.
10:11 Each must take its responsibilities at the beginning, but the court takes its own independently.
10:20 Today, we can say that there have been about ten convictions, four acquittals, and some charges were dropped.
10:29 It is a jurisdiction. Some think it is there only to condemn, but it is also there to acquit, to drop charges.
10:39 It is made with a completely independent staff. We have criticized some of our decisions saying that they are political decisions.
10:52 I can guarantee you that once our judges are elected, even if they are proposed by their state of origin, they are well paid,
11:01 they are elected for nine years, and they have no account to give to their country of origin.
11:08 They are perfectly independent judges and perfectly integral people, like the court staff.
11:16 I am part of it, I am proud of it, and I am independent, my office is independent,
11:24 even if it has an administrative link with the court, which is the general administration of the court.
11:31 My office is independent.
11:33 You mentioned something that we will talk about in the second part, complementarity.
11:39 I have a question on that, but for the moment, the world is facing many challenges,
11:44 including a growing erosion of multilateralism and the primacy of law.
11:49 How does the CPI continue to face these challenges to ensure the responsibility of the authors of the Criminal Crimes Act?
11:57 The principle proposed by the penal court is an extremely democratic principle.
12:07 You have the Vienna Convention, for example, which can create for certain personalities various immunities,
12:16 which prevent them from prosecuting because they are in charge.
12:20 But the penal court is behind.
12:23 It has established a democratic system through its Article 27.
12:28 No head of state, no prime minister, no king of this land, of this world,
12:34 you like me, presumed innocent until the end,
12:39 but none of us can escape their responsibility if, by extraordinary means,
12:46 we break the principles set by the Statute of Rome.
12:50 The court has no vocation to pursue the whole world.
12:55 It is not the world's court of assistance.
12:57 It does not have the means.
12:59 We have a budget of about 150 million euros.
13:04 We do not have the means to manage.
13:07 The preamble says "the most serious crimes".
13:11 So there is a selection, a sorting that is done.
13:14 So we must exclude the murder of such and such.
13:20 These are mass crimes, crimes whose horror challenges the conscience of humanity.
13:29 War crimes, genocide, crimes against humanity,
13:36 and the crime of aggression that was added in 2010,
13:42 and very recently implemented.
13:46 To return to this last point, the crime of aggression,
13:50 can you briefly explain what it is about?
13:54 Aggression is when a state that claims to be sovereign
13:58 breaks the sovereignty of another state by invading, for example.
14:03 I have an example in mind.
14:05 You have a recent example.
14:07 Yes.
14:08 The conflict between Russia and Ukraine.
14:11 Well, you said it.
14:13 It seems to be an aggression crime.
14:17 But to go and judge an aggression crime,
14:23 the penal court is currently a little bit prevented.
14:27 Because in the crime of aggression,
14:30 the two parties concerned must be part of the Rome Statute.
14:37 Ukraine is not part of the Rome Statute.
14:40 Russia is not part of the Rome Statute.
14:43 So in the current texts, it is not possible for the penal court
14:49 to seize the crime of aggression.
14:51 There are other crimes.
14:54 So one could say, but why is Russia concerned?
14:57 Because it did not sign.
14:59 It did not ratify.
15:01 Russia had signed.
15:03 It withdrew its signature.
15:05 But Ukraine did not go to the Rome Statute,
15:08 but accepted, after the invasion of Crimea,
15:12 and this is also one of the provisions of the Rome Statute,
15:16 Ukraine accepted the competence of the penal court.
15:21 Like the Ivory Coast a few years ago.
15:23 The Ivory Coast did it at the initiative of President Gbagbo in 2003.
15:28 It was just an acceptance of competence for the events of 2003.
15:33 Which was later taken over by our current president.
15:36 The current president, President Ouattara,
15:39 when he came to power,
15:41 he also recognized the competence of the international penal court
15:47 for the events of 2010,
15:50 the post-electoral conflicts.
15:53 And then the Ivory Coast signed and ratified the Rome Statute.
15:58 So currently the Ivory Coast is not on the same level as Ukraine
16:04 in terms of acceptance of competence,
16:07 but it did go to the Rome Statute, entirely and fully.
16:12 So to stay within the framework of Ukraine and Russia,
16:16 the cooperation of the states, and we know it,
16:18 is essential for the functioning of the CPI.
16:20 Is there no discussion at this level that can be initiated
16:25 to advance the CPI mandate?
16:28 It is enough to modify the Rome Statute.
16:32 Cooperation, yes, it is essential.
16:37 The states, in view of the Rome Statute,
16:41 the states parties, have an obligation to cooperate.
16:45 The court has no police, it has no gendarmerie,
16:49 it has no militia, it has nothing.
16:52 It makes decisions, it takes mandates,
16:55 it can only execute these decisions
16:58 through the support of its member states,
17:02 but it also has the assistance of states
17:07 that are neither signatories nor parties,
17:11 but that cooperate because they agree
17:14 with the general and global mandate of the International Criminal Court.
17:19 So how to advance this cooperation or the CPI mandate?
17:25 It is possible, there are texts.
17:28 The Rome Statute is not immutable.
17:31 There is a great revision, the first one, after 2002,
17:36 after 1998, the great revision was in May-June 2010, in Kampala.
17:43 It was on this occasion that the states added the crime of aggression,
17:50 of justice, but by putting so many reserves in it that it is necessary to get up early
17:56 so that the crime of aggression can be implemented and activated.
18:01 There are too many reserves.
18:03 In short, we can modify the Rome Statute,
18:06 we can add other things to it, as is desired by many doctrinaires,
18:11 to add terrorism, to add ecocide, all these new notions.
18:19 Ecocide?
18:20 Ecocide, that is, crimes related to non-respect of the environment.
18:26 I say that for the moment, we have already given the Criminal Court
18:34 the means to fulfill its current mandate,
18:40 before adding, expanding its mandate.
18:45 We must already give it the means to do with its current mandate.
18:50 And this is already a challenge.
18:54 As the main counsel at the Office of the Public Council for Defense,
18:59 at the CPI, what are the main responsibilities of your role
19:04 and how does your team work to ensure a fair defense for the accused?
19:10 The reason for the creation of the Office was a observation.
19:18 The lawyers who came before the ad hoc jurisdictions,
19:21 that is, the international jurisdictions, ex-Yugoslavia, Rwanda, Russia,
19:28 the lawyers arrived without being organized.
19:32 They took a file, they were three years late on the investigation,
19:36 so compared to the prosecutor. They were alone.
19:40 They had only help within the team they constituted.
19:45 The Criminal Court has put in place an original system,
19:48 the creation of the Office, which I have been managing for nearly 17 years,
19:54 which has for credo the equality of arms, the presumption of innocence,
20:00 and the fair trial, that is, the fairness of the trials.
20:04 We have a vocation to restore, as much as possible,
20:10 the institutional imbalance that exists between the prosecutor's office,
20:15 which is an internal, compact body with more than 300 members,
20:21 and the defense team that comes just to defend a suspect or an accused.
20:27 Internally, this independent office is a technical and legal aid,
20:36 but it is not mandatory.
20:39 The defense teams solicit us and we send a memorandum
20:46 on legal and technical issues.
20:49 We do not replace them.
20:52 We do not merge with the teams.
20:55 We assist them and we make available to them our huge database
21:01 of technical and legal aid on specific points.
21:06 We have established manuals on the call,
21:11 all the decisions that have been taken, all the oral decisions.
21:16 We have behavioral manuals, of the counsel,
21:21 that is, the lawyer who comes for the first time.
21:24 What are the traps to avoid?
21:26 Or his client who comes, for example, from a country of Romano-Germanic legal culture,
21:35 like the Ivory Coast, for example,
21:37 and who knows that if you ask him, "Are you General Ashley?",
21:43 you must not answer "Yes".
21:45 - Really? Why?
21:47 - You give your name and that's it.
21:49 Why? Because if you say you are a general, you are a rank.
21:53 If you are a rank, you are a chief, you are responsible for your troops.
21:58 - Ah, it's subtle.
22:01 - It's subtle. So we avoid this kind of trap.
22:06 To complete what I said before, with the system of the Roman Statute,
22:10 no one can escape their responsibility
22:13 and we cannot oppose a ministerial quality of king or head of state.
22:20 However, we must also avoid traps,
22:23 because it is a culture, I will say, that is mixed,
22:26 subtly mixing Romano-Germanic and the Common Law.
22:32 And it is the Common Law that has rather won it in the procedure.
22:39 So, we must not be surprised that lawyers in the criminal court
22:45 must go out on the field and investigate.
22:48 The prosecutor comes with his truth.
22:51 He investigates in charge and discharge.
22:56 And it is he who must prove, beyond any reasonable doubt,
23:02 that the one who is prosecuted or the one who is prosecuted is guilty.
23:10 The opposite, we do not even have to prove that our client is innocent.
23:15 This presumption of innocence, Article 66 of the Roman Statute,
23:20 it is acted.
23:22 However, we have an interest in investigating it on the spot,
23:26 because there is no starting truth.
23:28 There is no judge of instruction in the Roman Statute.
23:32 Everyone investigates, including the victims.
23:35 Everyone investigates and the judges find themselves with the truth of the victims,
23:39 the truth of the prosecutor, the truth of the defense.
23:42 And we must choose.
23:45 So, if there is one thing to improve, in my opinion,
23:48 it would still be necessary that there is a starting truth.
23:52 An instruction judge who investigates in charge and discharge,
23:56 and that after they come and that there the trial begins,
24:01 we will save time, we will save money.
24:05 Which does not prevent from bringing the contradiction
24:08 to this investigation that has been fizzled out and closed
24:12 by an investigation or instruction judge.
24:16 This is what I want.
24:18 But for now, we are here.
24:21 Master, in a way, could we say that your office
24:27 does not represent the CPI in its essence,
24:31 that is to say, a principle of voluntary,
24:34 since you do not impose yourself?
24:37 The part that I described to you earlier to assist the defense teams,
24:41 it is the idea of starting to rebalance.
24:44 And so, with this assistance, we prevent the defense teams
24:49 from raising a jurisprudence that has become totally obsolete.
24:54 When you land, there are conditions.
24:57 You must have at least 10 years of professional experience.
25:00 But you can have 10 years of experience,
25:03 you do not master the statute of Rome, the procedure,
25:08 the regulation of the court, the regulation of the court,
25:11 the code of deontology.
25:13 All this is surrounded by jurisprudential decisions,
25:18 plus the comparative law.
25:21 All the penal jurisdictions, ADOC with Yugoslavia, Rwanda,
25:29 Special Court for Sierra Leone,
25:33 the Extraordinary Chambers of Cambodia,
25:36 and the Special Court for Lebanon.
25:40 All these decisions are compiled and can be used by the judges of the court.
25:47 You can invoke in front of a judge of the penal court
25:52 a jurisprudence of Boakye, of Tomboktu, of Gao,
25:58 of Chess or of Dakar, if it is relevant,
26:02 if it responds to the letter or to the spirit,
26:06 to what is the spirit of the texts of Rome, of the statute of Rome,
26:11 which will be applied by the International Penal Court.
26:14 There have been practices, even in the Bagbob-Legoudé trial,
26:21 that you will not find anywhere in the statute of Rome,
26:24 but that the judges used because they corresponded to the spirit of Rome
26:29 and the spirit of equity of the proceedings.
26:32 We will come back to these trials during the second part,
26:36 because it is on your last answer that we conclude this first part of this.
26:41 That is, we will come back after a short break.
Recommandations
16:40
19:10
14:19
12:28
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14:51
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