Judicial Oxymoron

It has almost been a decade since Chief Charles A. Taku’s and my client, Major F.X. Nzuwonemeye, was acquitted on appeal at the International Criminal Tribunal for Rwanda (ICTR).   (See my previous posts here, here, here)

Yet, in 2022, he has now served two years more than the full twenty year sentence imposed by the Trial Chamber in 2011 – for crimes for which he was acquitted by the Appeals Chamber in 2014. 

Major Nzuwonemeye, along with other ICTR persons who were acquitted or completed their sentences, was living in a “safe-house” in Arusha, under the care and custody of the U.N. (see, “Treatment of the Acquitted….” ).  Then, everything changed.  He was transferred to a “safe house” in Niamey, Niger in early December 2021. 

But Major Nzuwonemeye is still not free. 

He, and seven other acquitted or released ICTR persons, are currently living under house arrest and without any papers in Niger.[1]  A 9^th person, the acquitted Minister Jerome Bicamumpaka, refused to go to Niger, and sought medical care in Kenya; unfortunately, he has recently died. 

How does such a a travesty of justice continue, and become more egregious (if that is even possible!) as the time passes? 

The eight persons in Niger (four of whom were acquitted; four of whom were released having served their sentences) have been waiting between almost ten and eighteen or so years for a country to accept them.  Some persons who were acquitted or released succeeded in seeking asylum in other countries.  However, from the very beginning, the only country that expressed willingness at each UN Security Council meeting to accept these men was Rwanda.  Relocation to Rwanda was and continues to be a death sentence, since the ICTR men were part of the former government or its military, and President Kagame is still waging the war which resulted in the events of 1994.        

Timeline for Niger

On 15 November 2021, a Relocation or Resettlement Agreement was signed between the Government of Niger (GON, by the Minister of State and of Foreign Affairs and Cooperation) and the Mechanism for International Criminal Tribunals (MICT), by the Registrar, who is an Assistant Secretary-General of the UN) (see “Agreement” here).

On 5 December 2021, the 8 ICTR persons were deported to Niger, as per the Agreement.

Three weeks later, on 27 December 2021, the GON issued an Expulsion Order, to take effect in 7 days, which was 3 January 2022.  No reasons or specifics were given in the order.  It simply said:  pour les raisons diplomatiques. 

But, the men still sit – in a legal limbo – in Niamey, Niger.      They have no information about their fate.  Their papers have not been returned, they have no passports, and they are under Niger guards.  

Lawyers for the men, in Niamey and other countries, won a thirty day extension of the initial Expulsion Order.  However, efforts to remove the men to safety have been unsuccessful.  Tanzania refused to take the men back, and efforts to find a country where the men can live freely have produced no results. 

In addition, Defence attorneys (Major Nzuwonemeye is represented by Peter Robinson) have sought other post-acquittal or post-release remedies.  These include, for example, that Niger be reported to the Security Council for non-compliance with the Relocation Agreement; that an oral hearing be held at one of the seats of the MICT, either Arusha or the Hague on the non-compliance complaint;  and that Article 28 of the ICTR Statute on cooperation be invoked re relocation of acquitted persons and those who completed their sentence.

Save Our Parents, an organization of the men’s children and other family members and supporters, demonstrated in the Hague in March 2022, to end the Explusion Order and for reunification of the men with their families.

It is now the beginning of June and the situation remains unchanged, but the violations of human rights continue to worsen as the situation becomes more bleak.  The expulsion deadlines have been extended and not enforced, but the men live in Niamey without papers, without liberty and under house arrest.  And, the fundamental concern is that the men will be transferred to Rwanda.

Niger’s Non-compliance with the Agreement makes the deportation of the eight men to Rwanda a real possibility 

Niger never spelled out the “diplomatic reasons” for which it unilaterally broke the UN/MICT Relocation Agreement.  But, many of us suspect that it had to do with pressure from Rwanda.  Rwanda has a continuing interest in the fate of the eight men, who it considers as enemies of the state.  Rwanda has made repeated (and unsuccessful) efforts over the years to get the men into its custody. 

In addition, Rwanda is now assuming France’s security tasks in Niger and the Sahel region.  France is using  Rwandan troops as its “proxy” in the region.  This suggests that the Expulsion Order came at Rwanda’s request (here, here).  The presence of the eight ICTR persons is another football in France-Niger-Rwanda relations.

As reported in Jeune Afrique, 30 December 2021 (here), Kigali claimed ignorance of the initial Agreement and negotiations between the UN and Niger.  Rwanda’s Ambassador to the UN, Valentine Rugwabiza, states that it was not notified by the MICT or Niger about the transfer of the men from Arusha to Niamey, Niger.  The article also reported that the UN gave assurances to Niger that Rwanda would not make the re-location of the men a problem.  A Nigerian official is quoted as saying that the UN misled Niger as to Rwanda, and now the UN has to find a place for these men to stay.  

The threat of deportation to Rwanda is alive and well

The signed Agreement included a provision that ICTR persons could remain in Niger for one year (Articles 4.4 & 4.6) and a non-deportation clause to Rwanda (Article 7).  Given Niger’s conduct, it has to be assumed that these clauses are now moot, and unenforceable.  Without the protections of the Agreement, there is no obstacle to stop Rwanda from simply removing the men to its territory, if it chooses to do so. 

The UN should take action to punish Niger for non-compliance with the Relocation Agreement

Niger’s action rendered the Agreement worthless, but its conduct also challenged the authority and legitimacy of the UN. The Agreement was between the Government of Niger, and the Registrar of the MICT, an Assistant Secretary-General of the UN.  To add insult to injury, Niger was the rotating Security Council Chairperson for the month of December 2021 when it unilaterally breached the Agreement with the UN, and issued its Expulsion Order.

Although the MICT rejected Defence counsels’ request to report Niger to the Security Council, the Security Council itself should be seized of this matter because its own place in the international justice order has been attacked and undermined.

The MICT should muster its judicial courage and find a way to resolve the continuing grave injustices – which are a result of the UN/ICTR’s own making

Let there be no confusion….the ICTR (predecessor to the MICT) never envisioned acquittals and had no plan to address this possibility.

In 2009, a spokesman for the ICTR, then ICTR Deputy Registrar Everard O’Donnell, explained to a Symposium in Geneva: 

The simple fact is—and there is some truth in this particular fact—that no proper provision was made for acquittal at the beginning of the setting up of the Tribunal. That much is a fact, and it’s one that we have been struggling with in the registry ever since. There was no budget for dealing with acquitted persons.[2]

Anyone familiar with the workings of the UN knows that no budget means that nothing happens.

The eight men are considered pariahs by much of the world, but what is worse is:  the very international institution (ICTR/MICT) which prosecuted them, and eventually acquitted or released them, has washed its hands of any responsibility for their welfare and safety and human rights.

Granted, some of the MICT’s judicial decisions and orders on the Niger crisis acknowledge the magnitude of the human rights violations, portend a worsening of the situation, and affirm the MICT’s duty to ensure the welfare of the eight men.[3]

However, the decisions and orders fall far short of practically implementing and protecting the human rights of the men in Niger.  In its recent 27 May 2022 decision, the Appeals Chamber affirmed the position that the Niger situation could not be resolved through judicial avenues, and places the onus on the Office of the Registrar to find relocation through political, diplomatic and administrative efforts.[4]  The MICT interprets its Statute as limiting its judicial authority and the demands it can make on Member States to co-operate in respect to re-location.  

This narrow and rigid analysis repeats the errors of the past:  if no acquittals were envisioned, this presumes that everyone prosecuted would be found guilty, and then there would not be any need for re-location of an acquitted person. Underlying the MICT’s approach is the presumption of guilt, which resulted in the initial failure of the UN/ICTR to envision and budget for acquittals

The struggle to find a safe State to accept these ICTR men is an uphill battle —  and international judges must find a way to resolve the severe violations of international human rights.  They must  summon the courage to fight for the  fundamental values embodied in human rights law. 

But, the MICT appears to have washed its hands of any duty to find a State (other than Rwanda) to accept these men.  Leaving the task to the Registrar simply “passes the legal buck.”

Eight acquitted and released men, most of whom are elderly, continue to be stateless, without papers, separated from their families and communities and with no prospect of any State in the world willing to accept them, except Rwanda.

The ICTR/MICT as an international justice institution should be more than ashamed or embarrassed by this situation. It should be held accountable and take whatever measures are required to re-locate the ICTR men in Niger to a safe country and to safeguard their human rights.

If international judges in a UN judicial entity cannot ensure that the liberty and other human rights of the eight men are restored, then we have to ask:  where is international justice today, and does it have a future?     

[1] See, Philpot, Robin, “International criminal justice bares its colonial fangs:  Why are the acquitted and freed Rwandans sitting in modern-day penal colonies, in Canadian Dimension, 21 February 2022, here. 

[2] International Symposium, Geneva, ‘International Criminal Tribunal for Rwanda: Model or Counter Model for International Criminal Justice? The Perspectives of the Stakeholders’, Session 4, Geneva, 10July 2009, p 12. Available at www.ictr.org.

[3] For example, the recent 27 May 2022 Appeals Chamber decision affirms the MICT’s duty of care to the relocated persons where the Relocation Agreement is not carried out (para 24), and indicates that the Duty Judge informed the UNSC in a January 2022 letter that the persons were under house arrest and had their identity documents confiscated (para 25), but it also held that Article 28 of the ICTR Statute was not a mandate for Tanzania as the Host State to cooperate re re-location.

[4]See 27 May 2022 Appeals Chamber decision, para 37 (noting the “potentially severe impact of Niger’s actions on fundamental human rights of the Relocated Persons, as well  as on the rule of law more generally”).

FOR IMMEDIATE RELEASE
Thursday, January 7, 2021
Contact Person: Kerry McLean, Esq.
kerrymclean@gmail.com

(Thursday, January 7, 2021) — The National Conference of Black Lawyers (NCBL), the
International Association of Democratic Lawyers (IADL) and the National Lawyers Guild (NLG)
have assembled a commission of experts from around the world to investigate racist police
violence against people of African descent in the United States. The International Commission
of Inquiry on Systemic Racist Police Violence Against People of African Descent in the United
States will broadcast live hearings online with testimony from victims’ families and lawyers
beginning January 18, 2021, which is the the day that the United States will commemorate the
birthday of civil rights legend Martin Luther King, Jr. The hearings come to a close on February
6, 2021.
In June 2020 an international coalition of hundreds of organizations and individuals sent a
communication to the United Nations Human Rights Council urging that the UN convene a
commission of inquiry to investigate racism and racist police violence in the United States. The
UN declined the request, though it did task the UN High Commissioner on Human Rights with
preparing a report on racism.
Following the UN’s decision to not convene a commission of inquiry, the NCBL, the IADL and
the NLG joined forces to establish a Commission of Inquiry. The Commission of Inquiry will
investigate the systemic, widespread and grave violations of the rights of Black people in the
United States and present its findings in a report. The report will be given to the United Nations
High Commissioner and shared with the public.
“For decades people of African descent in the United States have sought in vain to seek relief
from the systemic lynchings and killings under the color of law by petitioning domestic courts,
including the United States Supreme Court,” said Lennox Hinds, Professor Emeritus at Rutgers
University and chair of the Commission of Inquiry’s Steering Committee. Hinds, who practiced
criminal law for decades domestically and internationally continued, “This International
Commission of Inquiry is our latest attempt to give voice to the international outrage resulting
from the public lynching of George Floyd, to once again expose the pandemic of racist police
violence against people of African descent and to hold the United States government
accountable before the international community.”
The 12 Commissioners hail from countries around the globe and include notable figures such as
Sir Clare Roberts, former President of the Inter-American Commission on Human Rights,
Professor Sir Hilary Beckles, UN Advisor and Chair of the CARICOM Reparations Commission
and pioneering lawyer Hina Jilani, who is a member of the Nelson Mandela-founded group The
Elders.
The hearings will be broadcast live via Zoom. For a full schedule of the hearings and other
information about the Commission of Inquiry please visit: http://www.inquirycommission.org

Register for the hearings at: https://bit.ly/inquirycommission

(This post was published by Opinio Juris on 11 December 2020 at Comment on Independent Expert Review of the ICC and the Rome Statute System – Opinio Juris)

11.12.20 | 0 Comments

[Beth S. Lyons has been a criminal defence attorney for more than 30 years, practicing almost exclusively in Legal Aid programs in New York City (trial and appellate levels) and in the international courts and tribunals; she currently is one of the counsel representing Mr. Dominic Ongwen.]

As a criminal defence attorney at the International Criminal Tribunal for Rwanda (ICTR), and now at the International Criminal Court (ICC) (in the Ongwen case), I am always curious to read the analyses of those who are not involved daily with the trial litigation in my cases.  It is important to know how the communities outside the courtroom – in the “situation country,” in the legal arena, in academia and in the amorphous international community view what goes on in the courtroom and in the pleadings.  This is a check for the litigator – to gauge how the arguments are received outside the courtroom.  Sometimes, a counsel can glean perspectives that s/he may have overlooked.

With these considerations in mind, I searched for references to the Ongwen case in the Final Report of the Independent Expert Review (IER) of the ICC and the Rome Statute System, 30 September 2020 (IER). 

 I stopped in the beginning of the IER, at paragraph 489, which concerns the Ongwen Confirmation of Charges decision (‘CoC Decision’).  My fellow Ongwen counsel, Chief Charles A. Taku, pointed out paragraph 489 to me.  It reads: 

“… [t]he formulation of the decision confirming the charges in the Ongwen case is, however, an example of the clarity that would result were the Division as a whole to adhere to the agreed recommendation contained in the Chambers Practice Manual [fn. 317 refers to the Ongwen Confirmation of Charges Decision].”

First, the IER statement assumes clarity in the operative part (essentially, the Document Containing the Charges from the Prosecution which is incorporated with modifications into the Ongwen CoC Decision).

Second, the IER statement holds out the Ongwen CoC Decision as an example of the distinction between the confirmed charge and the Pre-Trial Chamber’s (‘PTC’) reasoning, as stated in the Manual, 2019 as well as earlier ones.

I wondered: Why is the IER looking at the Ongwen CoC Decision (‘CoC’) as an example of clarity?  From my viewpoint, Mr Ongwen was prosecuted on confirmed charges and modes of liability which were patently unclear and violated his fair trial right to notice. 

At paragraph 59, the Manual states the requirement that the Prosecutor present and the PTC confirm “clear and unambiguous” charges.  Thus, “clear and unambiguous” charges are a predicate for the PTC’s confirmation of charges decision.

But in the Ongwen case the Prosecutor’s charges and the confirmed charges are replete with defects.  The most egregious and prejudicial effect of these defects is the violation of Mr Ongwen’s right to notice, the cornerstone of fair trial. 

The right to notice is a fundamental principle of fair trial within the international courts and tribunals.  It states that an accused has the right “[t]o be informed promptly and in detail of the nature, cause and content of the charges […].”  This language is found in Article 67(1) of the Rome Statute (Statute), which mirrors the language of Article 14(3)(a) of the International Covenant on Civil and Political Rights (‘ICCPR’), and other international instruments, including, inter alia, Article 11 of the Universal Declaration of Human Rights (‘UDHR’),  Article 6(3) of the European Convention on Human Rights (‘ECHR’)  and Article 6 of the African (Banjul) Charter on Human and Peoples’ Rights (‘ACHPR’), as interpreted by the African Commission.

The remaining fair trial rights, especially Article 67(1)(e) of the Statute – the right to raise defences and to examine witnesses, including direct and cross examination – all emanate from the initial right to be informed of the charges, as enshrined in Article 67(1)(a) of the Statute. In addition, all these fair trial rights are interdependent.

The ICC Appeals Chamber in the Lubanga case has held that the right to notice is a fundamental right and “[t]he right to be informed in detail of the ‘nature and cause’ of the charges” is embodied in the ICCPR, the ECHR, and the ACHR.  The Appeals Chamber further stated that the facts “must be identified with sufficient clarity and detail.” (Lubanga AJ, paras. 120-121).  Moreover, the Appeals Chamber recognized the connection between the right to adequate notice and the right to prepare a defence.  (Lubanga AJ, at para. 129).

More recently, in the Bemba case, where the Defence for Mr Bemba averred that Mr Bemba did not have sufficient notice regarding specific criminal acts, the Appeals Chamber found that:

“[I]t considers axiomatic that an accused person be informed promptly and in detail of the nature, cause and content of a charge.” (Bemba AJ, at para. 186, and fn. 368).

In short, there is unequivocal judicial precedent for the principle of notice, but its application and interpretation is the subject matter of defence motions on the charging instrument and requests for motions to dismiss for facial deficiency (i.e. failure of charging instrument to meet the legal requirements).

In the Ongwen case, the Defence objections are well-preserved and concisely listed in a Trial Chamber Decision on Defence Motions Alleging Defects in the Confirmation Decision. (Defects Decision, at para. 11).

The Defence’s basic objection is that the CoC Decision violates the right to a fair trial in respect to the notice requirement.  This is evidenced by the lack of clarity and specificity which permeate the confirmed charges and modes of liability throughout the 104-page CoC Decision.  This is detailed in five pleadings – the Defects Series at Defects Series I-IV and a fifth pleading related to defects in the CoC decision regarding sexual and gender-based crimes.

Generally, there is no evidentiary support for the legal elements of the charges and modes of liability, and, in some cases, elements are simply missing.  Here are a few examples of defects in the CoC Decision, which are detailed in the Defence pleadings:

a) The CoC Decision fails to identify the mens rea elements for the modes of liability charged. For example:

1.  The pleading of indirect co-perpetration is defective because it omits the objective element of ‘power to frustrate the commission of the crime’ and the subjective element of ‘awareness of the power to frustrate the crime.’ (Lubanga AJ, para. 469; Lubanga PTC I Decision on the confirmation of charges, 29 January 2007, para. 367.)
2. The pleading of command responsibility is defective because it simply tracks the statutory language and provides no factual allegation in support of each of the elements of command responsibility. It is also incomplete, because the elements of mens rea and failure to take all necessary and reasonable measures to prevent or repress their commission are not pleaded.
3. The pleading of common purpose liability is vague because it omits the level of contribution required.

b) The pleading of the crime of persecution is defective because there are no allegations of the required persecution intent/animus in respect to Mr Ongwen. In addition, the confirmed charge of persecution fails to identify the elements of the underlying crimes which are not enumerated and not supported with evidence.

c) The confirmation of the crime of forced marriage is jurisdictionally defective because it is not found in the Statute and there is no specificity as to the legal element of mens rea, nor is there a specific link to Mr Ongwen.

d) The crime of enslavement fails to include a definition of its elements.

e) The CoC Decision fails to specify the evidence underlying the contextual elements of war crimes and crimes against humanity.

f) In respect to the confirmed charges on child soldiers, there are no factual allegations to support the legal elements of mens rea which Mr Ongwen is alleged to have possessed.

In respect to the confirmed charges on child soldiers, there are no factual allegations to support the legal elements of mens rea which Mr Ongwen is alleged to have possessed.

The Trial Chamber’s decision rejected the Defence’s defects motions (see above).  The Trial Chamber’s decision was based on its interpretation of Rule 134(2) of the Rules of Procedure and Evidence and timeliness and held that no exceptional circumstances existed for the jurisdictional defects alleged to be considered during trial.  Hence, the Trial Chamber did not reach the merits of the arguments. 

The Appeals Chamber, on 17 July 2019, affirmed the Trial Chamber’s decision and held that Mr Ongwen could advance his arguments on appeal on challenges to the formulation of charges, if convicted.

Based on the appellate holding, it is my view that the Appeals Chamber recognized that the fair trial issues of notice can and do affect the proceedings during the trial.  Implicitly, this means that limiting objections to the commencement of trial without leave of the Trial Chamber (as per Rule 134(2)) should not be used as a barrier to raising fair trial issues throughout the proceedings, related to the confirmation of charges and modes of liability.

At a minimum, I would have expected the IER to at least acknowledge the contentious legal issues attached to the Ongwen CoC decision.  At stake is the fundamental issue of fair trial and notice.  This is particularly pertinent given the context of this CoC Decision: Mr Ongwen is the only single defendant at the ICC (and, to my knowledge, in an international court or tribunal) to be prosecuted on 70 counts and 7 modes of liability. 

Even if one were to dismiss my comments as those of a “disgruntled” defence attorney, the IER did not acknowledge the fifty-page Separate Opinion of J. Marc Perrin de Brichambaut (Separate Opinion), a member of the PTC.

While concurring with the decision, Judge de Brichambaut was explicitly critical of its lacunae, which fall short of the applicable PTC Practice Manual requirements.  These advise that confirmed charges must be distinguished from the underlying reasons of the confirmation (Separate Opinion, at para. 10).  He concludes that the “….[r]easoning [in the Ongwen CoC Decision)] was seriously deficient….”  (Separate Opinion, at para. 16). 

Judge de Brichambaut provides numerous examples in his Separate Opinion, including the failure of the decision to provide definitions of alleged crimes by Mr Ongwen at the IDP camps (at paras. 18 and 19); failure to define the contextual elements of war crimes and of crimes against humanity (at para. 20); “a small amount of evidence in support of five to six modes liability brought in relation to the attacks on the [IDP] camps” (at para. 23); no evidence in support of contribution as an indirect perpetrator re the common plan at Pajule (at para. 24); and no evidence in support of the crime of persecution (at para. 24).

Most significantly, Judge de Brichambaut links the CoC Decision’s deficient reasoning and the right of fair trial.  In his Partially Dissenting Opinion on the PTC’s decision on the Defence’s request for leave to appeal the CoC Decision, decision at paragraph 29, he finds:

“The fair conduct of the trial is seriously affected in the instant case because the weakness of the reasoning set out in the Bench’s own decision restricts the rights of the defence. The way in which the Decision on the confirmation of charges was drafted does not provide the Defence with details of what evidence was relied on or how the Chamber defined the crimes. The principle of equality of arms is violated since the Defence is not in a situation to examine the legal and factual bases for the Bench’s Decision on the confirmation of charges. The outcome of the trial may well be affected.”

It is evident in the IER that the notion of fair trial rights and the rights of the accused have been considered by the drafters throughout.  In fact, in Recommendation 191 (R191), the Report states:

“Throughout the conduct of confirmation proceedings, Judges should have regard to the purpose of the confirmation process as a filter for inadequately supported charges and to ensure the fair trial rights of the accused, including by conducting efficient and expeditious proceedings leading to a clear and unambiguous confirmation of charges decision.”

With this recommendation in mind, it is incumbent upon the IER to review its erroneous description of the Ongwen CoC Decision as an example of clarity and modify its analysis in line with its own recommendation – to be consistent with the notion of fairness.

Many thanks to Tibor Bajnovič and Parisa Zangeneh for their assistance.  

(This post is an excerpt from a longer forthcoming article on ‘How to Litigate an International Criminal Case’)

Introduction

It should be uncontested that for a defence counsel to do her/his job effectively, it is necessary to put aside whatever prejudices and pre-conceived notions s/he may have about the charged crimes.  Counsel must separate her or his subjective feelings about the charged crimes from the task of defending against the charges: this is essential to mounting an effective defence for the client.  In short, in order to “think like a lawyer,” s/he has to recognize what prejudices s/he may be harboring and struggle to ensure that they do not interfere with the representation of the client.  This process is generic to effective defence work:  it must be undertaken, in different forms, regardless of who the counsel is and her or his characteristics.  And the process is ongoing:  counsel must engage, and often re-engage, in it throughout every case. 

The necessity of this process is plainly illustrated in the case of male counsel and the defence of sexual and gender based crimes (sgbc).  I have singled out the role of male counsel because I believe that the difficulties and obstructions associated with male supremacy are the main obstacles when defending against these crimes, and also have a spill-over effect on a team’s working conditions.   

I would not conclude that women counsel, because of gender, are immune from prejudices or pre-conceived notions about sgbc – but these prejudices and notions are within a different framework.  We are still operating in a society where men generally exercise (or strive to exercise) power over women, and not vice versa.  

I also recognize that the gender criterion in sgbc, in some circumstances, applies to crimes against boys and men.  This makes perfect sense:  it is a logical extension of the premise that male supremacy, which targets – in the first instance – women, also results in conduct that attacks men.

LastIy, I have directed this note to Defence teams.   Male supremacy is obviously not limited to Defence teams – it is found in all aspects of the judicial processes, and among all parties.  I believe that if the Defence struggles on the issue of male supremacy within a team, the defence team will become stronger, and will be better positioned to deal with the issue of male supremacy in other parts of the judicial system and the court processes.

1.  Sexual and gender based crimes are the most highly charged allegations for all parties involved in an international criminal case.

As heinous as other criminal allegations are, and as difficult as they may be to defend against, sexual and gender based crimes  are the crimes that evoke passion, emotion and subjectivity to the greatest degree. 

             Sexual and gender based crimes (sgbc), in some ways, are the most intimate and personal of crimes.   They involve violations which occur simply because of one single fundamental part of one’s identity:  one’s gender.  While not all sgbc involve sexual conduct or acts, per se, the alleged criminal conduct is based on the sexual identity of the victim (usually, but not exclusively, women).

             Sexual and gender-based crimes are also the most universally familiar of crimes:  to one degree or another, many of the elements of the crimes have become “part and parcel” of daily life for countless women (and men). 

             Yet, most of the conduct involved in sgbc never makes it into a courtroom….and it is dealt with by women, alone and in private.  

             But because of the ubiquitous nature of these crimes in societies, it is almost a “spontaneous” reflex for someone to identify with the victim, or, in some instances, with the perpetrator of male supremacy.

2.  Counsel understands the charges and interprets them against his own view of, and practice with, women. 

             This means that when a counsel is defending a client against sgbc, it is not unusual for him to analyze the crimes from a subjective point of view:  his analysis of the crimes charged is tainted by the counsel’s own values, societal or cultural influences, and experiences in his personal life – most particularly in respect to women.  

             For male counsel who are fighting male supremacy and are fair to women and treat them as equal partners, there is no problem – they take the lead in formulating the theory of the case in respect to sgbc, and identifying key issues. 

             But for male counsel who operate as privileged and show disrespect toward women….the effects can be destructive to the client’s defence.  If he views women from a lens of male entitlement or privilege, he may not necessarily view alleged criminal conduct against the accused as being criminal.  For example, if a client is charged with rape, a counsel who views women as sexual objects for the pleasure of men, will not be able to understand the elements which have to be defended against….because he conceives of the conduct as “normal” for a man, i.e., it is not a crime.

3.   This means that the predicate to effectively defending sgbc crimes is to identify and recognize the prejudices on the Defence team, especially from counsel and make conscious efforts to overcome these prejudices.

             This is much easier said than done, obviously.  This process demands an awareness or consciousness of one’s views and opinions.  Levels of awareness or consciousness, especially about biases, vary among individuals.  

             A male counsel, especially if he has perfected his attitudes toward women for decades, does not (and perhaps, cannot) easily leave sexist baggage at the door.

             A lawyer who treats women as sexual objects cannot develop a coherent and comprehensive strategy for defending against sgbc.  The counsel becomes an “apologist” for the alleged criminal acts, in some cases.  Or, the counsel may rely on his interpretation of his own cultural background to justify his view of women.  Within different cultures, there is an ongoing struggle for equality and respect for women, often led by women.  This means that the counsel’s use of culture may not accurately reflect the view of women in the same culture.           

             And, the person who has the most to lose is the client, who is charged with these crimes.   

              In essence, this male “blindspot” makes it impossible for counsel to mount an effective defence for the client and counsel is vulnerable to being compromised by his prejudices.        

4.  The Spill-over Effects

             There is a “spill over” effect between the personal and professional:  a misogynist world view affects how one treats women colleagues in a work setting i.e. are they compensated at an equal rate or are they given “less,” based on a notion that a woman may have “less” expenses because she lives with a man; are women colleagues’ ideas acknowledged and addressed, or are the ideas and suggestions ignored or dismissed, as if the women are invisible? 

             This  “spill-over” of male supremacy is not contained:  it seeps into the treatment of male colleagues on a defence team.  A counsel who fails to appreciate the contributions of women, also, most likely, will fail to appreciate the contributions of men who may not express themselves or act in a manner that the counsel understands men should act.  If a counsel presents a viewpoint in an aggressive and vociferous manner, a male colleague whose style or manner is less aggressive or less vociferous can be side-lined, or dismissed, or, in other words, treated as the women are treated. 

             This kind of behaviour creates a toxic work atmosphere for everyone – men and women.  It erodes morale and can even result in unnecessary trauma on a Defence team.  For a number of reasons, including the inequality of resources with the Prosecution, a defence team is a pressurized environment for its members.  When the pervasive and incessant male supremacy of a counsel is added to this, the result is toxic:  team members can spend too much energy dealing with these sexist abuses.  The male supremacy poisons the work environment and constantly competes for attention, distracting the team from the tasks at hand.  

In sum, counsel plays a key role in a defence team:  counsel set the standard for lawyering and lead the team in framing the issues and implementing an effective defence.    The quality of this leadership becomes one of the key indices for how effectively the team can mount a defence against charges of sgbc.  If the sgbc are not taken seriously from the beginning, and recognized – in some cases – as the charges on which the client may be the most vulnerable, it is unlikely that a coherent and comprehensive strategy to defend against these criminal allegations will be developed, and implemented.   At stake, then, is not simply the individual male supremacist practices of a particular counsel…..it is much more:  whether the client’s right to an effective defence will be realized.       

On 28-29 November 2015, an International Conference entitled “Women Fighting Back:  International and Legal Perspectives” will be held at London South Bank University in London, England.

It is organized by the Haldane Society of Socialist Lawyers, the European Association of Lawyers for Democracy and World Human Rights (ELDH) and the International Association of Democratic Lawyers (IADL).

Some of the speakers include Prof. Emerita Angela Davis, Prof. Rashida Manjoo, Wafa Kafarna, Frances Webber, Barbara Spinelli, Mara Clarke.  Please see the full listing at http://www.haldane.org.

Additional information about workshops, registration and other logistics is available at http://www.haldane.org.

Thanks.