21, February 2019
Yaounde Military Court assuming jurisdiction despite finding President Ayuk Tabe and CO as refugees and asylum seekers 0
The legality of the abduction of Southern Cameroon Leaders from Nigeria and their court-martial in Cameroun raises critical issues in International Law; in particular in times when the world is confronted with an acute refugee problem. International Criminal Justice in which I have been involved these twenty years, has elaborately litigated this issue with my participation regarding its suspects who sought and obtained refugees status in different parts of the world prior to their arrest and surrender.
On the acquittal of the former commander of the reconnaissance battalion of the former Rwandan Army, Major Nzuwonemeye who was arrested in Cameroun and transferred to the ICTR Detention Centre in Arusha Tanzania, whom I defended at the International Criminal Tribunal for Rwanda, there is an ongoing litigation for him to be returned to France from where he sought refugees status prior to his arrest and trial at the ICTR. Prior to this case, the Court of Appeal of the Centre Province in Cameroun rejected a Rwandan request to arrest and return to Rwanda, Colonel Theoniste Bagosora, Laurent Semanza, Francois-Xavier Nzuwonemeye, Jean Baptiste Barayagwiza and others who fled to Cameroun after the fall of Kigali to the Rwanda Patriotic Front led by Paul Kagame. The Cameroun court decided was based on the grounds that it would be illegal to return them to Rwanda where there was a prospect of the death of penalty pursuant to the 1951 Refugee Convention and its additional protocol. There was no extradition treaty between Cameroun and Rwanda. Nevertheless the Cameroun Court found unpersuasive, the invocation of the principle of reciprocity in the absence of an extradition treaty by Rwanda to obviate the legal protections afforded by the 1951 multilateral refugee treaty. For the record, Colonel Bagosora was then alleged to be the mastermind of the genocide in Rwanda although the prosecution at trial at the ICTR failed to prove this serious allegation. It should be emphasized that the transfer of the suspects then to the ICTR was done pursuant to the UN Security Resolution establishing the ICTR which mandated UN member states to cooperate with the court.
The case of Sisiku Ayuk Tabe and 9 others and the decision of the court-martial before whom they stand trial to assume jurisdiction overruling challenges to the jurisdiction of the court-martial must be viewed from the perspective of the multilateral regime on which the objections were based. It must also be premised on the treaty obligations of the abducting state-Nigeria. The court-martial is a consequential danger that multiple international multilateral treaty regimes expressly interdicted. Nigeria is a state party to the ICC. There is an ICC preliminary examination in Nigeria since 2010. The crime of abduction is one of the crimes in the Rome Statute which is currently under preliminary examination is a multiplicity of crimes committed in the territory of Nigeria for which a preliminary examination was initiated.
Cameroun signed the Rome Statute but did not ratify it. Nevertheless, the recent Rohingya jurisprudence at the ICC establishes that where a crime committed in a ICC state party continues to a non state party, the ICC shall extend its jurisdiction to the non state party. I led the Rohingya delegation to the ICC Prosecutor to press their case on December 4, 2018.
France has not returned Mr Zang Ambassa to Cameroun due to his refugee status despite the existence of an elaborate extradition treaty and judicial cooperation between Cameroun and France. By its own appellate jurisprudence and well established state practice, Cameroun has not established a jurisprudential regime of abductions, kidnapping and trial of alleged suspects in court-martials in foreign states, although its systematic abduction of Southern Cameroons nationals in their thousands from their territory and their submission to the jurisdiction of the Yaoundé court-martial has risen to the status of war crimes. The abduction and court-martial of Southern Cameroonians should not be dignified as cognizable due processes. The court-martial is a weapon of collective punishment, torture, cruel and degrading treatment of real and perceived opponents.
The international law elaborate treaty regime against the return of refugees to countries from which they fled when doing so, could subject them to grave danger or torture and other crimes outlawed by international law strongly eviscerates the reasons advanced by the Cameroun court-martial for assuming jurisdiction in this case. Cameroun has litigated international cases in which it charged civilians before court-martials and lost. It was decided that on no account should civilians be court-martialed: (1) Akwanga Vs Cameroun at the UNHRC (2) Akwanga Vs Cameroun ( African Commission for Human and Peoples Rights (3) Dinka Vs Cameroun ( UHRC).
A random search of the international treaty regime, its commentary and jurisprudence militates against the abduction, and trial of civilians who acquired refugee status under the protection of international law, in particular in judicial proceedings and court-martials where they may face the prospect of the death sentence. Lest we forget, if the interpretation and implementation of international law favoured the abduction and return of refugees to the countries from which they fled to face the dangers from which they fled, millions of refugees fleeing across international borders would simply have been returned to the countries from which they fled without due process. Armed militias and terrorists caught in battle who did not acquire the status of refugees may be detained pursuant to the laws and customs of war. As prisoners of war, they are afforded the protections in international law, and these include due process of the law. Subjecting civilians abducted and returned from foreign countries to a court-martial is not a legally recognized due process of the law. The court-martial in Yaoundé is a mockery of international law in every respect and should not be accorded a cloak of legality in any manner whatsoever.
Chief Charles A. Taku