considerations, does not in any way constitute a factor which could on its own
render the Court incompetent to adjudicate on a case or ‘justify’ an occurrence
of human rights violation. It is therefore erroneous for Burkina Faso to invoke
the exceptional nature of the political context which prevailed at that material
time, as a ground for justifying the acts it engaged in.
The Court shall add two other points which go to consolidate the position that
the Applicant is free to choose his own lawyers.
The first point relates to an instance in the judicial proceedings of the case, at
the domestic level, wherein the very conclusions of the Government
Commissioner at the Ouagadougou Military Tribunal, who, opposed to the
position adopted by the Investigating Judge, declared at the hearing that:
“Whereas in regard to the foregoing, it shall be appropriate to admit, in the
instant procedure, the constitution of lawyers of foreign nationality who are
registered with the bars of the signatory States of the above-named
conventions or rules, notably the Member States of the former OCAM, ANAD,
UEMOA and the Republic of France.” The Republic of France is a signatory State
to the Convention of 24 April 1961 as cited above.
The Court must finally recall a general principle of law which, on its own, would
suffice to invalidate the stand adopted by Burkina Faso: the principle of
superiority of international law over the national or domestic law. Indeed, no
State may brandish its domestic law as a means of reneging on its international
obligations; again, the State is duty bound to conform its domestic laws to its
international obligations. In the case at hand, Burkina Faso is ab initio out of
order in invoking its Martial Code of Justice, particularly as a means of narrowing
down the scope of the international conventions to which it is a party. Besides,
incidentally, it is because the commitments made under domestic law are
subservient to municipal law, that Article 31 of the Martial Code of Justice itself
stipulates that: “Subject to specific provisions provided for by international
conventions, lawyers of foreign nationality are debarred from appearing
before the military tribunals.” Strangely, Burkina Faso cites this provision in its
written pleadings without seemingly taking into account the exception made to
the rule, by the text itself.
It would be relevant to state, at this juncture, that in its Judgment of 26 May
2016, the Burkina Faso Court of Cassation, among others, upheld the plea in law
regarding violation of international conventions, as regards the legitimacy of
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