Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various international tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy. Click here to visit Michael’s web site.
Michael G. Karnavas lectures students at the Grotius Centre for International Legal Studies on the role of defence counsel:
This chapter considers whether the ad hoc nature of ICC trial proceedings risks undermining the ICC’s credibility. The Rome Statute and the ICC Rules of Procedure and Evidence have sufficient constructive ambiguity as to how trials should be conducted such that, depending on the serendipitous composition of the Trial Chamber, trials can be shaped in a more ‘adversarial’ or more ‘inquisitorial’ fashion. This malleability, which may have been the result of a diplomatic compromise, has resulted in ad hoc trial proceedings at the ICC; no two trials are: conducted in the same manner. Since the hallmarks of any good court are uniformity, predictability, and reliability in its proceedings, does this feature, which is unique to the ICC, risk undermining the legitimacy of the ICC’s judgments and, inexorably, the ICC itself?
The United States will use any means necessary to protect our citizens and those of our allies from unjust prosecution by this illegitimate court.
John Bolton, US National Security Advisor
John Bolton’s “happiest moment” as the US Ambassador to the United Nations (UN), so he claims, was when he “personally ‘unsign[ed]’ the Rome Statute” that established the International Criminal Court (ICC).1 John Bolton, Surrender Is Not an Option: Defending America at the United Nations and Abroad, Threshold 2007, as cited by Brian Urquest, One Angry Man, New York Review of Books, March 6, 2008, pp. 12–15. This is the same John Bolton who once said that if the UN Secretariat building in New York “lost ten stories, it wouldn’t make a bit of difference.” And believe it or not, this statement would later bring hope to some of the accused (and some of their lawyers) at the International Criminal Tribunal for the former Yugoslavia (ICTY) when Bolton became US Ambassador to the UN; they naively thought that Bolton would lead the charge to dismantle the ICTY. I was flabbergasted hearing these ludicrous expectations, yet Bolton’s remarks had captured their imagination.
John Bolton, Surrender Is Not an Option: Defending America at the United Nations and Abroad, Threshold 2007, as cited by Brian Urquest, One Angry Man, New York Review of Books, March 6, 2008, pp. 12–15.
On 6 September 2018, the Pre-Trial Chamber (PTC) of the International Criminal Court (ICC) held by Majority (Judge Marc Perrin de Brichambaut dissented in part) that the ICC has jurisdiction over some of the mass atrocity crimes allegedly committed (and, as some may argue, still being committed) in Myanmar against the Rohingya. This comes on the heels of the UN Human Rights Council’s conclusions that violations in Rakhine State (and elsewhere) in Myanmar amounted to the gravest crimes under international law, and, more alarmingly, that certain “clearance operations” conducted by the Myanmar Military (known as “Tatmadaw”) were not a response to a concrete threat from the Arakan Rohingya Salvation Army (ARSA), but the “unfinished job” of “solv(ing) the long-standing Bengali problem” thus warranting an investigation and prosecution of the senior officials in the Tatmadaw chain of command “so that a competent court can determine their liability for genocide in relation to the situation in Rakhine State.” (SeeReport of the Independent International Fact-Finding Mission on Myanmar, Advance Unedited Version, A/HRC/39/64, 24 August 2018, paras. 86-87.) Continue reading “The ICC’s Ruling on the OTP’s Rohingya Request over Jurisdiction: well-reasoned or a judicial overreach?”
a) ORDERS the Registry, to establish, as soon as practicable, a system of public information and outreach activities for the benefit of the victims and affected communities in the situation in Palestine and report back to the Chamber in compliance with the principles established in the present decision;
According to The Times of Israel, Israel has formally complained to the International Criminal Court (ICC) about the outreach program the ICC Registry is launching at the behest of the Pre-Trial Chamber (Judge Péter Kovács Presiding, Judge Marc Perrin de Brichambaut, and Judge Reine Adélaïde Sophie Alapini-Gansou) “for the Victims of the Situation” in Palestine, calling into question the ICC’s impartiality in treating Israel fairly. What took so long?
On 14 August 2018, The Mekong Review published an essay I wrote about my search in the mid 90’s for Vietnamese writer Bao Ninh, author of The Sorrow of War. That essay, Looking for Bao Ninh, is reproduced below.
LOOKING FOR BAO NINH
MICHAEL KARNAVAS – AUG 14, 2018
I took my first trip to Southeast Asia in 1994. I went to Phnom Penh to volunteer, teaching trial advocacy skills for the Cambodian Defender Project. Showing up unannounced, I was told to come back a month later. So I headed north to Hanoi. Vietnam had opened its doors to foreign investment and tourism. It was an exuberant time, full of optimism. Continue reading “LOOKING FOR BAO NINH”
Prompted by ongoing reports of mass-scale atrocities being committed against the Rohingya in Myanmar, resulting in at least 700,000 Rohingya fleeing across the border to Bangladesh (what UN High Commissioner for Human Rights characterized as “a textbook example of ethnic cleansing”), the Office of the Prosecutor (“OTP”) of the International Criminal Court (“ICC”) filed a Request with the Pre-Trial Chamber (“PTC”) under Article 19(3) of the Rome Statute. The Request seeks a binding decision on whether the ICC has jurisdiction over the alleged deportation of the Rohingya from Myanmar (a non-State Party) to Bangladesh (a State Party). The Request set out in detail the events in Myanmar as they have been reported over the past year or so (see my previous posts here, here, here, and here), that Myanmar security forces have directly and indirectly been involved in the killing, rape, torture, and enforced disappearances of the Rohingya, as well as destruction and looting of their villages. Continue reading “ICC-OTP to Interveners on its Rohingya Request: thanks but you’re putting the cart before the horse”
If States are permitted to take action against a Judge in violation of the applicable international legal framework, judicial independence—a cornerstone principle of the rule of law—and the integrity of our court as such are fundamentally at risk, as is the overall project of international criminal justice.
Judge Theodor Meron, MICT President
Kudos to Judge Theodor Meron for standing up for Judge Aydin Sefa Akay, and more importantly, for judicial independence. Let’s hope his admonitions do not amount to a lone cry in the wilderness of international justice.
It helps to sit literally on the same side of a table and to have in front of you the contract, the map, the blank pad of paper, or whatever else depicts the problem. If you have established a basis for mutual trust, so much the better. But however precarious your relationship may be, try to structure your negotiation as a side-by-side activity in which the two of you–with your different interests and perceptions, and your emotional involvement–jointly face a common task.
Roger Fisher and William Ury GETTING TO YES: Negotiating An Agreement Without Giving In, Penguin Books, 2nd ed. p. 38
A good day. His 79th birthday. He would celebrate it in a day or two with his family. Now he just wanted to take in the moment, to reflect, to enjoy the festive occasion. Not his birthday, but the signing of the Agreement between Greece and the former Yugoslav Republic of Macedonia (FYROM). Finally. Since 1991 when FYROM declared its independence, the two countries have been in a diplomatic row over FYROM’s adoption of the name “Republic of Macedonia,” naming its Slavic language “Macedonian,” calling its Slav citizens Macedonians, descendants of Philip II of Macedon and Alexander the Great, and adopting symbols which Greeks claim as part of their patrimony. Continue reading “Cutting the Gordian Knot: Settling the “Macedonian” question – Part 3”
To ask whether Macedonia is Greek is rather like asking whether Prussia was German. If one talks of distant origins, the answer in both cases must be “No.” Ancient Macedonia started its career in the orbit of Illyrian or Thracian civilization. But, as shown by excavation of the royal tombs, it was subject to a high degree of hellenization before Philip of Macedon conquered Greece.
In 1991, the Socialist Federal Republic of Yugoslavia (Yugoslavia) began to break up into five parts. It all began around 25 June 1991 when Slovenia, followed by Croatia, declared their independence. Other Republics followed suit.
On 17 September 1991, the former Yugoslav Republic of Macedonia (FYROM) declared its independence, with Bosnia and Herzegovina doing likewise a month later on 16 October 1991, resulting in a rump-Yugoslavia of Serbia, Montenegro, and Kosovo. A civil war broke out in Croatia and later in Bosnia and Herzegovina. And as the saying goes, the rest is history. Continue reading “Cutting the Gordian Knot: Settling the “Macedonian” question – Part 2”
Inhabit the brain with telltale imagery… For metal breeds in dark places. So, thenceforth, journey through bright brilliant skies… Clouds laced intricately in a macramé. And worry not of planets falling like maces. Look unto your wild, lynx-eyed lover And beckon forth the lyricist in the clouds. Let him play lute or madder flute… Onward to Macedonia.
As the airplane landed at the airport in Thessaloniki, Greece’s second largest city, in the northern Greek administrative region of Macedonia, the pilot announced emphatically, εδώ Μακεδονία, εδώ Μακεδονία! (Macedonia here, Macedonia here). To the Greeks on board, it was obvious that he was not referring to the airport, also called “Macedonia.” It was more of a declaration to all passengers of any origin that we had landed in Macedonia – the one and only Macedonia located in Greece (and nowhere else).
This was a few years ago. I remember thinking how jingoistic it was. Was it necessary? To many Greeks, especially the northern Greeks, placing such an emphasis on the name and location of Macedonia for all to know was an essential reaffirmation of their control and ownership of all that is Macedonian – not just land title, but exclusive copyrights over the name “Macedonia,” and proprietary rights over all historical and cultural truths associated with Macedonia as far back as Ancient Greece. How dare its northern neighbor expropriate the name, the heritage of Alexander the Great, his symbol of the Sun of Vergina which adorned their flag, call themselves Macedonians and their Slavic-based language Macedonian, and lay historical claim to a good chunk of modern Greece as far as Thessaly, the central region of Greece? Continue reading “Cutting the Gordian Knot: Settling the “Macedonian” question – Part 1”
On 8 June 2018, after a 10-year odyssey of proceedings, hundreds of submissions (oral and written), roughly 48 months of trial, 77 witnesses, 733 admitted items of evidence, 1219 written trial decisions and orders, and at the expense of an incredible amount of human and financial resources, Jean-Pierre Bemba Gombo was acquitted by the International Criminal Court (ICC) Appeals Chamber of all charges (murder and rape as crimes against humanity, murder and rape as war crimes, and pillaging as a war crime) that he was unanimously convicted of by Trial Chamber III (Presiding Judge Sylvia Steiner, Judge Joyce Aluoch, and Judge Kuniko Ozaki).