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About Michael G. Karnavas

photogallery6-michael-courtroom-18-jul-12-3Michael 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:

 

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Karnavas publishes paper on reparations to Khmer Rouge victims through sustainable health care

Remedying Victims Of Khmer Rouge Crimes With Sustainable Healthcare Through Reparations Or Transitional Justice Principles


By Michael G. Karnavas

Michael G. Karnavas was commissioned by the Documentation Center of Cambodia (“DC-Cam”), funded by USAID, to examine and propose healthcare as a means of reparation’s to victims of the Khmer Rouge.  His paper was published 11 May 2022.

Victims of large-scale human rights violations have a fundamental right to reparations grounded in the Universal Declaration of Human Rights and international human rights treaties such as the International Covenant on Civil and Political Rights. Unfortunately, rarely, if ever, are mechanisms adopted and implemented that would meaningfully redress the victims. The Cambodian victims of the violations of human rights committed during the Democratic Kampuchea (“DK”) period of 1975 to 1979 – many of whom were admitted as Civil Parties participating in proceedings at the Extraordinary Chambers in the Courts of Cambodia (“ECCC”) – are no different.

Although virtually the entire population was severely traumatized  during the DK  period, formal mental healthcare services for the survivors, as well as others, have been either lacking or woefully inadequate to meet demand. The ECCC – which was established by an Agreement between the United Nations and the Royal Government of Cambodia to “brin[g] to trial senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations” in Cambodia between 17 April 1975 and 6 January 1979 – can only award non-compensatory and symbolic reparations.

Given this gap, DC-Cam has been advocating that Cambodia and the international community can and should do more to repair victims of the Khmer Rouge atrocities. As part of DC-Cam’s ongoing initiative to implement a program that sustainably supports the health and welfare of survivors, this paper explores: (a) to what extent providing healthcare services for DK period victims fits within the reparations frameworks of the international(ized) criminal courts and tribunals, including the ECCC; and (b) whether absent such possibilities, healthcare services should be provided as part of a transitional justice package designed to help Cambodian society sustainably deal with the legacy of the DK period.

Concluding that the reparations frameworks of international(ized) criminal courts and tribunals and the ECCC show that providing healthcare services as a reparations measure is effectively unrealizable, this paper provides recommendations on implementing a sustainable healthcare initiative in Cambodia as a transitional justice measure and presents further areas for exploration.


Interested in hearing Michael’s pull-no-punches observations about the ECCC and its legacy?  Pour yourself a glass and settle back to listen to this wide-ranging interview he gave DC-Cam.

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Book Review: The Kosovo Specialist Chambers The last resort for justice in Kosovo?

The Kosovo Specialist Chambers The last resort for justice in Kosovo?, by Maria Stefania Cataleta and Chiara Loiero, LAP Lambert Academic Publishing, 2021, 180 pp.

A universal value is stymied by particularistic thinking. It is a matter of experience that in all societies torn by violence – but indeed even in societies at large – persons are unable to think in a reciprocal and equal way under the polar star of the Kantian imperative. On the contrary, they view persons having committed even most heinous crimes under the lens of political considerations of a particularistic nature. Thus, a person is a national hero or a war criminal according to the side where a person stands. The same acts can for the same person be heroic or criminal according to whether they are done by friends or by foe. During the Bosnian war, the communities in the former Yugoslavia reasoned more than largely on such fault lines.… There seems to be an inability of a greater number of persons to attach to the acts and only to the acts, and to condemn them from whichever side they come when they are criminal.  Robert Kolb, Preface 

In an exquisitely cogent preface, Robert Kolb, Professor of Public International Law at the Law Faculty of the University of Geneva, distills the particularistic nature of ad hoc or hybrid international(ized) criminal tribunals and courts, which, in part, due to political considerations, are incapable of delivering unqualified/objective local acceptance. This is not necessarily because of the quality of justice – though there is much that can be said about the unevenness in charging and the more-than-the-occasional unimpressive qualifications of some judges – but because, to use an aphorism, acceptance or rejection of the judicial process and results is dependent on whose ox is being gored. Continue reading “Book Review: The Kosovo Specialist Chambers The last resort for justice in Kosovo?”

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BOOK REVIEW: NO SELL DEAD – A Tale of Cambodia

NO SELL DEAD – A Tale of Cambodia, by James Jennings, Molecular Press, 2018, 240 pages, $ 15.00

Don’t underestimate the exhaustion of simply surviving a regime like Democratic Kampuchea. You are physically spent, but mentally and spiritually drained as well. The mind has no time for complications, dual loyalties, cover stories, anything like that. (p. 238)

Lukas Bellwether had a career behind him as an international criminal lawyer. Not such a long career, but long enough to have set himself up with London’s world consultants and experts who get invited to international legal gatherings. Dermott Vann was a senior conference interpreter. This was not the first time that the two friends had met for dinner during a global congress.

Thus, we are introduced to the protagonist and one of the many multi-dimensional characters in this Cambodian crime fiction, which is as multifaceted as Cambodian culture itself. As for the story, here’s a tease: The not-so-extraordinary international criminal lawyer Lukas Bellwether runs into Dermott Vann, a senior interpreter, at a conference in Yangon. Bellwether, who at this stage of his career is more of a conference lecturer (self-importantly fancied as consultant – another one of those canny nuances), is there to make a presentation. Vann is there to interpret. When they occasionally meet at conferences, they customarily indulge in drinks and dinner to catch up. Only this time, Vann unexpectedly goes into convulsions as they stroll the streets of Yangon. Death by poison. Bellwether is off to find the truth. Continue reading “BOOK REVIEW: NO SELL DEAD – A Tale of Cambodia”

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THE BIG PIVOT: ICC Prosecutor Khan’s not so slight, Afghan slight sleight of hand

In preparing to resume my investigation, if authorisation is granted, I am cognizant of the limited resources available to my Office relative to the scale and nature of crimes within the jurisdiction of the Court that are being or have been committed in various parts of the world. I have therefore decided to focus my Office’s investigations in Afghanistan on crimes allegedly committed by the Taliban and the Islamic State – Khorasan Province (“IS-K”) and to deprioritise other aspects of this investigation. Karim A. A. Khan QC, 27 September 2021

ICC Prosecutor Karim A. A. Khan, Q.C.

In a well-crafted public relations message, ICC Prosecutor Karim A. A. Khan QC keeps hope alive for the Afghan victims of Article 5 crimes and atrocities suffered over the past twenty years. What a relief. Hooray!

But hold on. Continue reading “THE BIG PIVOT: ICC Prosecutor Khan’s not so slight, Afghan slight sleight of hand”

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The BiH High Representative’s Criminal Code Amendment’s Criminalization of Thought to Foster Reconciliation: dare we publicly question the infallibility of the ICTY’s findings of facts and conclusions of law?

“I disapprove of what you say, but I will defend to the death your right to say it.” –Voltaire

valentin inzko
Valentin Inzko, former High Representative (HR) of Bosnia and Herzegovina (BiH)

With a week left in his 12-year stint as the High Representative (HR) of Bosnia and Herzegovina (BiH), the Slovenian-born Austrian diplomat and honorary citizen of BiH, Valentin Inzko, exercised his omnipotent legislative authority granted to him by the Peace Implementation Council at its December 1997 meeting in Bonn, Germany or “Bonn powers”– the powers conferred to the HR to avoid obstruction by local authorities in implementing the Dayton Peace Accords (DPA) – to impose an amendment to the BiH Criminal Code. Effectively, he criminalized the denial or trivialization of genocide, crimes against humanity, or war crimes that have been found by the International Military Tribunal in Nuremberg, International Criminal Tribunal for the former Yugoslavia (ICTY), and other courts in BiH. With the War Crimes Section of the Court of BiH readily accepting adjudicated facts from ICTY final judgments as presumptively, though rebuttably, proven (thus reversing the burden of proof on the defense, as was the practice at the ICTY), the imposed amendment seemingly removes the rebuttable presumption, thus making any adopted adjudicated facts definitive and incontestable; ditto for conclusions of law. Continue reading “The BiH High Representative’s Criminal Code Amendment’s Criminalization of Thought to Foster Reconciliation: dare we publicly question the infallibility of the ICTY’s findings of facts and conclusions of law?”

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Book Review: 2034

2034, by Elliot Ackerman and Admiral James Stavridis, Penguin Press, 2021, 303 pages, $27.00

Her adversary had made his move. Her move would come next. But was the torpedo aimed at the Wén Rui, or at her ship? Who was the aggressor? No one would ever be able to agree. Wars were justified over such disagreements.… Who was to blame for what has transpired on this day wouldn’t be decided anytime soon. The war needs to come first. Then the victor would appropriate the blame. This is how it was and always be. This is what she was thinking when the torpedo hit.

Realistic, scary, timely.

On 1 July 2021, Chinese Communist party leader Xi Jinping warned that heads would be bashed if any foreign forces attempted to bully China. Xi’s warning was, if you will, a naked threat to the US should it attempt to interfere with China’s ambitious goal to control and exploit the South China Sea, which it claims to own from the tip of China to as far south as James Shoal off the tip of the Borneo coast of Malaysia, exclusively. States in the region such as Japan, Vietnam, and the Philippines beg to differ. But as famously recorded by Thucydides, the Athenians, when offering the Melians an ultimatum to surrender and pay tribute to Athens or be destroyed, had a simple message that continues to resonate in geopolitics: the strong do what they can and the weak suffer what they must.1Thucydides, The History of the Peloponnesian War, 5.89 (δυνατὰ δὲ οἱ προύχοντες πράσσουσι καὶ οἱ ἀσθενεῖς ξυγχωροῦσιν Realpolitik at its rawest. No use quibbling about morality or fairness or legality. Continue reading “Book Review: 2034”

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Book Review: THE FUTURE OF WAR

THE FUTURE OF WAR, by Lawrence Freedman, Public Affairs, 2017, 376 pages, $18.99

Our regular assumption was that the odds of success might be shifted decisively as a result of some new technology. Gunpowder to musket, steam turbines to aircraft, missiles to digital networks, all changed the character of warfare, opening up new possibilities while closing off others. But the technology was rarely monopolized or else, if one side enjoyed superiority, adversaries found ways to limit their effects. Even for modern Western forces, technology encouraged a fantasy of a war that was fast, easy, and decisive: yet still they found themselves facing ‘slow, bitter, indecisive war.’ 

War has a future. It will remain a main staple for states large and small, for non-state actors fighting for an ideology, and for ethnic groups fighting over territory believed to be theirs. Continue reading “Book Review: THE FUTURE OF WAR”

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Book Review: LAW AND MORALITY AT WAR  

LAW AND MORALITY AT WAR, by Adil Ahmad Haque, Oxford University Press, 2017, 285pgs., $51.53

It is unfortunate that the moral theory of war is so often referred to as “just war theory.” This label suggests that just wars are real things that could be the subject of a theory ­– like politics, decisions, or music. In my view, moral theory should aim to identify and analyze the most serious injustices perpetrated in war. Many of these injustices – such as torture, rape, and enslavement – require little theoretical illumination. In contrast, launching indiscriminate attacks and inflicting disproportionate civilian losses are not, one might say, unjust clearly. What makes an attack “indiscriminate”? What makes civilian losses “disproportionate”? These are the sort of questions that moral theory of war should address. Perhaps a better name for the field would be “unjust war theory.” (p. 2)

I beg to differ.

Just wars are real things and subject to a theory reflected in the applicable laws. The “laws of war,” “law of armed conflict” (LOAC), and “international humanitarian law” (IHL), whichever of the interchangeable labels is your preference (I will use IHL), may at times fall short of the intended purpose, may be imprecise in providing exacting guidance or affording vague margins of discretion to what may seem, semantically, to be malleable standards, and may reflect over-permissiveness of conduct incongruous with moral philosophy’s meaning of justice and the nature of the good life (or the good war). But it is reflective of and in no small measure consistent with the realities faced by those who must apply them in the war theater, as opposed to paradigmatically in a classroom amphitheater. The facilitative aspect of IHL, i.e., that which it aims to achieve – whether viewed from a prohibitive lens or a permissive lens – carries the imprimatur of moral acceptability, however imperfect or unsatisfying. Continue reading “Book Review: LAW AND MORALITY AT WAR  “

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Book Review: THE WAR LAWYERS – The United States, Israel, and Juridical Warfare.

THE WAR LAWYERS – The United States, Israel, and Juridical Warfare, by Craig Jones, Oxford University Press, 2020, £80.00

Indeed, one of my central claims has been that ‘our’ use of law – from policy and national level interpretations of our rights and obligations under international law, to their operationalizations, to rules of engagement – does not generally proffer an alternative to military violence. In fact, the prosecution of US and Israeli warfare especially over the last thirty years suggests that the law is also a medium of violence and that a certain form of judicial violence has played no small part in enabling, legitimizing, and in some cases, even extending military violence. (p. 302)

Are we clear to engage, yes or no? Come on, make a decision.” In the 2015 film Eye in the Sky, a British colonel (Helen Mirren) asks a military lawyer (Jeff Heffernan), as if it is up to him, to make the ultimate call. If he says no – which is not what the colonel wants to hear – then a righteous kill is sacrificed at the altar of legal technicalities, thus deliberately sanctioning the escape of a terrorist to wreak more terror another day. Of course, when called upon to give such legal advice, it is assumed (often wrongly) that the intelligence is right – that the target is what it is claimed to be. But even so, however accurate aerial strikes may have become, there is no avoiding collateral damage. The question often turns on how much collateral damage is acceptable, and moreover, what if the collateral damage ends up being much higher than predicted. Continue reading “Book Review: THE WAR LAWYERS – The United States, Israel, and Juridical Warfare.”

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Book Review: WAR – How Conflict Shaped Us

WAR – How Conflict Shaped Us, by Margaret MacMillan, Profile Books, 2020, 328 pages, €26.00

‘How can a planet live at peace?’ … ‘Would ­– would you mind telling me –’ he said to the guide, much deflated, ‘what was so stupid about that? ‘We know how the Universe ends –,’ said the guide, and Earth has nothing to do with it, except that it gets wiped out, too.’ ‘How – how does the Universe end? said Billy. ‘We blow it up, experimenting with new fuels for our flying saucers. A Tralfamadorian test pilot presses a starter button, and the whole Universe disappears.’ So it goes.  –Kurt Vonnegut, SLAUGHTERHOUSE FIVE

War is being waged today in just about every corner of our planet, as it will be waged tomorrow, and as it has been waged since human beings went from solitary hunter-gatherers to organizing into groups, forming societies, and forging nations. If human history has taught us anything about war, it is that with scientific progress, the human species has spared no efforts and has lacked no imagination in finding new, better, more efficient, and less costly ways to wage war. Never tiring of waging war, we can safely conclude that war, in all its forms (and those yet to be imagined), is here to stay. This is the reality. Continue reading “Book Review: WAR – How Conflict Shaped Us”

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