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?
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.
It was during this trip that I came across Bao Ninh’s novel The Sorrow of War. Almost from the first page I was mesmerised by the story, the characters (especially the protagonist, Kien), and the pain and suffering portrayed throughout. The more I read, the more I reflected on what I knew — or presumed to know — about the war, Vietnam and, in particular, the North Vietnamese. I was being treated to a new perspective. I had always prided myself on trying to view things from all sides, including the other side, on questioning opinions and beliefs when the facts did not bear them out.
Yet I had never taken the time to think of what it must have been like to be North Vietnamese during the war. It had never even occurred to me to think of what the North Vietnamese went through, of the death toll of civilians and soldiers. Visiting the Vietnam Veterans Memorial, in Washington, DC, would evoke feelings in me for the more than 58,000 US soldiers killed — as well as for their allies in the south — without a thought for the 1 million North Vietnamese soldiers killed. Nor do I remember ever considering what it must have been like for those North Vietnamese soldiers who survived the war: their physical and psychological injuries; their suffering after the lights went out each night, when memories of pain, loss, anguish and terror would surface.
In The Sorrow of War I saw the conflict for the first time through the eyes of a North Vietnamese soldier. Most of the films and books I had been exposed to on the war were from the American perspective. The narrative that had shaped my thinking was one-dimensional, full of misapprehensions, half-truths and hearsay.
As soon as I finished The Sorrow of War, I started re-reading it. All of a sudden I became more sensitive to my surroundings. I began challenging my assumptions and presumptions. I recall, on that first visit, taking a trip to Dien Bien Phu in a jeep, driven by a North Vietnamese veteran who was about my age. He wanted to know if I had fought in the war. I told him I had not. The question provoked anxiety in me that would not go away. As he drove on, for hours on end, I imagined what it must have been like for him during the war. My point of reference was Bao Ninh’s novel. I could not stop thinking of Kien, the tragic figure who chronicles his anguish — from his youth to his lost love, from his years as a soldier to his postwar duty of collecting the bones of his fellow soldiers in the Jungle of Screaming Souls. In almost every waking moment during that trip to Dien Bien Phu I could not stop thinking of Kien. His eloquent yet disquieting recollections haunted me.
When my month travelling through Vietnam came to an end, I headed back to Phnom Penh. When my work was done, my mind gravitated to Kien. The more I thought of The Sorrow of War, the more convinced I became that it should be turned into a film. American audiences should see this side of the story. Even Vietnamese should see it. The breaking of promises made to those who sacrificed for or fought in Ho Chi Minh’s war of reunification was one of Bao Ninh’s themes. By chance, I had with me a book on screenwriting and thought (naively) that perhaps I could take a stab at it. If only I could track down the author and secure the rights. I was almost certain that the rights would have been sold or given away, but I had to try. I decided to head back to Hanoi in search of Bao Ninh.
I assumed he was living in Hanoi, as Kien was from Hanoi. Only someone who has gone through what Kien does could write with such depth, clarity and anguish. As a public defender I had experience in tracking down witnesses. How difficult would it be to find this writer of obvious notoriety? I would use the same methodical approach, of finding a lead and taking it from there.
I had given myself three to four days to locate Bao Ninh. Two days into my search, it occurred to me that there must be a writers’ association. Surely if one existed its members would know of his whereabouts. When I found the organisation, I was greeted by a woman who spoke good English. She seemed to be in a position of authority and very much switched on. Though polite, she had a dour look on her face that barely changed throughout our exchange. When I mentioned the purpose of my visit, her expression shifted to a mixture of irritation and impatience. I had obviously touched a nerve.
Why are you looking for this Bao Ninh?
I told her about the book.
I have never heard of him. I do not know this Bao Ninh. If he exists, he is not from Hanoi.
I politely insisted that he must be from Hanoi because Kien and many other characters are from Hanoi. Only someone who has lived in Hanoi would know it so well to write about it in such detail.
Sorry, but I cannot help you.
I tried some small talk, but she would have none of it. Getting nowhere, I left the building. All of a sudden, appearing with an exasperated look on her face, she handed me a folded piece of paper and whispered:
You will find Bao Ninh at this address. But The Sorrow of War is not very good; it is a poorly written novel of no distinction.
I asked what she meant.
The style is not Vietnamese. It is written like a novel from the West, with the plot going backwards and forwards, and all this reminiscing of a pathetic soldier who gets things mixed up and is confused about the war.
Bao Ninh is not much of a writer and The Sorrow of War is unpleasing, un-Vietnamese.
She wished me good luck and walked away.
That same afternoon I went to the address, which proved to be spot on. Bao Ninh lived in an apartment in a complex of countless indistinguishable apartment buildings, somewhat away from the centre of Hanoi.
Showing up unannounced, as I had done on my first day in Phnom Penh, I hoped Bao Ninh was home. He was, though I quickly learned that he had given the film rights to his English translator (or at least he thought so). In any event, he was not interested in seeing The Sorrow of War adapted. He looked tired, seemed shy at first and was often lost in thought, but he eventually opened up and we chatted for a couple of hours. Surprisingly, he welcomed the opportunity to talk with a complete stranger about his novel, one of the most influential ever written about the Vietnam War. A classic.
The Mekong Review‘s featured interview with Bao Ninh can be read here.
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).
On 22 May 2018, the Palestinian Authority (PA) filed a referral to the International Criminal Court’s (ICC) Office of the Prosecutor (OTP), requesting it “to investigate, in accordance with the temporal jurisdiction of the Court, past, ongoing and future crimes within the court’s jurisdiction, committed in all parts of the territory of the State of Palestine.”
Book Review – RISE AND KILL FIRST: The Secret History of Israel’s Targeted Assassinations, by Ronen Bergman, Random House, 2018, $35.00, 725 pages.
Assassinations … have an effect on morale, as well as a practical effect. I don’t think there were many who could have replaced Napoleon, or a president like Roosevelt or a prime minister like Churchill. The personal aspect certainly plays a role. It’s true that anyone can be replaced, but there’s a difference between a replacement with guts and some lifeless character.
Meir Dagan, Chief of the Israeli Mossad (p. xix)
The distinguishing mark of a manifestly illegal order … is that above such an order should fly, like a black flag, a warning saying: ‘Prohibited!’ Not merely formally illegal, not covered up or partly covered … but an illegality that stabs the eye and infuriates the heart, if the eye is not blind and the heart is not obtuse or corrupt.
Judge Benjamin Halevy (p. 274)
Targeted killings, assassinations, summary executions and reprisal killings; acts of assassination without parliamentary or public scrutiny; unrestrained killings and orders to down passenger airlines with innocent civilians; strikes against foreign diplomats; two separate legal systems – one for ordinary citizens and one for the intelligence community and defense establishment; bombings of hotels, buildings, and residences; preemptive strikes, kidnappings, and killings of political leaders; invoking “state security” to justify a large number of acts that could be subject to criminal prosecution and long prison sentences; massive amounts of unavoidable or unreasonable collateral deaths; deceptions, and lies to the Prime Ministers, including cover-ups and willful blindness by Prime Ministers themselves; killings of scientists, sympathizers, and poisonings; disregard for practice directives for state-sanctioned assassinations; manifestly unlawful orders and reprimanding those who refused to follow such orders; use of proxies to carry out assassinations, torture, and degrading interrogations; killings of unarmed prisoners, and much more.
Indiscriminate attacks against innocent civilians; targeted killings; car bombings and using other explosives to cause maximum death of innocent civilians; suicide bombers and proxy fighters financed by antagonistic neighboring countries; acts causing maximum and sustained terror; provocations to draw military responses and loss of innocent civilian lives; rocketing of residential areas, use of civilians as human shields, building of nuclear reactors, and threats of annihilation; kidnappings of soldiers to torture and kill or to swap for hardened imprisoned militants whose aim upon release would be to continue their terrorist acts and killings, hijackings, car-bombings, senseless executions, deceptions, lies, broken promises, and blatant denials of knowing that some on their side committed atrocities while claiming to be pursing peace, and much more. Continue reading “Book Review – RISE AND KILL FIRST: The Secret History of Israel’s Targeted Assassinations”
CIA follows the law. We followed the law then. We follow the law today.
Gina Haspel, US Senate Intelligence Committee Confirmation Hearing, 9 May 2018
Gina Haspel is supremely qualified to be the next director of the US Central Intelligence Agency (CIA). For the past 33 years, she has worked her way up the CIA ladder from entry-level operative to station chief to Deputy Director. We do not know most of what she has done because the CIA – per its directives to which Haspel, as the current Acting CIA Director, is adhering – will not release most of the classified information in its files on Haspel’s activities. We do know however that she was directly – and some may say enthusiastically – involved in the CIA’s post 9/11 (2001) rendition, detention, and interrogation program, where torture (euphemistically referred to as enhanced interrogation techniques) was used with exuberant abandon.