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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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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”

Footnotes[+]

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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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THINKING OF WAR WHILE VACATING: a book review series 

The Drum

I hate that drum’s discordant sound,
Parading round, and round, and round:
To thoughtless youth it pleasure yields,
And lures from cities and from fields,
To sell their liberty for charms
Of tawdry lace, and glittering arms;
And when Ambition’s voice commands,
To March, and fight, and fall, in foreign lands.

 I hate that drum’s discordant sound,
Parading round, and round, and round:
To me it talks of ravaged plains,
And burning towns, and ruined swains,
And mangled limbs, and dying groans,
And widows’ tears, and orphans’ moans;
And all the Misery’s hand bestows,
To fill the catalogue of human woes.

John Scott of Amwell (1730-1793)

Four years ago this month, when we were heading to the beaches or mountains, or just chilling at home, as is the norm during August in Europe, I wrote a post Vacationing Without Vacating: an imperative for reflecting on the Blood Telegram. My point was to remind us that even while vacationing, we should be mindful of the plight of others less fortunate. Back then the events against the Rohingya in the Rakhine State of Myanmar were headline news, but so were the events in Syria and elsewhere.

We look forward (and deservedly so) to a bit of respite from thinking of such events as we try to recharge our batteries with some of our favorite pastimes – be it visiting places, exploring new hobbies, or simply indulging in reading a good book, preferably one that entertains – and to a vacation that affords the mind a leave of absence from the grind at work, from the daily chores, and from the pressures that come with being responsible adults. Who wants to think about killings, rapes, forcible transfers, deportations, ethnic cleansing, and all the human misery that wars, conflicts, and acts of terror bring? We are not asking for much – just to vacate while vacationing.

Yet war, conflict, terror, and human atrocities don’t take a holiday. Continue reading “THINKING OF WAR WHILE VACATING: a book review series “

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Ecocide: the environmental crime of crimes or ill-conceived concept?

… man has consciously and unconsciously inflicted irreparable damage to the environment in times of war and peace.  — Richard A. Falk, 1973

And will continue to inflict irreparable harm. Environmental degradation and climate change are coming to the forefront of global anxieties with reports of CO2 emissions hitting record levels in 2020 (with a minor dip thanks to COVID), 178 million hectares of forest – an area the size of Libya – being deforested since 1990 (and continuing with impunity), and oil pipelines bursting, leaking into the sea, and causing massive damage to coastal communities (while underneath, 70% of the earth’s coral reefs are at risk due to long-term threats). More desertification, drought, fires, and floods are only expected – at least by the majority of 1.2 million people surveyed worldwide by the United Nations Development Programme who consider that climate change is a global emergency. And this is just peace time pollution. Aside from the obvious environmental damage caused during conflicts, War Junk – weapons and military materials such as landmines, cluster munitions, chemical and radiological weapons – also leaves environmental legacies post-conflict, restricting the use of agricultural land and polluting soil and water sources with explosives and deadly chemicals such as TNT, adamsite, Clark I and Clark II, tabun, and mustard gas, just to name a few.

Claiming that “scientific evidence points to the conclusion that the emission of greenhouse gasses and the destruction of ecosystems at their current rates will have catastrophic consequences for our common environment,” the Independent Expert Panel for the Legal Definition of Ecocide (IEP) assembled by the Stop Ecocide Foundation proposes that the Rome Statute be amended to include the crime of ecocide. Bold, impressive, even alluring. But is the proposed crime necessary, is the definition of it sound, and more pragmatically, how realistic is it that the Assembly of States Parties (ASP) will adopt a fifth international core crime – even if the proposed Article 8 ter crime of ecocide is considered necessary and sound? Continue reading “Ecocide: the environmental crime of crimes or ill-conceived concept?”

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Book Review: THE LAST TRIAL

THE LAST TRIAL, by Scott Turow, Pan Books, 2020, 449 pages, $12.82

The law is humanity’s sanctuary, where we retreat from unreason. And humans need the law, because they need to believe there is some justice to their interactions, a justice that God or Fate or the Universe, call it what you like, will never provide on their own.

Reviewing Turow’s Testimony (2017) here, I completely panned it, recommending that you opt for John Grisham’s Camino Island, which had just come out (incidentally, the sequel Camino Winds which recently came out is also a recommended beach read). Turow had never disappointed before; I first came across him when I read One L when thinking of going to law school. But in Testimony, I found the plot absurd and unrealistic, his courtroom scenes laughable (he was on unfamiliar ground at the ICC), his stereotyping distasteful (though he is unquestionably tolerant and unbiased), his historical narrative lazy and misleading (conflicts are complex with no one side having a monopoly on badness). Worst of all it is a “gratuitous Serb-bashing, primarily resulting from ignorance and insensitivity; using them as a punching bag, stereotyping them, and generalizing about their character or activities.”

Not so in The Last Trial.

Continue reading “Book Review: THE LAST TRIAL”

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EARLY RELEASE: Has IRMCT President Carmel Agius moved the goalposts? (Part 3)

Rehabilitation is a process rather than a definite result, and it is just one factor that I will consider alongside other factors when deciding on the early release of a convicted person who is eligible to be considered for such relief. – President Agius in Kunarac, para. 45

[A]t the ICTR and the ICTY, rehabilitation has been, on occasion, referred to as an additional sentencing goal, but it has not been defined… There is, however, no settled definition of the exact contours of the concept of rehabilitation in the context of genocide, crimes against humanity, or war crimes. In this regard, I observe that until recently the assessment of rehabilitation focused mostly on whether the convicted person had demonstrated good behaviour in prison. – President Agius in Bralo, para. 37

Having discussed in Part 2 the statutory provisions, rules, and practice directions for early release at the International Criminal Tribunal for the former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR), and International Residual Mechanism for Criminal Tribunals (IRMCT), let’s now look at the case law in answering the question I have set out to settle: Has IRMCT President Carmel Agius moved the goalposts?  But first, some prefatory remarks.

As with all international(ized) tribunals and courts, the convicted persons under IRMCT supervision are serving their time in prisons of States that have agreed to accept them. Where one ends up serving his or her time can make a difference not just in the quality of life behind bars, but also when it comes to early release – at least in theory. Continue reading “EARLY RELEASE: Has IRMCT President Carmel Agius moved the goalposts? (Part 3)”

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