The Common Code of Professional Conduct – Part 1: flawed and hubristic

On Friday 10 November 2017, The Fifth International Meetings of the Defence adopted the so-called Common Code of Professional Conduct for all Counsel appearing before the International Criminal Tribunals (Common Code). Aside from being a non-binding document (I hesitate to call it a code since it is nothing of the kind), it is flawed and hubristic.  Indeed, it may be that everything you need to know about the arrogance of the document and its creators can be divined from the declaration that it is to be “referred to as the 2017 Nuremberg Code.”

By happenstance, I heard that the Association of Defence Counsel practising before the International Courts and Tribunals (ADC) was consulted on this initiative. Having a particular interest in professional responsibility and ethics, I reached out to get a copy of the Common Code.

The ADC – the first and without a doubt the most accomplished association of its kind – was not involved in the drafting of the Common Code. The ADC sent its members a copy of the “Proposed Code,” informing them that it received the draft relatively late in the process. After the ADC Executive Committee and Disciplinary Council made an initial assessment of the Proposed Code, and without circulating it to the ADC membership (for reasons that become obvious from the available correspondence and discussed below), it decided that the ADC could not sign the Proposed Code as presented. Continue reading “The Common Code of Professional Conduct – Part 1: flawed and hubristic”

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Burundi’s withdrawal from the ICC nixes ongoing OTP investigations: coming to grips with reality

A State shall not be discharged, by reason of its withdrawal, from the obligations arising from this Statute while it was a Party to the Statute, including any financial obligations which may have accrued. Its withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.


Rome Statute, Article 127(2)

It was coming for some time. On 27 October 2017, Burundi became the first State Party to withdraw from the International Criminal Court (ICC). The reasons for Burundi’s withdrawal are not important, though not a mystery. Motivated by a desire to shut down an investigation and to avoid the potential of having the powerful and elite charged and dragged to The Hague to be tried, Burundi bid farewell to ceding its jurisdiction to the ICC to investigate and prosecute crimes falling under the Rome Statute – whenever Burundi (as other States Parties) refused or was incapable of doing so. Continue reading “Burundi’s withdrawal from the ICC nixes ongoing OTP investigations: coming to grips with reality”

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ICC Prosecutor to UNSC on the situation in Libya: yes we can, but how can we? 

Despite these challenges, the announcement of the two arrest warrants in the last eight months – one for crimes committed during 2011 and the other for crimes perpetrated more recently – should clearly demonstrate that my Office continues to be fully engaged in Libya and is determined to contribute to achieving real progress towards a culture of accountability for crimes under the Rome Statute committed in Libya.


ICC Prosecutor Fatou Bensouda, Statement to the United Nations Security Council on the Situation in Libya, 8 November 2017

ICC Prosecutor Fatou Bensouda at the United Nations Security Council

On 8 November 2017, International Criminal Court (ICC) Prosecutor Fatou Bensouda delivered a speech before the United Nations Security Council (UNSC) on the situation in Libya.  Considering UNSC Resolution 1970, which referred the situation in Libya to the ICC Prosecutor, she offered an update, sprinkled with tidbits on international relations, state-building, and transitional justice. The speech should rate highly as a measured and balanced assessment of her office’s efforts in dealing with crimes associated with the situation in Libya. Perhaps, but considering other factors, is Madame Bensouda being irrationally exuberant in her expectations? Continue reading “ICC Prosecutor to UNSC on the situation in Libya: yes we can, but how can we? “

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Book Review – The Refugees, by Viet Thanh Nguyen

The Refugees by Viet Thanh Nguyen, Corsair 2017, £12.99, 209 pages

In this era of Syrian and Libyan refugees flooding Southern and Eastern Europe to escape war, millions of Rohingya fleeing ethnic cleansing in Myanmar’s Rakhine State, and threats to deport child immigrants in the United States (US), escaping into fiction about refugees seems counterintuitive. However, I am able to report that The Refugees, from Pulitzer Prize-winning author Viet Thanh Nguyen, is just the ticket.

Nguyen, himself a Vietnamese refugee and a professor at the University of Southern California, gives us eight short stories that will grab you in the moment and leave you thinking long after. Knowing there were only eight stories made me want to parcel them out, like a box of fine chocolates. Continue reading “Book Review – The Refugees, by Viet Thanh Nguyen”

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Bensouda’s Decision to Investigate Afghanistan: milestone or diversion

There has been lots of excitement and speculation since Madame Fatou Bensouda announced that after a “meticulous preliminary examination” she has decided to formally request the International Criminal Court (ICC) Pre-Trial Chamber (PTC) to grant her authorization to open an investigation concerning war crimes and crimes against humanity, which she believes have been committed “since 1 May 2003 on the territory of Afghanistan.” Her investigation would also cover “war crimes closely linked to the situation in Afghanistan allegedly committed since 1 July 2002 on the territory of other States Parties to the Rome Statute.”

Anyone following the news since the United States (US) went after the Taliban in Afghanistan, would be hard pressed not to have noticed the plethora of mass atrocities that have taken place in, around, and in relation to what has been characterized as the war on terror in Afghanistan and elsewhere. One would have also noticed the same sort of war crimes and crimes against humanity play out in Syria and Iraq. Whether a “meticulous” preliminary investigation that spanned over a decade was necessary to come to this rather obvious conclusion (at least for the sake of seeking authorization to investigate) is questionable. Unless, of course, the real target all along were US armed forces and operatives of the US Central Intelligence Agency (CIA). And when you strip the bark off Madame Bensouda’s request to the PTC, that is what this seems to be all about. Continue reading “Bensouda’s Decision to Investigate Afghanistan: milestone or diversion”

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Academy Colloquium International Criminal Justice and the Enforcement Deficit: In Search of Sui Generis Theories and Procedures

On 25-27 October 2017, I was invited by The Royal Netherlands Academy of Arts and Sciences (KNAW) to give a presentation on the Position of the Defence and Adequate Facilities at the Academy Colloquium titled “International Criminal Justice and the Enforcement Deficit: In Search of Sui Generis Theories and Procedures.” The Colloquium was organized by Professor André Klip (Maastricht University) and Professor Steven Freeland (University of Western Sydney) and followed a one-day master class for PhD students on methodology of International Criminal Law and foundations of International Criminal Procedure. The Colloquium’s overarching topics were provocative, touching upon some of the most existential questions of international criminal justice and the purposes of establishing international(ized) criminal tribunals and courts: What is international criminal justice? Should it be built on national experience or is it something of its own nature? In answering these questions, the presenters were asked to think outside the box and to challenge or poke at orthodoxies and firmly held beliefs. The presentations were excellent; stimulating, interesting, and lively discussions. Continue reading “Academy Colloquium International Criminal Justice and the Enforcement Deficit: In Search of Sui Generis Theories and Procedures”

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Book Review – Part II: Research Handbook on Transitional Justice

Research Handbook on Transitional Justice, Edited by Cheryl Lawther, Luke Moffett, Dov Jacobs, Edward Elgar Publishing, £195, 576 pages

In my previous post, I introduced the broad concepts discussed in Research Handbook on Transitional Justice (Transitional Justice), edited by Cheryl Lawther and Luke Moffett of Queen’s University Belfast and Dov Jacobs of Leiden University and commented on some of the strengths and weaknesses of the individual chapters. In this post, I will provide my views on the debates surrounding the topic of transitional justice and outline some of the challenges in achieving transitional justice that I have witnessed through my experience working in the field in post-conflict areas. Continue reading “Book Review – Part II: Research Handbook on Transitional Justice”

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Book Review – Part I: Research Handbook on Transitional Justice

Research Handbook on Transitional Justice, Edited by Cheryl Lawther, Luke Moffett, Dov Jacobs, Edward Elgar Publishing, £195, 576 pages

If you are planning on taking a course on transitional justice or are simply interested in knowing more about it (what it is or what it is claimed to be), or if you are working in the transitional justice field or its close cousin, the development field, I recommend Research Handbook on Transitional Justice, edited by Cheryl Lawther and Luke Moffett of Queen’s University Belfast and Dov Jacobs of Leiden University (Transitional Justice). Continue reading “Book Review – Part I: Research Handbook on Transitional Justice”

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Bensouda’s Folly: It depends upon what the meaning of the word “is” is

We would like to restate for the record the fact that the Office of the Prosecutor has not sought advice, communicated or collaborated with the former Prosecutor.


Fatou Bensouda1As quoted in Sven Becker and Dietmar Pieper, The Ocampo Affair: Current ICC Chief Prosecutor Weighed Down by Predecessor, Der Spiegel, 17 October 2017.

Fatou Bensouda, the International Criminal Court (ICC) Prosecutor, has some explaining to do.

In my last post, I mused whether she would take the necessary action to get to the bottom of what is now being referred to as OcampogateLuis Moreno Ocampo’s potential illicit activities in his offshore companies and large transfer of funds through and to tax havens while acting as the first ICC Prosecutor, and the unusually lucrative consulting deal he struck with Libyan oil billionaire (and past Muammar Gaddafi associate) Hassan Tatanaki – for whom Moreno Ocampo condescended himself by inappropriately soliciting assistance and inside confidential information from ICC staff.

Madame Bensouda was quick to distance herself from her former boss, issuing a statement that she had no contact with him since he left the ICC. In doing so, she obviously wanted to shield herself from any Ocampogate blowback. Continue reading “Bensouda’s Folly: It depends upon what the meaning of the word “is” is”

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Footnotes   [ + ]

MORENO OCAMPO’S TACIT ADMISSION TO BENSOUDA  

Occasionally the best defense is an offense. More often, however, the best defense is to keep silent, admit nothing, be circumspect in word and deed – at least until all facts are known (the good, the bad, and the ugly).

Many under investigation – especially those who have tasted raw power and have enjoyed the esteem and adulation of their peers, of the influential, and of the beautiful cause-driven socialites – have gone on to be charged, and have made their defense much more challenging, if not outright impossible, by indulging their ego and sense of self-importance.

Many of the powerful and popular tend to think that because of their present position or past accomplishments, or because of their confidence in their brimming gravitas (why else would they be on Mount Olympus while the rest of us are mere yeomen toiling in obscurity), or because of who they are, they can make unpleasant and inconvenient truths disappear. All they need do is talk, to explain away. Continue reading “MORENO OCAMPO’S TACIT ADMISSION TO BENSOUDA  “

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