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.
III. APPLICATION OF THE Furundžija PRINCIPLE—SITUATIONS OF BIAS
A. Ex parte Communications
ECCC Case 002, Ieng Sary’s motion to Disqualify Judge Silvia Cartwright
I first discussed the issue of ex parte communications on the part of the judge, which in most cases, is to the detriment to the Defence. I chose an example from the ECCC, where the Defence learned that one of the sitting Judges, Judge Silvia Cartwright, was participating in meetings with the International Co-Prosecutor Andrew Cayley and the ECCC Deputy Director of Administration. No one from any of the Defence teams were invited and neither was the head of the ECCC Defence Support Section (DSS). Obviously, these meetings were of concern to the Defence once they were learned about. They certainly amounted to ex parte communications. But as I noted earlier, when in doubt or not in possession of sufficient information showing bias, best to move incrementally. So, after all sorts of efforts to get the participants to these private meetings to come clean, the Defence filed a request for investigation into these ex parte communications. The Trial Chamber declined to investigate, justifying the meetings as necessary for the coordination of the UN component of the ECCC. Having no choice, the Defence appealed, seeking Judge Cartwright’s disqualification on the grounds that the meetings had no express legal basis. Since Prosecutor Cayley would continue to appear before Judge Cartwright, these ex parte communications violated applicable ethics standards.Continue reading “Fourth Installment: JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS”
Havingdiscussed Harhoff in some detail (an entire day can be spent analyzing all the nuances of this matter), I segued into what I referred to as the Sow dilemma: what can and should a judge do when — rightly or wrongly — he or she is confronted with a perceived act of injustice in the making by fellow judges in a case in which he or she is sitting.
Judge Malik Sow, in an unusual and dramatic fashion, effectively accused his brethren in the Special Court for Sierra Leone (SCSL) Charles Taylor case, in which he was an alternate judge, of not properly engaging in serious deliberations in the case. After the summary of the judgement was read, quite unexpectedly, Judge Sow proceeded to criticize the deliberative process in Taylor, casting a shadow of bias on his fellow judges and calling into question the integrity of the SCSL: Continue reading “Third Installment: JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS”
With the stage set, it was time to dissect the Harhoff matter. Judge Harhoff’s folly, due to what I would later refer to as the Harhoff syndrome is a treasure trove for a lecture on judicial ethics – the perfect point of departure for discussing the Furundžija “reasonable apprehension of bias” test.
The Harhoff Syndrome
Judge Frederik Harhoff, in a letter to fifty-six personal contacts that was apparently leaked to the press, expressed some of his innermost thoughts, which, even when viewed in the light most favorable to him, demonstrate his inability (or perhaps his unwillingness) to adhere to the universally recognized fair trial right to the presumption of innocence, with the burden being with the prosecution. Judge Harhoff’s sentiments are quite frequently shared (though not revealed – at least not on paper or in transparent gatherings) by many human rights/humanitarian advocates appointed as international judges, who, although possessing impressive credentials, lack necessary practical experience, and, more worrisome, are challenged when it comes to rigorously applying the most fundamental precepts of fair-trial rights: the presumption of innocence afforded to the accused and burden of proof resting on the prosecution. Judge Harhoff assuredly understands as a theoretical construct the presumption of innocence. But when it came to applying it, his predilection for victim-based justice and unwillingness to conform to the standards of justice led him to take the position that an accused (at least if a high military officer) must, ineluctably, be deemed guilty as charged, unless proved otherwise. A classic case of inappropriate burden-shifting. This, in my opinion, is the Harhoff syndrome in its purest form. Judges at the international tribunals who suffer from this affliction—and there are a few—are generally discreet, frustrating a defence counsel’s ability to establish the objective prong of Furundžija whenthe need to disqualify is seemingly palpable. Continue reading “Second Installment: JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS”
On 24 January 2014, I was invited to lecture on Judicial Ethics at the ADC-ICTY’s Twelfth Defence Symposium for interns and staff at the ICTY. Some 45 interns and other court staff attended. Hardly an academic exercise in theoretical constructs, I tried to keep the presentation lively with vivid examples such as Harhoff’s folly, Sow’s dilemma, Robertson’s hubris. My aim was to present practical applications of the jurisprudence on judicial ethics (and misconduct) to young lawyers—primarily from the defence perspective—though relevant for young, impressionable lawyers working in Chambers and for the Prosecution.
On December 4-5 2013, the French Bar Association along with François Roux, the Head of the Defence Office of the Special Tribunal for Lebanon (STL), hosted the First International Meeting of Defence Offices. The discussions provided a forum to exchange ideas concerning various challenges defence counsel face before the international criminal tribunals, especially the “difficulty of ensuring that the defence is recognised as one of the essential pillars of a fair and credible justice system.”
These feel-good congregations are useful for inspiring defence lawyers to bond over common concerns. Occasionally they produce aspirational declarations – emphasis on aspirational. Understandably, Final Declarations were proclaimed at this gathering. From the Final Declarations, two specific matters are worth commenting on: a. the need for a defence section to be an organ of the tribunal (as at the STL); and b. the recent events in the Bemba case, where part of the defence team was arrested for witness tampering. Reticent to intrude, since I did not attend the conference, I’ve decided to weigh in with my thoughts, annoying as they may be. Continue reading “Reflections on the Final Declaration of the First International Meeting of Defence Offices”
In his comment to my 12 December post on the The New RPE 134 Provisions, our colleague Boniface Njiru makes some insightful observations on Article 27 of the ICC Statute.The ICC Statute was a work in progress for many years. Drafted by committee and based on political compromises, there are some who claim that it reflects what is (or should be) considered customary international law (CIL). This is an overreach; the jury, as it were, is still out on this. We saw this played out recently over Bashir: while accepting that he had no immunity at the ICC because of the ICC Statute, CIL continues to allow heads of state personal immunity, with some claiming, rather credibly, that a State would be violating CIL by arresting Bashir and turning him in to the ICC for prosecution (see e.g. http://www.crimesofwar.org/commentary/the-icc-bashir-and-the-immunity-of-heads-of-state/).
One thing is certain since Nuremberg: little or no quarter was to be given to political and military leaders for committing acts recognized as international crimes by the community of mankind. Thus, it was to be expected that no political leader, sitting or otherwise, would be immune from prosecution before the ICC. That was the intent of all those who signed on to the Rome Statute, eyes wide open.
Much of the commentary on the Assembly of State Parties (ASP) added provisions to Rules 134 (bis, ter and quater) of the ICC Rules of Procedure and Evidence (RPE), which ease the requirement for an accused to be physically present at trial, has been disdainful. But before we consider potential effects of these new provisions, or lack thereof, let’s first look at the substance. Does the ICC Statute permit the Rules to be amended so accused – political leaders, no less – can be excused from attending parts of their trials due to “exceptional circumstances” or because of “extraordinary public duties”? Were the amendments necessary? Did the ASP exercise sound judgment? Though the answers to these questions seem to be yes, guarded cynicism is justified. From time to time, trial chambers will no doubt be tempted by the political siren calls for accommodation and realpolitik. Implementing these added provisions to Rule 134 will require prudence, finesse and judiciousness. As they saying goes: the proof of the pudding is in the eating.
Last Saturday, November 30, the Association of Defence Counsel (ADC-ICTY) held its annual General Assembly. As in the past, it was preceded by a training session, though this year was a bit different. While past trainings have been about trial and appellate skills, substantive law, procedural amendments and ethics, this year is was all about the Mechanism for International Criminal Tribunals, or MICT, or just Mechanism. Ditto for the General Assembly. By constitutional requirement, the ADC must hold a General Assembly to account the past year’s events and achievements, and to plan for the coming year’s challenges. And so, the Mechanism was much on our mind.
This year’s training was more of an exploration of thoughts and concerns about manner and means; the mechanisms of the Mechanism, if you will. The Mechanism essentially mirrors the Statute and Rules of Procedure and Evidence of the ICTY and ICTR. Substantively, little seems to be different. Yet, questions abound. As the ICTY transitions into the MICT (currently coexisting while the ICTY cases are coming to completion), most are concerned with post-conviction relief issues – especially how an aging, far flung population of inmates will be served when no compensation of counsel is required under existing ICTY jurisprudence, though as a matter of past practice a few hours could be granted depending upon circumstances. Not encouraging. Continue reading “ADC-ICTY holds its General Assembly: transitioning into the MICT”
On 29 November 2013 the ADC-ICTY held its first and only legacy conference … in The Hague.
For over a year, significant efforts were made to get funding for a set of ADC-ICTY legacy conferences to be staged in the affected republics of the former Yugoslavia. Requests for financial assistance were sent to countless embassies and academic institutions. Only the U.S. Embassy in Belgrade and the Law Faculty of the Erasmus University of Rotterdam responded; the former offering financial assistance for the publication of a text on the conference, and the latter providing financial assistance to cover the cost of hosting the conference in The Hague. There would be no road show, no Q&A from the folks most impacted by the ICTY, no opportunity for the lawyers of the damned to be heard in situ. Just this one chance. And, not because of any real encouragement and support from the ICTY (not when one considers this institution’s boundless self-indulgent self-promotion, much to the exclusion of the Defence), but despite the lack of it. Continue reading “The ADC-ICTY Legacy Conference: Lawyers for the damned ruminate and reminisce”
The Association of Defence Counsel Practicing Before the ICTY (“ADC”), established under Dutch law, came into existence on 20 September 2002 when it held its first General Assembly. With the blessings of the ICTY Judges at their July 2002 plenary meeting, the Rules of Procedure and Evidence were amended to require counsel’s membership in the ADC. Essentially, the ADC has been the Bar for some 350 plus counsel at the ICTY. While not always appreciated for its true worth, the ADC has lived up to much of the expectations by providing a unified voice championing the causes of Defence Counsel and of their client’s fair trial rights.