Michael G. Karnavas, Author at michaelgkarnavas.net/Blog

Will launching investigations into non-African situations stem the exodus of African states from the ICC?

There is no truth. There is only perception.

― Gustave Flaubert

The truth is normally what one perceives it to be. At least, that is what I have found in trying cases before juries. In fact, a trial before a jury is nothing short of a perception game; with each side marshalling the facts, crafting the narrative, and arranging the composition of events from jury selection to closing arguments, with the sole purpose of persuading the audience of this human drama as to what it should perceive the truth to be. Prosecutors may argue that they are after the truth, but I have yet to meet a prosecutor who, after getting his derrière publicly spanked and being abjectly rejected with a not guilty verdict, will congratulate the jury for finding the truth and thus reaching a just verdict. The point I am driving at is that perception is often viewed as the truth, never mind whether the objective facts may show otherwise to a dispassionate observer.

If the truth is lost in the scrum of the perception game, should the International Criminal Court (ICC) care about its image? Yes, it should. Continue reading “Will launching investigations into non-African situations stem the exodus of African states from the ICC?”

Gambia follows South Africa’s ICC exodus: quelle surprise

The Islamic Republic of The Gambia announced late Tuesday 25 October 2016 that it was withdrawing from the International Criminal Court (ICC), or as Gambian Information Minister Sheriff Bojang characterized it, “the International Caucasian Court for the persecution and humiliation of people of colour, especially Africans.”(( See also the statement of the Information Minister Sheriff Bojang on Gambian television posted on YouTube by the news agency The Fatu Network, 25 October 2016, available online here.))

The reason for Gambia’s departure is apparent. About a two-thirds of the African states that have signed the Rome Statute that established the ICC view the ICC as a Western court targeting Africans while giving a pass on westerners who are believed by some African heads of state to have been involved in war crimes and crimes against humanity. Former British Prime Minister Tony Blair, as far as Gambia is concerned, is a prime example of a Western leader (or former leader) who should be in the ICC dock for his role in the Iraq war. Fat chance. Continue reading “Gambia follows South Africa’s ICC exodus: quelle surprise”

South Africa files for divorce from the ICC: the thrill is gone

On 19 October 2016, South Africa formally requested to withdraw from the Rome Statute, the treaty that established the International Criminal Court (ICC). With Cabinet approval and in accordance with Article 127(1) of the Rome Statute, the South African government sent an “instrument of withdrawal” letter to the United Nations Secretary-General explaining its intention.

The withdrawal should take effect in a year, though South Africa remains obligated to comply with the Rome Statute until the withdrawal is final. According to a press release, Minister of Justice and Correctional Services Michael Masutha highlighted irreconcilable differences: “the South African government has found its obligations, with respect to the peaceful resolution of conflicts, at times incompatible with the interpretation given by the ICC.” The press release also noted how “[o]ther African Union member states have accused the ICC of unfairness in servicing its mandate. They claim the court is targeting African states over other members.” Continue reading “South Africa files for divorce from the ICC: the thrill is gone”

Response to comments on ethics enforcement inequality: the Superman vs. Batman dichotomy

I greatly appreciate that my esteemed colleagues Catherine Mabille and Luc Walleyn took the time to comment on my recent post: Witness tampering convictions at the ICC: repercussions under Article 70. Thanks Catherine and Luc for your comments. Below is my response.

While I can understand the frustration and even anger over the double-standard when it comes to condemning defense lawyers for conduct that prosecutors get away with, I have yet to see where such arguments have traction as an excuse or an explanation for conduct that crosses ethical boundaries. In some instances it may be useful to point out that the prosecution engages in certain conduct to demonstrate that the conduct is within acceptable bounds. But there is no merit to the argument that because the prosecution got away with such conduct in Lubanga, this kind of conduct should also be permitted in another case. Continue reading “Response to comments on ethics enforcement inequality: the Superman vs. Batman dichotomy”

Witness tampering convictions at the ICC: repercussions under Article 70

No legal system in the world can accept the bribing of witnesses, the inducement of witnesses to lie, or the illicit coaching of witnesses, nor can the ICC. Today’s judgement sends a clear message that the Court is not willing to allow its proceedings to be hampered or destroyed. It sends the message that those who try to distort and interfere with the administration of justice of this Court do not go unpunished.((Presiding Judge Bertram Schmitt, see audio visual recording of judgment delivery here.))

Yesterday, 19 October 2016, Trial Chamber VII of the International Criminal Court (ICC) delivered its judgement in the Bemba et al. Article 70 case. All of the five accused were found guilty under Article 70 of the ICC Statute of various offences against the administration of justice in The Prosecutor v. Jean-Pierre Bemba Gombo. Continue reading “Witness tampering convictions at the ICC: repercussions under Article 70”

ICC-OTP sets out its vision: a look at the horizon

On 15 September 2016, the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) published its Policy Paper on Case Selection and Prioritisation (Policy Paper). Long overdue.

Policy papers can be instructive but do not always dictate the course of action that is ultimately taken. Much has to do with the vision, drive, and inclination of the Prosecutor. This was rather apparent with the first ICC Prosecutor, Luis Moreno-Ocampo, who was of the opinion that the goal of the court is to send a message to prevent future crimes, the so called “shadow of the court” goal. Continue reading “ICC-OTP sets out its vision: a look at the horizon”

Learning from the ECCC experience

On 5 October 2016, I was invited to participate in a seminar organized by the United Nations Office of the High Commissioner for Human Rights – Cambodia (OHCHR) in cooperation with the Bar Association of the Kingdom of Cambodia (BAKC), titled Questioning Techniques from the Defense’s Perspective and the Use of National and International Law in Legal Arguments. Held in Phnom Penh, this training was part of the Legal Dialogue Series 2016: a series of trainings organized by the OHCHR as part of its ongoing efforts to support and strengthen the development of Cambodian legal professionals, including by facilitating the dissemination of skills and knowledge from international and Cambodian lawyers at the Extraordinary Chambers in the Courts of Cambodia (ECCC) to Cambodian lawyers practicing in local courts. Continue reading “Learning from the ECCC experience”

Damning international criminal defense with faint praise

Defense lawyers are expected to be flattered to read a purportedly positive piece from an outsider – a non-defense lawyer or someone who has never defended – on what it is they do and why.

Normally such praise-pieces never fail to comment on the obvious, such as the mother of all questions: How can we represent such criminals?, or that the facts are bad but everyone deserves a fair trial, or how clever we need to be to design creative strategies and make acceptable (i.e., passing the laugh test) arguments, and so on. Routinely, the tone is one of feigned empathy and understanding, as if what they really want to say is: you poor thing, it is a dirty job, your client is guilty, you have no choice but to put up a smoke screen of a defense and try to delay and obstruct the proceedings, but someone has to do it so, so better you than me. How thoughtful of them.

And then occasionally there is the concerted attempt by someone who has legal training but has never been in the trenches, never defended (or prosecuted) a domestic case, let alone a case involving serious international crimes, to drill down and really try to explain in a broader context what it is that defense lawyers do and why, even crediting them with making legacy contributions towards the court’s historical narrative. Wow! Alice Murgier does just that in her article “The Legacy of the Extraordinary Chambers in the Courts of Cambodia: Why Defense Work is Essential in Shaping the Historical Narrative of the Court,” posted on the Cambodia Tribunal Monitor’s website on 16 September 2016.

Murgier damns with faint praise. Continue reading “Damning international criminal defense with faint praise”

AL MAHDI CULTURECIDE JUDGMENT: A watershed moment for plea agreements

The rubble left from an ancient mausoleum destroyed by Islamist militants, is seen in Timbuktu, Mali, July 25, 2013. A former trainee teacher accused of damaging monuments in the name of Islam in the ancient Malian city of Timbuktu will stand before the International Criminal Court on March 1, 2016 for a hearing to decide if he should face a landmark trial. Picture taken July 25, 2013. REUTERS/Joe Penney - RTS8MB6 — The rubble left from an ancient mausoleum destroyed by Islamist militants, is seen in Timbuktu, Mali, July 25, 2013.

On 27 September 2016 Ahmad Al Faqi Al Mahdi was sentenced to nine years for the war crime of attacking protected objects under Article 8(2)(e)(iv) of the Statute, specifically, “[i]ntentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives.”((Prosecutor v. Al Mahdi, ICC-01/12-01/15, Judgment and Sentence, 27 September 2016, para. 11.))

In a previous post I discussed the plea bargaining process and trial or, as I call it, slow change of plea hearing. I noted that in all likelihood Trial Chamber VIII would accept the plea agreement if satisfied that the facts proved the crimes admitted and if it found that the agreed period of time was commensurate with the gravity of the crimes. Many have written on the Al Mahdi case. Some questioned the imperative for prosecuting such low-level crimes, and for not including other crimes that Al Mahdi allegedly committed, such as murder. Others looked at the case as a major watershed for the ICC for prosecuting the destruction of religious and cultural property. All who have commented on this case have made a valuable contribution in raising awareness on the importance of combatting against culturecide. Continue reading “AL MAHDI CULTURECIDE JUDGMENT: A watershed moment for plea agreements”

Judges’ questioning: are all questions fair game?

We all know that trials, like games, have their unique set of rules – who does what, when can this or that be done, what is permissible or impermissible, etc. We generally refer to them as the rules of procedure and evidence. In another context we might call them the rules of the road. In sports we just call them the rules. Try playing a game without them. Worse yet, try playing a game where the referee is also a player and when it comes to his or her behavior, the rules apply or are redefined based on whim and fancy. Just how fair would such a game be?

In the trial game, the parties have the right to ask questions, but so do judges. Depending on the procedure, the judges may have the right to take the lead, leaving the prosecution and the defence to mop up. When the parties have the right to take the lead, judges are expected to ask discrete questions, mostly for clarification, and not for the purpose of pursuing a preordained result (as prosecutors of all stripes and shades do). Continue reading “Judges’ questioning: are all questions fair game?”