Book Review – The Elgar Companion to THE EXTRAORDINARY CHAMBERS IN THE COURTS OF CAMBODIA

The Elgar Companion to the Extraordinary Chambers in the Courts of Cambodia, by Nina H.B. Jørgensen, Edward Elgar Publishing, 2018, 404 pages, £ 144.00

With the benefit of hindsight, would the Cambodian government and the international community have joined hands and built the Extraordinary Chambers in the Courts of Cambodia (ECCC)? Possibly not. The Court has received more criticism than acclaim and is generally touted as a model not to be followed.

Nina H.B. Jørgensen, p. 359  

The Elgar Companion to the Extraordinary Chambers in the Courts of CambodiaAnyone interested in the trials, tribulations, and contributions of the Extraordinary Chambers in the Courts of Cambodia (ECCC) to the development of international criminal law and justice, look no further than Professor Nina H.B. Jørgensen’s outstanding primer, The Elgar Companion TO THE EXTRAORDINARY CHAMBERS IN THE COURTS OF CAMBODIA (The Companion to the ECCC)If there are any doubts about the ECCC’s legacy, particularly its positive contribution to international criminal jurisprudence, Professor Jørgensen has put them to rest. Thanks to her critical analysis of the ECCC’s procedures, of the cases tried and currently under investigation, and of the jurisprudence the ECCC has produced over the past decade – especially considering the general environment and context in which the ECCC operates – it is hard not to be impressed with the accomplishments of the ECCC, despite its numerous shortcomings and disappointing failures. Continue reading “Book Review – The Elgar Companion to THE EXTRAORDINARY CHAMBERS IN THE COURTS OF CAMBODIA”

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Book Review: Seeking Accountability for the Unlawful Use of Force

Seeking Accountability for the Unlawful Use of Force, Leila Nadya Sadat ed., Cambridge University Press, 2018, 612 pages, £ 26.99

Classic understandings about the demarcation between war and peace are not just quixotic remnants of a bygone era, but core underpinnings of the international legal system that are eroded at the peril of the entire world.

Leila Nadya Sadat, p. 556

Professor Leila Nadya Sadat

Had it been up to me I would have retitled Seeking Accountability for the Unlawful Use of Force (Seeking Accountability) to something like: The International Crime of Aggression: past failures, present shortcomings, and future possibilities. Even if you think you know all there is to know about criminalizing aggression as an international crime, you are bound to find this collection of articles exceptionally rewarding. And if you really want to treat yourself, read it cover to cover as it has been smartly organized and edited by Washington University Law School Professor Leila Nadya Sadat. Spoiler alert: Seeking Accountability is dense, packed with information and source material that provokes and stimulates – not a quick or effortless read. Continue reading “Book Review: Seeking Accountability for the Unlawful Use of Force”

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Book Review – The Internationalists: How a Radical Plan to Outlaw War Remade the World

The Internationalists: How a Radical Plan to Outlaw War Remade the World, by Oona A. Hathaway and Scott J. Shapiro, New York, New York: Simon and Schuster, 2017, 578 pages, $30

In short, the Peace Pact formed the background of rules and assumptions against which the rest of the new system operated. As states adapted to the transformed legal order, their adaptations helped reinforce those new rules and become reasons of their own for playing by them. The Pact did not bring about the end of conquest and interstate war on its own; no treaty, no law could have. But it was a necessary start, the beginning of the end of the Old World Order.

The Internationalists, p. 335

Tensions around the world seemed to have heightened with the election of U.S. President Donald J. Trump. Maybe it has nothing to do with him; maybe it is just his in-your-face style that tends to make us more aware of how dangerous and volatile the world has become. It is hard to point to a region on the global map and not find a conflict that has just ended, is raging on, or about to start. The most eye-popping conflict started as a civil war in Syria in 2011. The end is not in sight despite the use of an inordinate amount of hard and soft power by regional state players and their proxies, permanent members of the United Nations Security Council, the United Nations (UN), the European Union, and so on. Red lines have been drawn and crossed, chemical weapons used against combatants and non-combatants, indiscriminate bombings of civilian-populated areas, acts of terror committed with an aim to make life so unbearable so as to bring about death or forced dislocation. All of this and much more in the name of sovereign rights, self-defense, security (national, regional, international), reprisals, deterrence (sending messages), and, of course, peace. Continue reading “Book Review – The Internationalists: How a Radical Plan to Outlaw War Remade the World”

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Book Review – Punishing Atrocities Through a Fair Trial: International Criminal Law from Nuremberg to the Age of Global Terrorism

Punishing Atrocities Through a Fair Trial: International Criminal Law from Nuremberg to the Age of Global Terrorism, by Jonathan Hafetz, Cambridge University Press, 2018, 191 pages, £ 85.00 ($ 90.00)

You must put no man on trial under the forms of judicial proceedings if you are not willing to see him freed if not proved guilty…the world yields no respect to courts that are merely organized to convict.

Justice Robert H. Jackson,
Speech to American Society of International Law cited in Henry T. King, Jr’s The Legacy of Nuremberg, Case Western Journal of International Law 34 (2002), 335, 336

If asked to recommend three books to a newly-minted judge at any of the international(ized) criminal tribunals or courts, but especially at the International Criminal Court (ICC), Jonathan Hafetz’s Punishing Atrocities Through a Fair Trial – International Criminal Law from Nuremberg to the Age of Global Terrorism (Punishing Atrocities) would be one of them. Indeed, I would suggest it as essential reading for judges, prosecutors, defense lawyers, and any judicial staff. I would also recommend Punishing Atrocities as obligatory reading for any introductory courses on International Criminal Law (ICL).

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Professor Jonathan Hafetz

Jonathan Hafetz, a professor of law at Seton Hall University School of Law, admirably shows the tension between the need for establishing individual accountability for suspects and accused alleged to have committed or contributed to mass atrocities and the need to accord them fair trials based on recognized international principles and standards. Reconciling these two aims has been an ongoing process since the creation of the post-World War II International Military Tribunals at Nuremberg and for the Far East in Tokyo. While the divide remains, much progress has been made in affording greater due process to suspects and accused, in part, because of a higher recognition that acceptance of judicial results at the international(ized) criminal tribunals and courts is enhanced and fostered through fair trials and ensuing perceptions. Meanwhile, the experimentation of cobbling together procedural modalities from different legal systems for fairer procedural justice continues. Continue reading “Book Review – Punishing Atrocities Through a Fair Trial: International Criminal Law from Nuremberg to the Age of Global Terrorism”

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LOOKING FOR BAO NINH

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. Continue reading “LOOKING FOR BAO NINH”

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Book Review – RISE AND KILL FIRST: The Secret History of Israel’s Targeted Assassinations

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.

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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”

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Part II – Panel Discussion on The Peacemaker’s Paradox: Pursuing Justice in the Shadow of Conflict

Prosecutorial Discretion & The Interests of Justice: what, when, how

In my previous post I reviewed Priscilla Hayner’s The Peacemaker’s Paradox: Pursuing Justice in the Shadow of Conflict, giving it a superb rating and recommending it to anyone working in the field of transitional justice – from mediators to civil society and human rights advocates. As I noted, Hayner draws from her wealth of experience and from her in-depth and critical examination of past efforts by various actors in the peacemaking and transitional justice chain, including international(ized) criminal tribunals and courts – most notably the International Criminal Court (ICC) – to see what has worked or failed in peacemaking. Presenting a clinical analysis of the what, how, and why of these past examples, Hayner shows that during peacemaking efforts, process matters, intrinsic to which are timing, strategy, and context. This is particularly relevant when the ICC Prosecutor exercises her authority: depending on the strategy and tactics adopted, she can be instrumental or detrimental to the peacemaking process. Continue reading “Part II – Panel Discussion on The Peacemaker’s Paradox: Pursuing Justice in the Shadow of Conflict”

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Book Review – The PEACEMAKER’S PARADOX: Pursuing Justice in the Shadows of Conflict

There is no peace without justice; there is no justice without truth.


Professor Mahmoud Cherif Bassiouni

Recently, I participated in a Flash-Colloquium titled: Justice, Truth and Peace. The topic was inspired by the sage Professor Bassiouni – a giant in the field of international humanitarian and human rights law. Sadly, he left us on 25 September 2017.

The presenters were given a maximum of three minutes to speak on one of the six permutations of these three words: Truth, Justice, Peace, Peace-Justice, Justice-Truth, and Truth-Justice-Peace.

About three minutes before the start of the colloquium, I was asked to make a presentation on peace within the context of Professor Bassiouni’s refrain. I agreed, though I knew I would have to speak off-the-cuff. I began feeling uneasy when I started hearing the presentations, which ranged from the philosophical to the theoretical to the sublime (poetry). What did I really know about peace? Continue reading “Book Review – The PEACEMAKER’S PARADOX: Pursuing Justice in the Shadows of Conflict”

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BOOK REVIEW – A Conviction In Question: The First Trial at the International Criminal Court

The Court and this trial were different. It was a Court for nearly all places and all times promising something most everyone in the world wanted badly, even if some state authorities remained wary. It was to bring tyrants to account, punish them according to their crimes, and give pause to others with tyrannical pretentions.



It was not just what kind of justice would be rendered for Lubanga. The Court itself was on trial.… Lubanga’s atrocities spoke for themselves, or so it appeared. They were well known in his country. They were well known abroad among the international organizations that had been forced to intervene to protect his victims, and they were well known among human rights organizations whose reporting brought his crimes to word attention. Something would have to go woefully askew for the trial to end up questioning the severity of the crimes. And yet, as the trial unfolded, the crimes became strangely and increasingly beside the point, buried under a spectacle of legal combat between counsellors who seemed more concerned with prevailing in the courtroom than worrying about what atrocities had been committed in Ituri and how to assign responsibility.


A Conviction In Question: The First Trial at the International Criminal Court, by Jim Freedman, University of Toronto Press, 2017, $32.95, 219 pages, pp. xiii, xvi-xvii

After reading Mark Kersten’s review of A Conviction In Question: The First Trial at the International Criminal Court by Jim Freedman, Professor Emeritus at Western University Ontario’s Department of Anthropology, I was intrigued. Could I have been so off on my assessment of the Lubanga trial? Continue reading “BOOK REVIEW – A Conviction In Question: The First Trial at the International Criminal Court”

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BOOK REVIEW – Incitement on Trial: prosecuting international speech crimes

[T]he man who prompted the deed was more guilty that the doer, since it would not have been done if he had not planned it.


Aristotle Rhetoric (2004:26)

By and large, there is not a great deal of social science research to support the claim that hate speech or inciting speech has a directly causal relationship to violence, and this mitigates against modes of liability like instigating/inducing/soliciting which include the elements of direct causation. There is, however, extensive empirical evidence indicating that denigrating speech has (often unconscious) conditioning effects on listeners and while not attaining the level of a sine qua non, may contribute to a set of conditions jointly sufficient to cause crime.


Incitement on Trial: prosecuting international speech crimes, by Richard Ashby Wilson, Cambridge University Press, 2017, Paperback $29.99, 356 pages, p. 17.

Professor Richard Ashby Wilson’s Incitement on Trial: prosecuting international speech crimes is an outstanding text on a frequently misinterpreted, if not ill-used, area of international criminal law – the crime of incitement. What distinguishes Incitement on Trial from many other texts on substantive international criminal law is that it is based in part on extensive original empirical research.

Before praise and criticism, reader beware: I have known Wilson since he was doing research for his book, Writing History in International Criminal Trials (another gem published by Cambridge in 2011), and had the privilege of participating with two other colleagues in a workshop conducted by Wilson as part of his field research for this text. Continue reading “BOOK REVIEW – Incitement on Trial: prosecuting international speech crimes”

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