Category: ECCC

JCE Redux – THE KSC’S FIRST CONFIRMED INDICTMENT (Part 3)

It is with great relief to observe that the Pre-Trial Chamber reverses the prior order of the Co-Investigative Judges of 8 December 2009 that held JCE III applicable in relation to international crimes before the ECCC…. By the same token, the Pre-Trial Chamber declares JCE I and JCE II applicable before the court in regard to international crimes…. In doing so, the court omits to scrutinize the necessity to give these recognized forms of liability under international criminal law and in particular universal state practice law new labels.

Judge Wolfgang Schomburg1  Jurisprudence on JCE – Revisiting a Never Ending Story 

 

Just as in the Wizard of Oz, when Dorothy discovers there is no wizard behind the curtain, the Pre-Trial Chamber Judges of the Extraordinary Chambers in the Courts of Cambodia (ECCC) – rebuffing the wizardry behind the curtain by thoroughly analyzing the law and jurisprudence relied on by the Tadić Appeals Chamber (and parroted by successive chambers at the ad hoc tribunals) – discovered that JCE III, founded on unsupportive and unpersuasive legal authority, did not enjoy customary international law (CIL) status. Continue reading “JCE Redux – THE KSC’S FIRST CONFIRMED INDICTMENT (Part 3)”

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JCE Redux – THE KSC’S FIRST CONFIRMED INDICTMENT (Part 2)

The writer has referred to an error of the Tribunal, to which he was a party; it concerns the question whether joint criminal enterprise was customary international law insofar as it permits of a conviction without proof of intent…. [T]wo rival theories – joint criminal enterprise and co-perpetratorship – hold sway in major parts of the world, but not generally; neither is therefore entitled to be regarded as customary international law.

Judge Mohamed Shahabuddeen1 Mohamed Shahabuddeen, Judicial Creativity and Joint Criminal Enterprise, in Judicial Creativity at the International Criminal Tribunals 202-03 (Shane Darcy & Joseph Powderly, eds., Oxford University Press, 2010). 

Judge Mohamed Shahabuddeen presided over the Tadić Appeals Chamber,2 Prosecutor v. Tadić, IT-94-1-A, Judgement, 15 July 1999, paras. 185-234 (Tadić Appeals Judgement). the progenitor of one of the most controversial legal issues at the ad hoc tribunals (the ICTY and ICTR) and elsewhere3Much has been written on the modes of liability and JCE. In particular, I recommend Gideon Boas, James Bischoff, and Natalie Ried, Forms of Responsibility in International Criminal Law: International Criminal Law Practitioner Library Series, (Cambridge University Press 2007); Ciara Damgaard, The Joint Criminal Enterprise Doctrine: A “Monster Theory of Liability” or a Legitimate and Satisfactory Tool in the Prosecution of the Perpetrators of Core International Crimes?, in Individual Criminal Responsibility For Core International Crimes 129 (Springer, 2008). See also William A. Schabas, Mens Rea and the International Criminal Tribunal for the Former Yugoslavia, 37 New England L. Rev. 1015 (2002); For more on my point of view, see Joint Criminal Enterprise at The ECCC: A critical analysis of two divergent commentaries on the Pre-Trial Chamber’s Decision against the application of JCE, available at http://michaelgkarnavas.net/files/JCE_at_the_ECCC_MGKarnavas.pdf. – the individual mode of criminal liability known as joint criminal enterprise (JCE), claimed to be a form of “commission” reflected in customary international law (CIL).4 The moniker joint criminal enterprise as an individual mode of liability has been variously and interchangeably labeled at the ICTY as “common criminal plan,” “common criminal purpose,” “common design or purpose,” “common criminal design,” “common purpose,” “common design,” or “common concerted design.” The common purpose has been more generally described to form part of a “criminal enterprise,” a “common enterprise,” and a “joint criminal enterprise.” See Prosecutor v. Brđanin and Talić, IT-99-36-PT, Decision on Form of Further Amended Indictment and Prosecution Application to Amend, 26 June 2001, para. 24. Continue reading “JCE Redux – THE KSC’S FIRST CONFIRMED INDICTMENT (Part 2)”

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Reflections on the Cambodian Defenders 25 years later: from humble advocates to legal trailblazers   

Late Saturday night, July 13, 2019, NagaWorld Hotel ballroom, Phnom Penh, Cambodia. Tables full, food and libations flowing, laughter, music, Khmer traditional dancers, speeches, clinking of glasses, cake-cutting, idle chatter, happy faces, kind words. It’s the graduation party for the newly-minted lawyers having passed the last of their exams after finishing an intensive Bar course. As I look around, I wonder if any of these young Lawyers can fathom a Cambodia with virtually no lawyers, no Bar Association – or BAKC (Bar Association of the Kingdom of Cambodia) as it is known, when at best there were some trained human rights advocates working for NGOs, offering their services to indigent suspects and accused in some parts of Cambodia. Probably not. But yes, there was such a time, and it was not that long ago. Continue reading “Reflections on the Cambodian Defenders 25 years later: from humble advocates to legal trailblazers   “

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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 – 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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Reflections on 2017: past is prologue

In 1788, Robert Burns, Scotland’s prodigious poet who is universally loved for his simple yet penetrating versus, penned the words to Auld Lang Syne – a song usually heard the world over on New Year’s Eve. Hard to find a Scot who does not know the words to and meaning of Auld Lang Syne (or the lines to most of Bobby Burns’ poems for that matter). But in case you have ever wondered, it basically means “a long time ago,” “days gone by,” or “for old times’ sake.”

In 1788 the Robert Burns sent the poem ‘Auld Lang Syne’ to the Scots Musical Museum, indicating that it was an ancient song but that he’d been the first to record it on paper. 1https://www.scotland.org/features/the-history-and-words-of-auld-lang-syne

The poem/song is about looking back at old memories and friendships, reminding us to cling to these special moments and bonds as we are about to forge ahead into the New Year. But it is not so much about not letting go, as opposed to not forgetting – about cherishing past friendships and the past.

Caught in the moment of singing along (or trying like the devil to remember the lines we have mechanically mumbled through in previous years) as we celebrate the coming of the New Year and make our soon-to-be unkept resolutions, we tend to unconsciously ignore the biddings of Auld Lang Syne to reflect on the year passed. Imprudently, we habitually delude ourselves into thinking that looking in the rearview mirror is a superfluous indulgence that risks impeding our desire (and perhaps necessity) of letting go of the past for the sake of moving on.

With time waiting for no one, we have already started pressing into 2018. Unquestionably, 2018 promises to be an interesting year – if for no other reason than because of 2017. Hard to predict what is in store over the next 12 months, though much like examining a treasure map or a crossword puzzle, reflecting on some of the events over the past 12 months provide us with abundant clues. Not intending to present a summary of world affairs (such as The Economist, Time Magazine, and others do every December), I will merely refer to some of the events I have posted on, primarily limited to international criminal law (ICL) matters. And for anyone interested in what I have posted in 2017, here is a chronological list.  You can also check the archives section of my blog. Continue reading “Reflections on 2017: past is prologue”

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THE END OF A READING AFFAIR: Cambodia Daily no more

 

Will no one rid me of this meddlesome priest?


King Henry II of England (1170) referring to Thomas Becket, Archbishop of Canterbury

The plane doors are about to close on my flight to Cambodia. When I land in Phnom Penh I will find this chaotic, noisy, and ever-expanding metropolis just as I left it a couple of months ago. Maybe some new construction projects will have started, maybe the traffic on a busy street has been re-routed for the building of yet another overpass aspiring to alleviate the out-of-control congestion, maybe another a trendy new coffee shop. As much as can ever be said of a teeming city of over two million people, everything will be pretty much the same. Except for one major difference: no more will I be able to wake up in the morning to get my daily fix of the news from The Cambodia Daily. Continue reading “THE END OF A READING AFFAIR: Cambodia Daily no more”

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The dark shadow of US political interference at the ECCC: no free lunch

On 11 August 2017, the Co-Investigating Judges of the Extraordinary Chambers in the Courts of Cambodia (ECCC) rendered their decision on the impact of the budgetary situation on Cases 003, 004, and 004/2. Last week I wrote about it, encouraging readers to review it. Analysis aside, nothing beats the original source, especially when it is well-reasoned and well-crafted.

So why the post? Well, for those who may not have the time or may not wish to get too much into the nitty-gritty of the comings and goings of the ECCC, there is one aspect of the decision that deserves scrutiny: the actual or perceived political interference in Case 003 by one of the major donors of the tribunal, the US.  Continue reading “The dark shadow of US political interference at the ECCC: no free lunch”

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The ECCC Co-Investigating Judges on ensuring respect for procedural safeguards in Cases 003, 004, and 004/2

It surely is common acquis among “civilized nations” in the meaning of Article 38(1)(d) of the Statute of the International Court of Justice by now that judges also have to ensure respect for the procedural safeguards in criminal proceedings.


ECCC Co-Investigating Judges (Combined Decision, para. 17)

If you practice international criminal law – no matter in which venue or capacity – the recent Decision handed down by the Co-Investigating Judges (CIJ) of the Extraordinary Chambers in the Courts of Cambodia (ECCC) dealing with the impact of the budgetary situation on Cases 003, 004, and 004/2 is worth reading. Sans hyperbole, it is impressive, illuminating, and instructive.

CIJ You Bunleng (l) and Michael Bohlander (r)

Ever since the CIJ requested the parties (Prosecution, Defence, and Civil Parties) and the ECCC Office of Administration (OA) to make submissions on the possibility of a permanent stay of the proceedings due to a lack of funding on 5 May 2017 (Request), there has been lots of drama in the form of mischaracterizations, disinformation, misunderstandings, and genuine concern, swirling around the ECCC (see here, here, here, here, and here). I doubt the drama will subside with this Decision, as it ought to – at least for the time being.  The CIJ have stirred up a hornet’s nest, deservedly so. Continue reading “The ECCC Co-Investigating Judges on ensuring respect for procedural safeguards in Cases 003, 004, and 004/2”

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Distrusting the Standard Total View: A Tribute to Michael Vickery

Michael No. 2 (l) with Michael No. 1 – Michael Vickery

On 29 June 2017, Michael Vickery, the legendary historian on Southeast Asia and perhaps the very best expert on ancient Khmer (Cambodian) civilization, passed away. He was, as one writer put it, a historian’s historian. I knew Vickery (or Michael no. 1 as I kiddingly referred to him when his name came up) for over two decades. I had the privilege of spending hundreds of hours with him. We talked about history and politics, but mostly about the pre-Khmer Rouge period when he first came to Cambodia, his research on the Khmer Rouge period (formally known as Democratic Kampuchea – “DK”), which generated several articles and perhaps one of the most lucid texts on that period, Cambodia 1975-1982, and the post-DK / post-Paris Peace Accords (1991) Cambodia. Vickery was my friend, my teacher, and when it came to critical historical analysis from which credible conclusions could be drawn, my mentor. Continue reading “Distrusting the Standard Total View: A Tribute to Michael Vickery”

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