THE ICC PROSECUTOR’S GUIDELINES ON PLEA AGREEMENTS – let’s make a deal    

The Prosecutor should exercise particular caution before agreeing to seek the withdrawal or amendment of charges which have been traditionally under-prosecuted, such as crimes against or affecting children, sexual and gender-based crimes, attacks against cultural, religious, historical and other protected objects, as well as attacks against humanitarian and peacekeeping personnel.

Guidelines for Agreements Regarding Admission of Guilt, October 2020, para. 20

Some four years after Al Mahdi’s guilty plea was accepted based on an agreement reached with the Prosecutor for a nine-year sentence for one count of destruction of cultural heritage (mausoleums and mosques in Timbuktu) – and no other charges such as killings for which there seemed to be sufficient evidence to charge (see my prior posts here and here) – the Office of the Prosecutor (OTP) issued its Guidelines for Agreements Regarding Admission of Guilt (Guidelines) on 12 November 2020. Why now? It is not as if plea agreements have been a much sought-after commodity by the OTP. Lamentably.

The Guidelines are somewhat wanting. More of a basic policy paper for internal use and a PR piece for external purposes, the Guidelines provide vague “guidance” on whether, when, under what circumstances and subject to which terms the OTP will enter into plea agreements. Rather than drilling down on the specifics of the Guidelines (a pithy seven-pages), I will be providing some practical considerations and guidance for a more robust practice in negotiating plea agreements. But first, some prefatory remarks on why “plea bargaining” is misunderstood and gets a bad rap at the international(ized) criminal tribunals and courts.  Continue reading “THE ICC PROSECUTOR’S GUIDELINES ON PLEA AGREEMENTS – let’s make a deal    “

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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 Enterprisein 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)”

Footnotes[+]

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Book Review – Comparative Reasoning in International Courts and Tribunals

Comparative Reasoning in International Courts and Tribunals, by Daniel Peat, Cambridge University Press, 2019, 258 pages, € 29 (paperback).  Winner of the 2020 European Society of International Law Book Prize.

A word is not a crystal, transparent, and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.


Oliver Wendall Holmes, Towne v. Eisner, 245 US 418, 425 (1918)

Daniel Peat’s parting thoughts in Comparative Reasoning in International Courts and Tribunals are that if we are to “understand the complexity and contextuality that interpretation inevitably entails” in both international law and domestic law, we need to acknowledge the “mutability” that US Supreme Court Justice Holmes speaks of in Towne v. Eisner (p. 221). Put differently, when interpreting a word, a term, a rule, a law, a treaty, context matters. Any practitioner worth his salt knows this. So, what’s new? Continue reading “Book Review – Comparative Reasoning in International Courts and Tribunals”

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Book Review — Judges and the Making of International Criminal Law, by Joseph Powderly

Book Review – Judges and The Making Of International Criminal Law, by Joseph Powderly. Brill-Nijhoff, 2020, € 215.

Wherever our theoretical refuge lies, be it abstract or pragmatic, we can say with relative certainty that to embrace a formalist conception of the judicial function (based inextricably on a pious belief in the sanctity of positive rules) is to embrace an intellectual conceit which lacks any basis in the practical reality of contemporary international adjudication, irrespective of the diversity of jurisdictional mandates. (p. 237-38)

I’m no fan of judicial creativity. It’s a slippery slope. What does ‘creativity’ mean? Where are the limits, if any? And if there are limits, how confident can we be that ‘creativity’ is not used as a means of inventing norms, of advancing lex ferenda (what the law should be) agenda, as Professor Antonio Cassese, President and Judge of the International Criminal Tribunal for the former Yugoslavia (ICTY), along with his accommodating fellow judges, exuberantly and uninhibitedly did?

According to the Oxford Dictionary, creativity is defined as the use of imagination or original ideas to create something; inventiveness.

Do we really want judges to be creative in developing the law?

Professor Joseph Powderly says yes.

Continue reading “Book Review — Judges and the Making of International Criminal Law, by Joseph Powderly”

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IRMCT’s lame excuse for inaction: Florence Hartmann gets away with falsely accusing Gen. Praljak’s Defence Counsel with murder

It’s known that it came in with the group that was present at the trial, because he couldn’t have had it in the prison, which casts suspicion on his defense team, or eventually someone from the Embassy; at any rate, someone who had access to Praljak before he entered the courtroom

Florence Hartmann, Express, 19 April 2019, p. 42

Florence Hartmann

Florence Hartmann is no stranger to controversy, to unethical behavior, to criminal activity.  At the apogee of her career at the International Criminal Tribunal for the former Yugoslavia (ICTY), she was the mouthpiece and spinmeister for the Office of the Prosecution (OTP), and in particular, Madam Carla Del Ponte, the then Prosecutor. Much to her surprise (hubris can be blinding) she was prosecuted by the very same office for which she worked. She crossed the line by disclosing classified information. Convicted, Hartmann was sentenced to pay a fine of €7,000.1  The imposition of that fine, payable in two installments, was affirmed by the Appeals Chamber of the ICTY on 19 July 2011.   Hartmann failed to pay the fine, despite several notices from the Registrar.  On 16 November 2011, the Appeals Chamber converted the fine to a term of imprisonment of seven (7) days.  An inexcusably lenient slap on the wrist for someone who failed to surrender to serve her sentence for over four (4) years.  Hartmann was finally arrested on 24 March 2016.  She was granted early release on 29 March 2016, having served five (5) days in custody.  Ironically, in light of her failure to pay the fine of €7,000, the Registrar found that she was able to remunerate counsel amounting to €59,094.50, and thus was ineligible for legal aid.  That decision was affirmed by the President of the Mechanism in the Decision of of 4 July 2016.

One would think that having fallen from grace and having paid for recklessly transgressing, she would be have learned her lesson, she would have learned to tread lightly, she would have learned to stay out of the limelight – which, in no small measure, got her into trouble in the first place. Continue reading “IRMCT’s lame excuse for inaction: Florence Hartmann gets away with falsely accusing Gen. Praljak’s Defence Counsel with murder”

Footnotes[+]

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The Šešelj Appeal Judgement: making sense of instigation 

The crux of the Prosecution’s argument on appeal is the temporal link between Šešelj’s statements [statements threatening with “rivers of blood” and using inflammatory and derogatory epithets] and the contemporaneous or subsequent commission of crimes in various locations. The Appeals Chamber considers that a reasonable trier of fact could find such a link to be tenuous in circumstances where there was a significant lapse of time between the statement and the offences, allowing for the reasonable possibility that Šešelj’s statement did not substantially contribute to the commission of the specific crimes and other factors may have influenced the conduct of the perpetrators.


Prosecutor v. Šešelj, MICT-16-99, 11 April 2018, para. 132.

Vojislav Šešelj

On 11 April 2018, the Mechanism for International Criminal Tribunals (MICT) issued the much-anticipated judgement in Šešelj. The outright acquittal by the Trial Chamber on three counts of crimes against humanity (persecution, deportation, and the other inhumane act of forcible transfer) and six of war crimes (murder, torture and cruel treatment, wanton destruction, destruction or willful damage done to institutions dedicated to religion or education, plunder of public or private property), was greeted with disbelief and disdain – a shocker. How could this demagogue – whom many looked up to as a god-like figure (para. 147) and acted on his inflammatory refrains against non-Serbs – be acquitted?

Assuredly the Appeals Chamber would completely reverse – so the thinking was. Continue reading “The Šešelj Appeal Judgement: making sense of instigation “

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Attorney-Client Privilege — The Crime-Fraud Exception

Recently there has been a sharp uptick in traffic to an October 2015 post I wrote on the crime-fraud exception to attorney-client privilege (reproduced below).  This post was part of a four-part series on attorney client-privilege issues in domestic and international(ized) courts.  I can only assume that the renewed interest in this subject is fueled by last week’s FBI execution of a search warrant on the office, home and hotel room of Michael Cohen, lawyer (some say “fixer”) for President Donald Trump.  As I write, the issue is playing out in a United States District Court in New York, where Cohen, supported by Mr. Trump’s lawyers, is seeking an injunction to prevent the prosecutor from examining seized materials, based on attorney-client privilege.

Before this litigation is over we are likely to see a very high-profile addition to the canon of law on the crime-fraud exception to attorney-client privilege.


Attorney-Client Privilege — Part IV: The Crime-Fraud Exception

This post follows up on the discussion of the attorney-client privilege and the crime-fraud exception raised in image3Prosecutor v. Bemba et al. (“Bemba”) before the International Criminal Court (“ICC”). In my previous post, I presented an overview of the attorney-client privilege (otherwise known as “lawyer-client privilege” or “legal professional privilege”) in the international criminal tribunals. As previously discussed, one of the exceptions to the attorney-client privilege is the crime-fraud exception. This exception applies when communications are made in furtherance of a crime or fraud. In other words, the attorney-client privilege is not a shield to be used by either the attorney or the client to pursue or cover up criminal activity, including acts contributing to the obstruction or perversion of justice. The ICC Pre-Trial and Trial Chamber decisions in Bemba raise several questions concerning the scope of this exception. Before I get into those questions, let’s briefly review the history of the case. Continue reading “Attorney-Client Privilege — The Crime-Fraud Exception”

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INTERVIEW: Prlić et al. in retrospect

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Gloria Lujanović

I was recently contacted by Gloria Lujanović, a journalist in Bosnia and Herzegovina working for Dnevnik.ba and asked whether I would be willing to answer some questions about the Prlić et al. case now that six months have passed since the appeals judgment was rendered.  Presumably she was interested in whether my views have evolved. Might my perspective (see here, here and here) be different now that I have had some distance from that fateful day when General Slobodan Praljak defiantly (I would say honorably) took his life, rather than accept what he (and others, such as myself) believed were the unjust results of a terribly flawed trial that yielded an error-riddled judgment – a judgment which, regrettably, the Appeals Chamber failed to cure? On 30 March 2018, Ms. Lujanović posted the Q&A in Dnevnik.ba: Karnavas: Alija Izetbegović je trebao na optuženičku klupu, suđenje hercegbosanskoj šestorci farsa, nalik cirkusu / Karnavas: Alija Izetbegović should have been prosecuted, the trial against the six from Herceg-Bosnia was a farce, and resembled a circus.

Here is the English version of the Q&A: Continue reading “INTERVIEW: Prlić et al. in retrospect”

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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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