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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    Footnotes   [ + ]

    The Legacy Game: embroidering achievement while concealing failures

      No sooner than an international(ized) criminal tribunal or court is established, it begins thinking of its legacy: what sort of bragging rights it can hope to claim as its contribution to the development of international criminal law and justice. This term is rarely heard in domestic settings, unless discussing some dark past in a State’s judicial affairs, such as the Inquisition or Star Chamber, or when the US Supreme Court ruled that it was constitutional for the US government to intern a segment of its citizens based on race, or imprison indefinitely so-called enemy combatants on an offshore military base. The negative connotation of legacy in these situations is seen as the aberrations in the life span of a nation’s history – something to remember and learn from, and to avoid.

      At the international(ized) criminal tribunals and courts, however, legacy seems to mean something else – at least to the Presidents, Prosecutors, and Registrars. To them, legacy seems to be something that reflects only the positive, the achievements, the favorable statistics: how many trials were conducted, how many convictions resulted, what positive jurisprudence was generated, and of course, why other courts should be so lucky as to have such a successful track-record. Continue reading “The Legacy Game: embroidering achievement while concealing failures”

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      Karnavas Responds to John Doe’s Comment on Post: General Slobodan Praljak’s honorable defiance

        I greatly appreciate that many colleagues and interested persons have taken the time to comment on my recent post:  General Slobodan Praljak’s honorable defiance.  One comment in particular, posted by “John Doe”, warrants a response.  Below the comment is reproduced, followed by my response. Continue reading “Karnavas Responds to John Doe’s Comment on Post: General Slobodan Praljak’s honorable defiance”

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        General Slobodan Praljak’s honorable defiance

          Ukoliko želite pročitati ovaj tekst na hrvatskom jeziku kliknite ovdje

          General Slobodan Praljak

          Having listened to the summary of the Appeal Judgment and having stood up to hear the litany of crimes affirmed by the Appeals Chamber before his sentence of 20 years was upheld, General Slobodan Praljak took his own life by drinking poison – but not before expressing his utter contempt for the Judgment, and by extension, his contempt for the Judges and the ICTY as a judicial institution.

          Questions abound. How did General Praljak smuggle the vial of poison into the courtroom? How could he have gotten it through the numerous check-points where he would have been searched? Did he have it on him when he arrived at the ICTY? Did someone smuggle it to him there? Or, was it waiting for him at the ICTY, secretly planted in his cell or in the toilet?

          Relevant as these questions are, few are asking what I think is perhaps the more important question: why did General Praljak take his life? Continue reading “General Slobodan Praljak’s honorable defiance”

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          Časni prkos generala Slobodana Praljka

            General Slobodan Praljak

            Odslušavši sažetak presude u žalbenom postupku i ustavši da čuje litaniju zločina koje je utvrdilo Žalbeno vijeće prije nego mu je potvrđena presuda na 20 godina zatvora, general Slobodan Praljak uzeo si je vlastiti život popivši otrov – ali tek nakon što je izrazio svoj krajnji prijezir prema presudi, a dalje i prijezir prema sudcima i Međunarodnom kaznenom sudu za bivšu Jugoslaviju (MKSJ) kao sudskoj instituciji.

            Sve vrvi pitanjima. Kako je general Praljak prokrijumčario bočicu s otrovom u sudnicu? Kako ju je prokrijumčario kroz brojne kontrole? Je li je imao kada je stigao na MKSJ? Je li mu je netko tamo prokrijumčario? Ili, je li ga otrov čekao na MKSJ, sakriven u njegovoj ćeliji ili u zahodu?

            Kolikogod da su ova pitanja relevantna, malo ljudi postavlja pitanje koje smatram jednako važnim: zašto si je general Praljak oduzeo život? Continue reading “Časni prkos generala Slobodana Praljka”

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            The Common Code of Professional Conduct: flawed and hubristic – Part I

              On Friday 10 November 2017, The Fifth International Meetings of the Defence adopted the so-called Common Code of Professional Conduct for all Counsel appearing before the International Criminal Tribunals (Common Code). Aside from being a non-binding document (I hesitate to call it a code since it is nothing of the kind), it is flawed and hubristic.  Indeed, it may be that everything you need to know about the arrogance of the document and its creators can be divined from the declaration that it is to be “referred to as the 2017 Nuremberg Code.”

              By happenstance, I heard that the Association of Defence Counsel practising before the International Courts and Tribunals (ADC) was consulted on this initiative. Having a particular interest in professional responsibility and ethics, I reached out to get a copy of the Common Code.

              The ADC – the first and without a doubt the most accomplished association of its kind – was not involved in the drafting of the Common Code. The ADC sent its members a copy of the “Proposed Code,” informing them that it received the draft relatively late in the process. After the ADC Executive Committee and Disciplinary Council made an initial assessment of the Proposed Code, and without circulating it to the ADC membership (for reasons that become obvious from the available correspondence and discussed below), it decided that the ADC could not sign the Proposed Code as presented. Continue reading “The Common Code of Professional Conduct: flawed and hubristic – Part I”

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              Book Review: Scott Turow disappoints and affronts in Testimony

                Few can match Scott Turow’s writing and storytelling abilities. Very few. Over the years he spoiled us with his prose, his canny insight, his attention to detail. His freshman work, One L, was a must-read for a generation of law students. Some of the courtroom scenes in Presumed Innocent are as riveting as they are authentic. And Identical, his last novel before his recently released Testimony, was a true masterpiece, capturing all the nuances of Greek and Greek-American culture.

                So, with deep regret, I suggest that if you were looking to escape (or vacate as I put it) from the daily pressures with a good novel – especially one that may hit close to home – Turow’s Testimony is not one of them.  If you have yet to set off for the beach, pull it from your bag and grab something else (perhaps the new John Grisham novel, Camino Island) desist from buying it at the airport while waiting for your flight, and refrain from gifting it to a friend or colleague. Harsh warnings, but I think justifiable. Continue reading “Book Review: Scott Turow disappoints and affronts in Testimony”

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                And the waiting goes on …

                  Oral arguments in Prlić et al. concluded this Tuesday before the International Criminal Tribunal for the former Yugoslavia (ICTY) Appeals Chamber – some 12 years since I began representing Dr. Jadranko Prlić.  The Appeal Judgement is expected by November.  When all is said and done, it will have taken over 13 years from the time the accused turned themselves over to the ICTY to the conclusion of the appeal proceedings.

                  What a journey!  Lawyers, assistants, investigators, and interns have come and gone.  Babies born, brothers, sisters, mothers, and fathers departed. Heart attacks suffered, kidneys replaced, weight gained, hair lost. Engagements, affairs, marriages, and divorces. And wrinkles, lots of wrinkles. No one spared. Continue reading “And the waiting goes on …”

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                  Bosniak Member of the BiH Presidency asks the ICJ to reconsider the Serbia Genocide Case

                    “It’s like déjà vu all over again.”1 Perhaps the most memorable and exquisite quote of American professional baseball player, manager, coach, and Hall of Famer, Yogi Berra.

                    On 23 February 2017, it was reported that “Bosnia” filed a formal request with the International Court of Justice (“ICJ”) to reconsider its 2007 decision in the Serbia Genocide case, in which it found that Serbia had neither been involved in nor committed genocide. The ICJ did however find, curiously, that Serbia “violated the obligation to prevent genocide, under the Convention on the Prevention and Punishment of the Crime of Genocide, in respect of the genocide that occurred in Srebrenica.”2 International Court of Justice (“ICJ”), Case Concerning Application of The Convention on the Prevention and Punishment of The Crime of Genocide, Bosnia and Herzegovina v. Serbia and Montenegro, Judgment, 26 February 2007, para. 471.

                    Bakir Izetbegović

                    Bosnia and Herzegovina (“BiH”), the actual name of the country, did not file for reconsideration.  What was submitted to the ICJ – which has yet to be made public3Last checked 7 March 2017, the ICJ public record does not show the application filed on the 23rd of February 2017. – was a unilateral request by one of the three members of the BiH Presidency, Bakir Izetbegović (the son of Alija Izetbegović), currently serving as the Bosniak member of the Presidency of BiH.

                    Some facts may be useful to understand why this request indubitably is a political ploy, a publicity stunt, not a legitimate request that merits consideration by the ICJ. Continue reading “Bosniak Member of the BiH Presidency asks the ICJ to reconsider the Serbia Genocide Case”

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                    Footnotes   [ + ]

                    The ADC-ICTY Evolves into an Association of Defense Counsel Practicing before International Courts and Tribunals

                      On 16 December 2016, the Association of Defence Counsel Practising before the International Criminal Tribunal for the former Yugoslavia, commonly referred to as the ADC-ICTY, held a second General Assembly Meeting.  The agenda had one item only: amending the ADC-ICTY Constitution to change the name of the ADC-ICTY to better reflect its function – effectively transforming it into an association for defense counsel practicing before international tribunals and courts. And so the ADC-ICTY Constitution was amended. Continue reading “The ADC-ICTY Evolves into an Association of Defense Counsel Practicing before International Courts and Tribunals”

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