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?
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 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.
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.
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.
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?
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 Prosecutor 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”
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 (seehere,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.
[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.
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.”
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”
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”
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?