Sixth Installment: JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS

This is the sixth installment in a series of posts drawn from a 24 January 2014 lecture on Judicial Ethics at the ADC-ICTY’s Twelfth Defence Symposium for interns and staff at the ICTY.  The complete document is available on my website.

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E. Corruption, Impartiality and Fitness to Sit as Judge

ECCC Case 002, Ieng Sary’s Motion to Disqualify Judge Nil Nonn

ScaleTipIn 2002, Amanda Pike, a documentary filmmaker, traveled to Cambodia and produced the documentary “Cambodia: Pol Pot’s Shadow.”[1]  While filming the documentary, Ms. Pike interviewed Judge Nil Nonn, the then President of the Provincial Court of Battambang.  This interview served as a basis for her article “Battambang: The Judge.”  In this article, Ms. Pike reported:

We talk with Judge Nil, who says that he’s upset by people’s lack of faith in the justice system. He laments that he often has to defend his profession to his friends. He admits that, yes, he does take bribes—of course—but only after a case is over. After all, he earns only $30 a month, not nearly enough to provide for his family. What else, he asks with that toothy grin, is he supposed to do?[2]

Judge Nil Nonn, when interviewed in 2006 by the Cambodia Daily, denied that he had ever taken bribes from the public or participated in the interview.[3]  He stated “however, if after a trial people feel grateful to me and give me something, that’s normal I don’t refuse it. . . .  I’ve settled a case for them and people feel grateful. Living conditions these days are difficult for me. But if you are talking about pressuring people for bribes—no.”[4]

Having learned of this article, the IENG Sary Defence first took steps to obtain more information.  First, the IENG Sary Defence attempted to locate Ms. Pike and obtain the video footage from her interview with Judge Nil Nonn and Judge Nil Nonn’s release form to be filmed.  Ms. Pike responded that she would not release the material voluntarily on “journalistic grounds.”[5]  Similarly, the IENG Sary Defence wrote to Mr. Welsh at the Cambodia Daily who also declined to provide information.[6]  Shortly thereafter, the IENG Sary Defence filed a motion to the Trial Chamber seeking to disqualify Judge Nil Nonn on the basis of corruption and a related request to investigate the action.[7]

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Fifth Installment: JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS

This is the fifth installment in a series of posts drawn from a 24 January 2014 lecture on Judicial Ethics at the ADC-ICTY’s Twelfth Defence Symposium for interns and staff at the ICTY.  The complete document is available on my website.

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C. A Judge’s Ethical Obligation to Disclose 

DisclosureNext, I discussed a Judge’s ethical obligation to disclose.  Judges must disclose facts that may affect (or perceive to affect) their impartiality; facts that could lead a reasonable, informed observer to objectively apprehend bias.

ICTR Prosecutor v. Karemera, Disqualification of Judge Vaz

In the ICTR case Karemera, the Defence requested that Judge Vaz recuse herself because of her alleged cohabitation with Ms. Dior Fall, one of the trial attorneys for the prosecution during the case.[1]  Although Judge Vaz ultimately withdrew, the Appeals Chamber noted the improper conduct and held that the Judge should have disclosed the facts of her accommodation prior to the Defence’s objection: Continue reading “Fifth Installment: JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS”

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Fourth Installment: JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS

This is the fourth installment in a series of posts drawn from a 24 January 2014 lecture on Judicial Ethics at the ADC-ICTY’s Twelfth Defence Symposium for interns and staff at the ICTY.  The complete document is available on my website.

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III. APPLICATION OF THE Furundžija PRINCIPLE—SITUATIONS OF BIAS

A.  Ex parte Communications

ECCC Case 002, Ieng Sary’s motion to Disqualify Judge Silvia Cartwright

ThumbonScaleI first discussed the issue of ex parte communications on the part of the judge, which in most cases, is to the detriment to the Defence.  I chose an example from the ECCC, where the Defence learned that one of the sitting Judges, Judge Silvia Cartwright, was participating in meetings with the International Co-Prosecutor Andrew Cayley and the ECCC Deputy Director of Administration.  No one from any of the Defence teams were invited and neither was the head of the ECCC Defence Support Section (DSS).  Obviously, these meetings were of concern to the Defence once they were learned about.  They certainly amounted to ex parte communications.  But as I noted earlier, when in doubt or not in possession of sufficient information showing bias, best to move incrementally.  So, after all sorts of efforts to get the participants to these private meetings to come clean, the Defence filed a request for investigation into these ex parte communications.[1]  The Trial Chamber declined to investigate, justifying the meetings as necessary for the coordination of the UN component of the ECCC.[2]  Having no choice, the Defence appealed, seeking Judge Cartwright’s disqualification on the grounds that the meetings had no express legal basis.  Since Prosecutor Cayley would continue to appear before Judge Cartwright, these ex parte communications violated applicable ethics standards.[3]   Continue reading “Fourth Installment: JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS”

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Third Installment: JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS

This is the third installment in a series of posts drawn from a 24 January 2014 lecture on Judicial Ethics at the ADC-ICTY’s Twelfth Defence Symposium for interns and staff at the ICTY.  The complete document is available on my website.

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The Sow dilemma

Having discussed Harhoff in some detail (an entire day can be spent analyzing all the nuances of this matter), I segued into what I referred to as the Sow dilemma: what can and should a judge do when — rightly or wrongly — he or she is confronted with a perceived act of injustice in the making by fellow judges in a case in which he or she is sitting.

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Judge Sow

Judge Malik Sow, in an unusual and dramatic fashion, effectively accused his brethren in the Special Court for Sierra Leone (SCSL) Charles Taylor case, in which he was an alternate judge, of not properly engaging in serious deliberations in the case.  After the summary of the judgement was read, quite unexpectedly, Judge Sow proceeded to criticize the deliberative process in Taylor, casting a shadow of bias on his fellow judges and calling into question the integrity of the SCSL: Continue reading “Third Installment: JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS”

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Second Installment: JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS

This is the second installment in a series of posts drawn from a 24 January 2014 lecture on Judicial Ethics at the ADC-ICTY’s Twelfth Defence Symposium for interns and staff at the ICTY.  The complete document is available on my website.

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With the stage set, it was time to dissect the Harhoff matterJudge Harhoff’s folly, due to what I would later refer to as the Harhoff syndrome is a treasure trove for a lecture on judicial ethics – the perfect point of departure for discussing the Furundžija “reasonable apprehension of bias” test.

The Harhoff Syndrome 

SONY DSCJudge Frederik Harhoff, in a letter to fifty-six personal contacts[1] that was apparently leaked to the press, expressed some of his innermost thoughts, which, even when viewed in the light most favorable to him, demonstrate his inability (or perhaps his unwillingness) to adhere to the universally recognized fair trial right to the presumption of innocence, with the burden being with the prosecution.[2]  Judge Harhoff’s sentiments are quite frequently shared (though not revealed – at least not on paper or in transparent gatherings) by many human rights/humanitarian advocates appointed as international judges, who, although possessing impressive credentials, lack necessary practical experience, and, more worrisome, are challenged when it comes to rigorously applying the most fundamental precepts of fair-trial rights: the presumption of innocence afforded to the accused and burden of proof resting on the prosecution.  Judge Harhoff assuredly understands as a theoretical construct the presumption of innocence.  But when it came to applying it, his predilection for victim-based justice and unwillingness to conform to the standards of justice led him to take the position that an accused (at least if a high military officer) must, ineluctably, be deemed guilty as charged, unless proved otherwise.  A classic case of inappropriate burden-shifting.  This, in my opinion, is the Harhoff syndrome in its purest form.  Judges at the international tribunals who suffer from this affliction—and there are a few—are generally discreet, frustrating a defence counsel’s ability to establish the objective prong of Furundžija when the need to disqualify is seemingly palpable. Continue reading “Second Installment: JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS”

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JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS: Drawn from Michael G. Karnavas’s lecture at the ADC-ICTY’s 12th Defence Symposium

EthicsOn 24 January 2014, I was invited to lecture on Judicial Ethics at the ADC-ICTY’s Twelfth Defence Symposium for interns and staff at the ICTY.  Some 45 interns and other court staff attended.  Hardly an academic exercise in theoretical constructs, I tried to keep the presentation lively with vivid examples such as Harhoff’s folly, Sow’s dilemma, Robertson’s hubris.  My aim was to present practical applications of the jurisprudence on judicial ethics (and misconduct) to young lawyers—primarily from the defence perspective—though relevant for young, impressionable lawyers working in Chambers and for the Prosecution.

Through a series of blog posts I will review and expand upon the lecture.  The complete document is available on my website.

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  I. INTRODUCTION

The lecture explored (in general terms due to time constraints) the jurisprudence of the international tribunals, giving practical advice on what to do when a potential instance of bias may affect a client.  The step-by-step process, if you will.  Because occasionally there is an insufficient amount of on-record evidence to support a challenge, I shared my thoughts on setting up a challenge for disqualification by drawing out the dubious conduct or insidious evidence needed for a credible challenge. Continue reading “JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS: Drawn from Michael G. Karnavas’s lecture at the ADC-ICTY’s 12th Defence Symposium”

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Reflections on the Final Declaration of the First International Meeting of Defence Offices

On December 4-5 2013, the French Bar Association along with François Roux, the Head of the Defence Office of the Special Tribunal for Lebanon (STL), hosted the First International Meeting of Defence Offices.  The discussions provided a forum to exchange ideas concerning various challenges defence counsel face before the international criminal tribunals, especially the “difficulty of ensuring that the defence is recognised as one of the essential pillars of a fair and credible justice system.”employees-together

These feel-good congregations are useful for inspiring defence lawyers to bond over common concerns. Occasionally they produce aspirational declarations – emphasis on aspirational.  Understandably, Final Declarations were proclaimed at this gathering.  From the Final Declarations, two specific matters are worth commenting on: a. the need for a defence section to be an organ of the tribunal (as at the STL); and b. the recent events in the Bemba case, where part of the defence team was arrested for witness tampering.  Reticent to intrude, since I did not attend the conference, I’ve decided to weigh in with my thoughts, annoying as they may be.    Continue reading “Reflections on the Final Declaration of the First International Meeting of Defence Offices”

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News and Events

This chapter considers whether the ad hoc nature of ICC trial proceedings risks undermining the ICC’s credibility. The Rome Statute and the ICC Rules of Procedure and Evidence have sufficient constructive ambiguity as to how trials should be conducted such that, depending on the serendipitous composition of the Trial Chamber, trials can be shaped in a more ‘adversarial’ or more ‘inquisitorial’ fashion. This malleability, which may have been the result of a diplomatic compromise, has resulted in ad hoc trial proceedings at the ICC; no two trials are: conducted in the same manner. Since the hallmarks of any good court are uniformity, predictability, and reliability in its proceedings, does this feature, which is unique to the ICC, risk undermining the legitimacy of the ICC’s judgments and, inexorably, the ICC itself?

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ADC-ICTY holds its General Assembly: transitioning into the MICT

Last Saturday, November 30, the Association of Defence Counsel (ADC-ICTY) held its annual General Assembly.  As in the past, it was preceded by a training session, though this year was a bit different.  While past trainings have been about trial and appellate skills, substantive law, procedural amendments and ethics, this year is was all about the Mechanism for International Criminal Tribunals, or MICT, or just Mechanism.   Ditto for the General Assembly.  By constitutional requirement, the ADC must hold a General Assembly to ADC_TrainingPanel2_30Nov13account the past year’s events and achievements, and to plan for the coming year’s challenges. And so, the Mechanism was much on our mind.

This year’s training was more of an exploration of thoughts and concerns about manner and means; the mechanisms of the Mechanism, if you will.  The Mechanism essentially mirrors the Statute and Rules of Procedure and Evidence of the ICTY and ICTR.  Substantively, little seems to be different.  Yet, questions abound.  As the ICTY transitions into the MICT (currently coexisting while the ICTY cases are coming to completion), most are concerned with post-conviction relief issues – especially how an aging, far flung population of inmates will be served when no compensation of counsel is required under existing ICTY jurisprudence, though as a matter of past practice a few hours could be granted depending upon circumstances. Not encouraging. Continue reading “ADC-ICTY holds its General Assembly: transitioning into the MICT”

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The ADC-ICTY Legacy Conference: Lawyers for the damned ruminate and reminisce

On 29 November 2013 the ADC-ICTY held its first and only legacy conference … in The Hague.

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Michael Karnavas (c-r) moderates ADC-ICTY Legacy Conference Panel I: Rights of the Accused, with The Right Hon. Lord Iain Bonomy (c-l), Mira Tapušković (r) and Christopher Gosnell (l).

For over a year, significant efforts were made to get funding for a set of ADC-ICTY legacy conferences to be staged in the affected republics of the former Yugoslavia. Requests for financial assistance were sent to countless embassies and academic institutions. Only the U.S. Embassy in Belgrade and the Law Faculty of the Erasmus University of Rotterdam responded; the former offering financial assistance for the publication of a text on the conference, and the latter providing financial assistance to cover the cost of hosting the conference in The Hague. There would be no road show, no Q&A from the folks most impacted by the ICTY, no opportunity for the lawyers of the damned to be heard in situ. Just this one chance. And, not because of any real encouragement and support from the ICTY (not when one considers this institution’s boundless self-indulgent self-promotion, much to the exclusion of the Defence), but despite the lack of it. Continue reading “The ADC-ICTY Legacy Conference: Lawyers for the damned ruminate and reminisce”

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