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

  • On 9 December 2017, Michael G. Karnavas delivered a presentation via Skype at the annual conference of the Association of Defence Counsel practising before the International Courts and Tribunals (ADC-ICT). This year’s theme was International Crimes: Past, Present and Future Perspectives. Participating on the panel focusing on the current developments relating to the core crimes at the international(ized) criminal courts and tribunals, Mr. Karnavas discussed the meaning of “civilian” for the purpose of Crimes Against Humanity at the Extraordinary Chambers in the Courts of Cambodia (ECCC). This issue emerged in light of the recent call for submissions and decision by International Co-Investigating Judge Michael Bohlander, who is currently investigating Cases 003 and 004. The question posed by Judge Bohlander in his call for submissions, to which eleven amici curiae along with the parties responded, was whether under customary international law between 1975 and 1979 (ECCC’s temporal jurisdiction) an attack against a state’s own armed forces amounted to an attack against a civilian population for crimes against humanity. To view the Summary of Michael G. Karnavas’s presentation click here. For an in-depth discussion of this issue, see his three-part blog post series here, here, and here.
  • On 25-27 October 2017, Michael G. Karnavas participated in the Academy Colloquium International Criminal Justice and the Enforcement Deficit: In Search of Sui Generis Theories and Procedure at The Royal Netherlands Academy of Arts and Sciences (KNAW) organized by Professor André Klip (Maastricht University) and Professor Steven Freeland (University of Western Sydney). The discussion was divided into four blocks addressing: The Character of the (Hybrid) International Criminal Tribunal (Block 1); Substantive Criminal Law Issues (Block 2); Procedural Challenges (Block 3); and Evading Pavlov, is international criminal justice the only way? (Block 4) Click here for the Colloquium Agenda and here for a blog post on Michael G. Karnavas’s presentation on the Position of the Defence and Adequate Facilities.
  • On 24 October 2017, Michael G. Karnavas participated in Evidence Commentary Coordination and Authors’ Meeting at the premises of the German Embassy in The Hague. The project’s aim is to publish a commentary on the law of evidence at the international criminal courts and tribunals, which would serve as a comprehensive guide for practitioners and scholars alike on the growing jurisprudence on evidence. Michael G. Karnavas will focus and analyze the relevant law on the topic of the testimony of the accused.

Continue reading “News and Events”

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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The ADC-ICTY Legacy Conference: The Defence perspective on what really happened at the ICTY

logo ADC 2004.jpg-for-web-normalThe Association of Defence Counsel Practicing Before the ICTY (“ADC”), established under Dutch law, came into existence on 20 September 2002 when it held its first General Assembly.  With the blessings of the ICTY Judges at their July 2002 plenary meeting, the Rules of Procedure and Evidence were amended to require counsel’s membership in the ADC.  Essentially, the ADC has been the Bar for some 350 plus counsel at the ICTY.  While not always appreciated for its true worth, the ADC has lived up to much of the expectations by providing a unified voice championing the causes of Defence Counsel and of their client’s fair trial rights.

Before the ADC, counsel had no say in the amendment of rules, no say in the setting of policies and practice directives that affected counsel, and no say in the remuneration schemes adopted by the Registry.  Counsel had to go through extra security, required escort to use the library and did not even have access to the canteen where prosecution and chambers’ staff mingled.  That all changed with the establishment of ADC. Continue reading “The ADC-ICTY Legacy Conference: The Defence perspective on what really happened at the ICTY”

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