The ICC-ASP Independent Expert Review: Scrutinizing the past / proposing the future

Inherent in the structure of any international court or tribunal is the dual nature of the institution: the ICC is both a judicial entity (ICC/Court) and an international organisation (ICC/IO). As a judicial entity, the Court must benefit from judicial independence. As an international organisation, States Parties reasonably expect to be able to guide and shape the institution. Contradictions can arise between the two attributes of the ICC, and in practice such differences have led to tension between the ICC and the ASP. Whereas the dual nature of the ICC cannot be changed, employing this distinction can improve the clarity of reporting lines and improve cooperation.

Independent Expert Review of the International Criminal Court and the Rome Statute System, Final Report (IER), 30 September 2020, para. 26 (internal citations omitted).

Since we are starting a new year, it may be good to reflect on the 2020 Independent Expert Review (IER) of the International Criminal Court (ICC) and the Rome Statute System, commissioned by the Assembly of States Parties (ASP):

with a view to making concrete, achievable and actionable recommendations aimed at enhancing the performance, efficiency and effectiveness of the Court and the Rome Statute system as a whole, taking full account of the working languages of the Court, and submit those to the Assembly and the Court for consideration.1 Review of the International Criminal Court and the Rome Statute System, ICC-ASP/18/Res.7 (2019), para. 6.

Hemingwayesque in prose (modestly adorned short, plain sentences), Tolstoyesque in length (War and Peace in size and discordance), and Trumanesque in bluntness (unvarnished, curt, straight-talk), the final report of IER of the ICC is a dark, disenchanting, dispiriting read. But a must-read, nonetheless. Anyone currently working or hoping to work at the ICC, anyone working in any of the international(ized) criminal courts or tribunals, and anyone involved in establishing or aspiring to establish any future such courts, would be well served to carefully review and reflect on this report. Continue reading “The ICC-ASP Independent Expert Review: Scrutinizing the past / proposing the future”

Footnotes[+]

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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)”

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JCE Redux – THE KSC’S FIRST CONFIRMED INDICTMENT (Part 1)

This common purpose involved the commission of the crimes of persecution, imprisonment, arbitrary detention, other inhumane acts, cruel treatment, torture, murder and enforced disappearance. Its existence and contours are indicated by: (i) early public statements of the [Kosovo Liberation Army (KLA)], preceding the period of the charges; (ii) communiqués and political declarations of the KLA General Staff, public statements of KLA General Staff members, as well as other KLA publications, during the period of the charges; (iii) regulations, structures, directions and orders drafted, issued or approved by the Suspects; (iv) the pattern of crimes committed at the locations indicated under Counts 1-10; and the personal participation of the Suspects and other senior KLA/[Provisional Government of Kosovo (PGoK)] members in the commission of the crimes.

Prosecutor v. Thaçi et al., KSC-BC-2020-06/F00026/RED, Public Redacted Version of Decision on the Confirmation of the Indictment Against Hashim Thaçi, Kadri Veseli, Rexhep Selimi and Jakup Krasniqi, 26 October 2020 (“Confirmation Decision”), para. 454 (footnotes omitted).

In the heavily redacted 235-page public decision issued by the Kosovo Specialist Chambers (KSC) on 30 November 2020 confirming its first Indictment, the Specialist Prosecutor’s Office (SPO) lays out a cascade of crimes. A four-year trial lies ahead. Continue reading “JCE Redux – THE KSC’S FIRST CONFIRMED INDICTMENT (Part 1)”

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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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POSTSCRIPT: ELECTING THE NEXT ICC PROSECUTOR

Silence becomes cowardice when occasion demands speaking out the whole truth and acting accordingly.                                                                                                                                                                           Mahatma Gandhi

In The 26-year hunt for Africa’s most wanted man, reported by Tom Wilson in the Financial Times (accessible through google), Serge Brammertz comes across as a combination of John le Carré’s George Smiley (methodically and strategically using spycraft with the help of European security agencies, Interpol, and the Rwanda’s National Public Prosecution Authority) and Michael Connelly’s LAPD Detective Hieronymus “Harry” Bosch (diligently working a cold case with patience, perseverance, and precision in tracking Félicien Kabuga, accused of organizing the Rwandan genocide). Kabuga was arrested on 16 May 2020 in a Paris suburb. Continue reading “POSTSCRIPT: ELECTING THE NEXT ICC PROSECUTOR”

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ELECTING THE NEXT ICC PROSECUTOR: politics v. pragmatism

A prince should always seek advice, but only when he wishes and not when others wish. He must discourage everyone from offering advice unless he asks for it. However, he should inquire constantly, and listen patiently about those things of which he inquired… 

                                                                                           Machiavelli, The Prince

In The Prince – a masterful manual on realpolitik – Machiavelli advises leaders to avoid unsolicited advice, and instead, frequently ask for advice from trusted people and to listen to the advice given. Naturally, Niccolò Machiavelli violates this rule by offering unsolicited advice by way of The Prince – written to curry favor and perhaps secure a position from Lorenzo de’ Medici, ruler of Florence, Duke of Urbino.

Neither having prosecuted nor coveting a position in the Office of the Prosecutor (OTP) of the International Criminal Court (ICC), and bearing no gifts, I offer these musings to the powers that be who will elect the next ICC Prosecutor.

On 20 October 2020, Reuters reported an exclusive: that according to a diplomat who wished to remain anonymous, the ICC’s oversight body sent the States Parties a letter to inform them that “none of the four nominees had enough support” and proposed to “widen[] the search to include all 14 of the original candidates.”

This should have come as no surprise. Continue reading “ELECTING THE NEXT ICC PROSECUTOR: politics v. pragmatism”

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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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The Kosovo Specialist Chambers’ Rules of Procedure and Evidence: More of the Same Hybridity with Added Prosecutorial Transparency

The Kosovo Specialist Chambers’ Rules of Procedure and Evidence: More of the Same Hybridity with Added Prosecutorial Transparency, an article by Michael G. Karnavas, has been published in the International Criminal Law Review.

The Rules of Procedure and Evidence of the Kosovo Specialist Chambers incorporates procedural rules from Kosovo’s domestic legal system, innovative and useful modalities, procedural rules, practice directives, and lessons learned from the other international(ised) criminal tribunals. Based on a presentation given by Michael G. Karnavas on 22 June 2018 at Leiden University’s Grotius Centre Supranational Criminal Law Lecture Series — The Kosovo Specialist Chambers: Comparative Legal Perspectives — this article provides a defence perspective on some of the modalities found in the Rules of Procedure and Evidence. In the author’s opinion, some of the provisions on disclosure provide greater protections of fair trial rights for suspects and accused during the confirmation and pre-trial stages than the rules of other international(ised) criminal tribunals, while also maintaining the schizophrenic features found in these international(ised) jurisdictions — placing the burden of proof on the prosecution while granting the trial judges discretionary authority to engage in truth-seeking activities.

For an earlier discussion of the Kosovo Specialist Chambers, see Michael’s seven-part series:

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Reflections on the Cambodian Defenders 25 years later: from humble advocates to legal trailblazers   

Late Saturday night, July 13, 2019, NagaWorld Hotel ballroom, Phnom Penh, Cambodia. Tables full, food and libations flowing, laughter, music, Khmer traditional dancers, speeches, clinking of glasses, cake-cutting, idle chatter, happy faces, kind words. It’s the graduation party for the newly-minted lawyers having passed the last of their exams after finishing an intensive Bar course. As I look around, I wonder if any of these young Lawyers can fathom a Cambodia with virtually no lawyers, no Bar Association – or BAKC (Bar Association of the Kingdom of Cambodia) as it is known, when at best there were some trained human rights advocates working for NGOs, offering their services to indigent suspects and accused in some parts of Cambodia. Probably not. But yes, there was such a time, and it was not that long ago. Continue reading “Reflections on the Cambodian Defenders 25 years later: from humble advocates to legal trailblazers   “

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