Response to observations on Article 27 of the ICC Statute

In his comment to my 12 December post on the The New RPE 134 Provisions, our colleague Boniface Njiru makes some insightful observations on Article 27 of the ICC Statute.The ICC Statute was a work in progress for many years.  Drafted by committee and based on political compromises, there are some who claim that it reflects what is (or should be) considered customary international law (CIL).  This is an overreach; the jury, as it were, is still out on this.  We saw this played out recently over Bashir: while accepting that he had no immunity at the ICC because of the ICC Statute, CIL continues to allow heads of state personal immunity, with some claiming, rather credibly, that a State would be violating CIL by arresting Bashir and turning him in to the ICC for prosecution (see e.g. http://www.crimesofwar.org/commentary/the-icc-bashir-and-the-immunity-of-heads-of-state/).

One thing is certain since Nuremberg: little or no quarter was to be given to political and military leaders for committing acts recognized as international crimes by the community of mankind.  Thus, it was to be expected that no political leader, sitting or otherwise, would be immune from prosecution before the ICC.  That was the intent of all those who signed on to the Rome Statute, eyes wide open.

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About Michael G. Karnavas

photogallery6-michael-courtroom-18-jul-12-3Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various international tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.  Click here to visit Michael’s web site.

Michael G. Karnavas lectures students at the Grotius Centre for International Legal Studies on the role of defence counsel:

 

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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.

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The New RPE 134 Provisions: cowardly capitulation or pragmatic resolution?

ASP_2013Much of the commentary on the Assembly of State Parties (ASP) added provisions to Rules 134 (bis, ter and quater) of the ICC Rules of Procedure and Evidence (RPE), which ease the requirement for an accused to be physically present at trial, has been disdainful. But before we consider potential effects of these new provisions, or lack thereof, let’s first look at the substance.  Does the ICC Statute permit the Rules to be amended so accused – political leaders, no less – can be excused from attending parts of their trials due to “exceptional circumstances” or because of “extraordinary public duties”?  Were the amendments necessary?  Did the ASP exercise sound judgment?  Though the answers to these questions seem to be yes, guarded cynicism is justified.  From time to time, trial chambers will no doubt be tempted by the political siren calls for accommodation and realpolitik.  Implementing these added provisions to Rule 134 will require prudence, finesse and judiciousness. As they saying goes: the proof of the pudding is in the eating.

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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.

KarnavasLegacyConf_29Nov13
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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A draft Constitution for the Bar of List Counsel: Let the discussions begin!

As promised, a few days ago I circulated the draft constitution I have been working on for the past month. (Links to Draft English / French)  There was no real need to re-invent the wheel and start from scratch.  I took as a base the ADC-ICTY Constitution.  While not perfect and certainly limited to the ICTY matrix, it has been tried and tested.  Based on my experience both as a member and having served on numerous ADC-ICTY committees, including three years on the Executive Committee, two of which as President, I believe this document provides a solid point of departure.  Last year I forwarded it to the Coordinators of the ALC-ICC, recommending its utility.   Continue reading “A draft Constitution for the Bar of List Counsel: Let the discussions begin!”

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A constitutional framework for a professional Bar of List Counsel at the ICC

After a year of mulling the various options available for List Counsel in organizing themselves to collectively meet the challenges they face at the ICC, the best option that emerged was the formation of a truly professional Bar.  While an association – as in a trade union – would be simpler and quicker to form, when considering the permanence and intended undertaking of the ICC, only a genuine professional Bar would be capable of having the desired enduring influence. Such a Bar will require ICC recognition: a tall and time-consuming order.  List Counsel must nonetheless soldier on in constituting a Bar.  The starting point is the drafting of a constitution, a collaborative process that is well under way, overseen by the coordinators of the Executive Committee formed last year by the List Counsel interested in establishing an ICC Bar for List Counsel.  Once the Constitution is adopted, the Bar can be registered and commence functioning. So, what of this Bar and how should it be constituted?

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Why Establish a Bar of List Counsel of the International Criminal Court?

Can justice be achieved at the ICC without due process of law?  Can due process of law be achieved at the ICC without List Counsel?  Can List Counsel meaningfully fulfil their duties and obligations to their clients if there is inequality of arms or asymmetry between them and the Prosecution?  Can the internationally recognized standards and human rights principles be seriously advocated by List Counsel if they are without a collective voice that champions their needs so they can, in turn, champion the needs of their clients?

No reason to tax the mind pondering these questions.  Article 67 of the ICC Statute, and Rule 20 of the Rules of Procedure and Evidence require the Registrar to promote a robust defence for all accused based on internationally recognized fair trial rights.  Correspondingly, Article 68 of the ICC Statute and Rules 90, 91, 92 and 93 of the Rules of Procedure and Evidence provides for robust victim participation in court proceedings in person or through their legal representatives. Continue reading “Why Establish a Bar of List Counsel of the International Criminal Court?”

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