Judges called to task for failure to defend the defence

On 2 August 2016, a prosecution expert lashed out at the Defence while being cross-examined at the ECCC.  The judges of the trial chamber sat silent.  In an opinion piece published 8 August 2016 in The Cambodia Daily, Michael G. Karnavas takes the judges to task for their complicit passivity.


Apathy Signals Open Season on Defense Lawyers in Case 002

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On August 2, 2016, Henri Locard, testifying as an “expert” in Case 002, lashed out at Khieu Samphan’s lawyer, Anta Guisse, claiming to have been put under “cold torture” the previous day when examined—“Historian Accuses Tribunal Lawyers Of ‘Cold Torture,’” (August 3).

The reference to cold torture, for those who have not followed the trial, is about one of the methods employed by Kaing Guek Eav, better known as Duch, at S-21, or Tuol Sleng, in extracting confessions. Mr. Locard then went on to say that if Ms. Guisse continued to apply cold torture, after three days maybe he would gift his persona to Angkar, implying that the questioning was a form of re-education to conform his thinking to that of the Democratic Kampuchea regime. Continue reading “Judges called to task for failure to defend the defence”

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The ADC-ICTY Publishes its Legacy Conference Proceedings

In 2002 Defence Counsel at the International Criminal Tribunal for the Former Yugoslavia (ICTY) formed the Association of Defence Counsel Practicing Before the ICTY (ADC-ICTY) to assist in promoting the fairness of the proceedings and to protect the interests of Defence Counsel. Eleven years later and after countless accomplishments, the ADC-ICTY held its Legacy Conference on 29 November 2013. And now the ADC-ICTY has published the Legacy Conference Proceedings, making it available online. Privileged to moderate the panel on the Rights of the Accused, I followed up with a short article, The Rights of the Accused, intending to capture the essence of the fair trial rights Defence Counsel endeavor to ensure for all suspects and accused appearing before international criminal tribunals.

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Karnavas critiques DeFalco article on “most responsible” at the ECCC

The ECCC has jurisdiction over “senior leaders of Democratic Kampuchea and those who were most responsible” for certain crimes within the ECCC’s jurisdiction. 1Agreement Between the United Nations and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, 6 June 2003, Preamble. Randle DeFalco’s article Cases 003 and 004 at the Khmer Rouge Tribunal: The Definition of “Most Responsible” Individuals According to International Criminal Law, concludes that the suspects in Cases 003 and 004 fall within the meaning of “most responsible” and that the only legally sound option is to bring the cases to trial.

According to Michael G. Karnavas:

DeFalco’s analysis is result-determinative and based on the premise that if the suspects are not found “most responsible” there will be no other trials and the suspects would escape criminal responsibility. Although DeFalco’s basic approach to determine the meaning of “most responsible” is sensible, through his analysis he commits several errors that lead him to his pre-determined conclusion. DeFalco’s conclusions are unsurprising when considering his association with Documentation Center of Cambodia (“DC-Cam”) and interest in verifying its pre-determined conclusion that genocide and crimes against humanity occurred in Cambodia.

Click here to read Karnavas’ full critique of DeFalco’s arguments, which has been submitted to DC-CAM for publication.

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Footnotes   [ + ]

ADC-ICTY LECTURE ON CONFLICTS OF INTEREST

“‘Conflict of interests’ is a term that is often used and seldom defined.”  1Cuyler v. Sullivan, 446 U.S. 335, 356 (1980) (United States Supreme Court Justice Thurgood Marshall, dissenting).

Michael Karnavas delivers ADC-ICTY Confilcts Lecture
Michael Karnavas delivers ADC-ICTY Confilcts Lecture

On 16 April 2014 I was invited by the Association of Defence Counsel practicing before the International Criminal Tribunal for the Former Yugoslavia (ADC-ICTY) to conduct training for its members and others on ethics. The topic chosen was Conflicts of Interest. The lecture lasted 2 hours. A modest PowerPoint presentation was used to guide the lecture which was based on handout material made available after the lecture. Certificates were also issued to the participants for those who wished to claim 2 hours of CLE on ethics with their national / state bar.

The lecture focused on the lawyer’s core responsibilities to the client in both national and international jurisdictions: competence, diligence, communication, confidentiality, loyalty, honesty, and independence. Principles that are universal.

Continue reading “ADC-ICTY LECTURE ON CONFLICTS OF INTEREST”

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Footnotes   [ + ]

Brown University Seminar – Part V

This five-part blog post is drawn from Michael G. Karnavas’s Seminar at the Brown University International Organization (BRIO) February 27, 2014.  The complete piece is available on Michael’s website.

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VI. CLOSING THOUGHTS

conclusionIn wrapping up the seminar, I discussed the implications of the various positions that are out there. To strike or not to strike. Operate outside the international legal framework, or operate as if within the international legal framework (as suggested by the UK) or alternatively with the view of recalibrating (redefining) the law on the use of force?

Military strikes against Syria without UN Security Council approval are almost certainly a violation of international law. Building a coalition of the willing that operates outside the UN would not make it any more legal, though, as in Kosovo, it could be viewed as legitimate or morally right.  Punishment is not a legal justification. International law does not seem to provide a right of states to respond with force to serious violations of international law—even when that law prohibits the use of chemical weapons. Continue reading “Brown University Seminar – Part V”

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Brown University Seminar — Part IV

This five-part blog post is drawn from Michael G. Karnavas’s Seminar at the Brown University International Organization (BRIO) February 27, 2014.  The complete piece is  available on Michael’s website.

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3. Discussion on Syria—is there a legal basis or justification outside the Security Council?

justificationThe United States’ positions discussed seem to provide a justification for the use of force based on punitive reprisals and anticipatory self-defense. However, President Obama gave mixed messages.  The US seems to be scoping out all the possible justifications for the use of force. An analysis of the legal rules governing countermeasures and reprisals, armed force in reaction to a breach of an international law norm is generally prohibited.[1] Similarly, the use of force in anticipatory self-defense is not regarded as lawful. It goes beyond the Caroline precedent as an armed attack from Syria on the US or UK is not imminent. A strict application of the UN Charter to determine the legality of the use of force under Articles 2(4), 39 and 42 leaves us with the proposition that any intervention outside the Security Council, apart from self-defense, would be unlawful. In regard to the UK position, R2P leaves us at square one—as it requires Security Council authorization. R2P does not solve any of the issues when there is Security Council deadlock. Continue reading “Brown University Seminar — Part IV”

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Brown University Seminar — Part III

This five-part blog post is drawn from Michael G. Karnavas’s Seminar at the Brown University International Organization (BRIO) February 27, 2014.  The complete piece is available on Michael’s website.

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IV. DISCUSSION

EvoloutionAfter going through all the various legal provisions, I touched on the evolution of the legal theory in practice. The law is not static, and this is not the first time we have seen this type of scenario. The situation in Kosovo in the 1990s involved intervention by a coalition of the willing outside the legal framework. A somewhat progressive legal doctrine “Responsibility to Protect”—“R2P” for short—was adopted shortly after NATO’s intervention in the former Yugoslavia, in order to develop some of the legal framework in regard to the use of force. However, today, we can see that R2P falls short of legalizing intervention outside of the UN framework. Perhaps this is the price paid for acting without UN Security authorization, when examining the evolution of R2P. Continue reading “Brown University Seminar — Part III”

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Brown University Seminar — Part II

This five-part blog post is drawn from Michael G. Karnavas’s Seminar at the Brown University International Organization (BRIO) February 27, 2014.  The complete piece is available on Michael’s website.

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III. LEGAL FRAMEWORK

SyriaWith the context of the Syrian conflict in mind, I then discussed the legal framework which governs the use of force in this scenario. There are many legal provisions in the UN scheme as well as treaty and customary law which govern the use of force. I briefly took the students through these legal provisions in order to engage them in an analytical process so they could reach their conclusions—or at least cause them to look beyond any preconceptions they may have had coming into the seminar. Continue reading “Brown University Seminar — Part II”

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Karnavas gives seminar at Brown University: Red Lines and Game Changers — The Legality of Unilateral or Collective Use of Force in Syria

This five-part blog post is drawn from Michael G. Karnavas’s Seminar at the Brown University International Organization (BRIO) February 27, 2014.  The complete piece is available on Michael’s website.

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I. INTRODUCTION

Brio_logoOn February 27, 2014 I held a seminar on Syria at Brown University in Providence, Rhode Island, sponsored by the Brown University International Organization (BRIO): “Red Lines and Game Changers—The Legality of Unilateral or Collective Use of Force in Syria.” This seminar was intended to guide Brown University students through the legal framework surrounding the potential, and controversial, use of force in Syria by the United States in response to the use of chemical weapons.

To briefly introduce the Syrian conflict, the Human Rights Council has described the situation in Syria as follows: “The Syrian Arab Republic is a battlefield. Its cities and towns suffer relentless shelling and sieges. . . . Government and pro-government forces have continued to conduct widespread attacks on the civilian population.”[1] Further underlying the exigencies of the situation, United Nations Secretary-General, Ban Ki-moon found that chemical weapons were used on a relatively large scale, resulting in numerous casualties, particularly among civilians, including many children.[2] The seriousness of these allegations has sparked a number of responses from governments and officials. Continue reading “Karnavas gives seminar at Brown University: Red Lines and Game Changers — The Legality of Unilateral or Collective Use of Force in Syria”

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Karnavas article published in The Cambodia Law and Policy Journal

CLPJ_ISSUE_01_JANUARY_2014-1_CoverThe inaugural issue of The Cambodia Law and Policy Journal, Issue 01, January 2014, p. 29, has published an article by Michael G. KarnavasBringing Domestic Cambodian Cases into Compliance with International Standards – Applicability of ECCC Jurisprudence and Procedural Mechanisms at the Domestic Level. Continue reading “Karnavas article published in The Cambodia Law and Policy Journal”

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