Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof, Part III-A – Common Law

Part III-A — Common Law Approach

Good men everywhere praise the presumption of innocence. And be they Frenchmen, Germans, or Americans, they agree on the demand of the presumption in practice. Both here and abroad, the state’s invocation of criminal sanctions demands a high degree of proof that the accused has committed the offense charged. To express the requisite standard of proof, common lawyers speak of the prosecutor’s duty to prove his case beyond a reasonable doubt. And Continental lawyers invoke the maxim in dubio pro reo – a precept requiring triers of fact to acquit in cases of doubt.1George P. Fletcher, Two Kinds of Legal Rules: A Comparative Study of Burden-of-Persuasion Practices in Criminal Cases, 77 Yale L. J. 880, 880 (1968).

This post follows up on my discussion on the common and civil law approaches to the standards and burdens of proofs.  I began this series of posts by setting out the background and discussing relevant terms and definitions.  I then provided a brief overview of how the common and civil law systems split off and developed over the centuries and how the reasonable doubt standard came about.  I also touched upon the in dubio pro reo principle as it relates to the standard of proof.  In the next two posts I will separately discuss the common and civil law systems in order to compare and contrast their respective approaches to the standards and burdens of proof. Continue reading “Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof, Part III-A – Common Law”

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Historical Aspects of the Standard of Proof Beyond a Reasonable Doubt & The Principle of In Dubio Pro Reo

We all know that, when a criminal lawyer has to defend a case where the facts are all against him, his uniform and too often unfailing resource is the law.  Upon this he falls back. The doctrine of ‘reasonable doubt’ is kept always in the front. The reports are ransacked for loose definitions by careless judges in insignificant cases. The extravagant and unsupported ‘dicta’ of the text-writers, made perhaps in support of a theory of what the law ought to be, rather than as proof of what it has been authoritatively declared to be, are hunted up with untiring zeal. These are reenforced by a series of cases – fabulous and authentic – scattered through the musty annals of crime, in which, it is said that innocent persons have been convicted. The whole mass of bewildering definitions, extravagant ‘dicta,’ astounding facts, or fictions, as the case may be, is then arrayed with greater or less skill, according to the ability of counsel, and paraded before the jury with pathetic solemnity. Of course, the object of all of this is to confound and befog; to bring the jury into that state of amazement, apprehension and uncertainty, which will disqualify them to deal calmly and rationally with the facts of the case before them….1John W. May, Some Rules of Evidence: Reasonable Doubt in Civil and Criminal Cases, 10 Am. L. Rev. 642, 662-663 (1876).

In common law and hybrid systems where the proceedings are adversarial defense lawyers are ethically bound to represent zealously their clients. This duty is universally recognized in virtually all national and international codes of professional ethics. Continue reading “Historical Aspects of the Standard of Proof Beyond a Reasonable Doubt & The Principle of In Dubio Pro Reo”

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Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof

Hybrid: Anything derived from heterogeneous sources, or composed of elements of different incongruous kinds.  (The Oxford English Dictionary, Second edition, Vol. VII, Oxford University Press 1989)patchwork

Since Nuremberg, every international or internationalized criminal tribunal (ICTY, ICTR, SCSL, ECCC, ICC, STL) has adopted hybrid proceedings: mixing, matching, and manipulating procedural modalities from common law and civil law systems.  I use the plural for “systems” because there is no such thing as the common law system or the civil law system.  There are small and large differences among the legal traditions.  In common law systems one sees significant differences between the US model, virtually exclusive to the US, and the UK model, seen the world over in the Commonwealth and former UK colonies. The civil law systems can roughly be divided into two major models, the French model (with the investigative judge) and the German model, where the prosecutor charges and investigates, though even between each of these models there can be significant differences.  And of course there are also what I would call the hybrid civil law systems, as in Italy, Bosnia and Herzegovina, Macedonia, and elsewhere, where adversarial modalities have been added to the proceedings, i.e., allowing the accused to gather evidence, permitting the parties to initiate the questioning of witnesses and to cross-examine opposing witnesses with leading questions, and even placing the burden of proof on the prosecution to a standard of proof beyond a reasonable doubt. Continue reading “Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof”

Attorney-Client Privilege – Part II: Foundation in National Systems

In my previous post, I explained why I filed a request for leave to file an amicus brief in Prosecutor v. Bemba Gombo et al. (“Bemba”) at the ICC, and provided the factual context of the case relevant to the issue of attorney-client privilege communications. In Bemba, the Trial Chamber ordered several communications between Counsel, the client, the case-manager, and others to be transmitted to the Office of the Prosecutor (“OTP”) and other parties.1Prosecutor v. Bemba Gombo et al., ICC-01/05-01/13-947, Decision Providing Materials in Two Independent Counsel Reports and Related Matters, 15 May 2015, paras. 22, 32, 33, 35-37. Thus, several issues surfaced. What is the scope of the attorney-client privilege? What types of communications does it cover? Who does it cover? As this privilege has its foundations in national systems, before addressing the overarching issue of attorney-client privilege before international tribunals and specifically the ICC, a brief discussion of its basic principles in national jurisprudence may be helpful. This post will provide a historical background of the attorney-client privilege, its parameters, and its exceptions in national jurisdictions. The intent is to provide the basic principles with some illustrative examples, as opposed to an extensive exegesis with an exhaustive list of relevant jurisprudence. Continue reading “Attorney-Client Privilege – Part II: Foundation in National Systems”

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ADC-ICTY Advocacy Training: Case Preparation, Direct and Cross-Examination

Michael G. Karnavas, ADC-ICTY Training 28 March 2014On 28 March 2015, the Association of Defence Counsel Practising Before the International Criminal Tribunal for the Former Yugoslavia (ADC-ICTY) invited me to present a full day of Advocacy Training. The event was held from 9am to 7pm at the ICTY in The Hague, The Netherlands. The aim of the training day was to help guide legal professionals through the process of preparing a case and to provide tips and approaches for direct and cross-examination. I also re-examined the core principles of evidence and objections that were covered in the Defence Symposium on 12 March 2015. Continue reading “ADC-ICTY Advocacy Training: Case Preparation, Direct and Cross-Examination”

Establishment of a Victims and Defence Office at the ICC

Expert Conference on the Establishment of an ICC Victims and Defence Office
Establishment of committee to draft a constitution for and ICC Bar for List Counsel

On the 23rd and 24th of March 2015, the ICC Registrar held a conference of experts to discuss the establishment of a Victims Office and a Defence Office and the potential establishment of an association or bar for List Counsel. I was privileged to have been invited. Prior to the conference, the Registrar distributed his concept for the reorganization of the current setup with that envisaged by him and the ReVision team he set up for reorganizing the entire Registry. In addition to the Concept Note, there was an agenda which reflected the areas of discussion, and a draft basic outline of the Registrar’s proposals. Continue reading “Establishment of a Victims and Defence Office at the ICC”

Evidence and Objections: ADC-ICTY Defence Symposium

You need to know the WHY in order to know the WHEN;
but if you do not know the HOW,
knowing the WHY and WHEN will be of no help.

KarnavasADCEvidTraining_12Mar15On Thursday 12 March 2015, I conducted a Defence Symposium as part of the Advocacy Training at the Association of Defence Counsel Practising Before the International Criminal Tribunal for the Former Yugoslavia (“ADC-ICTY”). The topic was “Evidence and Objections”. The two-hour Symposium covered general principles and types of evidence, and how, why and when to make objections. The objective was to familiarize young lawyers, especially those coming from a civil law system, with the general evidentiary principles one is likely to encounter during a trial at one of the international criminal tribunals.


I began by highlighting two critical obligations of Counsel: due diligence and making the record. These obligations to the client cannot be stressed enough. Counsel must satisfy the duty of due diligence to ensure the client’s fair trial rights are protected. One element of being due diligent is to make timely and specific objections that preserve the errors for appeal, i.e. making the record. Since on appeal we are bound by the four corners of the record, failure to preserve errors in the record at the time when the errors were made can be fatal to a possible appeal. God may know but the record must show.1Jones v. Vacco, 126 F.3d 408, 417 (2d Cir. 1997). Continue reading “Evidence and Objections: ADC-ICTY Defence Symposium”

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In my last post, I addressed the applicability of JCE III, arguing that as a product of judicial creation, JCE III does not exist in customary international law and should not be applied. This post is a follow up in light of the 30 January 2015 ICTY Appeals Chamber Judgement in the Srebrenica case, Prosecutor v. Popović et al., affirming the convictions for genocide.1Prosecutor v. Popović et al., IT-05-88-A, Judgement, 30 January 2015, paras. 1670-1674.

One of the Popović Accused, Miletić, had argued that the Trial Chamber erred in law in holding that JCE III existed in customary international law at the time of the events.2Prosecutor v. Popović et al., IT-05-88-A, Judgement, 30 January 2015, para. 1670. He emphasized that the Extraordinary Chambers in the Courts of Cambodia’s (“ECCC”) rejection of JCE III shows that it is not generally accepted and that its application is contrary to the nullum crimen sine lege principle.

Unfortunately, the Popović Appeals Judgement missed an exquisite opportunity to rectify the long-perpetuated error of law first made by the Tadić Appeals Chamber, which found that JCE existed in customary international law. Rather than engage in a constructive analysis, the Popović Appeals Chamber merely referred to its previous jurisprudence and found that Miletić failed to demonstrate any cogent reason to depart from it.3Prosecutor v. Popović et al., IT-05-88-A, Judgement, 30 January 2015, para. 1674. This has been the problem from the outset. No ICTY Chamber has been willing to thoroughly analyze the state of customary international law; instead they choose to refer back to prior Judgements as if these Judgements themselves are evidence of JCE’s customary status. Continue reading “POPOVIĆ APPEAL CHAMBER REFUSES TO REVIEW JCE III APPLICABILITY”

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Karnavas delivers ethics keynote in The Hague

imageOn November 8, 2014, the Association of Defence Counsel Practising Before the International Criminal Tribunal for the Former Yugoslavia (ADC-ICTY) held an ethics training in The Hague, The Netherlands.  Program attendees included ADC-ICTY members, interns and staff, as well as defence team members from the International Criminal Court (ICC) and the Special Tribunal for Lebanon (STL), staff of the ICTY/ICTR/MICT Registry, Prosecution and Chambers, and students from various universities around The Hague.  The Keynote address, which appears below, was delivered by Michael Karnavas. Continue reading “Karnavas delivers ethics keynote in The Hague”

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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