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”
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.
On 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”
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”
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.
Agreement 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.
For several years there have been talks and initiatives by members of the ICCList Counsel to establish a Bar or an Association. Indeed, in the last couple of years we have seen a growing interest, if not impatience, for a Bar or Association.
Last year I circulated a draft Constitution for an ICC Bar for List Counsel (click language choice to see draft in English or French) based in part on an earlier initiative and inspired by the ADC-ICTY model. I also circulated a modest commentary. But as in the past, the momentum and enthusiasm waned with the passage of time.
Then, out of the blue, the ICC Registrar, Herman von Hebel, sent an outline of proposals to be discussed during a meeting with List Counsel held on 16 September, wherein he expressed an interest in the establishment of an Association by, for and of List Counsel, that would be officially recognized by the ICC. Just what many of us have been advocating since as far back as 2007.
On the eve of the Khmer Rouge Tribunal Trial Chamber’s pronouncement of the judgement in Case 002/01 against KHIEU Samphan and NUON Chea, the Associated Press asked experts, including Michael Karnavas, to discuss the significance of the trial.
Having elaborated on the importance of perfecting the record, and having the standards of appellate review in mind, I began to discuss in detail how to perfect the record. Counsel needs to see clearly how the case may unfold in each step of the proceedings, from the pre-trial stage to appeal stage. Cases are organic. Everything that is done at the pre-trial and trial stages may eventually be relevant on appeal. Even at the pre-trial stage, Counsel should be able to see far ahead what sorts of challenges he or she may raise at each stage, reopen at a later stage and bring on appeal. Conversely, on appeal Counsel is limited to whatever is already in the record unless there is a mechanism to adduce additional evidence such as Rule 115 of the ICTY Rules of Procedure and Evidence (ICTY RPE). Counsel ought to be aware of all options and mechanisms at each stage. This means being diligent in investigating the case, skilfully challenging all legal and factual issues through written submissions that fully preserve all errors, making and meeting oral objections during the proceedings, and putting on a case (which can be done strictly through confronting the prosecution case) that has a consistent, plausible, and well-developed theory. Continue reading “The Diligence That Is Due – Part II: How to Make the Record”
While we do not believe the trial judge testified untruthfully, we recognize that the written word in the record is ‘black and white’ evidence of what did or did not occur, whereas an individual’s recollection of those same events blur into gray. This case demonstrates the validity of an old legal truism: God may know but the record must show.
Jones v. Vacco, 126 F.3d 408, 417 (2d Cir. 1997) (emphasis added).
On 14 May 2014 Michael G. Karnavas and Co-Lawyer ANG Udom filed an Amicus Curiae Brief urging that the ECCC is unable to exercise subject matter jurisdiction over grave breaches of the Geneva Conventions because those crimes are subject to a 10-year statute of limitation, which has expired for crimes committed from 1975-79. Read the brief here.