JUST HOW RELEVANT IS THE ICC: A Viable Court of Last Resort or A Politicized Court of Low Expectations? Part I

This multi-part blog post is drawn from Michael G. Karnavas’s Lecture at the Brown University International Organization (BRIO) February 26, 2014.  The complete piece is available on Michael’s website.

♦ ♦ ♦ ♦

I. INTRODUCTION

Brio_logoOn 26 February 2014, I was invited by the Brown University International Organization (BRIO), at Brown University, Providence, Rhode Island, to present a lecture on the International Criminal Court (ICC) relevant to the ongoing events in Syria.  It is beyond cavil that the ICC is a response to the international community’s concern for mass atrocities around the world—genocide, war crimes, and crimes against humanity—designed “to put an end to impunity” and bring justice to countless victims and survivors.  Merciless leaders have escaped prosecutions by threatening or corrupting their own judiciaries.  The ICC is meant to be a court of last resort for victims seeking justice beyond the reach of obstruction.  In its twelve year history is the ICC meeting expectations?  Is the ICC rendering justice, or has it become a political tool?  Today the ICC faces many complex challenges that call into question the viability of the institution.

With the Syrian conflict in full bloom and no end in sight to the mass atrocities being committed by all sides to the conflict, I settled on the topic of: Just how relevant is the ICC: A viable court of last resort or a politicized court of low expectations?  My aim was not to lecture on international criminal law or on the establishment of the ICC, but to highlight some of the ongoing legal and political challenges relating to jurisdictional issues.  After taking the students through the historical development of international justice—from pre-Nuremberg to Syria—I offerred several vignettes to provoke a discussion and critical thinking.  It would be up to the students to decide on the ICC’s report card.  Personally, I give it an overall average of D+/C-.

Continue reading “JUST HOW RELEVANT IS THE ICC: A Viable Court of Last Resort or A Politicized Court of Low Expectations? Part I”

Share

The Co-Prosecutors’ attempt to eviscerate the principle of legalism at the ECCC … and beyond

Lok Ta Dambong Dek, a.k.a. the Lord of the Iron Staff, before whom all Buddhist witnesses at the ECCC take an oath prior to testifying
Lok Ta Dambong Dek, a.k.a. the Lord of the Iron Staff, before whom all Buddhist witnesses at the ECCC take an oath prior to testifying

On 4 March 2014 the ECCC Co-Prosecutors proposed amendments to ECCC Internal Rules 55 and 89ter to enable crime sites and criminal incidents to be excluded from the scope of investigation or trial upon their proposal. The proposed amendments, if recommended by the Rules and Procedure Committee and adopted by the Plenary, would introduce a procedure that is that is not founded in the Cambodian civil law system and which would not respect the principle of legalism that is unquestionably applicable before the courts of Cambodia, including the ECCC.  Bluntly, the Co-Prosecutors are urging the Rules and Procedure Committee and the Plenary to engage in “situational ethics” to disregard the applicable law and legal system because it does not accommodate them.  The Co-Prosecutors are urging the Judges to act ultra vires.  Accordingly, I have submitted observations urging the Judges to reject the Co-Prosecutors’ proposed amendments in their entirety.

Essentially, under the principle of legalism, also called prosecutorial legalism, the prosecutor must prosecute when it is clear that a crime has been committed. The prosecution has no discretion as to whether to investigate crimes known to have been committed or to drop charges once an indictment has been secured.  Judges have no discretion to abandon charges: whatever is in the indictment must be tried. Continue reading “The Co-Prosecutors’ attempt to eviscerate the principle of legalism at the ECCC … and beyond”

Share

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.

♦   ♦   ♦   ♦

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”

Share

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.

♦   ♦   ♦   ♦

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”

Share

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.

♦   ♦   ♦   ♦

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”

Share

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.

♦   ♦   ♦   ♦

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”

Share

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.

♦   ♦   ♦   ♦

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”

Share

Al Jazeerah article quotes Karnavas on ECCC aspiration vs. actuality

ECCC_LogoI was recently asked by journalist Julia Wallace to provide some thoughts for an article she was writing for Al Jazeera, focusing whether the ECCC has had a positive impact on the Cambodian court system.  Though I was quoted correctly and reasonably in context, much of what I had provided was lost during the editing process. Since the article came out (http://www.aljazeera.com/indepth/features/2014/03/khmer-rouge-tribunal-failing-expectations-20143293030347313.html) some have commented that my views are overly harsh and dismissive, or that I fail to acknowledge the challenges in Cambodia.   I think not, but you be the judge.  Here is the full text of what I provided to Ms. Wallace for the Al Jazeera article:

I have been involved in various projects over the past 20 years dealing with the Cambodian judicial system.  I am also a big supporter of harvesting what is useful and applicable from the ECCC, both procedurally and substantively, and to apply it in the regular courts.  (See my article, based on my presentation at the ECCC legacy conference: Bringing Domestic Cambodian Cases into Compliance with International Standards – Applicability of ECCC Jurisprudence and Procedural Mechanisms at the Domestic Level, posted on my blog michaelgkarnavas.net/blog).  With this as a backdrop, I’ll attempt to provide some answers to your questions.

Continue reading “Al Jazeerah article quotes Karnavas on ECCC aspiration vs. actuality”

Share

Eighth and Final Installment: JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS

This is the eighth, and final installment, in a series of posts drawn from a 24 January 2014 lecture on Judicial Ethics at the ADC-ICTY’s Twelfth Defence Symposium for interns and staff at the ICTY.  The complete document is available on my website.

 ♦   ♦   ♦   ♦

H. The Obligations of Defence Counsel in exercising due diligence

French_lawyer_early_20thLastly, I discussed obligations that also lie with Defence counsel.  Indeed, Defence counsel have to be diligent to raise disqualifications early in the proceedings and to the right authority.  I put the accent on how important is to make the record.  I used the Čelebići case as an example in which the issue was whether a Judge was fit to be a Judge.

ICTY Prosecutor v. Delalić et al. (Čelebići), The Case of the sleeping Judge, and the Defence’s failure to raise

In Čelebići, Judge Karibi-Whyte was sleeping during substantial portions the trial proceedings.[1]  Defence counsel for Landžo did not formally raise this issue before the Trial Chamber but filed this issue as a ground of appeal.[2]  Counsel for Landžo explained the failure to raise this issue during trial proceedings stating that she had approached “this sensitive issue in the most diplomatic way possible.”[3]  Indeed, Counsel for Landžo had first raised the issue with the Registrar and President of the ICTY Judge Cassese rather than in court: Continue reading “Eighth and Final Installment: JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS”

Share

Seventh Installment: JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS

This is the seventh installment in a series of posts drawn from a 24 January 2014 lecture on Judicial Ethics at the ADC-ICTY’s Twelfth Defence Symposium for interns and staff at the ICTY.  The complete document is available on my website.

 ♦   ♦   ♦   ♦

G. Staff Members

StaffOnlyFollowing the discussion on judges, I then moved on to discuss instances bias raised concerning judicial staff. The question is whether Chamber’s staff members are subjected to the same rules as Judges and therefore subject to disqualification. The answer is no, Rule 15(A) ICTY Rules of Procedure and Evidence (RPE) applies only to Judges.  Noteworthy, there is no explicit code of conduct for Chambers or Prosecution staff members even though they carry out highly sensitive functions and, in many instances, are, or are presumed to be, agents of the judges and prosecutors whom they serve.  Presumably, under their contractual obligations they are to conduct themselves in an ethical manner, though query whether that is enough.

ICTY Case Against Senior Legal Officer Florence Hartmann

In the Hartmann[1] case before the ICTY, in which a Senior Legal Officer allegedly had ex parte communications with the amicus curiae—who was acting on behalf of the Prosecutor—regarding the provision of confidential materials to the Defence.

Continue reading “Seventh Installment: JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS”

Share