On 26 February 2011, the United Nations Security Council voted unanimously to refer the situation in Libya since 15 February 2011 to the ICC Prosecutor to hold accountable those responsible for attacks on civilians by forces under the control of those responsible. After conducting a preliminary examination, the ICC Prosecutor concluded on 3 March 2011 that there is a reasonable basis to believe that crimes under the ICC’s jurisdiction have been committed in Libya, and decided to open an investigation. Continue reading “Saif al-Islam Gaddafi and the ICC: is the purported “amnesty” (or pardon) and “double jeopardy” a game-changer?”
On 6 July 16 The Cambodia Daily published a commentary by Michael G. Karnavas, entitled Inducing Case 003 Outcome: US Purse Strings Wielded as a Whip. Heather Ryan, a consultant to the Open Society Justice Initiative, responded in a commentary, Tribunal Is Tainted by Political Interference, but Not From US, published on 12 July 16. Mr. Karnavas replied in the following commentary, Consultant’s Analysis of US Senate Bill Cherry-Picks Facts, published on 13 July 16.
BY MICHAEL KARNAVAS | JULY 13, 2016
In an op-ed published on Tuesday—“Tribunal Is Tainted by Political Interference, but Not From U.S.”—Heather Ryan, a consultant to the Open Society Justice Initiative, responded to my commentary concerning U.S. Senate Appropriations Committee bill S.3117, wherein I asserted that the Senate is effectively engaging in political interference, impliedly calling on the co-investigating judges to indict my client, Meas Muth. Continue reading “Cambodia Daily publishes Karnavas rebuttal to defence of US Senate’s ECCC interference”
On 30 June and 1 July 2016, the International Criminal Court Bar Association (ICCBA) came into being. The ICCBA is the first Bar Association for Counsel and their Assistants practising before the International Criminal Court (ICC). It was launched at the ICC in The Hague, the Netherlands, thanks to the generous support of the ICC Registrar.
For some of us it has been a long journey of persistent hard work. Few believed it could happen. Even fewer rolled up their sleeves to pitch in. As one of the midwives of the ICCBA, I celebrate the birth and respect that the baby has now been handed over to the duly elected leadership. In doing so, however, I take the liberty of also delivering a figurative Finnish baby box of observations, suggestions and warnings. Continue reading “The ICCBA is born. Huzzah! Now for the steep climb ahead.”
On 6 July 2016, The Cambodia Daily published a commentary by Michael G. Karnavas on US Senate Appropriations Committee Bill S.3117.1section 7043(c)(2 The bill, as explained in the Committee’s Report, seeks to tie US funding of the ECCC to the indictment of Mr. Meas Muth in Case 003. Mr. Karnavas calls out the bill’s drafters on their disregard for international standards of justice and respect for the rule of law, and for their lack of understanding of the very procedural rules with which they seek to tamper.
BY MICHAEL KARNAVAS | JULY 6, 2016
Last Wednesday, the U.S. Senate Appropriations Committee approved a bill: S.3117. Buried 221 pages into that bill is a provision that would stop U.S. contributions to the Extraordinary Chambers in the Courts of Cambodia unless the U.S. secretary of state certifies and reports to the committee that the ECCC “will consider Case 003.” Continue reading “Cambodia Daily publishes Karnavas commentary on US Senate pressure on ECCC to indict in Case 003”
Part IV – International criminal courts and tribunals: mixing, matching & inventing
The latest type of international crimes courts, inter alia dubbed ‘hybrid courts’, has been welcomed with great expectations. The hybrid model that is characterized by a mix of national and international components is said to ‘hold a good deal of promise and actually offer an approach that may address some of the concerns about purely international justice, on the one hand, and purely local justice, on the other.’ The hybrid courts are thought to avoid the drawbacks of purely domestic trials and proceedings by purely international courts, such as the International Criminal Tribunals for the former Yugoslavia (ICTY), Rwanda (ICTR) and the International Criminal Court (ICC). The model of hybrid courts ‘endeavors to combine the strengths of the ad hoc tribunals with the benefits of local prosecutions.’1Sarah M.H. Nouwen, ‘Hybrid Courts’ The Hybrid Category of a New Type of International Crimes Courts, 2(2) Utrecht L. Rev. ,190 (2006). An excellent expose on what is referred to as hybrid courts, the features they purportedly share and their fundamental differences. With the vast range of differences, Nouwen questions whether there is a promising model hybrid court.
This is the final post on my discussion of standards and burdens of proof in hybrid courts. In the first post, I briefly discussed the terms standard and burden of proof. The second post dealt with the history of the reasonable doubt standard of proof and the in dubio pro reo principle to provide some context and a background understanding of how the common law and civil law standards of proof diverged and evolved over the centuries. The third and fourth posts dealt with common law and civil law systems and the practical application of standards and burdens of proof in national criminal systems. In this final post to this series, I will address these issues in the context of the international criminal courts and tribunals. I will also touch upon some of the jurisprudence from the European Court of Human Rights (“ECtHR”). Continue reading “Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof — Part IV”
|1.||↑||Sarah M.H. Nouwen, ‘Hybrid Courts’ The Hybrid Category of a New Type of International Crimes Courts, 2(2) Utrecht L. Rev. ,190 (2006). An excellent expose on what is referred to as hybrid courts, the features they purportedly share and their fundamental differences. With the vast range of differences, Nouwen questions whether there is a promising model hybrid court.|
Part III-B – Civil Law
Considering the outlined differences between continental and common law attitudes, there remains only one understanding of free proof that can safely be employed across Western legal systems. On this view, free proof rhetoric expresses the preference for a factfinding regime in which adjudicators are permitted to use ordinary processes of cognition, free to follow the same procedures as the informed public in arriving at the verdict. Both continental and common law jurisdictions seem to subscribe to this preference – at least in principle, or as a prima facie matter – as an organizing schema for technical arrangements.1Mirjan Damaška, Free Proof and Its Detractors, 43 Am. J. Comp. L. 343, 347-48 (1995) (hereinafter “Damaška”).
Civil law based systems, which are also referred to as Romano-Germanic, are judge-driven, lacking many of the adversarial features essential to common law systems. I use the plural for “systems” because there is no single and uniform civil law system. Each civil law based system has its own nuances and distinctions. Query whether any civil law based system, be it modeled after the French system with the investigative judge conducting the investigation or modeled after the German system with the prosecutor in charge of the investigation, can claim to be procedurally pure in the sense that it solely employs inquisitorial procedures. Even within the French and German models there are significant differences. Few contemporary systems fit neatly into one definition; different elements and tools contribute to the degrees of fusion. Indeed, some civil law based systems can more accurately be characterized as hybrid, having adopted adversarial / common law modalities, such as is the case in Italy. 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-B – Civil Law”
|1.||↑||Mirjan Damaška, Free Proof and Its Detractors, 43 Am. J. Comp. L. 343, 347-48 (1995) (hereinafter “Damaška”).|
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”
|1.||↑||George 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).|
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”
|1.||↑||John W. May, Some Rules of Evidence: Reasonable Doubt in Civil and Criminal Cases, 10 Am. L. Rev. 642, 662-663 (1876).|
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”
The Lawyer’s Independence: A Universal Principle of Disparate Meanings
Part II – A Critical Analysis of International Legal Ethics
This post follows up on my discussion of the ethical principle of a lawyer’s independence. Though virtually all national and international codes of conduct codify the lawyer’s independence, a lawyer’s understanding of this principle and the ethical duties deriving therefrom differs depending on his or her legal tradition.
In my first post, I attempted to clarify what it means to be “independent” in the national context by discussing the lawyer’s role in the civil and common law systems and how the principle of independence is interpreted in various domestic legal systems. This post will focus on the ethical principle of a lawyer’s independence in the context of international and internationalized criminal tribunals based on the various applicable and aspirational codes of conduct.
Lawyers (hereinafter “Counsel” as generally referred to at international tribunals and courts) from different legal traditions have different experiences and are beholden to their own canons and traditions of professional ethics. What may be permissible in one national jurisdiction may not be permissible in another, and depending on the circumstance, may or may not be permissible at one of the ad hoc international or internationalized criminal tribunals, or the International Criminal Court (“ICC”). And herein lies the conundrum: with which code of conduct and with which interpretation of any of the ethical principles must Counsel abide when practicing at any of the international or internationalized tribunals? Is it as simple as saying that Counsel must abide by the code of conduct of the tribunal or court before which he or she is appearing? What if there is a conflict or a notable difference between Counsel’s national code and the court’s code? This fundamental ethical issue, which Counsel will invariably encounter in representing accused or victims before these courts and tribunals, will be the topic of another post. I merely raise this point now to highlight just how not so simple or straightforward it really is in practice to straddle codes of conduct with diverging meanings of ethical principles that textually and with an unadorned reading seem identical. Continue reading “The Lawyer’s Independence — Part II”