Attorney-Client Privilege and the Crime-Fraud Exception — Part I

Recently I filed a request for leave to file an amicus brief in the Bemba Gombo et al. case at the ICC. Decisions by the ICC Pre-Trial Chamber1Situation in the Central African Republic, ICC-01/05-52-Red2, Decision on the Prosecutor’s “Request for judicial order to obtain evidence for investigation under Article 70”, 29 July 2013. (“Bemba 29 July 2013 Decision” and Trial Chamber2Prosecutor 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 (“Bemba 15 May 2015 Decision”); Prosecutor v. Bemba Gombo et al., ICC-01/05-01/13-1096, Decision on Defence Request for Leave to Appeal the “Decision Providing Materials in Two Independent Counsel Reports and Related Matters, 21 July 2015 (“Bemba 21 July 2015 Decision”.) have raised the issues of when the attorney-client privilege can be lifted and the use of communications between an attorney and a client. As these issues affect all List Counsel at the ICC, and perhaps beyond, this is precisely the type of matter in which a Bar Association for List Counsel (“ICCBA”) may seek to intervene. There being no association to take on the matter, and with the working group drafting the constitution for the ICCBA having no mandate to seek leave to file an amicus brief, I decided to step up to a request made by one of the defence counsel. Continue reading “Attorney-Client Privilege and the Crime-Fraud Exception — Part I”

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Footnotes   [ + ]

Hybrid Courts: a marriage of inconvenience

Last December I had the privilege of being invited to participate at a conference hosted by the International Research and Documentation Centre War Crimes Trials, in Marburg, Germany. The conference, titled The Defence in International Criminal Courts, was by far the best conference I have ever attended, focusing on defence issues from Nuremberg and onwards. The presentations and discussions were excellent. Here is an excerpt of my presentation. The full version is scheduled for publication.


Hybrid Courts: a marriage of inconvenience
Michael G. Karnavas

Imagine being on the football pitch. The stakes are high – it’s a championship game. You and your teammates have been preparing for this game, sharpening your skills, studying your opponent, developing your game plan, mastering the intricacies of the rules, doing everything possible to take advantage of every opportunity that may present itself and every weakness that your opponent may have. All is riding on this game, so you have thought of everything. You are ready. You are ready to control the ball, control your opponent, control the slightest openings. Ready to control it all. All except the referee. That’s the wildcard. The unknown, the unpredictable, the uncontrollable. The luck of the draw. If the referee knows the rules and applies the rules as they are intended, then you have only yourself to blame if the game is lost. But what if the referee does not follow the rules or applies them unevenly, or interprets them in a manner that is not in keeping with the spirit and tradition of the game? What if the referee decides to also play with the ball, handle it a bit, kick it around, pass it to your opponents, or, worse yet, lay in wait near your goalpost for the opportune moment to tap the ball into your net (even if it takes using his hands) and, having done so, smugly signals the goal? Continue reading “Hybrid Courts: a marriage of inconvenience”

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Upcoming Seminar concerning ICC List Counsel – 16-17 July 2015

On 16-17 July 2015, Dr Fabián O. Raimondo, Assistant Professor of Public International Law, Maastricht University, is hosting a Seminar directed exclusively to ICC List Counsel.  The program is topical, relevant and practical.

Moreover, the Registrar will not only present his proposal for restructuring the Registry under the ReVision project, but will also engage the participants in what promises to be a lively discussion on many of the issues related to his vision and expectations on restructuring two of the most critical sections deemed by many List Counsel as essential in their representation of their clients: the OPCD and OPCV. See my prior post on  Establishment of a Victims and Defence Office at the ICC. Continue reading “Upcoming Seminar concerning ICC List Counsel – 16-17 July 2015”

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THE USE OF TORTURE-TAINTED EVIDENCE AT THE ECCC

THE USE OF TORTURE-TAINTED EVIDENCE AT THE ECCC: What is the applicable standard for assessing whether a statement is established as being made under torture and what are the parameters, if any, for the admissibility of torture tainted evidence?

The issue of the admissibility and permissible uses of evidence obtained through torture has arisen repeatedly at the Extraordinary Chambers in the Courts of Cambodia (ECCC) in Cases 001 and 002, due to the fact that there is a large body of material before the ECCC Court emanating from the notorious security center S-21 (also known as Tuol Sleng) and other alleged security centers around Cambodia.

Recently the issue has come up again, after the Trial Chamber prohibited the Nuon Chea Defence in Case 002/02 from questioning a witness on the contents of a confession. The Nuon Chea Defence asserted that the Trial Chamber was using a double standard, allowing the Prosecution to ask questions concerning confessions, but not the Defence. The Prosecution requested to file written submissions and to have oral arguments on the issue. The Trial Chamber agreed and the parties’ submissions were received 21 May 2015. Oral arguments occurred 25 May 2015. Continue reading “THE USE OF TORTURE-TAINTED EVIDENCE AT THE ECCC”

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Musing on the ICCBA Draft Constitution

editingAs I noted in a prior post, I was selected to chair the Committee for drafting a Constitution for a Bar/Association at the ICC. The latest draft of the Constitution (English / French) has just been sent around to List Counsel  with a commentary (English / French) to assist in understanding the efforts and aims of the Committee, and to further guide deliberations and contributions on this draft. Comments are being solicited to ensure that the Constitution is representative of List Counsel’s collective views. As I have done before, I would like to present my vision on the draft Constitution. Continue reading “Musing on the ICCBA Draft Constitution”

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Sketches of a Bar for the ICC Counsel

 

In my last post on establishing a Bar for the ICC, I noted that a committee had been formed to draft a Constitution to be circulated for comments, and that my draft was selected as the working draft. Now I would like further elaborate upon my vision for and concerns of a Constitution for a Bar for Counsel practicing at the ICC; a Bar that should also be open for Counsel practicing before other international tribunals. Continue reading “Sketches of a Bar for the ICC Counsel”

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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”

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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”

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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.

Introduction

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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Footnotes   [ + ]

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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