Resisting the siren calls for juries in transitioning criminal proceedings

On 6 October 2017, I had the privilege to participate in a conference and roundtable discussion dedicated to the publication of “Doubt in favour of the defendant, guilty beyond reasonable doubt” hosted by the Organisation for Security and Cooperation in Europe (OSCE) Mission in Skopje, Former Yugoslav Republic of Macedonia (Macedonia). My contribution to the text was a historical analysis of the beyond reasonable doubt standard of proof and the principle of in dubio pro reo. My research paper was mainly a compilation and collation of the works of leading experts who have grappled with this issue, and an analysis of the jurisprudence and jury instructions of various common law jurisdictions and the practice of the European Court of Human Rights. Continue reading “Resisting the siren calls for juries in transitioning criminal proceedings”

Share

Moreno Ocampo’s Game: and the sordidness keeps coming

I never did something wrong because I am very careful. I don’t like to work on things that are awful. I reject cases for million dollars if I don’t like the case. I believe in my career, fighting people committing crimes from power.


Luis Moreno Ocampo1As quoted in Svan Becker, Marian Blasberg and Dietmar Pieper, The Ocampo Affair: A Former ICC Chief’s Dubious Links, Der Spiegel, 5 October 2017

Someone is trying to blackmail me using illegally-obtained information


Louis Moreno Ocampo2As quoted in Barney Thompson, Former ICC Prosecutor in Row Over Lucrative Consultancy Work, Financial Times, 6 October 2017

The cat is out of the bag.3A colloquial phrase for when a secret is made known. The phrase originates from the fraud of substituting a cat for a piglet at markets. If you let the cat out of the bag you disclosed the trick – and avoided buying a pig in a poke (bag). By now, the world over, titillating information – facts beyond change, inferences drawn from circumstantial evidence, and speculations based on rumor and innuendo – has surfaced concerning Luis Moreno Ocampo’s conduct and activities while serving as the first Prosecutor of the International Criminal Court (ICC) and thereafter.

The image that emerges is a picture of a marginally competent, appreciably unethical, excessively greedy, cheekily narcissistic, and deeply flawed Shakespearian figure who sees himself as the victim of untruths, allusions, and distortions.

Trickle, trickle. Many of the facts based on the leaked 40,000 documents (internal documents from the ICC, contracts, diplomatic dispatches, bank records and emails) remain unknown. But from what has been revealed thus far, it is not a pretty picture.  And with each new revelation, Moreno Ocampo must be feeling the effects of Chinese water torture – drip, drip, drip. Continue reading “Moreno Ocampo’s Game: and the sordidness keeps coming”

Share

Footnotes   [ + ]

The Moreno Ocampo identity: hubris abandoned

 

Doubt, benefit of the doubt, reasonable doubt. These are words embedded in the DNA of all defense lawyers.  Whether championing a client’s case or reading a salacious story in the press, doubt is always front of mind. Defense lawyers are trained not to prejudge, not to form opinions without knowledge of all the facts, and without testing the evidence. And since facts can get in the way of a good story, it’s impulsive to accept as accurate and true what is reported in the news without question. Occasionally, however, there comes an article that so shocks the conscience that it’s too difficult not to take it at face value, or muster the kind of skepticism that is our professional default.

Such is a story reported about the first and former International Criminal Court (ICC) Prosecutor Luis Moreno Ocampo’s seedy (and greedy) conduct involving Hassan Tatanaki – a client who forked over USD $750,000 to Moreno Ocampo for what Moreno Ocampo characterized as “consultancy services” on the use of international law in reducing the ongoing violence and securing peace in Libya. Continue reading “The Moreno Ocampo identity: hubris abandoned”

Share

Book Review Part 2 — The Force of Logic: Using Formal Logic as a Tool in the Craft of Legal Argument by Stephen M. Rice

 

The Force of Logic: Using Formal Logic as a Tool in the Craft of Legal Argument by Stephen M. Rice (National Institute of Trial Advocacy, 2017) 290 pages, $ 75.

Part 2                               

It is claimed that 90% of the legal issues raised in domestic United States cases can be resolved through deductive reasoning, where the conclusion is mandated through two propositions. I would say the same is essentially true with legal issues in cases before the international(ized) tribunals and courts. Continue reading “Book Review Part 2 — The Force of Logic: Using Formal Logic as a Tool in the Craft of Legal Argument by Stephen M. Rice”

Share

BOOK REVIEW Part 1 – THE FORCE OF LOGIC: Using Formal Logic as a Tool in the Craft of Legal Argument, by Stephen M. Rice

 

The Force of Logic: Using Formal Logic as a Tool in the Craft of Legal Argument by Stephen M. Rice (National Institute of Trial Advocacy, 2017) 290 pages, $ 75.

 Part 1

The lawyer’s job, when confronted by an argument with an errant logical structure, is to focus on the architecture of the argument. Herein lies the problem: many lawyers are not trained in formal logic enough to spot these logical errors. Even when they do sense the errors, they do not have language tools to talk about them. … The problem with an argument with an errant logical structure is neither a fact problem nor a law problem. Instead, it is a logic problem and many lawyers are not well armed to talk about logic: what logic is, what logic’s role is in legal argument, and importantly, how to describe and talk about problems of logical form.1Stephen M. Rice, The Force of Logic: Using Formal Logic as a Tool in the Craft of Legal Argument (National Institute of Trial Advocacy, 2017), Chapter 1.2. 

Stephen M. Rice

Professor Stephen M. Rice of Liberty University School of Law (Lynchburg, Virginia) correctly observes that while lawyers employ a variety of tools in describing why an argument misleads, distorts, ignores relevant facts, or mischaracterizes the law, few are equipped with the tools to describe the errors in the logical form of an argument. It is not as if every legal argument challenged will invariably entail a logical error, or that the application of logic is the be-all and end-all of legal argumentation, but it is another important, if not indispensable, weapon in the lawyer’s arsenal.   Continue reading “BOOK REVIEW Part 1 – THE FORCE OF LOGIC: Using Formal Logic as a Tool in the Craft of Legal Argument, by Stephen M. Rice”

Share

Footnotes   [ + ]

The Human Rights Watch Report on the Ongwen Case and Beyond: Who should represent the victims at the ICC?

 

The quality of the legal representation victims receive is essential to their meaningful and effective participation in ICC proceedings. 1Independent Panel of Experts, “Report on Victim Participation at the ICC”, July 2013, para. 12


ICC court decisions have repeatedly articulated the need to “ensure that the participation of the victims, through their legal representative, is as meaningful as possible, as opposed to purely symbolic.” 2Human Rights Watch, “Who Will Stand for Us? Victims’ Legal Representation at the ICC in the Ongwen Case and Beyond”, August 2017, p. 9 quoting Prosecutor v. Ruto and Sang, ICC-01/09-01/11-460, Decision on victims’ participation and representation, 3 October 2012, para. 59


Victims’ choice matters because it can be a way for the victims represented to develop confidence that the counsel who stands for them before the court will represent their views, in turn building confidence in the court process itself. 3Human Rights Watch, “Who Will Stand for Us? Victims’ Legal Representation at the ICC in the Ongwen Case and Beyond”, August 2017, p. 11

Last year, in a post following the establishment of the International Criminal Court Bar Association (ICCBA), I raised an issue which, quite evidently, was on the mind of many Counsel who are on the ICC List of Counsel: the Office of Public Counsel for Victims’ (OPCV) taking over the legal representation of victims, and the subordination of (and running roughshod over) Counsel selected by the victims to the OPCV.

Many Counsel representing, or on the List to represent, victims before the ICC perceived, rightly or wrongly, that they, along with their clients, were being disenfranchised. Perceptions count, especially if the purpose for introducing victims’ participation was to permit victims to present “their views and concerns”4Rome Statute of the International Criminal Court (“Rome Statute”), Art. 68(3). and make the proceedings more relevant and meaningful for the victims. Continue reading “The Human Rights Watch Report on the Ongwen Case and Beyond: Who should represent the victims at the ICC?”

Share

Footnotes   [ + ]

THE END OF A READING AFFAIR: Cambodia Daily no more

 

Will no one rid me of this meddlesome priest?


King Henry II of England (1170) referring to Thomas Becket, Archbishop of Canterbury

The plane doors are about to close on my flight to Cambodia. When I land in Phnom Penh I will find this chaotic, noisy, and ever-expanding metropolis just as I left it a couple of months ago. Maybe some new construction projects will have started, maybe the traffic on a busy street has been re-routed for the building of yet another overpass aspiring to alleviate the out-of-control congestion, maybe another a trendy new coffee shop. As much as can ever be said of a teeming city of over two million people, everything will be pretty much the same. Except for one major difference: no more will I be able to wake up in the morning to get my daily fix of the news from The Cambodia Daily. Continue reading “THE END OF A READING AFFAIR: Cambodia Daily no more”

Share

Book review: A Boy in Winter, by Rachel Seiffert

 

Where the light shines strongest, there is always shadow. … It is something I tell myself, you see. … I say to myself: where there is light, there will be shadow as well. There will always be darkness, and we must accept this. … Still, I know how it is, [s]ometimes it helps me and sometimes it doesn’t. … I get my orders.  I read them over, and I find myself asking: Is this necessary? … Must we do this? … Must it be like this? … Must it really be like this?  I do not like this … I do not like it any more than you do, … It is cruel, yes? … Is that what you are thinking? … I don’t claim to understand it … I only try to endure. I don’t know the answer. Perhaps we must all find our way. … There will be a time, you know, when all this is over. The war, I mean. And all the cruelties. … It is what helps me most, this thought: that there will be a time after. When all the fighting – when all of this – is done with. … Perhaps that might help you. To know that all this is passing. For them [several hundred detained Jewish civilians] too.


A Boy in Winter, by Rachel Seiffert, Virago Press, 240 pages, £14.99/Pa (pp. 129-132)

If you have room to squeeze in one more book while still vacating or before getting too bogged down in the grind of being back at work, I highly recommend Rachel Seiffert’s A Boy in Winter. Continue reading “Book review: A Boy in Winter, by Rachel Seiffert”

Share

The Advisory Commission on Rakhine State Final Report: Towards a peaceful, fair and prosperous future for the people of Rakhine

 

Myanmar’s cultural diversity and pluralism deserve to be celebrated. A sense of identity, pride and belonging is important in all societies, particularly in times of rapid change. Yet, identity and ethnicity remain sensitive issues in Myanmar. The issue of citizenship rights remains a broad concern, and a major impediment to peace and prosperity in Rakhine.… Myanmar harbours the largest community of stateless people in the world….


Advisory Commission on Rakhine State Final Report (p. 26)

The Advisory Commission on Rakhine State (ACRS) chaired by former United Nations (UN) Secretary General Kofi A. Annan, issued its Final Report, appropriately subtitled, Towards a peaceful, fair and prosperous future for the people of Rakhine. To anyone interested in the situation in Myanmar’s Rakhine State, the plight of the Rohingya, the radicalization of some on all sides, and the danger this poses not just to Myanmar but to its neighbors and beyond, I highly recommend reading it. The ACRS Final Report has much to offer.

Last year I posted on some of Mr. Annan’s comments made shortly before the release of the ACRS’s Interim Report. I was critical of both Mr. Annan and State Counsellor of Myanmar Aung San Suu Kyi. I have also posted on the Muslim Rohingya minority in Myanmar, who according to credible sources and proof, have been on the receiving end of crimes against humanity committed, acquiesced, or tolerated by the Myanmar government (see here, here, and here). Indeed, like others, I have warned that these mass atrocities display the characteristics of a slow burning genocide in the making. Continue reading “The Advisory Commission on Rakhine State Final Report: Towards a peaceful, fair and prosperous future for the people of Rakhine”

Share

The Mahmoud Mustafa Busayf Al-Werfalli Indictment: Picking low-hanging fruit or chasing windmills

 

On 15 August 2017, the International Criminal Court (ICC) issued an arrest warrant for Libyan military commander Mahmoud Mustafa Busayf Al-Werfalli, accused of having committed or ordered 33 murders in Benghazi or surrounding areas from June 2016 to July 2017. The supporting evidence suggests that the Office of the Prosecutor (OTP) has overwhelmingly met the rather low threshold of “reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court” (Article 58(1)(a) of the Rome Statute) in charging Al-Werfalli. Should this case to go to trial, Al-Werfalli will find that he has stacked the deck against himself: video footage of him conducting summary executions of captives published on social media.

As cases go, this is a prosecutor’s dream. For the OTP, this must have been one of those cases that is just too good to pass up. But is it? The 33 victims deserve justice, but is the ICC able to deliver it? And at what cost? Continue reading “The Mahmoud Mustafa Busayf Al-Werfalli Indictment: Picking low-hanging fruit or chasing windmills”

Share