michaelgkarnavas.net/Blog – Page 2 – International Criminal Law Blog

Book Review: Lives of the Stoics – The Art of Living from Zeno to Marcus Aurelius

Lives of the Stoics – The Art of Living from Zeno to Marcus Aurelius, by Ryan Holiday and Stephen Hanselman, Profile Books, 2020, 326 pages, €19.95

Panaetius argues that if we are to live an ethical life and chose appropriate actions, we must find a way to balance:

1) the roles and duties common to us all as human beings;

2) the roles and duties unique to our individual daimon, or personal genius/calling;

3) the roles and duties assigned to us by the chance of our social station (family and profession);

4) the roles and duties that arise from decisions and commitments we have made.

Lives of the Stoics, p. 81

It has been a trying and challenging year. Although there is light at the end of this dark COVID-19 tunnel in which we find ourselves, this light – promised by miracle vaccines discovered in record time – sadly, may not come soon enough for many. The winter holiday season is supposed to make us jolly and joyful. But let’s be honest. For some, even under normal circumstances, it is not the best of times.

Marcus Aurelius wrote in Meditations, “[t]here is no role so well suited to philosophy as the one you happen to be in right now.” Words that were as relevant for his days as they are for ours. Some of us, our friends, our family members, may be or believe themselves to be in a difficult, dispirited, disconnected place with no relief on the horizon. Some of us may be blessed with unusual success, feeling euphoric. Some of us may simply be doing okay, grateful to have survived 2020 and happy to be where we are – physically, mentally, and professionally. Continue reading “Book Review: Lives of the Stoics – The Art of Living from Zeno to Marcus Aurelius”

Book Review: Just Mercy: A story of Justice and Redemption and The Guardians

Just Mercy: A story of Justice and Redemption, by Bryan Stevenson, One World (Reprint edition), 2015, 368 pages, €9.79

The Guardians, by John Grisham, Hodder & Stoughton Ltd, 2020, 384 pages, €10.75

If you think you’re too small to make a difference, try sleeping with a mosquito.

Tenzin Gyatso, the 14th Dalai Lama

On 10 December 2020, Brandon Bernard was put to death after spending 20 years on death row for his involvement in a double homicide when he was 18 years old. By all accounts, he was a model prisoner, genuinely remorseful, and rehabilitated. His dying words to the victims’ families were:

I’m sorry. That’s the only words that I can say that completely capture how I feel now and how I felt that day. Continue reading “Book Review: Just Mercy: A story of Justice and Redemption and The Guardians”

JCE Redux – THE KSC’S FIRST CONFIRMED INDICTMENT (Part 3)

It is with great relief to observe that the Pre-Trial Chamber reverses the prior order of the Co-Investigative Judges of 8 December 2009 that held JCE III applicable in relation to international crimes before the ECCC…. By the same token, the Pre-Trial Chamber declares JCE I and JCE II applicable before the court in regard to international crimes…. In doing so, the court omits to scrutinize the necessity to give these recognized forms of liability under international criminal law and in particular universal state practice law new labels.

Judge Wolfgang Schomburg¹ Jurisprudence on JCE – Revisiting a Never Ending Story

Just as in the Wizard of Oz, when Dorothy discovers there is no wizard behind the curtain, the Pre-Trial Chamber Judges of the Extraordinary Chambers in the Courts of Cambodia (ECCC) – rebuffing the wizardry behind the curtain by thoroughly analyzing the law and jurisprudence relied on by the Tadić Appeals Chamber (and parroted by successive chambers at the ad hoc tribunals) – discovered that JCE III, founded on unsupportive and unpersuasive legal authority, did not enjoy customary international law (CIL) status. Continue reading “JCE Redux – THE KSC’S FIRST CONFIRMED INDICTMENT (Part 3)”

Footnotes[+]

JCE Redux – THE KSC’S FIRST CONFIRMED INDICTMENT (Part 2)

The writer has referred to an error of the Tribunal, to which he was a party; it concerns the question whether joint criminal enterprise was customary international law insofar as it permits of a conviction without proof of intent…. [T]wo rival theories – joint criminal enterprise and co-perpetratorship – hold sway in major parts of the world, but not generally; neither is therefore entitled to be regarded as customary international law.

Judge Mohamed Shahabuddeen¹ Mohamed Shahabuddeen, Judicial Creativity and Joint Criminal Enterprise, in Judicial Creativity at the International Criminal Tribunals 202-03 (Shane Darcy & Joseph Powderly, eds., Oxford University Press, 2010).

Judge Mohamed Shahabuddeen presided over the Tadić Appeals Chamber,² Prosecutor v. Tadić, IT-94-1-A, Judgement, 15 July 1999, paras. 185-234 (Tadić Appeals Judgement). the progenitor of one of the most controversial legal issues at the ad hoc tribunals (the ICTY and ICTR) and elsewhere³Much has been written on the modes of liability and JCE. In particular, I recommend Gideon Boas, James Bischoff, and Natalie Ried, Forms of Responsibility in International Criminal Law: International Criminal Law Practitioner Library Series, (Cambridge University Press 2007); Ciara Damgaard, The Joint Criminal Enterprise Doctrine: A “Monster Theory of Liability” or a Legitimate and Satisfactory Tool in the Prosecution of the Perpetrators of Core International Crimes?, in Individual Criminal Responsibility For Core International Crimes 129 (Springer, 2008). See also William A. Schabas, Mens Rea and the International Criminal Tribunal for the Former Yugoslavia, 37 New England L. Rev. 1015 (2002); For more on my point of view, see Joint Criminal Enterprise at The ECCC: A critical analysis of two divergent commentaries on the Pre-Trial Chamber’s Decision against the application of JCE, available at http://michaelgkarnavas.net/files/JCE_at_the_ECCC_MGKarnavas.pdf. – the individual mode of criminal liability known as joint criminal enterprise (JCE), claimed to be a form of “commission” reflected in customary international law (CIL).⁴ The moniker joint criminal enterprise as an individual mode of liability has been variously and interchangeably labeled at the ICTY as “common criminal plan,” “common criminal purpose,” “common design or purpose,” “common criminal design,” “common purpose,” “common design,” or “common concerted design.” The common purpose has been more generally described to form part of a “criminal enterprise,” a “common enterprise,” and a “joint criminal enterprise.” See Prosecutor v. Brđanin and Talić, IT-99-36-PT, Decision on Form of Further Amended Indictment and Prosecution Application to Amend, 26 June 2001, para. 24. Continue reading “JCE Redux – THE KSC’S FIRST CONFIRMED INDICTMENT (Part 2)”

Footnotes[+]

JCE Redux – THE KSC’S FIRST CONFIRMED INDICTMENT (Part 1)

This common purpose involved the commission of the crimes of persecution, imprisonment, arbitrary detention, other inhumane acts, cruel treatment, torture, murder and enforced disappearance. Its existence and contours are indicated by: (i) early public statements of the [Kosovo Liberation Army (KLA)], preceding the period of the charges; (ii) communiqués and political declarations of the KLA General Staff, public statements of KLA General Staff members, as well as other KLA publications, during the period of the charges; (iii) regulations, structures, directions and orders drafted, issued or approved by the Suspects; (iv) the pattern of crimes committed at the locations indicated under Counts 1-10; and the personal participation of the Suspects and other senior KLA/[Provisional Government of Kosovo (PGoK)] members in the commission of the crimes.

Prosecutor v. Thaçi et al., KSC-BC-2020-06/F00026/RED, Public Redacted Version of Decision on the Confirmation of the Indictment Against Hashim Thaçi, Kadri Veseli, Rexhep Selimi and Jakup Krasniqi, 26 October 2020 (“Confirmation Decision”), para. 454 (footnotes omitted).

In the heavily redacted 235-page public decision issued by the Kosovo Specialist Chambers (KSC) on 30 November 2020 confirming its first Indictment, the Specialist Prosecutor’s Office (SPO) lays out a cascade of crimes. A four-year trial lies ahead. Continue reading “JCE Redux – THE KSC’S FIRST CONFIRMED INDICTMENT (Part 1)”

Book Review – Comparative Reasoning in International Courts and Tribunals

Comparative Reasoning in International Courts and Tribunals, by Daniel Peat, Cambridge University Press, 2019, 258 pages, € 29 (paperback). Winner of the 2020 European Society of International Law Book Prize.

A word is not a crystal, transparent, and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.

Oliver Wendall Holmes, Towne v. Eisner, 245 US 418, 425 (1918)

Daniel Peat’s parting thoughts in Comparative Reasoning in International Courts and Tribunals are that if we are to “understand the complexity and contextuality that interpretation inevitably entails” in both international law and domestic law, we need to acknowledge the “mutability” that US Supreme Court Justice Holmes speaks of in Towne v. Eisner (p. 221). Put differently, when interpreting a word, a term, a rule, a law, a treaty, context matters. Any practitioner worth his salt knows this. So, what’s new? Continue reading “Book Review – Comparative Reasoning in International Courts and Tribunals”

FILM REVIEW: The Trial of the Chicago 7

Abbie Hoffman:

This is a political trial that was already decided for us. Ignoring that reality is just weird to me.

William M. Kunstler:

There are civil trials and there are criminal trials. There is no such thing as a political trial.

In Aaron Sorkin’s The Trial of the Chicago 7, we see legendary civil rights lawyer William M. Kunstler slowly come to the realization that he is in a political trial, requiring a whole different approach to defending the eight (later seven) defendants in one of the most colorful, if not significant, trials in modern American history.

The above exchange in the film between Hoffman and Kunstler comes after opening statements. Kunstler’s epiphany comes well into the trial. Continue reading “FILM REVIEW: The Trial of the Chicago 7”

POSTSCRIPT: ELECTING THE NEXT ICC PROSECUTOR

Silence becomes cowardice when occasion demands speaking out the whole truth and acting accordingly. Mahatma Gandhi

In The 26-year hunt for Africa’s most wanted man, reported by Tom Wilson in the Financial Times (accessible through google), Serge Brammertz comes across as a combination of John le Carré’s George Smiley (methodically and strategically using spycraft with the help of European security agencies, Interpol, and the Rwanda’s National Public Prosecution Authority) and Michael Connelly’s LAPD Detective Hieronymus “Harry” Bosch (diligently working a cold case with patience, perseverance, and precision in tracking Félicien Kabuga, accused of organizing the Rwandan genocide). Kabuga was arrested on 16 May 2020 in a Paris suburb. Continue reading “POSTSCRIPT: ELECTING THE NEXT ICC PROSECUTOR”

Dawn over Midnight: a brighter future for international norms

O! say, can you see, by the dawn’s early light …

Francis Scott Key’s poem The Defence of Fort McHenry, later renamed The Star Spangled Banner, recounts the Battle of Baltimore during the War of 1812. Detained by the British, Key witnessed the bombardment of Fort McHenry on the night of 13-14 September 1814. As dawn was breaking, he feared he would see the dreadful sight of the Union Jack flying over Fort McHenry. Instead, elatedly, he saw the Star Spangled Banner, the American flag, proudly standing. The Americans had prevailed. The tumultuous Trump presidency, which, to half the nation and many others around the globe, has felt like an incessant bombardment of insults, venom, and ill-will, is coming to an end. The battle for the soul of America has yet to be won, the struggle for a more perfect union remains, but dawn is breaking. Continue reading “Dawn over Midnight: a brighter future for international norms”

ELECTING THE NEXT ICC PROSECUTOR: politics v. pragmatism

A prince should always seek advice, but only when he wishes and not when others wish. He must discourage everyone from offering advice unless he asks for it. However, he should inquire constantly, and listen patiently about those things of which he inquired…

Machiavelli, The Prince

In The Prince – a masterful manual on realpolitik – Machiavelli advises leaders to avoid unsolicited advice, and instead, frequently ask for advice from trusted people and to listen to the advice given. Naturally, Niccolò Machiavelli violates this rule by offering unsolicited advice by way of The Prince – written to curry favor and perhaps secure a position from Lorenzo de’ Medici, ruler of Florence, Duke of Urbino.

Neither having prosecuted nor coveting a position in the Office of the Prosecutor (OTP) of the International Criminal Court (ICC), and bearing no gifts, I offer these musings to the powers that be who will elect the next ICC Prosecutor.

On 20 October 2020, Reuters reported an exclusive: that according to a diplomat who wished to remain anonymous, the ICC’s oversight body sent the States Parties a letter to inform them that “none of the four nominees had enough support” and proposed to “widen[] the search to include all 14 of the original candidates.”

This should have come as no surprise. Continue reading “ELECTING THE NEXT ICC PROSECUTOR: politics v. pragmatism”

↑1	Mohamed Shahabuddeen, Judicial Creativity and Joint Criminal Enterprise, in Judicial Creativity at the International Criminal Tribunals 202-03 (Shane Darcy & Joseph Powderly, eds., Oxford University Press, 2010).
↑2	Prosecutor v. Tadić, IT-94-1-A, Judgement, 15 July 1999, paras. 185-234 (Tadić Appeals Judgement).
↑3	Much has been written on the modes of liability and JCE. In particular, I recommend Gideon Boas, James Bischoff, and Natalie Ried, Forms of Responsibility in International Criminal Law: International Criminal Law Practitioner Library Series, (Cambridge University Press 2007); Ciara Damgaard, The Joint Criminal Enterprise Doctrine: A “Monster Theory of Liability” or a Legitimate and Satisfactory Tool in the Prosecution of the Perpetrators of Core International Crimes?, in Individual Criminal Responsibility For Core International Crimes 129 (Springer, 2008). See also William A. Schabas, Mens Rea and the International Criminal Tribunal for the Former Yugoslavia, 37 New England L. Rev. 1015 (2002); For more on my point of view, see Joint Criminal Enterprise at The ECCC: A critical analysis of two divergent commentaries on the Pre-Trial Chamber’s Decision against the application of JCE, available at http://michaelgkarnavas.net/files/JCE_at_the_ECCC_MGKarnavas.pdf.
↑4	The moniker joint criminal enterprise as an individual mode of liability has been variously and interchangeably labeled at the ICTY as “common criminal plan,” “common criminal purpose,” “common design or purpose,” “common criminal design,” “common purpose,” “common design,” or “common concerted design.” The common purpose has been more generally described to form part of a “criminal enterprise,” a “common enterprise,” and a “joint criminal enterprise.” See Prosecutor v. Brđanin and Talić, IT-99-36-PT, Decision on Form of Further Amended Indictment and Prosecution Application to Amend, 26 June 2001, para. 24.