Responding to Professor Roman Serbyn re Book Review: RED FAMINE – Stalin’s War on Ukraine

I received a comment on my review of Anne Applebaum’s latest book: RED FAMINE – Stalin’s War on Ukraine, from Professor Roman Serbyn.  Professor Serbyn is an historian, and a professor emeritus of Russian and East European history at the University of Quebec at Montreal, and an expert on Ukraine. He is well known for his books and many articles about Ukrainian history, particularly the Holodomor.  I thank Professor Serbyn for his comment and questions, and respond below. Continue reading “Responding to Professor Roman Serbyn re Book Review: RED FAMINE – Stalin’s War on Ukraine”

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Executions and Mass Graves in Myanmar: Can intent be inferred from the recruitment of civilians by the military to assist in its operations or in doing its bidding?

On 8 February 2018, Reuters published a special report – Massacre in Myanmar: How Myanmar forces burned, looted and killed in a remote village.

In preparing the report, Reuters journalist Simon D. Lewis contacted me to comment on legal issues. Over several exchanges of emails and three lengthy telephone conversations, the primary discussion revolved around one central question: whether the recruitment of civilians to assist parts of the operation could be used to demonstrate intent. The extent of our discussions was reduced to a soundbite in print. Though it captures the essence of my assessment based on the factual predicate presented to me, the quote attributed to me warrants further elaboration considering that I invoked the crime of genocide as a possibility. Continue reading “Executions and Mass Graves in Myanmar: Can intent be inferred from the recruitment of civilians by the military to assist in its operations or in doing its bidding?”

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SCRUTINIZING DUTERTE’S EXTRA-JUDICIAL KILLINGS: What has taken ICC Prosecutor Fatou Bensouda so long to act?

He is sick and tired of being accused. … He wants to be in court to put the prosecutor on the stand.


Harry Roque, Philippines Presidential Spokesperson

Finally. On 8 February 2018, ICC Prosecutor Fatou Bensouda announced that the Office of the Prosecutor (OTP) would open a preliminary examination on the widely publicized allegations of extra-judicial killings ordered by President of the Philippines Rodrigo Duterte, committed as part of his war on drugs.

Before I get to the finally, some context. Continue reading “SCRUTINIZING DUTERTE’S EXTRA-JUDICIAL KILLINGS: What has taken ICC Prosecutor Fatou Bensouda so long to act?”

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WITHDRAWING FROM A CASE: Comment and Response

I greatly appreciate those who take time to comment on my blog posts.  Sometimes praise. Other times critical.  Often expanding the conversation.  Always welcome. When appropriate, I will make a brief reply directly in the comment function.  However, whether due to the subject matter or length of the reply, I will occasionally reply in a free-standing post.  Today’s post is such an occasion, as I respond to a lengthy comment from Mr. Bryan Miller to my post WITHDRAWING FROM A CASE: Abandoning ship or doing what is in the client’s best interest.


Dear Bryan,

Thank you for your recent comment to my post WITHDRAWING FROM A CASE:  Abandoning ship or doing what is in the client’s best interest. First, let me say that it is good to hear from you and see that you are doing well in your diverse private practice.  Though I was sorry to see that you didn’t include in your professional bio your time working for me in The Hague as an extern on the Ieng Sary case at the Extraordinary Chambers in the Courts of Cambodia.  In any event, many of your comments and questions are obviously beyond the scope of the post, though interesting nonetheless. I address them seriatim: Continue reading “WITHDRAWING FROM A CASE: Comment and Response”

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THE LIBYAN REFERRAL: Trojan Horse or Realpolitik Casualty

I once again repeat my call to Libya to take all necessary steps possible to immediately arrest and surrender Mr al-Werfalli to the ICC. I also repeat my call on all States, including members of the United Nations Security Council, to support Libya in facilitating Mr al-Werfalli’s arrest and surrender to the Court.



Only when perpetrators realise there will be serious consequences for their crimes can we hope to deter future crimes.


I am dismayed that Mr al-Werfalli appears to remain in a position of command, and allegedly continues to commit crimes with impunity, despite an official statement from the General Command of the Libyan National Army (“LNA”) in August 2017 that Mr al-Werfalli had been arrested and was under investigation by a military prosecutor. I once again call on General Khalifa Haftar, as commander of the LNA and superior of Mr al-Werfalli, to heed my previous call to the LNA to work with the Libyan authorities to enable the suspect’s immediate arrest and surrender to the ICC.


The appalling cycle of violence and impunity in Libya cannot be allowed to continue for the sake of the Libyan people and the security and stability of the country and the region.


ICC Prosecutor Fatou Bensouda, Statement 26 January 2018

The International Criminal Court (ICC) Prosecutor Fatou Bensouda was prompted to speak out and to once again solicit the assistance of the United Nations Security Council (UNSC) concerning the situation in Libya. This time it was about the two car-bombings on 23 January 2018 detonated by unidentified persons outside the Baya’at Al-Radwan mosque in Benghazi, Libya that killed more than 34 civilians, including children, and wounded over 90 others, and a video surfacing the following day apparently showing Major Mahmoud Mustafa Busayf Al-Werfalli executing 10 persons in front of the Baya’at Al-Radwan mosque, purportedly in retaliation for the two car-bombings.

To appreciate Bensouda’s call for assistance from the UNSC, we must reflect back to 2011 when Libya was engulfed in a civil war. On 26 February 2011, acting under Chapter VII of the UN Charter, and consistent with Article 13(b) the Rome Statute, the UNSC passed Resolution 1970, calling on the ICC to investigate the mass atrocities and human rights abuses which occurred (and continue to occur) in Libya during and after the overthrow of Muammar Gaddafi’s regime. In keeping with its obligations, the Office of the Prosecutor (OTP) has unhesitatingly abided – despite the lack of any appreciable assistance from the UNSC.  Continue reading “THE LIBYAN REFERRAL: Trojan Horse or Realpolitik Casualty”

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WITHDRAWING FROM A CASE: Abandoning ship or doing what is in the client’s best interest

In my last post, I discussed potential conflicts of interest arising in the multiple representation of witnesses in the ongoing investigations concerning the allegations of collusion between the Trump campaign and Russia to throw the 2016 U.S. presidential election and President Trump’s interference with this investigation. Apropos of that discussion, we now learn that three high-flying former prosecutors defending Rick Gates – a former Trump campaign aide – have moved to withdraw for reasons unknown. Speculation has it that counsel are seeking to withdraw because their client wishes to cooperate with U.S. Special Counsel, Robert Mueller. The reasons behind the two-page request to withdraw will be filed confidentially, so all we can do is speculate. Be that as it may, the conjecture on the request to withdraw serves as an exquisite springboard to our further discussion on counsel’s ethical obligations to loyally, zealously, and diligently represent clients. Continue reading “WITHDRAWING FROM A CASE: Abandoning ship or doing what is in the client’s best interest”

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Representing Multiple Witnesses: a risky gambit

It’s a general pool type of relationship where, if a conflict arises, where everyone in good faith will try to figure out what the best way to proceed is. I can never be adverse to one of those guys.


William Burck in Darren Samuelsohn, Bannon Lawyer Juggles Clients, Risks Conflicts in Russia Probe, POLITICO, 25 January 2018

A conflict of interest between an attorney and a client arises in any situation where, by reason of certain circumstances, representation by such an attorney prejudices, or could prejudice, the interests of the client and the wider interests of justice. Most systems of law have rules governing the participation of an attorney in a trial when there is a conflict of interest between the attorney and the client; such a conflict affects the essential fairness of the trial, and in respect of the Tribunal, implicates, first, the responsibility of the Trial Chamber … to ‘ensure that a trial is fair … with full respect for the rights of the accused…,’ and secondly, the right of the accused … to a fair trial.


Prosecutor v. Simić et al., IT-95-9-PT, Decision on the Prosecution Motion to Resolve Conflict of Interest Regarding Attorney Borislav Pisarević, 25 March 1999, p. 6.

Whose interests are you really looking after when you represent multiple clients in a case?

Imagine you are called upon to represent several witnesses in an ongoing investigation. As you conduct your initial interview with these potential clients, can you guarantee that you can fully, fairly, and forthrightly represent their interests, that you will utterly respect and keep secret any information they pass on to you, that you will not compromise their interests while zealously representing one of the other potential clients/witnesses, that you will not suggest an adjustment of perceptions or inferences drawn from a memory of events, or that you will not abandon any of the potential clients midway through the case after amassing institutional memory for a handsome, non-refundable fee?

Identifying and dealing with conflicts of interest can be pesky, especially when there are huge fees and/or lots of publicity to be had. Indulging in self-delusion that a conflict does not really exist – or that if one does, there is a way around it (all the stars are aligned) – is not as uncommon as one might expect, even amongst the very best of lawyers. Whether it is greed, publicity, irrational self-confidence, or profound obliviousness that causes lawyers to ignore or attempt to minimize conflicts matters not. What is at stake is the client’s fate. Continue reading “Representing Multiple Witnesses: a risky gambit”

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ARGUING YOUR CLIENT’S GUILT OVER HIS OBJECTIONS AS A SENTENCE-MITIGATION STRATEGY: An ethically impermissible objective

People can walk themselves into jail. They can walk themselves, regrettably, into the gas chamber. But they have a right to tell their story.


U.S. Supreme Court Justice Sonia Sotomayor

Is it constitutionally permissible for defense counsel to admit his client’s guilt over the client’s express objection? 

This was the question argued before the U.S. Supreme Court last week on 17 January 2018, in Robert McCoy v. Louisiana. At play is the Sixth Amendment of the U.S. Constitution:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. Continue reading “ARGUING YOUR CLIENT’S GUILT OVER HIS OBJECTIONS AS A SENTENCE-MITIGATION STRATEGY: An ethically impermissible objective”

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The MICT’s opaque practice of varying witness protective measures: time to recalibrate

[T]he Mechanism is making excellent progress with its judicial work in general, all the while continuing to learn from experience, and recalibrating internal practices as necessary to ensure optimal efficiency and economy.


MICT President Theodor Meron’s Address to the UN Security Council, 7 June 2017

Reflecting on last year’s events, I noted how the Mechanism for International Criminal Tribunals (MICT) – the post-conviction judicial institution which has taken over all residual matters of the now-defunct International Criminal Tribunal for Rwanda (ICTR) and International Criminal Tribunal for the former Yugoslavia (ICTY) – was working efficiently, though parsimoniously (providing no legal aid to convicted persons unless any claims for post-conviction relief prepared by pro bono defence counsel are found to be meritorious). In retrospect, I should have presented a more guarded and less sanguine picture. It seems I may have been too generous in my assessment. Mea culpa. Continue reading “The MICT’s opaque practice of varying witness protective measures: time to recalibrate”

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BOOK REVIEW: Legal Responses to Transnational and International Crimes – Towards an Integrative Approach

Legal Responses to Transnational and International Crimes – Towards an Integrative Approach, edited by Harmen Van der Wilt and Christophe Paulussen, Edward Elgar Publishing, 2017, 301 pages, £90

As a triggering condition for international coordination through the suppression conventions – and thus for what we might call transnational criminal law – transnationality is a relatively vacant concept, probably because it has no obvious general moral or metaphysical content, and surprisingly little attention has been paid to it.


Neil Boister, Chapter 2, p. 33

Turn on the news on any given day and you are inundated with stories about mass atrocities, terrorism, human trafficking, piracy, money laundering, cybercrime, and so on. You hear journalists, politicians, pundits, and occasionally “experts” characterize these crimes as “international crimes.” But are they?

Because these crimes transcend national borders, having – to some extent – an international character, may give the impression that they neatly fit within the ambit of International Criminal Law. Piracy on the high seas is a good example. It most certainly has an international character, and while it has been considered an international crime, it is not in the strictest sense (or as scholars say, “international crime stricto sensu”), if one applies this definition to the “core crimes” prosecuted at the ICC, for instance. The same can be said for terrorism, human trafficking, cybercrime, and so on. It does not mean that under certain sets of circumstances, these crimes – such as cyber-terrorism – would not amount to crimes against humanity, and thus international crimes stricto sensu. Save for war crimes, crimes against humanity, and genocide (and now for some states, aggression), these crimes are generally considered transnational crimes, falling within the ambit of Transnational Criminal Law (TCL) and are punished in national, as opposed to, international courts. Continue reading “BOOK REVIEW: Legal Responses to Transnational and International Crimes – Towards an Integrative Approach”

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