Fourth Installment: JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS

This is the fourth installment in a series of posts drawn from a 24 January 2014 lecture on Judicial Ethics at the ADC-ICTY’s Twelfth Defence Symposium for interns and staff at the ICTY.  The complete document is available on my website.

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III. APPLICATION OF THE Furundžija PRINCIPLE—SITUATIONS OF BIAS

A.  Ex parte Communications

ECCC Case 002, Ieng Sary’s motion to Disqualify Judge Silvia Cartwright

ThumbonScaleI first discussed the issue of ex parte communications on the part of the judge, which in most cases, is to the detriment to the Defence.  I chose an example from the ECCC, where the Defence learned that one of the sitting Judges, Judge Silvia Cartwright, was participating in meetings with the International Co-Prosecutor Andrew Cayley and the ECCC Deputy Director of Administration.  No one from any of the Defence teams were invited and neither was the head of the ECCC Defence Support Section (DSS).  Obviously, these meetings were of concern to the Defence once they were learned about.  They certainly amounted to ex parte communications.  But as I noted earlier, when in doubt or not in possession of sufficient information showing bias, best to move incrementally.  So, after all sorts of efforts to get the participants to these private meetings to come clean, the Defence filed a request for investigation into these ex parte communications.[1]  The Trial Chamber declined to investigate, justifying the meetings as necessary for the coordination of the UN component of the ECCC.[2]  Having no choice, the Defence appealed, seeking Judge Cartwright’s disqualification on the grounds that the meetings had no express legal basis.  Since Prosecutor Cayley would continue to appear before Judge Cartwright, these ex parte communications violated applicable ethics standards.[3]   Continue reading “Fourth Installment: JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS”

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Third Installment: JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS

This is the third installment in a series of posts drawn from a 24 January 2014 lecture on Judicial Ethics at the ADC-ICTY’s Twelfth Defence Symposium for interns and staff at the ICTY.  The complete document is available on my website.

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The Sow dilemma

Having discussed Harhoff in some detail (an entire day can be spent analyzing all the nuances of this matter), I segued into what I referred to as the Sow dilemma: what can and should a judge do when — rightly or wrongly — he or she is confronted with a perceived act of injustice in the making by fellow judges in a case in which he or she is sitting.

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Judge Sow

Judge Malik Sow, in an unusual and dramatic fashion, effectively accused his brethren in the Special Court for Sierra Leone (SCSL) Charles Taylor case, in which he was an alternate judge, of not properly engaging in serious deliberations in the case.  After the summary of the judgement was read, quite unexpectedly, Judge Sow proceeded to criticize the deliberative process in Taylor, casting a shadow of bias on his fellow judges and calling into question the integrity of the SCSL: Continue reading “Third Installment: JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS”

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Second Installment: JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS

This is the second installment in a series of posts drawn from a 24 January 2014 lecture on Judicial Ethics at the ADC-ICTY’s Twelfth Defence Symposium for interns and staff at the ICTY.  The complete document is available on my website.

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With the stage set, it was time to dissect the Harhoff matterJudge Harhoff’s folly, due to what I would later refer to as the Harhoff syndrome is a treasure trove for a lecture on judicial ethics – the perfect point of departure for discussing the Furundžija “reasonable apprehension of bias” test.

The Harhoff Syndrome 

SONY DSCJudge Frederik Harhoff, in a letter to fifty-six personal contacts[1] that was apparently leaked to the press, expressed some of his innermost thoughts, which, even when viewed in the light most favorable to him, demonstrate his inability (or perhaps his unwillingness) to adhere to the universally recognized fair trial right to the presumption of innocence, with the burden being with the prosecution.[2]  Judge Harhoff’s sentiments are quite frequently shared (though not revealed – at least not on paper or in transparent gatherings) by many human rights/humanitarian advocates appointed as international judges, who, although possessing impressive credentials, lack necessary practical experience, and, more worrisome, are challenged when it comes to rigorously applying the most fundamental precepts of fair-trial rights: the presumption of innocence afforded to the accused and burden of proof resting on the prosecution.  Judge Harhoff assuredly understands as a theoretical construct the presumption of innocence.  But when it came to applying it, his predilection for victim-based justice and unwillingness to conform to the standards of justice led him to take the position that an accused (at least if a high military officer) must, ineluctably, be deemed guilty as charged, unless proved otherwise.  A classic case of inappropriate burden-shifting.  This, in my opinion, is the Harhoff syndrome in its purest form.  Judges at the international tribunals who suffer from this affliction—and there are a few—are generally discreet, frustrating a defence counsel’s ability to establish the objective prong of Furundžija when the need to disqualify is seemingly palpable. Continue reading “Second Installment: JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS”

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JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS: Drawn from Michael G. Karnavas’s lecture at the ADC-ICTY’s 12th Defence Symposium

EthicsOn 24 January 2014, I was invited to lecture on Judicial Ethics at the ADC-ICTY’s Twelfth Defence Symposium for interns and staff at the ICTY.  Some 45 interns and other court staff attended.  Hardly an academic exercise in theoretical constructs, I tried to keep the presentation lively with vivid examples such as Harhoff’s folly, Sow’s dilemma, Robertson’s hubris.  My aim was to present practical applications of the jurisprudence on judicial ethics (and misconduct) to young lawyers—primarily from the defence perspective—though relevant for young, impressionable lawyers working in Chambers and for the Prosecution.

Through a series of blog posts I will review and expand upon the lecture.  The complete document is available on my website.

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  I. INTRODUCTION

The lecture explored (in general terms due to time constraints) the jurisprudence of the international tribunals, giving practical advice on what to do when a potential instance of bias may affect a client.  The step-by-step process, if you will.  Because occasionally there is an insufficient amount of on-record evidence to support a challenge, I shared my thoughts on setting up a challenge for disqualification by drawing out the dubious conduct or insidious evidence needed for a credible challenge. Continue reading “JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS: Drawn from Michael G. Karnavas’s lecture at the ADC-ICTY’s 12th Defence Symposium”

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Karnavas article published in The Cambodia Law and Policy Journal

CLPJ_ISSUE_01_JANUARY_2014-1_CoverThe inaugural issue of The Cambodia Law and Policy Journal, Issue 01, January 2014, p. 29, has published an article by Michael G. KarnavasBringing Domestic Cambodian Cases into Compliance with International Standards – Applicability of ECCC Jurisprudence and Procedural Mechanisms at the Domestic Level. Continue reading “Karnavas article published in The Cambodia Law and Policy Journal”

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Reflections on the Final Declaration of the First International Meeting of Defence Offices

On December 4-5 2013, the French Bar Association along with François Roux, the Head of the Defence Office of the Special Tribunal for Lebanon (STL), hosted the First International Meeting of Defence Offices.  The discussions provided a forum to exchange ideas concerning various challenges defence counsel face before the international criminal tribunals, especially the “difficulty of ensuring that the defence is recognised as one of the essential pillars of a fair and credible justice system.”employees-together

These feel-good congregations are useful for inspiring defence lawyers to bond over common concerns. Occasionally they produce aspirational declarations – emphasis on aspirational.  Understandably, Final Declarations were proclaimed at this gathering.  From the Final Declarations, two specific matters are worth commenting on: a. the need for a defence section to be an organ of the tribunal (as at the STL); and b. the recent events in the Bemba case, where part of the defence team was arrested for witness tampering.  Reticent to intrude, since I did not attend the conference, I’ve decided to weigh in with my thoughts, annoying as they may be.    Continue reading “Reflections on the Final Declaration of the First International Meeting of Defence Offices”

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The Cambodia Daily Publishes Karnavas Op Ed: KRT Judges Maintain Pretense of Interest in Next Mini-Trial

KRT Judges Maintain Pretense of Interest in Next Mini-Trial

– December 16, 2013

By Michael G. Karnavas

During the Extraordinary Chambers in the Courts of Cambodia’s (ECCC) Trial Management Meeting on Case 002, held December 11 and 12, the Trial Chamber entertained us with a marvelously farcical tragedy: Nothing ado about much, or, Why there will not be a Case 002/02, although we will pretend there will be one to keep hope alive.

It was captivating to see (and hear) how the judges came armed with all the answers as to why they could not possibly begin to hear evidence in Case 002/02 (as if they had even figured out what segments of Case 002 would even be heard) before completing the judgment in Case 002/01.

Where have they been, and what have they been doing? When did this occur to them? Why was this issue not addressed during the protracted (albeit belated) hearings on the legitimacy of the severance of Case 002? Why the pretense of this public trial management meeting? And, why delay discussing the proverbial elephant in the (court)room: When and to what extent will the next segment of Case 002 be tried?

Regrettably, this farcical comedy was about a real tragedy: The current judges of the ECCC’s Trial Chamber are not genuinely serious in trying the remaining segments of Case 002.

Continue reading “The Cambodia Daily Publishes Karnavas Op Ed: KRT Judges Maintain Pretense of Interest in Next Mini-Trial”

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Response to observations on Article 27 of the ICC Statute

In his comment to my 12 December post on the The New RPE 134 Provisions, our colleague Boniface Njiru makes some insightful observations on Article 27 of the ICC Statute.The ICC Statute was a work in progress for many years.  Drafted by committee and based on political compromises, there are some who claim that it reflects what is (or should be) considered customary international law (CIL).  This is an overreach; the jury, as it were, is still out on this.  We saw this played out recently over Bashir: while accepting that he had no immunity at the ICC because of the ICC Statute, CIL continues to allow heads of state personal immunity, with some claiming, rather credibly, that a State would be violating CIL by arresting Bashir and turning him in to the ICC for prosecution (see e.g. http://www.crimesofwar.org/commentary/the-icc-bashir-and-the-immunity-of-heads-of-state/).

One thing is certain since Nuremberg: little or no quarter was to be given to political and military leaders for committing acts recognized as international crimes by the community of mankind.  Thus, it was to be expected that no political leader, sitting or otherwise, would be immune from prosecution before the ICC.  That was the intent of all those who signed on to the Rome Statute, eyes wide open.

Continue reading “Response to observations on Article 27 of the ICC Statute”

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About Michael G. Karnavas

photogallery6-michael-courtroom-18-jul-12-3Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various international tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.  Click here to visit Michael’s web site.

Michael G. Karnavas lectures students at the Grotius Centre for International Legal Studies on the role of defence counsel:

 

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News and Events

This chapter considers whether the ad hoc nature of ICC trial proceedings risks undermining the ICC’s credibility. The Rome Statute and the ICC Rules of Procedure and Evidence have sufficient constructive ambiguity as to how trials should be conducted such that, depending on the serendipitous composition of the Trial Chamber, trials can be shaped in a more ‘adversarial’ or more ‘inquisitorial’ fashion. This malleability, which may have been the result of a diplomatic compromise, has resulted in ad hoc trial proceedings at the ICC; no two trials are: conducted in the same manner. Since the hallmarks of any good court are uniformity, predictability, and reliability in its proceedings, does this feature, which is unique to the ICC, risk undermining the legitimacy of the ICC’s judgments and, inexorably, the ICC itself?

Continue reading “News and Events”