‘THE SITUATION OF MASS MURDER IN THE PHILIPPINES, RODRIGO DUTERTE: THE MASS MURDER’: testing the ICC-OTP

It was only a matter of time.

Just as Duterte was entreating a crowd at a public gathering “Give me salt and vinegar and I’ll eat his [terrorist] liver” because he is “50 times harder” than ISIS, a communication was being lodged against him at the International Criminal Court (ICC) for allegedly murdering thousands of Filipinos in his war on drugs. 8000 victims and counting1The communication claims that based on official statistics from the Philippine National Police, there were more than 7000 drug-related killings by police and unknown armed persons from 1 July 2016 to 21 January 2017. The Situation Of Mass Murder In The Philippines Rodrigo Duterte: The Mass Murderer, by Jude Josue L. Sabio, p. 8. since elected as President of the Philippines in May 2016, Rodrigo Duterte has turned hubris – a crime in ancient Greece from the time of Solon in the 6th century BC – into an art form. Continue reading “‘THE SITUATION OF MASS MURDER IN THE PHILIPPINES, RODRIGO DUTERTE: THE MASS MURDER’: testing the ICC-OTP”

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Sentencing Judgment in Article 70 case at the ICC: No accumulation of sentences, suspended sentences & deduction of time

On 22 March 2017, the Trial Chamber VII of the International Criminal Court (ICC) pronounced the sentences in the Bemba et al. Article 70 case, following its judgment on 19 October 2016, where it found Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu, and Narcisse Arido guilty of various offenses against the administration of justice in Prosecutor v. Jean-Pierre Bemba Gombo (Main Case).

Three interesting points came out of the sentencing: 1) even if an accused is convicted of multiple Article 70 offenses, the maximum sentence he or she can face is five years; 2) the Trial Chamber has inherent discretionary power to suspend a sentence; and 3) time may be deducted in cases where the accused is already serving his or her sentence in another case. Continue reading “Sentencing Judgment in Article 70 case at the ICC: No accumulation of sentences, suspended sentences & deduction of time”

International Observers to Saif al-Islam Gaddafi: don’t count on ne bis in idem

What? The trial of Saif al-Islam Gaddafi was unfair? Shocking!

Saif al-Islam Gaddafi

The United Nations Support Mission in Libya (UNSMIL) and the United Nations Office of the High Commissioner for Human Rights (UNOHCHR) urge Libya to turn over Saif al-Islam Gaddafi, son of the late Muammar Gaddafi who ruled over Libya for 42 years, to the International Criminal Court (ICC) for a proper trial.1 United Nations, Support Mission in Libya and Office of the High Commissioner for Human Rights, Report on the Trial of 37 Former Members of the Qadhafi Regime (Case 630/2012), 21 February 2017, p. 55, para. 9. Surprise, surprise. Or not! Continue reading “International Observers to Saif al-Islam Gaddafi: don’t count on ne bis in idem”

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It looks like the Gambia is heading back into the ICC fold: but what of Yahya Jammeh?

Former Gambian President Yahya Jammeh, having joined other African leaders in succumbing to the lure of withdrawal from the International Criminal Court (ICC)1 See also Gambia Follows South Africa’s ICC Exodus: Quelle Surprise, 31 October 2016. – no doubt out of fear of one day ending up in the ICC dock – departed the Gambia for Equatorial Guinea (a non-signatory to the Rome Statute) under a brokered deal that fell short of granting him immunity for any crimes he is alleged to have committed during his 22-year long reign.2 For more on the terms of settlement, see Antenor Hallo de Wolf, Rattling Sabers to Save Democracy in The Gambia, EJIL:Talk!, 1 February 2017.

But let’s face it: immunity from prosecution for crimes against humanity is much like an amnesty (resulting in total amnesia and total prohibition against prosecution for crimes committed) – a thing of the past.  The days of kicking and screaming into the night as Uganda’s Idi Amin did when he fled to Saudi Arabia are becoming more difficult. The sanctity of sanctuaries is scarcely sacrosanct. Continue reading “It looks like the Gambia is heading back into the ICC fold: but what of Yahya Jammeh?”

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ADC and ICCBA: not a zero-sum game

Whenever you think you are facing a contradiction, check your premises. You will find that one of them is wrong.


Ayn Rand 

We must all hang together, or most assuredly we shall all hang separately.


Benjamin Franklin

Commenting on my most recent post “The ADC-ICTY Evolves into an Association of Defense Counsel Practicing before International Courts and Tribunals,” Chima Ayokunle wrote:

As far back as November 2013 you advocated on your blog that ICC ‘List Counsel must form their own Bar’ and ‘Only a Bar of List Counsel, by List Counsel and for List Counsel, can legitimately and passionately advocate for the needs of List Counsel’ (http://michaelgkarnavas.net/blog/2013/11/11/why-establish-a-bar-of-list-counsel-of-the-international-criminal-court/)

After this you were chair of committee drafting the Constitution for a Bar at the ICC and then you ran for president of the ICCBA and didn’t succeed.

It seems a contradiction to me that now you suggest that there could be more than one association at the ICC. Why be involved in establishing the ICCBA if this existing association could do it?

I wonder whether your view would be the same if you had been elected as ICCBA president?

Grateful to Mr. Chima Ayokunle for his musings.  My response: Continue reading “ADC and ICCBA: not a zero-sum game”

The ADC-ICTY Evolves into an Association of Defense Counsel Practicing before International Courts and Tribunals

On 16 December 2016, the Association of Defence Counsel Practising before the International Criminal Tribunal for the former Yugoslavia, commonly referred to as the ADC-ICTY, held a second General Assembly Meeting.  The agenda had one item only: amending the ADC-ICTY Constitution to change the name of the ADC-ICTY to better reflect its function – effectively transforming it into an association for defense counsel practicing before international tribunals and courts. And so the ADC-ICTY Constitution was amended. Continue reading “The ADC-ICTY Evolves into an Association of Defense Counsel Practicing before International Courts and Tribunals”

The ICC Registrar-Commissioned Reports Assessing the Legal Aid System: reasonable doubt at a reasonable price, realizing equality of arms, resource rationalization, and more

Ever since the International Criminal Court (ICC) was established, it has been rather unfashionable for defense counsel to praise the ICC Registrar for attempting, let along getting, something right for the Defense.  Why?

Much lip service is paid to the fair trial rights of the accused, the need for a robust defense for all accused, and, let’s not overlook, the attainment of equality of arms. While the ICC from its inception has extolled the virtues of the role played by defense counsel, it has, unabashedly, provided a pauper’s wage and meager resources.  Any prosecutor or judge would cringe were he or she in the dock dependent on a court-financed defense of the type funded by the ICC. Nothing new; with one or two exceptions, other international(ized) tribunals and courts are only marginally better.  The ICC, however, has taken it to the near extreme. Continue reading “The ICC Registrar-Commissioned Reports Assessing the Legal Aid System: reasonable doubt at a reasonable price, realizing equality of arms, resource rationalization, and more”

Will the ICC Prosecutor be tempted by Israel’s settlement regulation bill?

On 5 December 2016, the Israeli Knesset approved a new draft of a bill recognizing West Bank settlement outposts – some 4,000 settler homes built on private Palestinian land. This measure has proved to be controversial, characterized by some as an illegal land grab. And by most accounts, it now appears that this measure was the tripwire for UN Resolution 2334 (2016), “reaffirm[ing] that the establishment by Israel of settlements … has no legal validity and constitutes a flagrant violation under international law and a major obstacle to the achievement of the two-State solution and a just, lasting and comprehensive peace.”1 United Nations Security Council Resolution 2334 (2016), S/RES/2334 (2016), 23 December 2016. Expectedly, acrimony and recrimination has followed.

One embarks on a discourse about Israel, Palestine, and the International Criminal Court (ICC) at his or her risk. Emotions run high on all sides. Comments made even with the best of intentions, and however measured, can draw fire, friendly and otherwise.  Difficult to have a friend-to-friend discourse without being labeled naïve, insensitive, pro-this or anti-that. Continue reading “Will the ICC Prosecutor be tempted by Israel’s settlement regulation bill?”

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The ICC-OTP’s Report on Preliminary Examination Activities: Part III – Registered Vessels of Comoros, Greece, and Cambodia (the Mavi Marmara incident)

This is the third and final post in the series discussing the Office of the Prosecutor’s (OTP) Report on Preliminary Examination Activities (2016). In this series, I focus on three preliminary examinations (the situations in Afghanistan and Ukraine, and the situation on Registered Vessels of Comoros, Greece, and Cambodia, or the Mavi Marmara incident) and discussed the political considerations involved.

In the first post I briefly discussed the procedure for preliminary examinations established by the Rome Statute and the attendant modalities adopted by the OTP. Before an investigation can begin, the OTP analyzes whether the International Criminal Court (ICC) has jurisdiction over a situation, and whether the situation is admissible. The OTP examines whether a national court is already dealing with the situation, how genuine are the investigations/trial (complementarity criteria), and whether there is enough information on crimes of sufficient gravity (gravity criteria). Regardless of jurisdiction and admissibility, the OTP will finally consider whether there is a compelling reason not to take on this situation (interests of justice).

In the second post I discussed the situations in Afghanistan and Ukraine. My take is that regardless of whether the states fail to cooperate with and follow up on the OTP’s investigations, the ICC can affect some positive results by nudging (naming and shaming if necessary) certain states into prosecuting in domestic courts cases that fall within the ICC’s jurisdiction. To this end, the ICC can play a role of an investigative organ of the international community – serving fully investigated cases on a silver platter for states to prosecute.

In this final post I will discuss the Mavi Marmara incident. Continue reading “The ICC-OTP’s Report on Preliminary Examination Activities: Part III – Registered Vessels of Comoros, Greece, and Cambodia (the Mavi Marmara incident)”

The ICC-OTP’s November 2016 Report on Preliminary Examination Activities: Part II – Situations in Afghanistan and Ukraine

In this post I will focus on the situations in Afghanistan and Ukraine. I will explore the pros and cons of investigations against non-signatory states that are also permanent members of the United Nations (UN) Security Council (P5 member states) and are unlikely to allow their nationals to be prosecuted at the International Criminal Court (ICC).

 Situation in Afghanistan

The situation in Afghanistan examines the alleged crimes committed during the armed conflict between the Afghan Government supported by the International Security Assistance Force (ISAF – first established by the UN Security Council, and later under NATO command) and the United States (US) forces on one side, and anti-Government forces (particularly the Taliban, and other groups) on the other side.1 ICC-OTP, Report on Preliminary Examination Activities, 14 November 2016, paras. 195-96 (hereinafter “ICC-OTP Report”). The conflict broke out in late 2001, triggered by the attacks of 9/11 (September 11, 2001). A US-led coalition launched air strikes and military operations against the Taliban in Afghanistan. After Osama bin Laden’s death in 2011, NATO gradually withdrew its forces. By 2014, the international forces supporting the Afghan Government ended their combat missions, but some forces remain for training, advisory, and assistance purposes.2 Id. Continue reading “The ICC-OTP’s November 2016 Report on Preliminary Examination Activities: Part II – Situations in Afghanistan and Ukraine”

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