Just How Relevant is the ICC – Part IV

This multi-part blog post is drawn from Michael G. Karnavas’s Lecture at the Brown University International Organization (BRIO) February 26, 2014.  The complete piece is available on Michael’s website.

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c. The M.V. Mavi Marmara Incident

Mavi_Marmara_sideTo add a bit more fuel to debate, I moved on to the ICC preliminary inquiry into the Israeli raid on the Gaza bound flotilla—the M.V. Mavi Marmara incident.  On 31 May 2010, the Free Gaza Flotilla, carrying humanitarian aid and more than 600 pro-Palestinian activists, attempted to break Israel’s naval blockade.[1]  Israeli commandos boarded (or, as some put it, assaulted) one of the vessels, the M.V. Mavi Marmara, resulting in nine deaths.[2]  According to the referral filed by the Union of the Comoros, some 600 passengers were also victimized by the conduct of Israeli Defence Forces (IDF), in violation of international humanitarian law, human rights law and international criminal law.[3]

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Just How Relevant is the ICC – Part III

This multi-part blog post is drawn from Michael G. Karnavas’s Lecture at the Brown University International Organization (BRIO) February 26, 2014.  The complete piece is available on Michael’s website.

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 III. VIGNETTES AND DISCUSSION

Now it was time to go through some examples—vignettes as I like to call them—and see just how relevant the ICC may be.  As noted, the ICC is meant to be a court of last resort for victims to seek justice beyond the reach of obstruction by the political authorities generally complicit to the crimes being alleged and who by virtue of their power and authority, control the national courts and thus the outcomes. The ICC is expected to step into the breach where national courts are unable or unwilling to prosecute crimes of a universal nature: war crimes, crimes against humanity, genocide.  I had hoped that the vignettes would lead to questions, comments and reflection on whether in its twelve year history the ICC has met expectations; whether it was rendering justice, or whether has it had the makings of a political tool?

To get the discussion going, I thought I would start with a few complaints or requests for investigation to the ICC Prosecutor to show the various reasons certain actors were trying use the ICC to advance seemingly political agenda – not exactly why the ICC was set up – and why certain non-signatories may have legitimate concerns for not signing on to the Rome Statue. Continue reading “Just How Relevant is the ICC – Part III”

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Just How Relevant is the ICC – Part II

This multi-part blog post is drawn from Michael G. Karnavas’s Lecture at the Brown University International Organization (BRIO) February 26, 2014.  The complete piece is available on Michael’s website.

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nurnberg006-821x1024The discussion then turned to the legacy of the Nuremberg and Tokyo trials.  It seemed that the global community had come to the realization of the need for permanent mechanisms and modalities in dealing with mass atrocities resulting from human rights and humanitarian violations in peacetime or in war, during internal armed conflicts or international armed conflicts.  For decades there were discussions and position papers on the need to establish a permanent international criminal court, and of course on what law and procedure it would apply.  This was a rather Herculean task when considering that a general consensus needed to be reached by the drafters who were jurists, academics and diplomats from all over the globe, from different legal traditions, with different agendas—all while the Cold War was being waged psychologically and by proxy—with no end in sight.

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JUST HOW RELEVANT IS THE ICC: A Viable Court of Last Resort or A Politicized Court of Low Expectations? Part I

This multi-part blog post is drawn from Michael G. Karnavas’s Lecture at the Brown University International Organization (BRIO) February 26, 2014.  The complete piece is available on Michael’s website.

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I. INTRODUCTION

Brio_logoOn 26 February 2014, I was invited by the Brown University International Organization (BRIO), at Brown University, Providence, Rhode Island, to present a lecture on the International Criminal Court (ICC) relevant to the ongoing events in Syria.  It is beyond cavil that the ICC is a response to the international community’s concern for mass atrocities around the world—genocide, war crimes, and crimes against humanity—designed “to put an end to impunity” and bring justice to countless victims and survivors.  Merciless leaders have escaped prosecutions by threatening or corrupting their own judiciaries.  The ICC is meant to be a court of last resort for victims seeking justice beyond the reach of obstruction.  In its twelve year history is the ICC meeting expectations?  Is the ICC rendering justice, or has it become a political tool?  Today the ICC faces many complex challenges that call into question the viability of the institution.

With the Syrian conflict in full bloom and no end in sight to the mass atrocities being committed by all sides to the conflict, I settled on the topic of: Just how relevant is the ICC: A viable court of last resort or a politicized court of low expectations?  My aim was not to lecture on international criminal law or on the establishment of the ICC, but to highlight some of the ongoing legal and political challenges relating to jurisdictional issues.  After taking the students through the historical development of international justice—from pre-Nuremberg to Syria—I offerred several vignettes to provoke a discussion and critical thinking.  It would be up to the students to decide on the ICC’s report card.  Personally, I give it an overall average of D+/C-.

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Eighth and Final Installment: JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS

This is the eighth, and final 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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H. The Obligations of Defence Counsel in exercising due diligence

French_lawyer_early_20thLastly, I discussed obligations that also lie with Defence counsel.  Indeed, Defence counsel have to be diligent to raise disqualifications early in the proceedings and to the right authority.  I put the accent on how important is to make the record.  I used the Čelebići case as an example in which the issue was whether a Judge was fit to be a Judge.

ICTY Prosecutor v. Delalić et al. (Čelebići), The Case of the sleeping Judge, and the Defence’s failure to raise

In Čelebići, Judge Karibi-Whyte was sleeping during substantial portions the trial proceedings.[1]  Defence counsel for Landžo did not formally raise this issue before the Trial Chamber but filed this issue as a ground of appeal.[2]  Counsel for Landžo explained the failure to raise this issue during trial proceedings stating that she had approached “this sensitive issue in the most diplomatic way possible.”[3]  Indeed, Counsel for Landžo had first raised the issue with the Registrar and President of the ICTY Judge Cassese rather than in court: Continue reading “Eighth and Final Installment: JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS”

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Seventh Installment: JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS

This is the seventh 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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G. Staff Members

StaffOnlyFollowing the discussion on judges, I then moved on to discuss instances bias raised concerning judicial staff. The question is whether Chamber’s staff members are subjected to the same rules as Judges and therefore subject to disqualification. The answer is no, Rule 15(A) ICTY Rules of Procedure and Evidence (RPE) applies only to Judges.  Noteworthy, there is no explicit code of conduct for Chambers or Prosecution staff members even though they carry out highly sensitive functions and, in many instances, are, or are presumed to be, agents of the judges and prosecutors whom they serve.  Presumably, under their contractual obligations they are to conduct themselves in an ethical manner, though query whether that is enough.

ICTY Case Against Senior Legal Officer Florence Hartmann

In the Hartmann[1] case before the ICTY, in which a Senior Legal Officer allegedly had ex parte communications with the amicus curiae—who was acting on behalf of the Prosecutor—regarding the provision of confidential materials to the Defence.

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Sixth Installment: JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS

This is the sixth 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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E. Corruption, Impartiality and Fitness to Sit as Judge

ECCC Case 002, Ieng Sary’s Motion to Disqualify Judge Nil Nonn

ScaleTipIn 2002, Amanda Pike, a documentary filmmaker, traveled to Cambodia and produced the documentary “Cambodia: Pol Pot’s Shadow.”[1]  While filming the documentary, Ms. Pike interviewed Judge Nil Nonn, the then President of the Provincial Court of Battambang.  This interview served as a basis for her article “Battambang: The Judge.”  In this article, Ms. Pike reported:

We talk with Judge Nil, who says that he’s upset by people’s lack of faith in the justice system. He laments that he often has to defend his profession to his friends. He admits that, yes, he does take bribes—of course—but only after a case is over. After all, he earns only $30 a month, not nearly enough to provide for his family. What else, he asks with that toothy grin, is he supposed to do?[2]

Judge Nil Nonn, when interviewed in 2006 by the Cambodia Daily, denied that he had ever taken bribes from the public or participated in the interview.[3]  He stated “however, if after a trial people feel grateful to me and give me something, that’s normal I don’t refuse it. . . .  I’ve settled a case for them and people feel grateful. Living conditions these days are difficult for me. But if you are talking about pressuring people for bribes—no.”[4]

Having learned of this article, the IENG Sary Defence first took steps to obtain more information.  First, the IENG Sary Defence attempted to locate Ms. Pike and obtain the video footage from her interview with Judge Nil Nonn and Judge Nil Nonn’s release form to be filmed.  Ms. Pike responded that she would not release the material voluntarily on “journalistic grounds.”[5]  Similarly, the IENG Sary Defence wrote to Mr. Welsh at the Cambodia Daily who also declined to provide information.[6]  Shortly thereafter, the IENG Sary Defence filed a motion to the Trial Chamber seeking to disqualify Judge Nil Nonn on the basis of corruption and a related request to investigate the action.[7]

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Fifth Installment: JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS

This is the fifth 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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C. A Judge’s Ethical Obligation to Disclose 

DisclosureNext, I discussed a Judge’s ethical obligation to disclose.  Judges must disclose facts that may affect (or perceive to affect) their impartiality; facts that could lead a reasonable, informed observer to objectively apprehend bias.

ICTR Prosecutor v. Karemera, Disqualification of Judge Vaz

In the ICTR case Karemera, the Defence requested that Judge Vaz recuse herself because of her alleged cohabitation with Ms. Dior Fall, one of the trial attorneys for the prosecution during the case.[1]  Although Judge Vaz ultimately withdrew, the Appeals Chamber noted the improper conduct and held that the Judge should have disclosed the facts of her accommodation prior to the Defence’s objection: Continue reading “Fifth Installment: JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS”

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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.

elhadjimalickSow
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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