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.(( 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)(( 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.(( 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’ (https://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”

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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”

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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”

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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.”(( 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)”

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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.(( 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.(( 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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The ICC-OTP’s November 2016 Report on Preliminary Examination Activities: Some Observations

icc_cpiOn 14 November 2016, the International Criminal Court’s (ICC) Office of the Prosecutor (OTP) issued its latest Report on Preliminary Examination Activities (Report). The Report sets out, in general, the OTP’s efforts in conducting preliminary examinations of communications and situations to determine whether under the Rome Statute investigations are warranted.(( Report on Preliminary Examination Activities, 14 November 2016, (Report), para. 1, citing Policy Paper on Preliminary Examinations, November 2013.)) The overarching goals of a preliminary examination are “the ending of impunity, by encouraging genuine national proceedings, and the prevention of crimes … potentially obviating the need for the Court’s intervention.”(( Report, para. 16.))

The Report is clear, concise, and informative.  Rather than discuss all the details of the OTP’s activities, I will merely focus on the three preliminary examinations: the situation in Afghanistan, specifically the alleged crimes committed by the United States (US) armed forces and citizens acting on behalf of the US, the situation in Ukraine, and the OTP’s reconsideration of the situation related to Israel (registered vessels of Comoros, Greece, and Cambodia – the Mavi Marmara incident).

This is the first post of a three-post series.  I hope to explore the pros and cons of pursuing examinations against non-signatory states that are also permanent members of the UN Security Council (and are unlikely to allow their nationals to be prosecuted at the ICC), and whether the Pre-Trial Chamber’s request to the OTP to reconsider the decision not to initiate an investigation into the Mavi Marmara incident is merited or based on dubious political considerations.(( In November 2014, the OTP completed its preliminary examination into the Mavi Marmara incident with a decision not to proceed with an investigation because the potential case(s) would be of insufficient gravity.  See ICC-OTP, Article 53(1) Report, 6 November 2014, para. 150. In January 2015, the Comoros applied for review of this decision before the Pre-Trial Chamber. Based on this application, the Pre-Trial Chamber requested the OTP to reconsider its decision. See Situation in the Registered vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, ICC-01/13, Application for Review pursuant to Article 53(3)(a) of the Prosecutor’s Decision of 6 November 2014 not to initiate an investigation in the Situation, 29 January 2015; Decision on the Request of the Union of the Comoros to review the Prosecutor’s Decision not to Initiate an Investigation, 16 July 2015.)) Continue reading “The ICC-OTP’s November 2016 Report on Preliminary Examination Activities: Some Observations”

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Review of Justice Richard Goldstone’s 16 November Lecture on the ICC’s Current Challenges

Justice Richard Goldstone
Justice Richard Goldstone

Last night, 16 November 2016, Justice Richard Goldstone, former Justice of the Constitutional Court of South Africa and the first Prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda (ICTY and ICTR), delivered the second lecture in the joint lecture series co-hosted by Temple Garden Chambers (TGC) and the British Embassy. His lecture, fittingly titled The International Criminal Court – Current Challenges, was a sobering reminder on just how political and politicized international courts are, starting with his own appointment as ICTY and ICTR Prosecutor (members of the UN Security Council could not agree on a prosecutor primarily over petty political and sometimes retaliatory reasons). Continue reading “Review of Justice Richard Goldstone’s 16 November Lecture on the ICC’s Current Challenges”

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