LOOKING FOR BAO NINH

On 14 August 2018, The Mekong Review published an essay I wrote about my search in the mid 90’s for Vietnamese writer Bao Ninh, author of The Sorrow of War.  That essay, Looking for Bao Ninh, is reproduced below.


LOOKING FOR BAO NINH

MICHAEL KARNAVAS – AUG 14, 2018

I took my first trip to Southeast Asia in 1994. I went to Phnom Penh to volunteer, teaching trial advocacy skills for the Cambodian Defender Project. Showing up unannounced, I was told to come back a month later. So I headed north to Hanoi. Vietnam had opened its doors to foreign investment and tourism. It was an exuberant time, full of optimism.

The Sorrow of War: A Novel of North Vietnam by [Ninh, Bao]It was during this trip that I came across Bao Ninh’s novel The Sorrow of War. Almost from the first page I was mesmerised by the story, the characters (especially the protagonist, Kien), and the pain and suffering portrayed throughout. The more I read, the more I reflected on what I knew — or presumed to know — about the war, Vietnam and, in particular, the North Vietnamese. I was being treated to a new perspective. I had always prided myself on trying to view things from all sides, including the other side, on questioning opinions and beliefs when the facts did not bear them out.

Yet I had never taken the time to think of what it must have been like to be North Vietnamese during the war. It had never even occurred to me to think of what the North Vietnamese went through, of the death toll of civilians and soldiers. Visiting the Vietnam Veterans Memorial, in Washington, DC, would evoke feelings in me for the more than 58,000 US soldiers killed — as well as for their allies in the south — without a thought for the 1 million North Vietnamese soldiers killed. Nor do I remember ever considering what it must have been like for those North Vietnamese soldiers who survived the war: their physical and psychological injuries; their suffering after the lights went out each night, when memories of pain, loss, anguish and terror would surface.

In The Sorrow of War I saw the conflict for the first time through the eyes of a North Vietnamese soldier. Most of the films and books I had been exposed to on the war were from the American perspective. The narrative that had shaped my thinking was one-dimensional, full of misapprehensions, half-truths and hearsay.

As soon as I finished The Sorrow of War, I started re-reading it. All of a sudden I became more sensitive to my surroundings. I began challenging my assumptions and presumptions. I recall, on that first visit, taking a trip to Dien Bien Phu in a jeep, driven by a North Vietnamese veteran who was about my age. He wanted to know if I had fought in the war. I told him I had not. The question provoked anxiety in me that would not go away. As he drove on, for hours on end, I imagined what it must have been like for him during the war. My point of reference was Bao Ninh’s novel. I could not stop thinking of Kien, the tragic figure who chronicles his anguish — from his youth to his lost love, from his years as a soldier to his postwar duty of collecting the bones of his fellow soldiers in the Jungle of Screaming Souls. In almost every waking moment during that trip to Dien Bien Phu I could not stop thinking of Kien. His eloquent yet disquieting recollections haunted me.

When my month travelling through Vietnam came to an end, I headed back to Phnom Penh. When my work was done, my mind gravitated to Kien. The more I thought of The Sorrow of War, the more convinced I became that it should be turned into a film. American audiences should see this side of the story. Even Vietnamese should see it. The breaking of promises made to those who sacrificed for or fought in Ho Chi Minh’s war of reunification was one of Bao Ninh’s themes. By chance, I had with me a book on screenwriting and thought (naively) that perhaps I could take a stab at it. If only I could track down the author and secure the rights. I was almost certain that the rights would have been sold or given away, but I had to try. I decided to head back to Hanoi in search of Bao Ninh.

Bao Ninh, Hanoi, 1990. Photo: Catherine Karnow

I assumed he was living in Hanoi, as Kien was from Hanoi. Only someone who has gone through what Kien does could write with such depth, clarity and anguish. As a public defender I had experience in tracking down witnesses. How difficult would it be to find this writer of obvious notoriety? I would use the same methodical approach, of finding a lead and taking it from there.

I had given myself three to four days to locate Bao Ninh. Two days into my search, it occurred to me that there must be a writers’ association. Surely if one existed its members would know of his whereabouts. When I found the organisation, I was greeted by a woman who spoke good English. She seemed to be in a position of authority and very much switched on. Though polite, she had a dour look on her face that barely changed throughout our exchange. When I mentioned the purpose of my visit, her expression shifted to a mixture of irritation and impatience. I had obviously touched a nerve.

Why are you looking for this Bao Ninh?

I told her about the book.

I have never heard of him. I do not know this Bao Ninh. If he exists, he is not from Hanoi.

I politely insisted that he must be from Hanoi because Kien and many other characters are from Hanoi. Only someone who has lived in Hanoi would know it so well to write about it in such detail.

Sorry, but I cannot help you.

I tried some small talk, but she would have none of it. Getting nowhere, I left the building. All of a sudden, appearing with an exasperated look on her face, she handed me a folded piece of paper and whispered:

You will find Bao Ninh at this address. But The Sorrow of War is not very good; it is a poorly written novel of no distinction.

I asked what she meant.

The style is not Vietnamese. It is written like a novel from the West, with the plot going backwards and forwards, and all this reminiscing of a pathetic soldier who gets things mixed up and is confused about the war.

Bao Ninh is not much of a writer and The Sorrow of War is unpleasing, un-Vietnamese.

She wished me good luck and walked away.

That same afternoon I went to the address, which proved to be spot on. Bao Ninh lived in an apartment in a complex of countless indistinguishable apartment buildings, somewhat away from the centre of Hanoi.

Showing up unannounced, as I had done on my first day in Phnom Penh, I hoped Bao Ninh was home. He was, though I quickly learned that he had given the film rights to his English translator (or at least he thought so). In any event, he was not interested in seeing The Sorrow of War adapted. He looked tired, seemed shy at first and was often lost in thought, but he eventually opened up and we chatted for a couple of hours. Surprisingly, he welcomed the opportunity to talk with a complete stranger about his novel, one of the most influential ever written about the Vietnam War. A classic.


The Mekong Review‘s featured interview with Bao Ninh can be read here.

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Attorney-Client Privilege — The Crime-Fraud Exception

Recently there has been a sharp uptick in traffic to an October 2015 post I wrote on the crime-fraud exception to attorney-client privilege (reproduced below).  This post was part of a four-part series on attorney client-privilege issues in domestic and international(ized) courts.  I can only assume that the renewed interest in this subject is fueled by last week’s FBI execution of a search warrant on the office, home and hotel room of Michael Cohen, lawyer (some say “fixer”) for President Donald Trump.  As I write, the issue is playing out in a United States District Court in New York, where Cohen, supported by Mr. Trump’s lawyers, is seeking an injunction to prevent the prosecutor from examining seized materials, based on attorney-client privilege.

Before this litigation is over we are likely to see a very high-profile addition to the canon of law on the crime-fraud exception to attorney-client privilege.


Attorney-Client Privilege — Part IV: The Crime-Fraud Exception

This post follows up on the discussion of the attorney-client privilege and the crime-fraud exception raised in image3Prosecutor v. Bemba et al. (“Bemba”) before the International Criminal Court (“ICC”). In my previous post, I presented an overview of the attorney-client privilege (otherwise known as “lawyer-client privilege” or “legal professional privilege”) in the international criminal tribunals. As previously discussed, one of the exceptions to the attorney-client privilege is the crime-fraud exception. This exception applies when communications are made in furtherance of a crime or fraud. In other words, the attorney-client privilege is not a shield to be used by either the attorney or the client to pursue or cover up criminal activity, including acts contributing to the obstruction or perversion of justice. The ICC Pre-Trial and Trial Chamber decisions in Bemba raise several questions concerning the scope of this exception. Before I get into those questions, let’s briefly review the history of the case. Continue reading “Attorney-Client Privilege — The Crime-Fraud Exception”

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Opinion: Due Process Not Negotiable, Even in Khmer Rouge Tribunal

On May 15, 2017, The Cambodia Daily published an opinion piece by Michael G. Karnavas.  The piece appears below:

The Cambodia Daily

Opinion: Due Process Not Negotiable, Even in Khmer Rouge Tribunal

MAY 15, 2017

By Michael G. Karnavas 1   Michael G. Karnavas is a criminal defense lawyer. He was the co-lawyer for Ieng Sary at the Extraordinary Chambers in the Courts of Cambodia, and is now Meas Muth’s international co-lawyer in Case 003 at the ECCC.

Last week it was revealed that the Co-Investigating Judges (CIJ) of the Extraordinary Chambers in the Courts of Cambodia (ECCC) confidentially informed the parties in Cases 003, 004, and 004/02 and the Office of Administration that they were considering invoking what amounts to a nuclear option: a permanent stay of the proceedings due to a lack of funding. Submissions were invited.

Court-watchers and “experts” immediately weighed in with claims of political interference. Judge Martin Karopkin, a reserve Judge of the Trial Chamber, joined the fray. Disquieting as his remarks may be, I admire Judge Karopkin’s honesty. Continue reading “Opinion: Due Process Not Negotiable, Even in Khmer Rouge Tribunal”

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Footnotes   [ + ]

Learning from the ECCC experience

 

On 5 October 2016, I was invited to participate in a seminar organized by the United Nations Office of the High Commissioner for Human Rights – Cambodia (OHCHR) in cooperation with the Bar bakcAssociation of the Kingdom of Cambodia (BAKC), titled Questioning Techniques from the Defense’s Perspective and the Use of National and International Law in Legal Arguments. Held in Phnom Penh, this training was part of the Legal Dialogue Series 2016: a series of trainings organized by the OHCHR as part of its ongoing efforts to support and strengthen the development of Cambodian legal professionals, including by facilitating the dissemination of skills and knowledge from international and Cambodian lawyers at the Extraordinary Chambers in the Courts of Cambodia (ECCC) to Cambodian lawyers practicing in local courts. Continue reading “Learning from the ECCC experience”

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Judges’ questioning: are all questions fair game?

 

yellowcardWe all know that trials, like games, have their unique set of rules – who does what, when can this or that be done, what is permissible or impermissible, etc.  We generally refer to them as the rules of procedure and evidence.   In another context we might call them the rules of the road.  In sports we just call them the rules.  Try playing a game without them.  Worse yet, try playing a game where the referee is also a player and when it comes to his or her behavior, the rules apply or are redefined based on whim and fancy.  Just how fair would such a game be?

In the trial game, the parties have the right to ask questions, but so do judges.  Depending on the procedure, the judges may have the right to take the lead, leaving the prosecution and the defence to mop up.  When the parties have the right to take the lead, judges are expected to ask discrete questions, mostly for clarification, and not for the purpose of pursuing a preordained result (as prosecutors of all stripes and shades do). Continue reading “Judges’ questioning: are all questions fair game?”

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The MICT model: panacea or chimera?

On 20 September 2016 a press release was issued by the United Nations Mechanism for International Criminal Tribunals (“MICT”), also referred to as “the Mechanism”, describing a presentation given by MICT President Judge Theodor Meron at The Hague Institute for Global Justice. The press release described President Meron’s view that the MICT presented itself as a new model for international justice. Under this model, courts could be more streamlined and cost-effective by having a roster of judges on call who would step into the breach only when needed, as opposed to being in situ, collecting a full-time salary with benefits. This model is likely the brave new world and is being advocated by some who are looking for alternatives or complements to the International Criminal Court (“ICC”). Continue reading “The MICT model: panacea or chimera?”

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Crimes Against Humanity – Part III: Is an attack by a state or organization against members of its own armed forces an attack directed against a civilian population amounting to a crime against humanity?

Part III

This is the third and final post dealing with the call for submissions by International Co-Investigating Judge Michael Bohlander of the ECCC who is currently investigating Cases 003 and 004.   Querying whether there was a lacuna in defining who may form a “civilian population” for the purpose of crimes against humanity, Judge Bohlander asked the parties and the amici:

Whether, under customary international law applicable between 1975 and 1979 [the temporal jurisdiction of the ECCC], an attack by a state or organisation against members of its own armed forces may amount to an attack directed at a civilian population?

As I noted in the first post, Judge Bohlander hinted that previous discussion on interpreting who constitutes a “civilian population” may have overlooked policy aspects such as whether there is a distinction between soldiers and civilians, and that such distinction “might only make sense if speaking of soldiers and civilians of an enemy population.”  He then opined or concluded – at least so it appears from his words – that “it would seem beyond dispute that a regime which in peace times tried to cleanse its own armed forces of, for example, all soldiers holding a particular ethnicity or faith, would be engaging in crimes against humanity, because the victims’ combatant quality merely because they are soldiers would be entirely irrelevant in this context…” and that “there is no reason to think otherwise if such a campaign happened in the course of or otherwise connected to an armed conflict.”(para. 5)

The first post dealt with the contextual background relevant to Judge Bohlander’s question and provided a synopsis of the overarching arguments put forward by the International Co-Prosecutor (“ICP”) and the amici who responded to the call for submissions.  Positions of the majority were relatively the same:  a state or organization’s own forces can constitute a civilian population for the purposes of crimes against humanity. The second post covers the amici’s and ICP’s arguments in detail though a series of questions inherent in their arguments.

In this final post, I set out the rationale behind the civilian population requirement and argue: Continue reading “Crimes Against Humanity – Part III: Is an attack by a state or organization against members of its own armed forces an attack directed against a civilian population amounting to a crime against humanity?”

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Crimes Against Humanity — Part II: Is an attack by a state or organization against members of its own armed forces an attack directed against a civilian population amounting to a crime against humanity?

Part II

In the previous post I introduced the question raised by Judge Bohlander, the International Co-Investigating Judge for the ECCC, in his call for submissions: “whether, under customary international law applicable between 1975 and 1979 [the temporal jurisdiction of the ECCC], an attack by a state or organisation against members of its own armed forces may amount to an attack directed at a civilian population” for the purposes of crimes against humanity.  After setting out the context and relevance for posing this question, I provided a brief synopsis of the submissions.

In this post, I will deal the overarching arguments put forward by the amici and International Co-Prosecutor (“ICP”) in submitting that under customary international law between 1975 and 1979, a state or organization’s own armed forces can constitute a civilian population for the purposes of crimes against humanity. I will do so by answering the questions that emerge from their arguments, which I listed in the previous post.

  1. In customary international law, is the term “civilian population” given a broad interpretation to include members of a state’s own armed forces? And would excluding soldiers from the definition of “civilian population” lead to an “absurd result”?

Answer: no and no. Continue reading “Crimes Against Humanity — Part II: Is an attack by a state or organization against members of its own armed forces an attack directed against a civilian population amounting to a crime against humanity?”

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Crimes Against Humanity – Part I: Is an attack by a state or organization against members of its own armed forces an attack directed against a civilian population amounting to a crime against humanity?

Part I 

A few months ago, 19 April 2016 to be exact, Michael Bohlander, the International Co-Investigating Judge for the Extraordinary Chambers in the Courts of Cambodia (“ECCC”) issued a call for submissions by the Office of the Co-Prosecutors (“OCP”), the Defence in Cases 003 and 004, and qualified amici curiae.  Querying whether there was a lacuna in defining who may form a “civilian population” for the purpose of crimes against humanity, Judge Bohlander asked:

whether, under customary international law applicable between 1975 and 1979 [the temporal jurisdiction of the ECCC], an attack by a state or organisation against members of its own armed forces may amount to an attack directed at a civilian population.1Case of MEAS Muth, 003/07-09-2009-ECCC/OCIJ, Call for Submissions by the Parties in Cases 003 and 004 and Call for Amicus Curiae Briefs, 19 April 2016, D191 (“Call for Submissions”), para. 3.

Continue reading “Crimes Against Humanity – Part I: Is an attack by a state or organization against members of its own armed forces an attack directed against a civilian population amounting to a crime against humanity?”

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Footnotes   [ + ]

Ahmed al Faqi al Mahdi’s trial or slow change of plea hearing at the ICC?

Ahmad Al Faqi Al Mahdi
Ahmad Al Faqi Al Mahdi

On 22 August 2016, Ahmad Al Faqi Al Mahdi entered a guilty plea before the Trial Chamber for destruction of cultural monuments in the UNESCO world heritage site in Timbuktu, Mali.1Prosecutor v. Al Mahdi, ICC-01/12-01/15-T, Video Recording of the Admission of Guilt, 22 August 2016, available at https://www.icc-cpi.int/mali/al-mahdi. Despite having admitted to the crimes charged, the case proceeded to a two-day trial.  The judgement and sentence are expected by 27 September 2016.2Prosecutor v. Al Mahdi, ICC-01/12-01/15-T-6-ENG, Transcript of the Trial Hearing, 24 August 2016, available at https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-01/12-01/15-T-6-ENG.

Interesting as it may be to debate the merits of going after the likes of Al Mahdi and the significance of this case (see e.g., Mark Kersten in Justice in Conflict (2 posts) or Owen Bowcott’s article in The Guardian), I am interested in the trial. Or is it a trial? After all, Al Mahdi pled guilty, acknowledged the factual matrix in the charging document as accurately reflecting his conduct, and voluntarily, knowingly, and intelligently (understandingly) waived guaranteed fair trial rights, in particular the rights to be presumed innocent, against self-incrimination, and to have the prosecution prove each charge against him beyond a reasonable doubt.

So what is there to try?  Why put Al Mahdi through the crucible of having to retell that which presumably he has already told the Prosecutor or force him to effectively prove his guilt (having entered a guilty plea, there is a presumption that Al Mahdi is guilty) for the crimes for which he has already accepted responsibility and for which he is willing to bear the consequences? Continue reading “Ahmed al Faqi al Mahdi’s trial or slow change of plea hearing at the ICC?”

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Footnotes   [ + ]