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 Prosecutor 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”
By Michael G. Karnavas1 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.
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.
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 Association 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”
We 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?”
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?”
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 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.
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”?
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.
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?”
One has a moral obligation to take responsibility for one’s actions, and that includes one’s words and silence, yes, one’s silence …
Roberto Bolaño, By Night in Chile
A couple of weeks ago I posted a commentary that appeared in the Cambodia Daily concerning Henri Locard’s remarks while being examined by International Co-Lawyer for Accused Khieu Samphan, Ms. Anta Guisse, and his out-of-court remarks about the defence in general, which also appeared in the Cambodia Daily.
Locard’s out-of-court remarks prompted the Nuon Chea Defence to file a submission requesting a. that the press article that reported on Locard’s remarks be placed on the case file, and b. for the Trial Chamber to disregard Locard’s testimony because, having prejudged Nuon Chea’s guilt, Locard’s testimony was “not impartial or neutral and therefore fails to meet the criteria required to be considered expert evidence.” The Co-Prosecutors responded.1Case of NUON Chea, 002/19-09-2007-ECCC/TC, Co-Prosecutors’ Response to Nuon Chea’s Rule 87(4) Request to Admit into Evidence a Document an Article Concerning Henri Locard (2-TCE-90), 16 August 2016. Hence this post.
The Co-Prosecutors have no objections to the press article being included in the case file. What other position could they take? Hardly a bold manifestation of fairness.
The Co-Prosecutors did however object to the Nuon Chea Defence’s characterization of Locard and his testimony. Despite Locard’s in-court and out-of-court remarks, the Co-Prosecutors find him to be an erudite, objective and credible expert witness. Predictable. Although, what else could they be expected to say? It takes a particularly honest and moral sense of a prosecutor’s higher duty to justice to step out of the adversarial boots and cease vouching for a demonstrably defective witness. Continue reading “ECCC Prosecutorial Awakening is No Profile in Courage”