But since rhetoric exists to affect the giving of decisions – the hearers decide between one political speaker and another, and the legal verdict is a decision – the orator must not only try to make the argument of his speech demonstrative and worthy of belief: he must also make his own character look right and put his hearers, who are, to decide, into the right frame of mind.
Aristotle, The Art of Rhetoric
Sitting at a sushi bar nearly forty years ago as a newly minted lawyer being introduced to the culinary delight of raw fish delicately sliced with artistic flare, I artlessly asked the middle-aged chef how long it had taken him to learn his skills. Taciturnly, he said still learning. It would take years to figure out what he meant – perfection is a process, not a destination. Zen.
Perfecting one’s skills in rhetoric and advocacy is the same – a never-ending journey of striving and evolving, of emulating and improvising, of observing and learning. What may have worked seven, five, or even two years ago may now seem passé and less effective. The audience’s tastes, sophistication, tolerance, attention span, thought processes, etc., have likely changed. As have their socio-economic status, political views, and day-to-day existence. The advocate must adjust to the times and to the occasion. Continue reading “The Trump impeachment trial: observations on rhetoric & advocacy “
Late Saturday night, July 13, 2019, NagaWorld Hotel ballroom, Phnom Penh, Cambodia. Tables full, food and libations flowing, laughter, music, Khmer traditional dancers, speeches, clinking of glasses, cake-cutting, idle chatter, happy faces, kind words. It’s the graduation party for the newly-minted lawyers having passed the last of their exams after finishing an intensive Bar course. As I look around, I wonder if any of these young Lawyers can fathom a Cambodia with virtually no lawyers, no Bar Association – or BAKC (Bar Association of the Kingdom of Cambodia) as it is known, when at best there were some trained human rights advocates working for NGOs, offering their services to indigent suspects and accused in some parts of Cambodia. Probably not. But yes, there was such a time, and it was not that long ago. Continue reading “Reflections on the Cambodian Defenders 25 years later: from humble advocates to legal trailblazers “
This is the final post in my series on the Kosovo Specialist Chambers (“KSC”), a hybrid internationalized set of chambers founded to try war crimes, crimes against humanity, and other crimes under Kosovo law committed during the aftermath of the conflict in Kosovo (1998-2000).
For those of you who are just picking up on this series, a brief recap before diving into the Code of Judicial Ethics for Judges Appointed to the Roster of International Judges of the Kosovo Specialist Chambers (“KSC Code of Judicial Ethics”).
The KSC was established on 3 August 2015 with the passing of the Law on Specialist Chambers and Specialist Prosecutor’s Office (“KSC Statute”) and an amendment to the Kosovo Constitution by the Kosovo Assembly, following a report by the Council of Europe and investigations by a Special Investigative Task Force into alleged organ harvesting and various war crimes and crimes against humanity committed in the fallout of the conflict in Kosovo. Soon after being sworn in, the Judges adopted the KSC Code of Judicial Ethics on 14 March 2017, and on 27 March 2017 submitted the Rules of Procedure and Evidence (“RPE”) to the Specialist Chamber of the Constitutional Court (“SCCC”) for review – the Chamber responsible for interpreting the Kosovo Constitution as it relates to the KSC. The SCCC found nine of the RPE to be unconstitutional, and a new draft of the RPE was referred back to the SCCC on 31 May 2017; judgment pending. Continue reading “Kosovo Specialist Chambers – Part 7: The Code of Judicial Ethics”
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”
Geneva meeting: Defence Offices at the International Criminal Courts
On 22 and 23 October 2015, Michael G. Karnavas participated in the Third International Meeting of Defence Offices at the International Criminal Courts in Geneva, Switzerland.
During a Round Table session on the Overview of the issues faced by the defence before the international criminal courts, Karnavas addressed the lack of meaningful right to counsel in seeking post-conviction relief at the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) which have phased into the Mechanism for International Tribunals (MICT). According to the MICT Registry, it will only grant legal aid for post-conviction issues in exceptional circumstances and only after a judicial order. Former Accused and convicted persons may engage pro bono Counsel to represent them before the MICT. The absence of an entitlement to legal assistance does not prevent the MICT from assisting convicted persons in obtaining Counsel to assist with post-conviction matters and the Registry is therefore currently establishing a list of pro bono Counsel. As Karnavas bluntly explained: If Defence Counsel want to work for free, MICT will let them, although MICT will not even promise to appoint that Counsel if there is an issue that warrants appointment. Ludicrous. Continue reading “Recent Events: Geneva meeting on Defence Offices at the International Criminal Courts; Skopje evidence training”
Last December I had the privilege of being invited to participate at a conference hosted by the International Research and Documentation Centre War Crimes Trials, in Marburg, Germany. The conference, titled The Defence in International Criminal Courts, was by far the best conference I have ever attended, focusing on defence issues from Nuremberg and onwards. The presentations and discussions were excellent. Here is an excerpt of my presentation. The full version is scheduled for publication.
Hybrid Courts: a marriage of inconvenience
Michael G. Karnavas
Imagine being on the football pitch. The stakes are high – it’s a championship game. You and your teammates have been preparing for this game, sharpening your skills, studying your opponent, developing your game plan, mastering the intricacies of the rules, doing everything possible to take advantage of every opportunity that may present itself and every weakness that your opponent may have. All is riding on this game, so you have thought of everything. You are ready. You are ready to control the ball, control your opponent, control the slightest openings. Ready to control it all. All except the referee. That’s the wildcard. The unknown, the unpredictable, the uncontrollable. The luck of the draw. If the referee knows the rules and applies the rules as they are intended, then you have only yourself to blame if the game is lost. But what if the referee does not follow the rules or applies them unevenly, or interprets them in a manner that is not in keeping with the spirit and tradition of the game? What if the referee decides to also play with the ball, handle it a bit, kick it around, pass it to your opponents, or, worse yet, lay in wait near your goalpost for the opportune moment to tap the ball into your net (even if it takes using his hands) and, having done so, smugly signals the goal? Continue reading “Hybrid Courts: a marriage of inconvenience”
On 16-17 July 2015, Dr Fabián O. Raimondo, Assistant Professor of Public International Law, Maastricht University, is hosting a Seminar directed exclusively to ICC List Counsel. The program is topical, relevant and practical.
Moreover, the Registrar will not only present his proposal for restructuring the Registry under the ReVision project, but will also engage the participants in what promises to be a lively discussion on many of the issues related to his vision and expectations on restructuring two of the most critical sections deemed by many List Counsel as essential in their representation of their clients: the OPCD and OPCV. See my prior post on Establishment of a Victims and Defence Office at the ICC. Continue reading “Upcoming Seminar concerning ICC List Counsel – 16-17 July 2015”
On 28 March 2015, the Association of Defence Counsel Practising Before the International Criminal Tribunal for the Former Yugoslavia (ADC-ICTY) invited me to present a full day of Advocacy Training. The event was held from 9am to 7pm at the ICTY in The Hague, The Netherlands. The aim of the training day was to help guide legal professionals through the process of preparing a case and to provide tips and approaches for direct and cross-examination. I also re-examined the core principles of evidence and objections that were covered in the Defence Symposium on 12 March 2015. Continue reading “ADC-ICTY Advocacy Training: Case Preparation, Direct and Cross-Examination”
You need to know the WHY in order to know the WHEN;
but if you do not know the HOW,
knowing the WHY and WHEN will be of no help.
On Thursday 12 March 2015, I conducted a Defence Symposium as part of the Advocacy Training at the Association of Defence Counsel Practising Before the International Criminal Tribunal for the Former Yugoslavia (“ADC-ICTY”). The topic was “Evidence and Objections”. The two-hour Symposium covered general principles and types of evidence, and how, why and when to make objections. The objective was to familiarize young lawyers, especially those coming from a civil law system, with the general evidentiary principles one is likely to encounter during a trial at one of the international criminal tribunals.
I began by highlighting two critical obligations of Counsel: due diligence and making the record. These obligations to the client cannot be stressed enough. Counsel must satisfy the duty of due diligence to ensure the client’s fair trial rights are protected. One element of being due diligent is to make timely and specific objections that preserve the errors for appeal, i.e. making the record. Since on appeal we are bound by the four corners of the record, failure to preserve errors in the record at the time when the errors were made can be fatal to a possible appeal. God may know but the record must show. Continue reading “Evidence and Objections: ADC-ICTY Defence Symposium”
In 2002 Defence Counsel at the International Criminal Tribunal for the Former Yugoslavia (ICTY) formed the Association of Defence Counsel Practicing Before the ICTY (ADC-ICTY) to assist in promoting the fairness of the proceedings and to protect the interests of Defence Counsel. Eleven years later and after countless accomplishments, the ADC-ICTY held its Legacy Conference on 29 November 2013. And now the ADC-ICTY has published the Legacy Conference Proceedings, making it available online. Privileged to moderate the panel on the Rights of the Accused, I followed up with a short article, The Rights of the Accused, intending to capture the essence of the fair trial rights Defence Counsel endeavor to ensure for all suspects and accused appearing before international criminal tribunals.