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
I 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. The Trial Chamber declined to investigate, justifying the meetings as necessary for the coordination of the UN component of the ECCC. 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.Continue reading “Fourth Installment: JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS”
Havingdiscussed 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.
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”
With the stage set, it was time to dissect the Harhoff matter. Judge Harhoff’s folly, due to what I would later refer to as the Harhoff syndrome is a treasure trove for a lecture on judicial ethics – the perfect point of departure for discussing the Furundžija “reasonable apprehension of bias” test.
The Harhoff Syndrome
Judge Frederik Harhoff, in a letter to fifty-six personal contacts that was apparently leaked to the press, expressed some of his innermost thoughts, which, even when viewed in the light most favorable to him, demonstrate his inability (or perhaps his unwillingness) to adhere to the universally recognized fair trial right to the presumption of innocence, with the burden being with the prosecution. Judge Harhoff’s sentiments are quite frequently shared (though not revealed – at least not on paper or in transparent gatherings) by many human rights/humanitarian advocates appointed as international judges, who, although possessing impressive credentials, lack necessary practical experience, and, more worrisome, are challenged when it comes to rigorously applying the most fundamental precepts of fair-trial rights: the presumption of innocence afforded to the accused and burden of proof resting on the prosecution. Judge Harhoff assuredly understands as a theoretical construct the presumption of innocence. But when it came to applying it, his predilection for victim-based justice and unwillingness to conform to the standards of justice led him to take the position that an accused (at least if a high military officer) must, ineluctably, be deemed guilty as charged, unless proved otherwise. A classic case of inappropriate burden-shifting. This, in my opinion, is the Harhoff syndrome in its purest form. Judges at the international tribunals who suffer from this affliction—and there are a few—are generally discreet, frustrating a defence counsel’s ability to establish the objective prong of Furundžija whenthe need to disqualify is seemingly palpable. Continue reading “Second Installment: JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS”
On 24 January 2014, I was invited to lecture on Judicial Ethics at the ADC-ICTY’s Twelfth Defence Symposium for interns and staff at the ICTY. Some 45 interns and other court staff attended. Hardly an academic exercise in theoretical constructs, I tried to keep the presentation lively with vivid examples such as Harhoff’s folly, Sow’s dilemma, Robertson’s hubris. My aim was to present practical applications of the jurisprudence on judicial ethics (and misconduct) to young lawyers—primarily from the defence perspective—though relevant for young, impressionable lawyers working in Chambers and for the Prosecution.
Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various international tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy. Click here to visit Michael’s web site.
Michael G. Karnavas lectures students at the Grotius Centre for International Legal Studies on the role of defence counsel:
Last Saturday, November 30, the Association of Defence Counsel (ADC-ICTY) held its annual General Assembly. As in the past, it was preceded by a training session, though this year was a bit different. While past trainings have been about trial and appellate skills, substantive law, procedural amendments and ethics, this year is was all about the Mechanism for International Criminal Tribunals, or MICT, or just Mechanism. Ditto for the General Assembly. By constitutional requirement, the ADC must hold a General Assembly to account the past year’s events and achievements, and to plan for the coming year’s challenges. And so, the Mechanism was much on our mind.
This year’s training was more of an exploration of thoughts and concerns about manner and means; the mechanisms of the Mechanism, if you will. The Mechanism essentially mirrors the Statute and Rules of Procedure and Evidence of the ICTY and ICTR. Substantively, little seems to be different. Yet, questions abound. As the ICTY transitions into the MICT (currently coexisting while the ICTY cases are coming to completion), most are concerned with post-conviction relief issues – especially how an aging, far flung population of inmates will be served when no compensation of counsel is required under existing ICTY jurisprudence, though as a matter of past practice a few hours could be granted depending upon circumstances. Not encouraging. Continue reading “ADC-ICTY holds its General Assembly: transitioning into the MICT”
The Association of Defence Counsel Practicing Before the ICTY (“ADC”), established under Dutch law, came into existence on 20 September 2002 when it held its first General Assembly. With the blessings of the ICTY Judges at their July 2002 plenary meeting, the Rules of Procedure and Evidence were amended to require counsel’s membership in the ADC. Essentially, the ADC has been the Bar for some 350 plus counsel at the ICTY. While not always appreciated for its true worth, the ADC has lived up to much of the expectations by providing a unified voice championing the causes of Defence Counsel and of their client’s fair trial rights.
The ICC held its annual seminar for List Counsel on October 21 and 22, 2013 in The Hague. Three days of training followed. This was the eleventh time the ICC hosted this event.
As in the past, the seminar was mostly an update, and for the most part not terribly rewarding. It was heartening to hear from the new Registrar, Herman von Hebel, that changes are afoot in the Registry. He brings lots of practical knowledge and experience. There is already a feeling that he will be more understanding to the needs of List Counsel. From my brief conversation with him (I have known him since 2001), he seemed genuinely interested in working constructively with List Counsel. Continue reading “Attending the Eleventh ICC Seminar of Counsel – another letdown!”