December 2024 - michaelgkarnavas.net/Blog

THE ICC-OTP DRAFT POLICY ON ENVIRONMENTAL CRIMES: more circumlocutory huffing and puffing

This Tribunal will not be judged by the number of convictions which it enters, or by the speed with which it concludes the Completion Strategy which the Security Council has endorsed, but by the fairness of its trials.

ICTY Judge David Hunt

Nor will the International Criminal Court (ICC) be judged by the number of policies issued by its Office of the Prosecution (OTP), but by the quality and quantity of cases it resolves fairly and justly. Policy papers without tangible efforts and results are a pretense, a veneer, a charade that unrealistically raise expectations and inevitably disappoint.

Not to sound even more curmudgeonly than usual but I find little to nothing of substance in the OTP’s 18 December 2024 Draft Policy on Environmental Crime Under the Rome Statute that is not already baked into the cake: the Rome Statute, the OTP’s overarching remit, prosecutorial best practices, and dust-collecting idle policy papers spawning the past couple of decades. Continue reading “THE ICC-OTP DRAFT POLICY ON ENVIRONMENTAL CRIMES: more circumlocutory huffing and puffing”

SYRIA MUST FIRST ESTABLISH RULE OF LAW: Avoid expedient justice and accountability measures that produce expeditious but unreliable and insupportable results

In international criminal justice, which prioritizes the prosecution of fewer but more extreme crimes in countries often devastated by internal armed conflict and political breakdown, procedure’s demonstrative role in reestablishing the rule of law is particularly significant. Yet, regardless of the context, the sine qua non of criminal procedure is to make possible a fair adjudication of facts and principled determination of the guilt or innocence of accused persons. If procedure fails in that elemental task, it undermines not only ICL’s core aim of assigning individual criminal responsibility, but also its broader goals, such as promoting peace and stability in affected countries and regions.

Johnathan Hafetz, Punishing Atrocities Through a Fair Trial

I see more clearly than ever before that even our troubles spring from something that is admirable and sound as it is dangerous—from our impatience to better the lot of our fellows.

Karl Popper, The Open Society and Its Enemies

In national criminal justice, which seeks to address the crimes of all offenders rather than the few most responsible, criminal procedure is equally the sine qua non for ensuring a fair adjudication of facts and determination of individual criminal responsibility. Procedural fairness enhances the acceptance of the results, which in turn enhances confidence in the rule of law, thus promoting peace and stability. Getting the procedure right is essential. But there are a host of challenges that must also be resolved before trials can be held. Hence why Karl Popper’s refrain on impatience despite good intentions should be heeded. Designing a comprehensive and holistic rule of law blueprint tailored to Syria should be at the top of the transitional justice list.

Syria may be free of the Bashar al-Assad regime, but it risks becoming another failed state like Libya – fragmented, chaotic, conflict-ridden, unstable, and unsafe. Toppling al-Assad (given the serendipity of circumstances) may prove to be easier than establishing and maintaining peace and freedom, pursuing justice and accountability, and forming a free, democratic, inclusive, tolerant, and independent Syria. The dramatic psychological lift brought about by the ousting of the al-Assad regime must be quickly built upon, so the perception of progress is not lost. Continue reading “SYRIA MUST FIRST ESTABLISH RULE OF LAW: Avoid expedient justice and accountability measures that produce expeditious but unreliable and insupportable results”

BOOK REVIEW: Proving International Crimes, by Yvonne McDermott

Proving International Crimes, Yvonne McDermott, Oxford University Press 2024, 207 pages, £100.00

Fact-finding in the international criminal tribunals will always be probabilistic in nature, because the evidence is invariably incomplete, rarely conclusive, often ambiguous, frequently dissonant, and always with varying degrees of credibility and reliability.… Probabilistic reasoning often involves updating one’s prior beliefs in light of each new piece of information as it is presented. Under what is commonly called ‘relative plausibility theory’ or ‘inference to the best explanation,’ a fact-finder evaluates the different likely explanations of the evidence, and considers which of these explanations is most likely. (pp. 128-129)

If international criminal judgements cannot rigorously demonstrate the evidence and inference that led to particular conclusions … this could jeopardize their legitimacy and claim to authority to try and punish alleged perpetrators of international crimes. (p. 67)

A trial – reduced to its essence in so far as what a prosecutor or counsel can influence – is about having evidence admitted or excluded: getting good/favorable stuff in and keeping bad/unfavorable stuff out. The outcome rests on the evidence: what it is and how it was admitted, screened, assessed, connected, weighed, and applied to the law.

In national jurisdictions, how evidence is treated is ordinarily settled law and practice. All involved (judges, prosecutors, defence counsel, victims’ representatives) sing from the same music sheet. This cultivates uniform, consistent, and predictable procedure. Save for occasional deviations or lapses, criminal case resolutions at the appellate level are largely deemed just and accepted. If only judges at international criminal tribunals were as uniform and consistent and mindful and experienced and receptive to a set approach in admitting and assessing evidence.

With judges of different systems and disparate judicial experience (some don the judicial robe having no relevant experience), and with no detailed rules of evidence such as those found in common law traditions, and with no set approach on how evidence should be admitted, let alone assessed, how international criminal trials are conducted vary perceptibly, both procedurally and substantively. As such, it should come as no surprise that outcomes of trials at any of the international criminal tribunals are not always embraced as fair and just. Looking at some trial and appeal judgments and the attendant separate and dissenting opinion, one gets the sense that among the judges, to paraphrase from the classic film Cool Hand Luke: What we’ve got here is failure to communicate. Continue reading “BOOK REVIEW: Proving International Crimes, by Yvonne McDermott”

THE ICC’S ACHILLES HEEL IS BARE: will Netanyahu arrest warrant be the poison arrow that devastates the ICC?

The Court has been subjected to attacks seeking to undermine its legitimacy and ability to administer justice and realise international law and fundamental rights; coercive measures, threats, pressure and acts of sabotage. Several elected officials are being severely threatened and are subjected to arrest warrants from a permanent member of the UN Security Council, merely for having faithfully and diligently carried out their judicial mandate per the statutory framework and international law. Two other warrants have been newly issued, as in the Presidency’s recent public statement. The Court is being threatened with draconian economic sanctions from institutions of another permanent member of the Security Council as if it was a terrorist organisation. These measures would rapidly undermine the Court’s operations in all situations and cases and jeopardise its very existence. We firmly reject any attempt to influence the independence and the impartiality of the Court. We resolutely dismiss efforts to politicise our function. We have and always will comply only with the law, under all circumstances.

Judge Tomoko Akane, ICC President, 2 December 2024

ICC President Akane’s remarks at the 23rd session of the International Criminal Court’s (ICC) Assembly of States Parties are as alarming as they are Cassandraesque.

The ICC is at a watershed moment. Since its inception, it overpromises and underperforms, trying to be all things, all places, all at once. The unfolding drama and panic over the arrest warrants against Israeli Prime Minister Benjamin Netanyahu and former Israeli Defence Minister Yoav Gallant may prove the ICC’s critics right: that is more of an African court, willing and able to prosecute Africans, but unwilling or unable to prosecute Westerners and their friends. Continue reading “THE ICC’S ACHILLES HEEL IS BARE: will Netanyahu arrest warrant be the poison arrow that devastates the ICC?”