PRIME TAKEAWAY ON ICC PROSECUTOR KHAN SEEKING GAZA RELATED ARREST WARRANTS: a bold, calculated, and inevitable move

Comply now, don’t complain later.

ICC Prosecutor Karim A. A. Khan KC

It came as no surprise. Yet surprised many were. After being “warned” by US Senator Tom Cotton et al. of the consequences that would follow were the ICC Office of the Prosecutor to seek arrest warrants against Benjamin Netanyahu and other top Israeli Government and military officials, Prosecutor Karim A. A. Khan KC lowered the boom and went ahead anyway. Yesterday, he submitted applications for arrest warrants against Israeli Prime Minister Benjamin Netanyahu, Defense Minister Yoav Gallant as well as Hamas Head Yahya Sinwar, Commander-in-Chief of the Al-Qassam Brigades Mohammed Diab Ibrahim Al-Masri, and Head of Hamas Political Bureau Ismail Haniyeh.

Was it a response to Cotton’s silly and school-yard bully / Dirty Harryish “Go ahead, make my day” threat? Or is it more like “a tailgate done dropped”, to borrow Charlie Crocker’s aphorism in A Man in Full? Conspiracy theorists will try to read things into the timing of this high-risk maneuver by Khan. I’ve already heard a few – some plausible, some farfetched. Continue reading “PRIME TAKEAWAY ON ICC PROSECUTOR KHAN SEEKING GAZA RELATED ARREST WARRANTS: a bold, calculated, and inevitable move”

RUMORS OF PENDING ICC ARREST WARRANTS FOR ISRAEL AND HAMAS OFFICIALS: Conflating self-defence with accountability for crimes, and why “in the interests of justice” (in)action is a viable non-interfering option to the ongoing negotiations

There is nothing more distorted than attempting to prevent Israel from defending itself against a murderous enemy openly calling for the destruction of the state of Israel. If the warrants are issued, they will harm the commanders and soldiers of the IDF and provide a morale boost to the terrorist organisation Hamas and the axis of radical Islam led by Iran against which we are fighting.

Israel Katz, Israel’s Foreign Minister

Such a lawless action by the ICC would directly undermine US national security interests. If unchallenged by the Biden administration, the ICC could create and assume unprecedented power to issue arrest warrants against American political leaders, American diplomats, and American military personnel, thereby endangering our country’s sovereign authority.

Mike Johnson, Speaker of US House of Representatives

We’ve been really clear about the ICC investigation. We don’t support it; we don’t believe that they have the jurisdiction.

Karine Jean-Pierre, White House spokesperson

It would be a fatal blow to the judicial and moral standing of ICC to pursue this path against Israel.

John Fetterman, US Senator

The fact that innocent civilians are trapped under the weight of a war they cannot escape and which is not their fault is not tenable.

Karim Khan KC, ICC Prosecutor

The above quotes are from The Guardian. A mere sampling. Aside from the obvious hypocrisy of US President Biden and his administration of supporting the International Criminal Court (ICC) when it comes to investigating alleged Russian atrocities in Ukraine while not recognizing the ICC’s jurisdiction to investigate and prosecute crimes alleged to have been committed by Israeli officials and the Israel Defense Forces (IDF), these quotes are as illuminating as they are alarming.

Auditions for RUMORS — Tacoma Little Theatre Rumors abound. Potential arrest warrants for Prime Minister Benjamin Netanyahu, Defense Minister Yoav Gallant, and IDF chief of staff Herzi Halevi may be in the offing. According to Axios, Netanyahu has asked US President Biden to intervene. Netanyahu wants the US to assist in preventing the ICC from exercising its jurisdiction and carrying out its mandate – to prevent arrest warrants from being issued against senior Israeli officials and IDF members in connection with the war in Gaza. Continue reading “RUMORS OF PENDING ICC ARREST WARRANTS FOR ISRAEL AND HAMAS OFFICIALS: Conflating self-defence with accountability for crimes, and why “in the interests of justice” (in)action is a viable non-interfering option to the ongoing negotiations “

MYOPICALLY “REASSESSING” THE ECCC’S LEGACY: Same Tune, Different Lyrics

Rather than merely increasing the technocratic proficiencies of Cambodian legal professionals, the ECCC has instead modeled how to leverage such expertise to construct more convincing legal façades to provide cover for decision-making processes wholly determined by power and political interests. Importantly, key Cambodian lawyers and judges at the ECCC have done so by seizing on the ambiguous term “most responsible” in the Court’s constitutive documents, interpreting it in an inconsistent manner that conveniently conforms to the publicly stated views of the CPP, thereby borrowing a page from the CPP’s playbook of manipulating vague legal provisions. Not only has this produced incongruent outcomes in cases against similarly situated accused, but participating in the process has enhanced the capacity of relevant Cambodian legal actors who worked for the Court to more artfully engage in similar tactics domestically.

Randle C. DeFalco, Reassessing the Rule of Law Legacy of the Khmer Rouge Tribunal, 45 U. Pa. J. Int’l L 549, p. 560.

DeFalco’s conclusion is based on emotional reasoning masquerading for rational legal analysis. In failing to objectively assess the law, DeFalco displays a profound lack of appreciation of the basic tenets of the Rule of Law, including the principle of the presumption of innocence and the procedural system in place at the ECCC.

Michael G. Karnavas, A Response to Defalco’s: The Proper Interpretation of “Most Responsible” at the ECCC

Reading Randle C. DeFalco’s latest polemic on the legacy of the Extraordinary Chambers in the Courts of Cambodia (ECCC) – Reassessing the Rule of Law Legacy of the Khmer Rouge Tribunal – reminded me of Ronald Reagan’s famous quip “There you go again”. Reagan was responding to what he believed was a repeated misrepresentation of his position by President Jimmy Carter during a debate. Commenting on DeFalco’s 2014 article Cases 003 and 004 at the Khmer Rouge Tribunal: The Definition of “Most Responsible” Individuals According to International Criminal Law, I found his analysis wanting and his conclusions the product of a result-oriented approach. Ten years later DeFalco is at it again. Continue reading “MYOPICALLY “REASSESSING” THE ECCC’S LEGACY: Same Tune, Different Lyrics”

Bringing practical applications of international criminal procedure into Prof. Joe Powderly’s classroom: should Leiden University (re)consider establishing a clinical program?

The young man knows the rules, but the old man knows the exceptions.

Oliver Wendell Holmes, Sr.

Judge Chamberlain Haller: All I ask from you is a very simple answer to a very simple question. There are only two ways to answer it: guilty or not guilty.

Attorney Vinny Gambini: But your honor, my clients didn’t do anything.

Judge Haller: Once again, the communication process broken down. It appears to me that you want to skip the arraignment process, go directly to trial, skip that, and get a dismissal. Well, I’m not about to revamp the entire judicial process just because you find yourself in the unique position of defending clients who say they didn’t do it.

My Cousin Vinny (film, 1992)

Universiteit Leiden It was a delightful evening at the Grotius Centre for International Legal Studies at Leiden University Law School. The students came armed with serious questions. To my relief, none asked the usual how could I defend those people? or what if you know (or believe) your client is guilty? With the exception of one or two occasionally checking their smart phones, they seemed focused and interested. While I like to think my presentation had something to do with this, I believe the real reason is because these bright, motivated and prepared students were keen to hear about the practical applications of the theoretical substance of international criminal procedure.

For nearly three hours, I fielded questions. I went into the class with no prepared notes or plan. My intention was not to lecture but to provide the defence perspective on whatever topics interested them. The students have had a semester on international criminal law. This semester, well under way, is about the procedure. Prof. Powderly has brought other practitioners to give their perspectives and share their experiences. This evening, it was about the defence. The questions were practical, grounded and focused on issues related to the procedural rights of the accused. Continue reading “Bringing practical applications of international criminal procedure into Prof. Joe Powderly’s classroom: should Leiden University (re)consider establishing a clinical program?”

MUSINGS WITH PROF. ANDRÉ KLIP ON THE LEGACY OF INTERNATIONAL CRIMINAL TRIBUNALS: Have expectations been met or were they (and remain) overly aspirational?

Reflection… Looking back so the view looking forward is clearer.

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Unrealistic expectations often lead to disappointment while simple unbiased attention and detachment to outcome lead to pleasant surprises.

Gary Hopkins

While the Nuremberg trial has come to symbolize a grand moment of moral clarity, the Tokyo trial is engrossing precisely because it remains so controversial. Nuremberg is exalted precisely by lawyers and human rights activists as a template for recent efforts at international justice from Bosnia to Rwanda to the permanent International Criminal Court, while Tokyo is seen as an embarrassment best forgotten. The suffering of Asians gets little attention in the United States and Western Europe. If Nuremberg stands as a metaphor for ethical purity, then Tokyo represents a dive into murk.

Gary J Bass, Judgement at Tokyo: World War II on Trial and the Making of Modern Asia, p. 12

It seems inconceivable that prior to the early 1990s, there were no functioning international(ized) criminal tribunals/courts (ICTs). Since the establishment of the initial ad hocs – the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) – a slew of ICTs have come and gone or morphed into mechanisms. More are expected. Regional tribunals have emerged, filling in some of the gaps and picking up the slack. The application of universal jurisdiction in domestic courts is on the rise, though, only few states with highly developed prosecutorial and judicial systems are genuinely capable of handling cases of mass atrocities with due regard for international procedural and substantive justice standards.

And then there is the International Criminal Court (ICC). Established in 2002, it is a permanent fixture, ushered in with great fanfare and enthusiasm and hope, as the bulwark against impunity – the vanguard that would lead the charge, set the standards, and cast its shadow to presage and prompt. But after more than two decades in existence, with scant trials and even scanter convictions, the jury is still out. Permanence and relevance are not mutually inclusive. Nor does calling something permanent immunize it from withering to defunction. Even the most ardent devotees of the ICC (I am an unsentimentally strong, but clear-eyed and guarded supporter) must admit that thus far the ICC has underperformed.

Continue reading “MUSINGS WITH PROF. ANDRÉ KLIP ON THE LEGACY OF INTERNATIONAL CRIMINAL TRIBUNALS: Have expectations been met or were they (and remain) overly aspirational?”

Restorative Justice of Nazi Looting, Intangible Cultural Heritage Rights, and Plundering of Cultural Heritage Sites: My conversation with Nicoletta M in Avant-Gardes Dialogues

Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected. Private property cannot be confiscated. (Art. 46)

Pillage is formally forbidden. (Art. 47)

1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land

K. To make restitution of art and cultural property that remains in state-owned collections and private hands possible, countries should consider making exceptions to barriers such as regulations against deaccessioning from state collections, statutes of limitations, market overt, usucapion (mode of acquiring title to property by uninterrupted possession of it for a definite period), good faith acquisition, and export bans.

Best Practices for the Washington Conference Principles on Nazi Confiscated Art

In early 1997, the Meili affair exposed pervasive cover-up schemes by Swiss banks to conceal the laundering of Nazi-looted assets by destroying documents of confiscated and looted Holocaust-era assets. This scandal was emblematic of the lack of political will and commitment to the 20 January 1943 London Inter-Allied Declaration Against Acts of Dispossession Committed in Territories Under Enemy Occupation or Control, which called on neutral countries not to trade in property (art included) looted by the Nazis. Seemingly, the Meili affair was the tripwire for Washington Conference On Holocaust-Era Assets that endorsed the Washington Conference Principles on Nazi Confiscated Art. Credit, however, must go to a three-day symposium in 1995. Commemorating the 50^th anniversary of the end of WWII, the Bard Graduate Center for Studies in the Decorative Arts hosted a symposium organized by Elizabeth Simpson to discuss the Nazi plunder of art work, cultural property, and historic sites. Simpson, an archaeologist and professor at Bard, would exquisitely write on the substance of the symposium in The Spoils of War: World War II and Its Aftermath: The Loss, Reappearance and Recovery of Cultural Property – a highly recommended read. Continue reading “Restorative Justice of Nazi Looting, Intangible Cultural Heritage Rights, and Plundering of Cultural Heritage Sites: My conversation with Nicoletta M in Avant-Gardes Dialogues “

THE IILAT ETHICS SYMPOSIUM AT THE ICC: Sharing views on professional responsibilities and working through ethical dilemmas

[I]f we have to find our way over difficult seas and under murky skies without a compass or chronometer, we need not on that account allow the ship to drive at random.

A. Balfour, The Foundations of Belief, Being Notes Introductory to the Study of Theology (Longman, Green & Co., New York, 1902), p. 244.

You need to know what you don’t know, to know what you need to know.

Michael G. Karnavas, Training Aphorism

On 13-14 March 2024, I was privileged to have been invited as a panelist to an ethics symposium held at the International Criminal Court (ICC), organized by the Institute for International Legal and Advocacy Training (IILAT).

Founded in 2013 in The Hague, IILAT’s mission over the years has been “to address the growing need for courtroom advocacy training at international courts and tribunals.” Training, which might I add, is practical, relevant, and qualitatively excellent – and badly needed, considering the importance of adversarial skills required in virtually all international(ized) criminal tribunals and courts (ICTs). As for this symposium, I found it exceptionally useful and insightful. Continue reading “THE IILAT ETHICS SYMPOSIUM AT THE ICC: Sharing views on professional responsibilities and working through ethical dilemmas”

THE DELAY IN PRONOUNCING THE AL-HASSAN TRIAL JUDGMENT – Inquiring minds want to know more!!!

Justice delayed is justice denied.

William E. Gladstone

Sunlight is said to be the best of disinfectants.

Louis Brandeis

The written decision under Article 74 of the Statute shall be delivered within 10 months from the date the closing statements end.

ICC Chambers Practice Manual, Seventh Edition (2023), para. 88.

On 6 December 2023, Trial Chamber X of the International Criminal Court (ICC) issued an order scheduling the pronouncement of its trial judgment in the Al Hassan case for 14:00 on Thursday, 18 January 2024 — over a month ago. Closing arguments had ended on 25 May 2023. With plenty of recesses during the trial proceedings, 10 months to render a decision (as required by the Chambers Practice Manual) is more than reasonable – assuming the Chamber is organized and efficient. Not being rocket science, and with plenty of best practices developed over the decades since the first ad hoc and successive international(ized) criminal tribunals and courts (ICTs) were established, drafting a judgment within this period should be no challenge. Continue reading “THE DELAY IN PRONOUNCING THE AL-HASSAN TRIAL JUDGMENT – Inquiring minds want to know more!!!”

REALITY CHECK: Conference on special international tribunal for the crime of aggression against Ukraine exposes fatal defects

There is a difference between two competing groups as to the nature of the institution that should be set up – on the one side led by Ukraine but with strong support from Baltic countries and Poland and various other countries, a full on international criminal tribunal with exclusive competence in relation to the crime of aggression to be set up in The Hague à la Nuremberg – and on the other side the G7 led in particular (by no particular order), the UK, the US, and France who have sort of given a thumbs up to the idea but want uh an institution which is sort of more hybrid and in particular which is not going to set a clear precedent in relation to future tribunals of this kind being set up for other P5 members, their minds having been concentrated by the prospect that if you create a special criminal tribunal for one permanent member of the Security Council today why can’t you do it for another one tomorrow.

Philippe Sands at the Conference on Special Tribunal for the crime of aggression against Ukraine, London, 1 February 2024.

On 1 February 2024, the London-based independent human rights NGO Justice and Accountability for Ukraine (JAFUA) – “which seeks to establish legal channels of accountability for violations of international law in Ukraine” – hosted a conference on establishing a special international tribunal for the crime of aggression. As argued, given the International Criminal Court’s (ICC) lack of jurisdiction over the crime of aggression with respect to the Russo-Ukrainian war, resulting in a supposed impunity gap, this special tribunal would be empowered to charge only this crime. Ostensibly, it would only try three individuals – Russia’s President Vladimir Putin, Prime Minister Mikhail Mishustin, and Foreign Minister Sergey Lavrov. Other crimes that may have been committed by them could be tried by the ICC – assuming, of course, they are ever arrested. Continue reading “REALITY CHECK: Conference on special international tribunal for the crime of aggression against Ukraine exposes fatal defects”

Cambodia Needs a Genocide Museum

Published in the Diplomat 2 February 2024

Cambodia Needs a Genocide Museum

By Michael G. Karnavas
February 03, 2024

An artistic rendering of the planned Sleuk Rith Institute, as envisioned by late architect Zaha Hadid. Credit: Image courtesy of DC-Cam

Continue reading “Cambodia Needs a Genocide Museum”