Michael G. Karnavas, Author at michaelgkarnavas.net/Blog

BOOK REVIEW: Martial Arts – The Lessons

Martial Arts – The Lessons, Tomislav S. Perić, Gregson & Lestrade, 2021, 222 pages, $14.95

Taking action, I believe, is the most significant and common stumbling block we all confront. For most of us, inertia reigns supreme and, in fairness, having a whimsical dream or desire doesn’t really require action. It’s when a thought or idea passes beyond the daydreaming phase that we need to give it serious consideration. Martial Arts – The Lessons, pp. 209-210

In these dog days of summer, and while in the back of our mind the end of our vacation is rapidly approaching, I thought I would wait for the slew of reviews that I have in the pipeline and steer you to some lighter reading. The selection is motley. Most are fast-paced novels with trial advocacy or ethics tips worth pondering over. But if you are like me and sense the end of the summer as the time to give some serious consideration as to how or what the remainder of the year should yield, let me start with an amuse-bouche review of a nonfiction gem: Martial Arts – The Lessons, by Tomislav S. Perić. Continue reading “BOOK REVIEW: Martial Arts – The Lessons”

Guidance to English Museums for Responding to Restitution and Repatriation Cases: Are the winds blowing in the direction for the return of the Parthenon Marbles?

Sometimes, stripping back the complexities to think about issues on a human level can be helpful in overcoming the fear of difficult conversations, or of ‘making mistakes’ which can otherwise hinder progress towards resolution. It is important to be alert to the possible sensitivities of claimants, and to the deep sense of hurt and alienation which some of them may feel. It is also worth remembering that the cost to a claimant of bringing a claim – both financially and emotionally – can often be very significant. Equally it is important to establish whether the claimant has standing to make the claim, and whether they are entitled or authorised to do so.

Restitution and Repatriation: A Practical Guide for Museums in England, p. 2.

As I finished reading the recently released Restitution and Repatriation Cases: A Practical Guide for Museums in England, unconsciously, I found myself humming the first lyrics of the 1977 song Love is in the air, substituting love for change:

Change is in the air
Everywhere I look around
Change is in the air
Every sight and every sound Continue reading “Guidance to English Museums for Responding to Restitution and Repatriation Cases: Are the winds blowing in the direction for the return of the Parthenon Marbles? “

Kabuga Reexamined: An “alternative finding procedure” that comes as close to a trial as possible is no substitute for a trial

The Appeals Chamber is cognizant that victims and survivors of the crimes that Kabuga is charged with have waited long to see justice delivered, and that the inability to complete the trial proceedings in this case, due to Kabuga’s lack of fitness to stand trial, must be disappointing. However, justice can be delivered only by holding trials that are fair and conducted with full respect for the rights of the accused set out in the Statute. This is a fundamental feature of the legal framework of the Mechanism and its predecessor tribunals, which is vital to the credibility and endurance of their legacy. In arriving at its decision, the Appeals Chamber has been guided by its duty to ensure that decisions are based solely on justice and law. It is axiomatic that justice must be done and must be seen to be done. (para. 78)

In my earlier post – When inventiveness leads to absurdity: the Trial Chamber’s “non-trial” trial solution for non compos mentis Félicien Kabuga – I discussed the Trial Chamber’s decision to carry on with an in absentia non-trial trial of Kabuga who, by Trial Chamber majority, was found to be incompetent to stand trial.

As a reminder, the majority found that “Kabuga retains three relevant capacities: to enter a plea, understand the nature of the charges, and understand the consequences of the proceedings”, but that his “level of cognition related to these capacities is superficial,” considering that he:

- - has a such a “limited ability to communicate” that he is unable “to participate meaningfully in his trial as such participation would require a higher level of cognitive function than he possesses;”
- - “is incapable of subtle, consequential reasoning;”
- - lacks the capacity to “participat[e] in a complex proceeding, such as the present trial [that] requires, at a minimum, a functioning memory, including the ability to retain information over a period of time, as well as the ability to process and express a view about that information;”
- - is “unlikely” to be “malingering” given his illness and medical diagnosis; and
- - “is not fit for trial and is very unlikely to regain fitness in the future.”

Despite this, Judge Mustapha El Baaj, dissenting, had no problem continuing the Kabuga trial. Continue reading “Kabuga Reexamined: An “alternative finding procedure” that comes as close to a trial as possible is no substitute for a trial”

Book Review: The Parthenon Marbles and International Law, by Prof. Catherine Titi

The Parthenon Marbles and International Law, Catherine Titi, Springer, 2023, 311 pages, €171.19

One may perhaps have some reason for amassing gold and silver; in fact, it would be impossible to attain universal dominion without appropriating these resources from other peoples, in order to weaken them. In the case of every other form of wealth, however, it is more glorious to leave it where it was, together with the envy which it inspired, and to base our country’s glory, not on the abundance and beauty of its paintings and statutes, but on its sober customs and noble sentiments. Moreover, I hope that the future conquers will learn from these thought not to plunder the cities subjugated by them, and not to make the misfortunes of other peoples the adornment of their own country.

Polybius of Athens (writing before 146 BCE), as quoted in ICJ Judge Charles de Visscher, International Protection of Works of Art and Historic Monuments, 823 (1949).

It would, I think, now be universally accepted, certainly by the People of Ireland, and by the people of most modern States, that one of the most important national assets belonging to the people is their heritage and knowledge of its true origins and the buildings and objects which constitute keys to their ancient history.

Supreme Court of Ireland, Chief Justice Finlay, Webb v. Ireland, 1988, I.R. 353.

The fate of the Parthenon marbles in the “Elgin Collection” and the merits of their return have been debated ever since Elgin’s agents excised them from the Parthenon on the Acropolis at Athens. Such is the nature of the discussion about the return of cultural property that numerous studies on the topic start with a question purportedly about ownership. Who owns history? Who owns antiquity? Who owns the past? In reality. The questions are aspirational. What they really mean is: who should own antiquity? Or who should own the past? While the questions about ownership and return are legal, the answer to them have been built around a debate.

The Parthenon Marbles and International Law, p. 21.

During a recent visit to London, the proprietorship of the Parthenon Marbles came up in a conversation. I argued that the marbles – which the Brits kept referring to as the “Elgin marbles” – must be returned to Greece. The Brits argued that the marbles were bought by Britain from Elgin, and therefore must remain in the British Museum. Predictably, my interlocutors, who, indecently, were highly educated, learned, if you will, were either misinformed or uninformed of some of some critical facts. In any event, it did not seem to matter much since as one of them put it, Greece would lose on legal grounds because of undue delay, estoppel, implied waiver, or laches in asserting ownership and making a legal claim for redress. Another canard among many peddled over the years, which, as my good friend Michael Vickery, the eminent historian would put it, is part of the Standard Total View (STV): repeating and re-repeating what has been heard as unquestionable truths without questioning the original source. Since 1836, Greece in one form or another has repeatedly requested and demanded the return of the marbles, only to be rebuffed by Britain. Simply because Greece never brought a lawsuit against Britain but has tried repeatedly and uncompromisingly to resolve the matter diplomatically does not mean that Greece has abandoned its claim or has unduly delayed its claim. Greece had partially gained its independent around 1828. While still in the midst of liberating the rest of modern-day Greece, it nonetheless acted with significant alacrity in requesting the return of the marbles from a then-empire (Britain) that it depended on in gaining its full independence. Continue reading “Book Review: The Parthenon Marbles and International Law, by Prof. Catherine Titi”

Untroubled Asymmetry in International Criminal Justice: Dare we look in the mirror – sincerely?

Much can be said about the politics of international criminal justice, the tolerated/excused hypocrisy in the behavior of certain states (in particular the permanent five members of the UN Security Council), and yes, the callousness or indifference or obliviousness in viewing, accepting, and even promoting inequity. We often tend to justify or minimize inaction or overreaction or selective action when it either suits us or when we lazily adopt a so what or a that’s the way things are attitude. Even when occasionally we truly believe something is off-kilter, irreconcilable, or just plain wrong, we rarely are willing to call it for what it is, to speak truth to power, to dare voice an unpopular position because it is simply the right thing to do. With no agenda in mind, here are a couple of matters worth expressing, however seemingly distasteful it may be to criticize anything related to Ukraine and its efforts in seeking peace and justice. Continue reading “Untroubled Asymmetry in International Criminal Justice: Dare we look in the mirror – sincerely?”

A memorable experience with the AIJA at the Peace Palace

International Association of Young Lawyers (AIJA) Half-Year Conference — Panel on International Criminal Institutions And Their Role In Combatting Crimes Against Humanity

Who would expect a full house of young (under 45 years old) lawyers from around the globe to eagerly (and punctually) arrive at the Peace Palace in The Hague, on 27 May 2023, one of those rare bright sunny days, to hear from and exchange views with a couple of speakers on the topic of International Criminal Institutions And Their Role In Combatting Crimes Against Humanity? This was to be the last event (other than the Gala later that evening, another memorable experience) of the four-day International Association of Young Lawyers (AIJA) Half-Year Conference.

Continue reading “A memorable experience with the AIJA at the Peace Palace”

DISCOURSE AT THE INNER TEMPLE ON NAVIGATING THE CODES OF CONDUCT STRAIGHTS IN INTERNATIONAL CRIMINAL PROCEEDINGS: a format that is missing, overlooked, or (un)intentionally rebuffed?

On 29 June 2023, the International Committee of the Inner Temple organized a short training session for aspiring barristers on legal professional ethics before the international criminal tribunals. The Honourable Society of the Inner Temple has been in existence since the 14^th Century. It is one of the four unincorporated, not-for-profit membership associations for barristers and judges in the UK, known as the Inns of Court. Together, they provide high-quality legal education and training for the barrister profession, delivered by senior members of the Bar and other key partners on a pro bono basis, and have the exclusive right to call students to the Bar of England and Wales.

Participating in the seminar were an ICC Judge (Kimberly Prost), an ICC Deputy Prosecutor (Nazhat Khan), and a defence counsel (yours truly). The program was moderated by ICC Judge Joanna Korner CMG KC – who, as an exceptionally experienced Queen’s Counsel, served two stints as a senior trial lawyer before the ICTY prior to becoming a judge of the Crown Court of England and Wales. The event was informative, engaging, and collegially lively. But there was something more to it, something important that is generally absent in most training seminars, especially on ethics: the inclusion of three pillars of criminal proceedings (missing only a representative of victims counsel) on a panel, so they and the audience can hear about each other, from each other, with their different perspectives being aired, considered, debated, appreciated, and/or rejected. Continue reading “DISCOURSE AT THE INNER TEMPLE ON NAVIGATING THE CODES OF CONDUCT STRAIGHTS IN INTERNATIONAL CRIMINAL PROCEEDINGS: a format that is missing, overlooked, or (un)intentionally rebuffed?”

When inventiveness leads to absurdity: The Trial Chamber’s “non-trial” trial solution for non compos mentis Félicien Kabuga

Everything is what it is, and not another thing. Joseph Butler

“I don’t know what you mean by ‘glory.’ Alice said. Humpty Dumpty smiled contemptuously. “Of course you don’t – till I tell you. I meant ‘there’s a nice knock-down argument for you!’” “But glory doesn’t mean ‘a nice knock-down argument,’” Alice objected. “When I use a word,” Humpty Dumpty said, in a rather scornful tone, “it means just what I choose it to mean-neither more nor less.”

Lewis Carroll, Through the Looking Glass

On 6 June 2023, the Trial Chamber of the International Residual Mechanism for Criminal Tribunals (IRMCT), by majority, found Félicien Kabuga “unfit to participate meaningfully in his trial” and “very unlikely to regain fitness in the future.” Nonetheless, the majority decided to “proceed with an alternative finding procedure” resembling “a trial as closely as possible, but without the possibility of a conviction,” with the prosecution “retain[ing] the burden to prove both the actus reus and mens rea of each charge beyond reasonable doubt,” while making Kabuga’s attendance “unnecessary”.

The authority cited to support the legality of this alternative finding procedure neither represents objective widespread and consistent practice of States, nor subjective practice that is observed out of obligation as opposed to respect (opinio juris), nor any statutory provisions from any of the past or existing international(ized) criminal courts and tribunals, nor any of IRMCT’s own jurisprudence. Rather, what is cited are national criminal provisions from England and Wales, Scotland, South Africa, Australia, Guatemala, and the US state of New Mexico – with the latter two jurisdiction highlighted for being outside the Commonwealth, as if this makes a difference. Of course, there are also notable distinctions in the procedures applied by these jurisdictions. In some jurisdictions that engage in alternative procedures upon findings of unfitness, the courts are to focus only on the actus reus (whether the accused committed the acts) and not his or her mens rea, while other jurisdictions’ procedures attempt to resemble trial as closely as possible. Not that this makes a difference when, as argued below, the accused is unable to participate meaningfully in his or her trial through exercising, with full mental capacity, his or her guaranteed fair trial rights. Continue reading “When inventiveness leads to absurdity: The Trial Chamber’s “non-trial” trial solution for non compos mentis Félicien Kabuga”

Empowering the Syrian Defenders of the Free Aleppo Bar Association

On May 8 to May 9, 2023, I had the privilege of being involved in a Training of Trainers and Advocacy Training Program organized by International Bridges to Justice (IBJ) in Gaziantep, Turkey, for Syrian criminal defense lawyers living and working in northwest Syria, notably, in and around Aleppo. Continue reading “Empowering the Syrian Defenders of the Free Aleppo Bar Association”

ADMONISHING THE ADMONISHERS: The Legal Review Panel’s Report on Amnesty International’s Press Release on Ukrainian Fighting Tactics

The dark side of social media is that, within seconds, anything can be blown out of proportion and taken out of context. And it’s very difficult not to get swept up in it all. – Nicola Formichetti

Ditto with press releases. In the age of soundbites, short attention spans, and instant messaging, errors in content are made with such frequency and such magnitude that unless one is well informed, scrumptiously analytical, and persistently skeptical, they go unnoticed. Nuance – the quality of something that can be hard to perceive yet vital for full appreciation – is often ignored or sacrificed when sloppily, lazily, or indifferently narrating complex matters in broad of categorical terms with little or no regard to context and/or all the facts. Continue reading “ADMONISHING THE ADMONISHERS: The Legal Review Panel’s Report on Amnesty International’s Press Release on Ukrainian Fighting Tactics”