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.
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.
In my last post, I addressed the applicability of JCE III, arguing that as a product of judicial creation, JCE III does not exist in customary international law and should not be applied. This post is a follow up in light of the 30 January 2015 ICTY Appeals Chamber Judgement in the Srebrenica case, Prosecutor v. Popović et al., affirming the convictions for genocide.((Prosecutor v. Popović et al., IT-05-88-A, Judgement, 30 January 2015, paras. 1670-1674.))
One of the Popović Accused, Miletić, had argued that the Trial Chamber erred in law in holding that JCE III existed in customary international law at the time of the events.((Prosecutor v. Popović et al., IT-05-88-A, Judgement, 30 January 2015, para. 1670.)) He emphasized that the Extraordinary Chambers in the Courts of Cambodia’s (“ECCC”) rejection of JCE III shows that it is not generally accepted and that its application is contrary to the nullum crimen sine lege principle.
Unfortunately, the Popović Appeals Judgement missed an exquisite opportunity to rectify the long-perpetuated error of law first made by the Tadić Appeals Chamber, which found that JCE existed in customary international law. Rather than engage in a constructive analysis, the Popović Appeals Chamber merely referred to its previous jurisprudence and found that Miletić failed to demonstrate any cogent reason to depart from it.((Prosecutor v. Popović et al., IT-05-88-A, Judgement, 30 January 2015, para. 1674.)) This has been the problem from the outset. No ICTY Chamber has been willing to thoroughly analyze the state of customary international law; instead they choose to refer back to prior Judgements as if these Judgements themselves are evidence of JCE’s customary status. Continue reading “POPOVIĆ APPEAL CHAMBER REFUSES TO REVIEW JCE III APPLICABILITY”
After countless challenges and criticism from a wide-range of legal traditions regarding the extended form of joint criminal enterprise (“JCE III”), the Pre-Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (“ECCC”) held that JCE III does not exist in customary international law.((Case of NUON Chea et al., 002/19-09-2007-ECCC/OCIJ (PTC38), Decision on the Appeals of the Co-Investigative Judges[’] on Joint Criminal Enterprise (JCE), 20 May 2010, para. 78.)) The ECCC Trial Chamber, in its Decision on the Applicability of JCE, examined additional case law relied upon for JCE III support, and upheld and affirmed the Pre-Trial Chamber’s conclusion.((Case of NUON Chea et al., 002/19-09-2007-ECCC-TC, Decision on the Applicability of Joint Criminal Enterprise, 12 September 2011, paras. 33-35.)) Continue reading “The fiction of JCE III in customary international law”
For several years there have been talks and initiatives by members of the ICCList Counsel to establish a Bar or an Association. Indeed, in the last couple of years we have seen a growing interest, if not impatience, for a Bar or Association.
Last year I circulated a draft Constitution for an ICC Bar for List Counsel (click language choice to see draft in English or French) based in part on an earlier initiative and inspired by the ADC-ICTY model. I also circulated a modest commentary. But as in the past, the momentum and enthusiasm waned with the passage of time.
Then, out of the blue, the ICC Registrar, Herman von Hebel, sent an outline of proposals to be discussed during a meeting with List Counsel held on 16 September, wherein he expressed an interest in the establishment of an Association by, for and of List Counsel, that would be officially recognized by the ICC. Just what many of us have been advocating since as far back as 2007.
Having elaborated on the importance of perfecting the record, and having the standards of appellate review in mind, I began to discuss in detail how to perfect the record. Counsel needs to see clearly how the case may unfold in each step of the proceedings, from the pre-trial stage to appeal stage. Cases are organic. Everything that is done at the pre-trial and trial stages may eventually be relevant on appeal. Even at the pre-trial stage, Counsel should be able to see far ahead what sorts of challenges he or she may raise at each stage, reopen at a later stage and bring on appeal. Conversely, on appeal Counsel is limited to whatever is already in the record unless there is a mechanism to adduce additional evidence such as Rule 115 of the ICTY Rules of Procedure and Evidence (ICTY RPE). Counsel ought to be aware of all options and mechanisms at each stage. This means being diligent in investigating the case, skilfully challenging all legal and factual issues through written submissions that fully preserve all errors, making and meeting oral objections during the proceedings, and putting on a case (which can be done strictly through confronting the prosecution case) that has a consistent, plausible, and well-developed theory. Continue reading “The Diligence That Is Due – Part II: How to Make the Record”
While we do not believe the trial judge testified untruthfully, we recognize that the written word in the record is ‘black and white’ evidence of what did or did not occur, whereas an individual’s recollection of those same events blur into gray. This case demonstrates the validity of an old legal truism: God may know but the record must show.
Jones v. Vacco, 126 F.3d 408, 417 (2d Cir. 1997) (emphasis added).
On 18 June 2014, I delivered the third installment of a lecture series on ethics to members of the Association of Defence Counsel Practicing before the International Criminal Tribunal for the Former Yugoslavia (ADC-ICTY) and others. The previous lectures were on Judicial Ethics in the International Tribunals and Conflicts of Interest. This lecture focused on due diligence and the imperative of perfecting the record by properly preserving all potential errors for appellate review. The lecture lasted 2 hours. Certificates were issued to the participants for those who wished to claim 2 hours of CLE credits on ethics with their national / state bar. Continue reading “The Diligence That Is Due: Making the Record & Perfecting Grounds for Appeal”
“‘Conflict of interests’ is a term that is often used and seldom defined.” 1
Michael Karnavas delivers ADC-ICTY Confilcts Lecture
On 16 April 2014 I was invited by the Association of Defence Counsel practicing before the International Criminal Tribunal for the Former Yugoslavia (ADC-ICTY) to conduct training for its members and others on ethics. The topic chosen was Conflicts of Interest. The lecture lasted 2 hours. A modest PowerPoint presentation was used to guide the lecture which was based on handout material made available after the lecture. Certificates were also issued to the participants for those who wished to claim 2 hours of CLE on ethics with their national / state bar.
The lecture focused on the lawyer’s core responsibilities to the client in both national and international jurisdictions: competence, diligence, communication, confidentiality, loyalty, honesty, and independence. Principles that are universal.
Finally, it was time to focus on Syria: what are the realistic prospects of Bashar Al-Assad and others being prosecuted at the ICC? Recalling how a case comes before the ICC, I noted that it was highly unlikely that Assad or others would end up at The Hague any time soon, if at all. Syria has not signed on to the Rome Statute.[1] This Syrian government is not about to agree to ICC jurisdiction. Assuming the Assad regime falls, the next government would be poised to ask the ICC to investigate and prosecute, but given that all sides to the conflict seem to be committing mass atrocities, it does call into question whether there would be a genuine desire to get the ICC involved. The Security Council is unlikely to refer the matter to the ICC Prosecutor, when it cannot even agree on the need to intervene for humanitarian reasons.[2] But hope springs eternal. Theoretically, nothing can be precluded. Continue reading “Just How Relevant is the ICC – Part VII and Conclusion”
My next vignette dealt with the Kenya case and the African Union (AU)’s reaction to the ICC, focusing exclusively on Africa, and in particular, the ICC efforts to prosecute sitting Heads of State. Kenya has had a long history of election violence.[1] On 30 December 2007, following the announcement of the Kenyan election results, large-scale political violence broke out amid claims that the electoral commission of Kenya had rigged the elections in favor of incumbent Mwai Kibaki.[2] Two months of bloodshed between the two rival coalitions (Ralia Odigna’s Orange Democratic Movement [“ODP”] and Mwai Kibaki’s Government/Party for National Unity [“PNU”]) left an estimated 1,000 people dead, and as many as 500,000 internally displaced persons.[3] In the midst of the violence, former UN Secretary General Kofi Annan received a call from President Kufor of Ghana, then Chairman of the AU, asking Kofi Annan to mediate the crisis in Kenya.[4] Kofi Annan led the Panel of African Eminent Personalities through 41 days of mediation and the political violence ended upon the two parties signing a peace agreement: TheAgreement on the Principles of Partnership of the Coalition Government.[5] On 4 March 2008, the parties agreed to form two fact-finding commissions: the Independent Review Committee and the Commission of Inquiry on Post-Election Violence (CIPEV).[6] The CIPEV made a number of recommendations to the government, and findings were presented to Kofi Annan, the appointing authority for the commission.[7] The CIPEV recommended investigation, and eventual prosecution of certain persons alleged to have masterminded the violence and recommended that a Special Tribunal adjudicate serious crimes: particularly, crimes against humanity.[8]The names were placed in a secret envelope and were kept with the Panel led by Kofi Annan and pending the establishment of a Special Tribunal.[9] If the government failed to establish the Tribunal, the Panel would forward the names of the perpetrators to the ICC.[10] The Kenyan parliament failed—due to political stalemate[11]—to establish the Tribunal and Kofi Annan handed over the sealed envelope to the ICC Chief Prosecutor, Luis Moreno-Ocampo.[12]
I next turned to a vignette from Cambodia since it seemed to nicely compliment the Egyptian one. On 7 January 2014, the Cambodia National Rescue Party (CNRP) issued a press release that it had engaged an international lawyer to lead a team of international lawyers to “analyse the evidence of crimes committed by Cambodian security forces and, if justified, file a request to the Prosecutor of the International Criminal court to initiate investigations into the situation in Cambodia under Article 15 of the Rome Statute.”[1] Seemingly, the trip wire for this investigation was an incident where military police dedicated effectively to the ruling party, the Cambodian People’s Party (CPP), shot dead five civilians, injured more and imprisoned demonstrating garment factory workers on 3 January 2014.[2] The investigation is expected to go well beyond this incident, since the CNRP is alleging that the CPP security forces “commit illegal violent acts as part of a widespread or systematic attack against the civilian population” amounting to crimes against humanity.[3] On the same day, the international lawyer chosen to spearhead the investigation was quoted saying that the underlying criminal acts are “likely to include murder, arbitrary imprisonment, forced transfer and persecution on political grounds,” with the likelihood of there being “tens or even hundreds of thousands of victims.”[4]
So the biggest hurdle – that of convincing the Registrar to recognize a Bar or Association for ICC List Counsel – has been removed. Time to move forward, and move swiftly. And here is why. Continue reading “ICC Registrar supports establishment of an Association for List Counsel”
Having elaborated on the importance of perfecting the record, and having the standards of appellate review in mind, I began to discuss in detail how to perfect the record. Counsel needs to see clearly how the case may unfold in each step of the proceedings, from the pre-trial stage to appeal stage. Cases are organic. Everything that is done at the pre-trial and trial stages may eventually be relevant on appeal. Even at the pre-trial stage, Counsel should be able to see far ahead what sorts of challenges he or she may raise at each stage, reopen at a later stage and bring on appeal. Conversely, on appeal Counsel is limited to whatever is already in the record unless there is a mechanism to adduce additional evidence such as Rule 115 of the ICTY Rules of Procedure and Evidence (ICTY RPE). Counsel ought to be aware of all options and mechanisms at each stage. This means being diligent in investigating the case, skilfully challenging all legal and factual issues through written submissions that fully preserve all errors, making and meeting oral objections during the proceedings, and putting on a case (which can be done strictly through confronting the prosecution case) that has a consistent, plausible, and well-developed theory. Continue reading “The Diligence That Is Due – Part II: How to Make the Record”
On 18 June 2014, I delivered the third installment of a lecture series on ethics to members of the Association of Defence Counsel Practicing before the International Criminal Tribunal for the Former Yugoslavia (ADC-ICTY) and others. The previous lectures were on Judicial Ethics in the International Tribunals and Conflicts of Interest. This lecture focused on due diligence and the imperative of perfecting the record by properly preserving all potential errors for appellate review. The lecture lasted 2 hours. Certificates were issued to the participants for those who wished to claim 2 hours of CLE credits on ethics with their national / state bar. Continue reading “The Diligence That Is Due: Making the Record & Perfecting Grounds for Appeal”
The names were placed in a secret envelope and were kept with the Panel led by Kofi Annan and pending the establishment of a Special Tribunal.[9] If the government failed to establish the Tribunal, the Panel would forward the names of the perpetrators to the ICC.[10] The Kenyan parliament failed—due to political stalemate[11]—to establish the Tribunal and Kofi Annan handed over the sealed envelope to the ICC Chief Prosecutor, Luis Moreno-Ocampo.[12]
I next turned to a vignette from Cambodia since it seemed to nicely compliment the Egyptian one. On 7 January 2014, the Cambodia National Rescue Party (CNRP) issued a press release that it had engaged an international lawyer to lead a team of international lawyers to “analyse the evidence of crimes committed by Cambodian security forces and, if justified, file a request to the Prosecutor of the International Criminal court to initiate investigations into the situation in Cambodia under Article 15 of the Rome Statute.”[1] Seemingly, the trip wire for this investigation was an incident where military police dedicated effectively to the ruling party, the Cambodian People’s Party (CPP), shot dead five civilians, injured more and imprisoned demonstrating garment factory workers on 3 January 2014.[2] The investigation is expected to go well beyond this incident, since the CNRP is alleging that the CPP security forces “commit illegal violent acts as part of a widespread or systematic attack against the civilian population” amounting to crimes against humanity.[3] On the same day, the international lawyer chosen to spearhead the investigation was quoted saying that the underlying criminal acts are “likely to include murder, arbitrary imprisonment, forced transfer and persecution on political grounds,” with the likelihood of there being “tens or even hundreds of thousands of victims.”[4]