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

Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof — Part IV

Part IV – International criminal courts and tribunals: mixing, matching & inventing

The latest type of international crimes courts, inter alia dubbed ‘hybrid courts’, has been welcomed with great expectations. The hybrid model that is characterized by a mix of national and international components is said to ‘hold a good deal of promise and actually offer an approach that may address some of the concerns about purely international justice, on the one hand, and purely local justice, on the other.’ The hybrid courts are thought to avoid the drawbacks of purely domestic trials and proceedings by purely international courts, such as the International Criminal Tribunals for the former Yugoslavia (ICTY), Rwanda (ICTR) and the International Criminal Court (ICC). The model of hybrid courts ‘endeavors to combine the strengths of the ad hoc tribunals with the benefits of local prosecutions.’((Sarah M.H. Nouwen, ‘Hybrid Courts’ The Hybrid Category of a New Type of International Crimes Courts, 2(2) Utrecht L. Rev. ,190 (2006). An excellent expose on what is referred to as hybrid courts, the features they purportedly share and their fundamental differences. With the vast range of differences, Nouwen questions whether there is a promising model hybrid court.))

This is the final post on my discussion of standards and burdens of proof in hybrid courts. In the first post, I briefly discussed the terms standard and burden of proof. The second post dealt with the history of the reasonable doubt standard of proof and the in dubio pro reo principle to provide some context and a background understanding of how the common law and civil law standards of proof diverged and evolved over the centuries. The third and fourth posts dealt with common law and civil law systems and the practical application of standards and burdens of proof in national criminal systems. In this final post to this series, I will address these issues in the context of the international criminal courts and tribunals. I will also touch upon some of the jurisprudence from the European Court of Human Rights (“ECtHR”). Continue reading “Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof — Part IV”

Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof, Part III-B – Civil Law

Part III-B – Civil Law

Considering the outlined differences between continental and common law attitudes, there remains only one understanding of free proof that can safely be employed across Western legal systems. On this view, free proof rhetoric expresses the preference for a factfinding regime in which adjudicators are permitted to use ordinary processes of cognition, free to follow the same procedures as the informed public in arriving at the verdict. Both continental and common law jurisdictions seem to subscribe to this preference – at least in principle, or as a prima facie matter – as an organizing schema for technical arrangements.((Mirjan Damaška, Free Proof and Its Detractors, 43 Am. J. Comp. L. 343, 347-48 (1995) (hereinafter “Damaška”). ))

Civil law based systems, which are also referred to as Romano-Germanic, are judge-driven, lacking many of the adversarial features essential to common law systems. I use the plural for “systems” because there is no single and uniform civil law system. Each civil law based system has its own nuances and distinctions. Query whether any civil law based system, be it modeled after the French system with the investigative judge conducting the investigation or modeled after the German system with the prosecutor in charge of the investigation, can claim to be procedurally pure in the sense that it solely employs inquisitorial procedures. Even within the French and German models there are significant differences. Few contemporary systems fit neatly into one definition; different elements and tools contribute to the degrees of fusion. Indeed, some civil law based systems can more accurately be characterized as hybrid, having adopted adversarial / common law modalities, such as is the case in Italy. Continue reading “Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof, Part III-B – Civil Law”

Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof, Part III-A – Common Law

Part III-A — Common Law Approach

Good men everywhere praise the presumption of innocence. And be they Frenchmen, Germans, or Americans, they agree on the demand of the presumption in practice. Both here and abroad, the state’s invocation of criminal sanctions demands a high degree of proof that the accused has committed the offense charged. To express the requisite standard of proof, common lawyers speak of the prosecutor’s duty to prove his case beyond a reasonable doubt. And Continental lawyers invoke the maxim in dubio pro reo – a precept requiring triers of fact to acquit in cases of doubt.((George P. Fletcher, Two Kinds of Legal Rules: A Comparative Study of Burden-of-Persuasion Practices in Criminal Cases, 77 Yale L. J. 880, 880 (1968). ))

This post follows up on my discussion on the common and civil law approaches to the standards and burdens of proofs. I began this series of posts by setting out the background and discussing relevant terms and definitions. I then provided a brief overview of how the common and civil law systems split off and developed over the centuries and how the reasonable doubt standard came about. I also touched upon the in dubio pro reo principle as it relates to the standard of proof. In the next two posts I will separately discuss the common and civil law systems in order to compare and contrast their respective approaches to the standards and burdens of proof. Continue reading “Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof, Part III-A – Common Law”

Historical Aspects of the Standard of Proof Beyond a Reasonable Doubt & The Principle of In Dubio Pro Reo

We all know that, when a criminal lawyer has to defend a case where the facts are all against him, his uniform and too often unfailing resource is the law. Upon this he falls back. The doctrine of ‘reasonable doubt’ is kept always in the front. The reports are ransacked for loose definitions by careless judges in insignificant cases. The extravagant and unsupported ‘dicta’ of the text-writers, made perhaps in support of a theory of what the law ought to be, rather than as proof of what it has been authoritatively declared to be, are hunted up with untiring zeal. These are reenforced by a series of cases – fabulous and authentic – scattered through the musty annals of crime, in which, it is said that innocent persons have been convicted. The whole mass of bewildering definitions, extravagant ‘dicta,’ astounding facts, or fictions, as the case may be, is then arrayed with greater or less skill, according to the ability of counsel, and paraded before the jury with pathetic solemnity. Of course, the object of all of this is to confound and befog; to bring the jury into that state of amazement, apprehension and uncertainty, which will disqualify them to deal calmly and rationally with the facts of the case before them….((John W. May, Some Rules of Evidence: Reasonable Doubt in Civil and Criminal Cases, 10 Am. L. Rev. 642, 662-663 (1876). ))

In common law and hybrid systems where the proceedings are adversarial defense lawyers are ethically bound to represent zealously their clients. This duty is universally recognized in virtually all national and international codes of professional ethics. Continue reading “Historical Aspects of the Standard of Proof Beyond a Reasonable Doubt & The Principle of In Dubio Pro Reo”

Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof

Hybrid: Anything derived from heterogeneous sources, or composed of elements of different incongruous kinds. (The Oxford English Dictionary, Second edition, Vol. VII, Oxford University Press 1989)

Since Nuremberg, every international or internationalized criminal tribunal (ICTY, ICTR, SCSL, ECCC, ICC, STL) has adopted hybrid proceedings: mixing, matching, and manipulating procedural modalities from common law and civil law systems. I use the plural for “systems” because there is no such thing as the common law system or the civil law system. There are small and large differences among the legal traditions. In common law systems one sees significant differences between the US model, virtually exclusive to the US, and the UK model, seen the world over in the Commonwealth and former UK colonies. The civil law systems can roughly be divided into two major models, the French model (with the investigative judge) and the German model, where the prosecutor charges and investigates, though even between each of these models there can be significant differences. And of course there are also what I would call the hybrid civil law systems, as in Italy, Bosnia and Herzegovina, Macedonia, and elsewhere, where adversarial modalities have been added to the proceedings, i.e., allowing the accused to gather evidence, permitting the parties to initiate the questioning of witnesses and to cross-examine opposing witnesses with leading questions, and even placing the burden of proof on the prosecution to a standard of proof beyond a reasonable doubt. Continue reading “Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof”

The Lawyer’s Independence — Part II

The Lawyer’s Independence: A Universal Principle of Disparate Meanings

Part II – A Critical Analysis of International Legal Ethics

This post follows up on my discussion of the ethical principle of a lawyer’s independence. Though virtually all national and international codes of conduct codify the lawyer’s independence, a lawyer’s understanding of this principle and the ethical duties deriving therefrom differs depending on his or her legal tradition.

In my first post, I attempted to clarify what it means to be “independent” in the national context by discussing the lawyer’s role in the civil and common law systems and how the principle of independence is interpreted in various domestic legal systems. This post will focus on the ethical principle of a lawyer’s independence in the context of international and internationalized criminal tribunals based on the various applicable and aspirational codes of conduct.

Lawyers (hereinafter “Counsel” as generally referred to at international tribunals and courts) from different legal traditions have different experiences and are beholden to their own canons and traditions of professional ethics. What may be permissible in one national jurisdiction may not be permissible in another, and depending on the circumstance, may or may not be permissible at one of the ad hoc international or internationalized criminal tribunals, or the International Criminal Court (“ICC”). And herein lies the conundrum: with which code of conduct and with which interpretation of any of the ethical principles must Counsel abide when practicing at any of the international or internationalized tribunals? Is it as simple as saying that Counsel must abide by the code of conduct of the tribunal or court before which he or she is appearing? What if there is a conflict or a notable difference between Counsel’s national code and the court’s code? This fundamental ethical issue, which Counsel will invariably encounter in representing accused or victims before these courts and tribunals, will be the topic of another post. I merely raise this point now to highlight just how not so simple or straightforward it really is in practice to straddle codes of conduct with diverging meanings of ethical principles that textually and with an unadorned reading seem identical. Continue reading “The Lawyer’s Independence — Part II”

Judgement by essay at the Extraordinary Chambers in the Courts of Cambodia results in public apology

On 2 December 2015, the Public Affairs Section (PAS) of the Extraordinary Chambers in the Courts of Cambodia (ECCC) published its November Court Report. The PAS saw fit to include in the Court Report an essay titled “Exploring Transgenerational Justice at the ECCC”, which was published without attribution. In the essay, which discussed PAS interviews of high school students and senior citizens about their perspectives on trauma and justice, the author reached some astonishing conclusions about crimes purportedly committed from 1975 to 1979 (the period in which the Khmer Rouge governed Cambodia). In the author’s view, “some of the most gruesome crimes against humanity were perpetrated [in the years between 1975 and 1979]” and, “[d]espite having only second-hand information about the genocide perpetrated in their nation, [students] envision a peaceful Cambodia similar to the pre-1975 Cambodian society.”((ECCC Court Report, November 2015, Issue 91, p. 2 (emphasis added).)) Continue reading “Judgement by essay at the Extraordinary Chambers in the Courts of Cambodia results in public apology”

The Lawyer’s Independence: A Universal Principle of Disparate Meanings – Part I

Part I – A Critical Analysis of Domestic Legal Ethics

Lawyers, in protecting the rights of their clients and in promoting the cause of justice, shall seek to uphold human rights and fundamental freedoms recognized by national and international law and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession.((Basic Principles on the Role of Lawyers, Art. 14, Adopted by the Eighth United Nations Congress on the Prevention of Crimes and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990.))

The lawyer’s independence is a principle universally recognized as one of the cornerstones of the legal profession the world over. As can be seen from the above quote, lawyers must be independent and, at all times, act freely if they are to carry out their professional functions, which include, inter alia, advocating for the advancement of human rights, protecting the rights of their clients, and fostering the administration of justice. Virtually all national and international codes of professional conduct codify the lawyer’s independence. However, a lawyer’s understanding of the principle of “independence” and the ethical duties deriving therefrom, differs depending on his or her legal tradition. Continue reading “The Lawyer’s Independence: A Universal Principle of Disparate Meanings – Part I”

Attorney-Client Privilege – Part VI: So Just How Immunized Am I Before the International Tribunals?

This is the final post on my discussion of the attorney-client privilege and the crime-fraud exception raised in Prosecutor v. Bemba et al. (“Bemba”) before the International Criminal Court (“ICC”). In my first post, I set out the factual context of the case. In the second and third posts, I discussed the attorney-client privilege in national tribunals and international tribunals. In the fourth post, I gave an overview of the crime-fraud exception and a legal analysis of the issues arising from the Pre-Trial Chamber((Situation in the Central African Republic, ICC-01/05-52-Red2, Decision on the Prosecutor’s “Request for Judicial Order to Obtain Evidence for Investigation under Article 70”, 29 July 2013.)) and Trial Chamber((Prosecutor v. Bemba Gombo et al., ICC-01/05-01/13-1096, Decision on Defence Request for Leave to Appeal the “Decision Providing Materials in Two Independent Counsel Reports and Related Matters”, 21 July 2015.)) decisions relating to the ICC Office of the Prosecutor’s (“OTP”) request for a judicial order to obtain evidence. In my fifth post, I discussed the application of other types of evidentiary privileges at the international criminal tribunals. In this final post I will discuss the privileges and immunities accorded to those working at the international criminal tribunals, focusing primarily on the immunities afforded to Counsel. Continue reading “Attorney-Client Privilege – Part VI: So Just How Immunized Am I Before the International Tribunals?”

Attorney-Client Privilege – Part V: Other Privileges in International Criminal Tribunals

This is the fifth post in my series on the issue of attorney-client privilege in a contempt case in Prosecutor v. Bemba et al. (“Bemba”) at the International Criminal Court (“ICC”). In my first post, I set out the factual background to the case. In the second and third posts, I discussed the attorney-client privilege in national tribunals and international tribunals. Wrapping up my discussion of Bemba, in the fourth post, I gave an overview of the crime-fraud exception and an analysis of the legal issues arising from the Pre-Trial Chamber((Situation in the Central African Republic, ICC-01/05-52-Red2, Decision on the Prosecutor’s “Request for Judicial Order to Obtain Evidence for Investigation under Article 70”, 29 July 2013.)) and Trial Chamber((Prosecutor v. Bemba Gombo et al., ICC-01/05-01/13-1096, Decision on Defence Request for Leave to Appeal the “Decision Providing Materials in Two Independent Counsel Reports and Related Matters”, 21 July 2015.)) decisions relating to the ICC Office of the Prosecutor’s (“OTP”) request for a judicial order to obtain evidence.

One issue that arose in Bemba was whether privileged attorney-client communications could be used as admissible evidence. To elaborate on this question, it is useful to look at the application of other types of evidentiary privileges at the international criminal tribunals.

This blog post is just a sampling of other types of privileges at the international criminal tribunals. It does not list all types of possible privileges, but only gives some illustrative examples of how other privileges apply. Continue reading “Attorney-Client Privilege – Part V: Other Privileges in International Criminal Tribunals”