Book Review Archives - michaelgkarnavas.net/Blog

BOOK REVIEW: Prosecuting Environmental Harm before the International Criminal Court, by Matthew Gillett

Prosecuting Environmental Harm before the International Criminal Court, Matthew Gillett, CUP 2022, €110.87

… major adjustments to address environmental harm would provoke the fundamental question whether they constitute too great a departure from the Court’s conception, which is distinctly anthropocentric in orientation. Balancing human interests against environmental interests is a fraught exercise, particularly given that these interests frequently overlap and are inter-connected depending on the point of view of the person making the assessment. Nonetheless, the risk of environmental harm being ultimately de-prioritized in ICC proceedings would remain, even if amendments were made to the Rome Statute to add a form of environmental crime to the arsenal of prohibitions. (p. 337)

Sobering.

Tinkering with the Rome Statute to add more arrows in the International Criminal Court’s (ICC) prosecutorial quiver to combat serious environmental destruction seems simple, an elegantly attractive solution to an obvious although not entirely unintended lacuna. Also, query whether the tinkering could plausibly result in an ecocentric framework which would include, among other things, prosecuting corporations (not just individuals) and affording victim reparations beyond the expressed contours of the Rome Statute.

Considering what it took to include the crime of aggression, not to mention its lack of acceptance by all States Parties (opt-in /opt-out permutations), this is a virtual non-starter. And good luck finding consensus on defining ecocide and amending the Rome Statute to include lower standards of proof as argued by the proponents who find proof beyond reasonable excessively high for achieving desired convictions. Continue reading “BOOK REVIEW: Prosecuting Environmental Harm before the International Criminal Court, by Matthew Gillett”

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”

BOOK REVIEW SERIES: ON RETURNING CULTURAL OBJECTS & HERITAGE DESTRUCTION – PART THREE

Heritage Destruction, Human Rights and International Law, edited by Amy Strecker and Joseph Powderly, Brill 2023, 502 pages, €216

If law mirrors the general norms of society, then the increasing recognition by international law can be read as a reflection of a general public consensus that finds heritage destruction unacceptable, even if violations occur. Yet, despite the proclamation of heritage destruction in situations of conflict as an international wrong, no such assertion can be made for the equivalent in peacetime. The most developed jurisprudence on cultural heritage destruction has been made in the context of international criminal law, yet conversely it is the area with the most limited conceptualization of cultural heritage. (p. 1)

In Spring 2018, an international symposium on Heritage Destruction, Human Rights and International Law was held at Leiden University, funded by Leiden Global Interactions and the Leiden-Delft-Erasmus Centre for Global Heritage and Development. The hosts, Professor Amy Strecker of Sutherland School of Law and Joseph Powderly of Leiden University, with an impressive ensemble of academics with deep knowledge and practical experience in international cultural heritage law and heritage studies, examined various branches of international law understood to relate to heritage destruction from human rights perspectives during armed conflict and in peacetime. Among the questions explored were:

- - What is the level of state responsibility regarding heritage destruction in times of conflict and in peace?
  - What are the corresponding rights relating to cultural heritage and what are the recent developments in the field?
  - What is the appropriate level for balancing heritage protection imperatives with development and investment interests such as resource extraction or infrastructural projects?
  - Does the concept of universality continue to be useful in relation to cultural heritage?

The answers to these questions and more resulting from the symposium are found in Heritage Destruction, Human Rights and International Law, edited by Strecker and Powderly.

Continue reading “BOOK REVIEW SERIES: ON RETURNING CULTURAL OBJECTS & HERITAGE DESTRUCTION – PART THREE”

BOOK REVIEW SERIES: ON RETURNING CULTURAL OBJECTS & HERITAGE DESTRUCTION – PART TWO

CONFRONTING COLONIAL OBJECTS: Histories, Legalities, and Access to Culture, Carsten Stahn, Oxford University Press, 2023, 556 pages, $180

Critics of restitution have challenged the turn to cultural justice based on the argument that atonement for the past may politicize material culture, detract from the original meaning of artifacts, or sensualize looted object to the detriment of less visible items.… Some of these risks may be mitigated through the application of transitional justice principles (e.g. historical truth-seeking access to justice, recognition of the harm, memory or non-repetition) to processes of restitution and return. They are inherently reflected in some reports and principles. (pp. 417-418)

Admittedly, my personal views on the return of cultural objects reflected in Part One are rather rigid: anything inappropriately or unlawfully taken must be returned when requested. Getting to Yes (the formula for a win-win outcome explicated by Roger Fisher and William Ury in their seminal book on negotiating), however, is not easy. The disputing parties generally must agree to an acceptable historical narrative that accurately reflects the provenance (chain of custody) and biography of the disputed cultural objects before considering/agreeing to return them (a feat in itself). One of the main stumbling blocks is the absence of clarity in the law. Which law applies? How far back does today’s law apply, and if not, then what? Can the original owner’s title claim based on heritage (I am mostly thinking of communities) trump domestic acquisition laws giving lawful title to a purchaser? Are there enforceable remedies? Continue reading “BOOK REVIEW SERIES: ON RETURNING CULTURAL OBJECTS & HERITAGE DESTRUCTION – PART TWO”

BOOK REVIEW SERIES: ON RETURNING CULTURAL OBJECTS & HERITAGE DESTRUCTION – PART ONE

To the living we owe respect, but to the dead we owe only the truth.

Voltaire

When it comes to confronting historical facts of how colonial objects were taken – from marbles and statutes removed from ancient temples to religious and cultural artifacts taken as war booty or unrestrained rapaciousness or trickery or coercion, to grave robbing for ‘scientific’ reasons or for (curiosity) display – reversing Voltaire’s quote seems more appropriate. The dead are owed respect; the living the truth. With the truth the dead are not just honored, but culture and heritage pass on through memory, created and sustained. But whose truth? Whose historical facts? And what of cultural heritage? One overarching question that touches on both the return of claimed cultural objects found in museums and cultural heritage is who owns cultural objects or to whom they belong? This short series will attempt to address this and other relevant questions. It will do so by reviewing two recently published books. First, my take on the return of claimed cultural objects. Continue reading “BOOK REVIEW SERIES: ON RETURNING CULTURAL OBJECTS & HERITAGE DESTRUCTION – PART ONE”

Book Review Series: Musings and meanderings from my 2023 reading explorations – Part 5

It was never my intention to be a reporter, a critic, an advocate. It was also never my intention to provide audiences with “everything” they needed to know about a place – or even a balanced or comprehensive overview. I am a storyteller. I go places, I come back. I tell you how the places made me feel.

Anthony Bourdain

I’m a criminal defense lawyer. I do some training and lecturing, and occasionally work on rule of law and development projects. I claim no particular expertise other than in my narrow field of work. I claim no Delphic insight on history, international relations, geopolitics, or on many of the areas that interest me. “All men by nature desire to know,” according to Aristotle. I know I do. So, I read, sometimes writing about what I read. My intention was never to be a book reviewer, a critic, a blogger. Like Anthony Bourdain, that wonderful, quirky, irreverent globetrotting chronicler, it has not been (nor will ever be) my intention to provide you “everything” you need to know about the books reviewed in this series or in previous posts (or future ones). I try to be balanced but by no means comprehensive. I try to convey how visiting a particular book made me feel, and in some small measure, vicariously take you, the reader, the audience, to places you may wish to visit. In this last post of the series, I will recommend some of the memorable books I read this year for pleasure and just to know. I have loosely categorized them with a brief commentary. Continue reading “Book Review Series: Musings and meanderings from my 2023 reading explorations – Part 5”

Book Review Series: Musings and meanderings from my 2023 reading explorations – Part 4

War is hell, but that’s not the half of it, because war is mystery and terror and adventure and courage and discovery and holiness and pity and despair and longing and love. War is nasty; war is fun. War is thrilling; war is drudgery. War makes you a man; war makes you dead. The truths are contradictory.

Tim O’Brien, The Things They Carry (pp. 76-77)

For citizens, garlands of euphonism and a fog of glorious myth shroud th[e] bloody past. The battles that shaped the nation are most often remembered by the citizenry as defending the country, usually in the service of peace, justice, freedom, or other noble ideas. Dressed in this way, the wars of the past justify the wars of the present for which the citizen is willing to fight or at least pay taxes, wave flags, cast votes, and carry forth all the duties and rituals that affirm her or his identity as being one with the nation’s.

Viet Thanh Nguyen, Nothing Ever Dies (p.5)

Memory affects us. It shapes our identity, who we are, how we perceive the past, how we view the present, and how we envision and might act in the future. Other than what we personally experience – to which a degree of uncertainty, bias and misapprehension must be taken into account – our memory of past events as our perception of present ones, in no small measure, is based on what we are told. Where the truth lies, assuming there is a truth, depends on who is telling the story, based on what information, from what vantage point in examining the events, the quality of the information, the objectivity of witnesses and their ability to accurately recount, and the intentions of those who write and lecture and promote historical truths as they would have others believe and be influenced by. Having tried my share of small, big, and mega cases, I’ve come to realize that few things are as they often appear. Court judgments may determine the existence of certain facts to satisfy a beyond reasonable doubt finding, but even seemingly correct findings, occasionally prove not to be. Memory, or the unreliability of memory, is partly responsible. When it comes to historical events, especially those that touch us, our memory is at risk of being manipulated – being influenced to see and believe (and thus drilled into our memory) things as told by authority figures, government officials, museums, monuments, memorials, textbooks, and so on. Harking back to my reasons for venturing into this book review series as explained in Part 1, the books reviewed here tie in the theme of memory and war. Continue reading “Book Review Series: Musings and meanderings from my 2023 reading explorations – Part 4”

Book Review Series: Musings and meanderings from my 2023 reading explorations – Part 3

All organized groups and structures of normative conduct – that is to say, conduct which is regarded by each actor, and by the group as a whole, as being obligatory, and for which violations carries a price. Normative systems make possible that degree of order if society is to maximize the common good – and, indeed, even to avoid chaos in the web of bilateral and multilateral relationships that society embraces.

Rosalyn Higgins, Problems and Process: International Law and How We Use It (p. 1)

Staying informed on the news of the day, any day, has become unsettling. The world order is in disorder. We are all affected and pay the price one way or another. After WWI – the war that was supposed to end all wars – the League of Nations was formed. The hope and expectations were that as states would be governed by civilized citizens in a new(ish) world order, one that looked beyond the narrow contours of the 1648 Peace of Westphalia, nation-states would accept the notion (reality) that they were part and parcel of a community of states with rights and obligations and a normative structure and institutions to solve differences and disputes in a civilized manner. Well, we all know things did not work out as planned. After World War II, a new model was designed – The United Nations. Hopes and expectations were high. Though many states were reticent to give the extraordinary power of the veto to five states sitting as permanent members on the UN Security Council, they went along. What else could they do? Unsurprisingly, things have not worked out as hoped. Yet, hope remains. It must.

The books reviewed in this part of the series deal with the UN, international conflict and security, public international law, and includes a short treat on political philosophy relevant to international law/relations. The selection is idiosyncratic. My discretionary reading (anything not related to a case or project I am involved in) is capricious, unstructured. Nonetheless, a sliver of reason and rhyme can be found – especially if like me, you are habitually attempting to synthesize ideas, facts, concepts, and knowledge wherever found. Continue reading “Book Review Series: Musings and meanderings from my 2023 reading explorations – Part 3”

Book Review Series: Musings and meanderings from my 2023 reading explorations – Part 2

In a sense all historians are revisionists, for each tries to make some contribution that changes our understanding of the past. When we use the term revisionist, however, we generally mean something more fundamental: a writer who tries to change the reader’s mind in a major way by providing a new general interpretation, one that sharply and thoroughly reexamines the established way of looking at a matter.

Donalds Kagan, Thucydides: The Reinvention of History (p. 23)

As I noted in Part 1, in thinking of the geopolitical events of the day, particularly the Russo‑Ukrainian war, I happened to come across Telford Taylor’s MUNICH: The Price of Peace. I was intrigued by it because at the time – and as much today, where we can see the disinterest by many conservative Republicans in the US Senate and House of Representatives in further funding Ukraine – I assumed that at some point the US and other European allies assisting Ukraine would resort to appeasement. By this, I mean reducing the military aid and support to Ukraine – kneecapping them in a sense – to convince/pressurize Ukraine to give up its sovereignty over Ukrainian land coveted by Russian President Vladimir Putin. Understandable. After all, Ukraine is far away, Russian missiles are not falling on any US territory, there are pressing issues at home, and then there is inflation – the price of gasoline at the pump is up, as it is for eggs, bread, meat, clothes – so why not spend the money on fixing things that voters can relate to? As shortsighted and misguided as this thinking may be, one cannot blame the hardworking, taxpaying, citizen-voter. The onus, the responsibility, rests with the elected officials to give valid and persuasive reasons why appeasement is not an option. Expecting what is playing out today with donor-fatigue by the US and its European allies supporting Ukraine, I thought I would cast a wide reading net, starting with history and international affairs. Here are five books in this category. Nothing links them other than certain themes that relate to statecraft and war-making. Continue reading “Book Review Series: Musings and meanderings from my 2023 reading explorations – Part 2”

Book Review Series: Musings and meanderings from my 2023 reading explorations – Part 1

They arrived four days ago, but for 48 hours the reviewer was prevented by moral paralysis from opening the parcel. Yesterday in a resolute moment he ripped the string off it and found the five volumes to be Palestine at the Cross Roads, Scientific Dairy Farming, A Short History of European Democracy (this one 680 pages and weighs four pounds), Tribal Customs in Portuguese East Africa, and a novel, It’s Nicer Lying Down, probably included by mistake. His review — 800 words, say — has got to be ‘in’ by midday tomorrow.

George Orwell, Confessions of a Book Reviewer

January 2023 rolled in with the zero-sum driven Russo-Ukrainian war raging, which, by any informed observer’s account, has evolved into a war of attrition. With neither Russia nor Ukraine contemplating a negotiated settlement, the killings and destruction and atrocities and suffering will run the ever-predictable course. Will either side give in? Doubtful – at least not as long as Russia has the means to wage war and Ukraine has the means to repel and respond in kind (save for an unpardonable but not improbable tactical nuclear strike by Russia).

Russia, or shall I say Putin, is convinced of the righteousness of initiating the war – not as the aggressor but because of the existential threat posed to Russia by Ukraine. Whether we agree or disagree with Putin’s perceptions – which, indubitably, accounts for the ruthlessness with which he is prosecuting his euphemistically branded limited military intervention – his perception is his reality. Inversely, Ukraine’s reality is that Russia is waging an un-provoked and unjustifiable war, an un-righteous act of aggression which it perceives as an existential threat to Ukraine’s existence – of its sovereignty, territorial integrity, heritage, and culture. Continue reading “Book Review Series: Musings and meanderings from my 2023 reading explorations – Part 1”