Why a tribunal for aggression is unrealistic, why the ICC should step aside, and why a tribunal established by the UNGA is the optimal option

Bringing fresh ideas to an ongoing debate of some duration and substance rarely happens. But do read on for my brief take on why establishing a boutique tribunal to try Putin for the crime of aggression is unrealistic, and why there may be a more practical and achievable solution in investigating and prosecuting those most responsible for crimes being committed in the Russo-Ukrainian war – save for the crime of aggression.

Most agree that Putin’s war-making was unprovoked, unjustified, and unlawful. I say most because there are some who believe that Russia had legitimate reasons for initiating what Putin has characterized as Russia’s “special military operation.” Most also agree – or seem to agree despite any legitimate findings by an independent international tribunal – that Putin is guilty beyond any doubt of the crime of aggression. And many of those who have made their findings and conclusions of Putin’s guilt, call for the establishment of a tribunal with the singular purpose to try and convict Putin, expeditiously, for aggression. Of course, they envisage that a few others would also be charged and tried as well for aggression, but Putin is the great white whale (though it should be remembered that Moby Dick was both Ahab’s obsession and the prize he could not have). Continue reading “Why a tribunal for aggression is unrealistic, why the ICC should step aside, and why a tribunal established by the UNGA is the optimal option”

The BiH High Representative’s Criminal Code Amendment’s Criminalization of Thought to Foster Reconciliation: dare we publicly question the infallibility of the ICTY’s findings of facts and conclusions of law?

“I disapprove of what you say, but I will defend to the death your right to say it.” –Voltaire

valentin inzko — Valentin Inzko, former High Representative (HR) of Bosnia and Herzegovina (BiH)

With a week left in his 12-year stint as the High Representative (HR) of Bosnia and Herzegovina (BiH), the Slovenian-born Austrian diplomat and honorary citizen of BiH, Valentin Inzko, exercised his omnipotent legislative authority granted to him by the Peace Implementation Council at its December 1997 meeting in Bonn, Germany or “Bonn powers”– the powers conferred to the HR to avoid obstruction by local authorities in implementing the Dayton Peace Accords (DPA) – to impose an amendment to the BiH Criminal Code. Effectively, he criminalized the denial or trivialization of genocide, crimes against humanity, or war crimes that have been found by the International Military Tribunal in Nuremberg, International Criminal Tribunal for the former Yugoslavia (ICTY), and other courts in BiH. With the War Crimes Section of the Court of BiH readily accepting adjudicated facts from ICTY final judgments as presumptively, though rebuttably, proven (thus reversing the burden of proof on the defense, as was the practice at the ICTY), the imposed amendment seemingly removes the rebuttable presumption, thus making any adopted adjudicated facts definitive and incontestable; ditto for conclusions of law. Continue reading “The BiH High Representative’s Criminal Code Amendment’s Criminalization of Thought to Foster Reconciliation: dare we publicly question the infallibility of the ICTY’s findings of facts and conclusions of law?”

BORIS JOHNSON’S IMPRUDENT LETTER: irresponsibly fostering misperceptions

The election of two highly qualified UK nationals, Judge Joanna Korner QC and Karim Khan QC, to the roles of Judge and Prosecutor to the ICC respectively, will help serve reform. … As a founder member of the ICC, we have been one of its strongest supporters and continue to respect the independence of the institutions. We oppose the ICC’s investigation into war crimes in Palestine. We do not accept that the ICC has jurisdiction in this instance, given that Israel is not a party to the Statute of Rome and Palestine is not a sovereign state.

Beneath his frat-boy antics, disheveled looks, and bumbling affectations, lies a cunning, calculating, consummate political operator par excellence – even if many of his policies and positions reflect short-term, myopic, tactical jockeying and half-baked ideas. Boris Johnson may have written a (mediocre at best) biography of Winston Churchill, but Winston Churchill he is not. He also seems without a clue as to the concepts of judicial and prosecutorial independence, and that words coming from a Head of State, when imprudent, ill-conceived, and injudicious, create perceptions. Negative ones.

On 9 April 2021, the UK Prime Minister sent a letter to the Conservative Friends of Israel, noting its concerns about the International Criminal Court’s (ICC) recent ruling on the Palestine situation where the Pre-Trial Chamber found that the ICC has jurisdiction to investigate crimes committed in Palestine (see my recent review here). Understandably, the ruling on the Palestine situation has caused a fair amount of consternation or euphoria, depending on where one lines up on the issues involved. The UK had its chance to make amici submissions before the Pre-Trial Chamber. A ruling was issued. To now publicly pressurize the ICC to reverse course (no other way to view Johnson’s remarks), is pure, naked, crude political interference. Continue reading “BORIS JOHNSON’S IMPRUDENT LETTER: irresponsibly fostering misperceptions”

The Trump impeachment trial: observations on rhetoric & advocacy

But since rhetoric exists to affect the giving of decisions – the hearers decide between one political speaker and another, and the legal verdict is a decision – the orator must not only try to make the argument of his speech demonstrative and worthy of belief: he must also make his own character look right and put his hearers, who are, to decide, into the right frame of mind.

Aristotle, The Art of Rhetoric

Sitting at a sushi bar nearly forty years ago as a newly minted lawyer being introduced to the culinary delight of raw fish delicately sliced with artistic flare, I artlessly asked the middle-aged chef how long it had taken him to learn his skills. Taciturnly, he said still learning. It would take years to figure out what he meant – perfection is a process, not a destination. Zen.

Perfecting one’s skills in rhetoric and advocacy is the same – a never-ending journey of striving and evolving, of emulating and improvising, of observing and learning. What may have worked seven, five, or even two years ago may now seem passé and less effective. The audience’s tastes, sophistication, tolerance, attention span, thought processes, etc., have likely changed. As have their socio-economic status, political views, and day-to-day existence. The advocate must adjust to the times and to the occasion. Continue reading “The Trump impeachment trial: observations on rhetoric & advocacy “

Peering through snow in The Hague

This weekend I found myself shoveling more snow than I have since my public defender days in Alaska. As I put my feet up and warmed my weary bones, I re-read a piece my friend Alan Yatvin wrote after getting caught in the snow here in The Hague three years ago. I was reminded of the vivid picture he painted of that experience, and his ruminations on the legacy of the ICTY. I also longingly recalled that which Alan kindly omitted — that I had abandoned him and was then enjoying much more salubrious weather in Phnom Penh. So for those of you, like me, trudging through the snow this weekend, here is a taste of an earlier storm, with a link to the whole essay. Stay warm.

A snowy December night in The Hague

I was in The Hague for a meeting of the Association of Defense Counsel at the International Courts (ADC-ICT). This was my last day in The Netherlands before heading home and it was snowing.

Winter Landscape with Skaters by Hendrick Avercamp

With images of Hendrick Avercamp’s impish 17th century paintings and childhood memories of Hans Brinker, or the Silver Skates (book and movie) dancing in my head, I set out for the “centrum” to fill the last afternoon of my vacation. However, that snowy, frozen canal climate is long gone from this country. Unused to so much snow in a short period of time the Dutch city was, if not paralyzed, substantially slowed down.

After wandering around mostly deserted streets, I headed for the oh-so-convenient bus whose route dropped me practically at the door of the home of my friend Michael Karnavas, where I was staying. Over the next hour, it finally dawned on me that despite the illuminated boards assuring that the bus was 9 minutes, then 4 minutes, then 1 minute away, before disappearing from the board altogether, the buses had ceased running. So, I caught the tram to the beach, which I knew stopped behind the building housing the United Nations International Criminal Tribunal for the Former Yugoslavia (ICTY) a 10 minute walk from my lodgings.

As I walked back, I stopped by the Churchillplein fountain, in front of the Tribunal, to reminisce and contemplate its impending closing.

Click here to read the rest.

POSTSCRIPT — DAVID PERRY QC DOES VOLTE-FACE: wise move or fainthearted retreat?

I understand in the case of Mr. Perry, in relation to the pro-democracy activists, and of course from Beijing’s point of view, this would be a serious PR coup.… Frankly, I think people watching this would regard it as pretty mercenary to be taking up that kind of case.

Dominic Raab, British Foreign Secretary

Raab owes Perry an unreserved apology. His remarks are not only foolish, but also flawed: they smack of grandstanding, rather than reason.… In the best tradition of the English Bar, Perry will be scrupulously fair at trial and he will ensure that there is a just outcome.

Grenville Cross QC, Former Hong Kong Director of Public Prosecutions

As I was posting my piece on David Perry QC accepting the brief to prosecute Hong Kong pro-democracy demonstrators, Perry withdrew from the case. The Hong Kong Government explained that “growing pressure and criticism from the UK community directed at Mr. Perry QC” and “the exemption of the quarantine” were the causes for his withdrawal.

Unfair pressure, crisis of conscience, realization of folly, economic considerations, or ridding of grief? Take your pick. One thing for sure, the claim that Perry’s withdrawal was due to quarantine issues doesn’t pass the smell test. Continue reading “POSTSCRIPT — DAVID PERRY QC DOES VOLTE-FACE: wise move or fainthearted retreat?”

British QC Agrees To Prosecute Hong Kong Pro-Democracy Activists: Should it matter?

I know how you feel. You don’t believe me, but I do know. I’m going to tell you something that I learned when I was your age. I’d prepared a case and old man White said to me, “How did you do?” And, uh, I said, “Did my best.” And he said, “You’re not paid to do your best. You’re paid to win.” And that’s what pays for this office … pays for the pro bono work that we do for the poor … pays for the type of law that you want to practice … pays for my whiskey … pays for your clothes … pays for the leisure we have to sit back and discuss philosophy as we’re doing tonight. We’re paid to win the case. You finished your marriage. You wanted to come back and practice the law. You wanted to come back to the world. Welcome back.

Ed Concannon, The Verdict (1982)

Show me an advocate who has nothing to prove and I’ll show you an advocate who proves nothing. Kid yourself not, it is all about winning, especially in common law proceedings. No one hires a lawyer to just do his or her best; they want the lawyer to win the case. This also goes for prosecutors. No supervisor or hiring authority wants to hear from their prosecutor that the case was lost but justice was done. The presumption for going forward with the prosecution is that the cause is righteous, and the accused is guilty. Continue reading “British QC Agrees To Prosecute Hong Kong Pro-Democracy Activists: Should it matter? “

LIES TURNED RIGHTEOUSNESS / RIGHTEOUSNESS TURNED SEDITIOUSNESS

As of 10 January, armed protests are being planned at all 50 state capitols from 16 January through at least 20 January, and at the US Capitol from 17 January through 20 January.

Internal FBI bulletin obtained by ABC News

As President of the United States, Trump has lied to Americans for years.

In his ghost-written book, TRUMP: The Art of the Deal, President Trump packaged lies as truthful hyperboles. After his inauguration, truthful hyperboles became alternative facts. Soon thereafter, alternative facts became fake news, (in)famously beseeching to his beloved base to believe that what you’re seeing and what you’re reading is not what’s happening. Attacking the free press, the fourth pilar of US’s constitutional democracy, he accused it of being the enemy of the people. Simply, whenever the facts got in the way of President Trump’s narrative for the past four years, he, along with his enablers, have used every conceivable means to promote intoxicatingly repugnant falsehoods – however void of any credible evidence, however untrue, however incendiary. Continue reading “LIES TURNED RIGHTEOUSNESS / RIGHTEOUSNESS TURNED SEDITIOUSNESS”

IT CAN HAPPEN HERE – It nearly did

An honest propagandist for any Cause, that is, one who honestly studies and figures our the most effective way of putting over his Message, will learn fairly early that it is not fair to ordinary folks—it just confuses them—to try to make them swallow all the true facts that would be suitable to a higher class of people. And one seemingly small but almighty important point he learns, if he does much speechifying, is that you can win over folks to your point of view much better in the evening, when they are tired out from work and not so likely to resist you, then at any other time of the day.

Zero Hour, Berzelius Windrip
Sinclair Lewis, IT CAN’T HAPPEN HERE, New American Library (republished 2005), p. 180.

Fearing mob violence, insurrection, and the erosion of democratic norms – consequences of Benito Mussolini’s and Adolph Hitler’s propaganda, and indulgence in unrelenting and unbridled repletion of alternative facts – Sinclair Lewis wrote his 1935 tour de force dystopian novel, IT CAN’T HAPPEN HERE, depicting the slow-burning rise of an American dictator in the ilk of Il Duce and Der Führer.

Lewis, who would go on to win the Nobel Prize for Literature, had good reason to be concerned – aside from what he saw happening in Europe. Media mogul William Randolph Hearst, fond of engaging in incendiary propaganda, had defined Americanism in Trumpian style (here I am thinking of when US President Trump called the racist, anti-Semitic, Confederate-flag-waving, Ku Klux Klan Chanting demonstrators “very fine people”):

Whenever you hear a prominent American called “fascist”, you can usually make up your mind that the man is simply a LOYAL CITIZEN WHO STANDS FOR AMERICANISM.

Watching the assault on Capitol Hill and desecration of the US Congress, the citadel of the US’s democracy, who would have believed that this was the United States of America? Who would have thought that it could happen here – in the US? It was not a coup. No dictator emerged. At dawn, the Republic was still intact, though marred, bruised, tested, weakened, humbled and humiliated. Continue reading “IT CAN HAPPEN HERE – It nearly did”