ECCC Archives - Page 5 of 8 - michaelgkarnavas.net/Blog

Amnesties and Pardons in International Criminal Law – Part II

Amnesty is defined as complete and lasting forgetfulness of wrongs and offences previously committed. Therefore, when an amnesty is given, since all deeds are consigned to perpetual oblivion and everlasting silence, no one can be accused or punished for acts before committed.((CHRISTIAN WOLFF, JUS GENTIUM METHODO SCIENTIFICA PERTRACTATUM Vol. 2, para. 989 (transl. by and Joseph H. Drake, Oxford 1995). ))

In my previous post I briefly recounted the background and recent developments in the case against Saif al-Islam Gaddafi at the ICC, and how these recent developments relate to the issues of amnesties, pardons, and ne bis in idem. I was prompted by recent news reports that Saif al-Islam Gaddafi was pardoned and released from prison after being convicted and sentenced to death, and his legal teams’ press conference and statements that the ICC should dismiss the case against Saif al-Islam Gaddafi because he was pardoned and because of double jeopardy. Continue reading “Amnesties and Pardons in International Criminal Law – Part II”

Saif al-Islam Gaddafi and the ICC: is the purported “amnesty” (or pardon) and “double jeopardy” a game-changer?

On 26 February 2011, the United Nations Security Council voted unanimously to refer the situation in Libya since 15 February 2011 to the ICC Prosecutor to hold accountable those responsible for attacks on civilians by forces under the control of those responsible. After conducting a preliminary examination, the ICC Prosecutor concluded on 3 March 2011 that there is a reasonable basis to believe that crimes under the ICC’s jurisdiction have been committed in Libya, and decided to open an investigation. Continue reading “Saif al-Islam Gaddafi and the ICC: is the purported “amnesty” (or pardon) and “double jeopardy” a game-changer?”

Cambodia Daily publishes Karnavas rebuttal to defence of US Senate’s ECCC interference

On 6 July 16 The Cambodia Daily published a commentary by Michael G. Karnavas, entitled Inducing Case 003 Outcome: US Purse Strings Wielded as a Whip. Heather Ryan, a consultant to the Open Society Justice Initiative, responded in a commentary, Tribunal Is Tainted by Political Interference, but Not From US, published on 12 July 16. Mr. Karnavas replied in the following commentary, Consultant’s Analysis of US Senate Bill Cherry-Picks Facts, published on 13 July 16.

Consultant’s Analysis of US Senate Bill Cherry-Picks Facts

BY MICHAEL KARNAVAS | JULY 13, 2016

In an op-ed published on Tuesday—“Tribunal Is Tainted by Political Interference, but Not From U.S.”—Heather Ryan, a consultant to the Open Society Justice Initiative, responded to my commentary concerning U.S. Senate Appropriations Committee bill S.3117, wherein I asserted that the Senate is effectively engaging in political interference, impliedly calling on the co-investigating judges to indict my client, Meas Muth. Continue reading “Cambodia Daily publishes Karnavas rebuttal to defence of US Senate’s ECCC interference”

Cambodia Daily publishes Karnavas commentary on US Senate pressure on ECCC to indict in Case 003

On 6 July 2016, The Cambodia Daily published a commentary by Michael G. Karnavas on US Senate Appropriations Committee Bill S.3117.((section 7043(c)(2)) The bill, as explained in the Committee’s Report, seeks to tie US funding of the ECCC to the indictment of Mr. Meas Muth in Case 003. Mr. Karnavas calls out the bill’s drafters on their disregard for international standards of justice and respect for the rule of law, and for their lack of understanding of the very procedural rules with which they seek to tamper.

Inducing Case 003 Outcome: US Purse Strings Wielded as a Whip

BY MICHAEL KARNAVAS | JULY 6, 2016

Last Wednesday, the U.S. Senate Appropriations Committee approved a bill: S.3117. Buried 221 pages into that bill is a provision that would stop U.S. contributions to the Extraordinary Chambers in the Courts of Cambodia unless the U.S. secretary of state certifies and reports to the committee that the ECCC “will consider Case 003.” Continue reading “Cambodia Daily publishes Karnavas commentary on US Senate pressure on ECCC to indict in Case 003”

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

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?”