International Criminal Law Blog
On the eve of the Khmer Rouge Tribunal Trial Chamber’s pronouncement of the judgement in Case 002/01 against KHIEU Samphan and NUON Chea, the Associated Press asked experts, including Michael Karnavas, to discuss the significance of the trial.
Read the story: With verdicts due, experts explain importance of trial of Cambodia’s Khmer Rouge leaders
On 14 May 2014 Michael G. Karnavas and Co-Lawyer ANG Udom filed an Amicus Curiae Brief urging that the ECCC is unable to exercise subject matter jurisdiction over grave breaches of the Geneva Conventions because those crimes are subject to a 10-year statute of limitation, which has expired for crimes committed from 1975-79. Read the brief here.
“‘Conflict of interests’ is a term that is often used and seldom defined.” 1
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.
Continue reading “ADC-ICTY LECTURE ON CONFLICTS OF INTEREST”
On 4 March 2014 the ECCC Co-Prosecutors proposed amendments to ECCC Internal Rules 55 and 89ter to enable crime sites and criminal incidents to be excluded from the scope of investigation or trial upon their proposal. The proposed amendments, if recommended by the Rules and Procedure Committee and adopted by the Plenary, would introduce a procedure that is that is not founded in the Cambodian civil law system and which would not respect the principle of legalism that is unquestionably applicable before the courts of Cambodia, including the ECCC. Bluntly, the Co-Prosecutors are urging the Rules and Procedure Committee and the Plenary to engage in “situational ethics” to disregard the applicable law and legal system because it does not accommodate them. The Co-Prosecutors are urging the Judges to act ultra vires. Accordingly, I have submitted observations urging the Judges to reject the Co-Prosecutors’ proposed amendments in their entirety.
Essentially, under the principle of legalism, also called prosecutorial legalism, the prosecutor must prosecute when it is clear that a crime has been committed. The prosecution has no discretion as to whether to investigate crimes known to have been committed or to drop charges once an indictment has been secured. Judges have no discretion to abandon charges: whatever is in the indictment must be tried. Continue reading “The Co-Prosecutors’ attempt to eviscerate the principle of legalism at the ECCC … and beyond”
I was recently asked by journalist Julia Wallace to provide some thoughts for an article she was writing for Al Jazeera, focusing whether the ECCC has had a positive impact on the Cambodian court system. Though I was quoted correctly and reasonably in context, much of what I had provided was lost during the editing process. Since the article came out (http://www.aljazeera.com/indepth/features/2014/03/khmer-rouge-tribunal-failing-expectations-20143293030347313.html) some have commented that my views are overly harsh and dismissive, or that I fail to acknowledge the challenges in Cambodia. I think not, but you be the judge. Here is the full text of what I provided to Ms. Wallace for the Al Jazeera article:
I have been involved in various projects over the past 20 years dealing with the Cambodian judicial system. I am also a big supporter of harvesting what is useful and applicable from the ECCC, both procedurally and substantively, and to apply it in the regular courts. (See my article, based on my presentation at the ECCC legacy conference: Bringing Domestic Cambodian Cases into Compliance with International Standards – Applicability of ECCC Jurisprudence and Procedural Mechanisms at the Domestic Level, posted on my blog michaelgkarnavas.net/blog). With this as a backdrop, I’ll attempt to provide some answers to your questions.
Continue reading “Al Jazeerah article quotes Karnavas on ECCC aspiration vs. actuality”
This is the eighth, and final installment, in a series of posts drawn from a 24 January 2014 lecture on Judicial Ethics at the ADC-ICTY’s Twelfth Defence Symposium for interns and staff at the ICTY. The complete document is available on my website.
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H. The Obligations of Defence Counsel in exercising due diligence
Lastly, I discussed obligations that also lie with Defence counsel. Indeed, Defence counsel have to be diligent to raise disqualifications early in the proceedings and to the right authority. I put the accent on how important is to make the record. I used the Čelebići case as an example in which the issue was whether a Judge was fit to be a Judge.
ICTY Prosecutor v. Delalić et al. (Čelebići), The Case of the sleeping Judge, and the Defence’s failure to raise
In Čelebići, Judge Karibi-Whyte was sleeping during substantial portions the trial proceedings.[1] Defence counsel for Landžo did not formally raise this issue before the Trial Chamber but filed this issue as a ground of appeal.[2] Counsel for Landžo explained the failure to raise this issue during trial proceedings stating that she had approached “this sensitive issue in the most diplomatic way possible.”[3] Indeed, Counsel for Landžo had first raised the issue with the Registrar and President of the ICTY Judge Cassese rather than in court: Continue reading “Eighth and Final Installment: JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS”
This is the seventh installment in a series of posts drawn from a 24 January 2014 lecture on Judicial Ethics at the ADC-ICTY’s Twelfth Defence Symposium for interns and staff at the ICTY. The complete document is available on my website.
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G. Staff Members
Following the discussion on judges, I then moved on to discuss instances bias raised concerning judicial staff. The question is whether Chamber’s staff members are subjected to the same rules as Judges and therefore subject to disqualification. The answer is no, Rule 15(A) ICTY Rules of Procedure and Evidence (RPE) applies only to Judges. Noteworthy, there is no explicit code of conduct for Chambers or Prosecution staff members even though they carry out highly sensitive functions and, in many instances, are, or are presumed to be, agents of the judges and prosecutors whom they serve. Presumably, under their contractual obligations they are to conduct themselves in an ethical manner, though query whether that is enough.
ICTY Case Against Senior Legal Officer Florence Hartmann
In the Hartmann[1] case before the ICTY, in which a Senior Legal Officer allegedly had ex parte communications with the amicus curiae—who was acting on behalf of the Prosecutor—regarding the provision of confidential materials to the Defence.
Continue reading “Seventh Installment: JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS”
This is the sixth installment in a series of posts drawn from a 24 January 2014 lecture on Judicial Ethics at the ADC-ICTY’s Twelfth Defence Symposium for interns and staff at the ICTY. The complete document is available on my website.
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E. Corruption, Impartiality and Fitness to Sit as Judge
ECCC Case 002, Ieng Sary’s Motion to Disqualify Judge Nil Nonn
In 2002, Amanda Pike, a documentary filmmaker, traveled to Cambodia and produced the documentary “Cambodia: Pol Pot’s Shadow.”[1] While filming the documentary, Ms. Pike interviewed Judge Nil Nonn, the then President of the Provincial Court of Battambang. This interview served as a basis for her article “Battambang: The Judge.” In this article, Ms. Pike reported:
We talk with Judge Nil, who says that he’s upset by people’s lack of faith in the justice system. He laments that he often has to defend his profession to his friends. He admits that, yes, he does take bribes—of course—but only after a case is over. After all, he earns only $30 a month, not nearly enough to provide for his family. What else, he asks with that toothy grin, is he supposed to do?[2]
Judge Nil Nonn, when interviewed in 2006 by the Cambodia Daily, denied that he had ever taken bribes from the public or participated in the interview.[3] He stated “however, if after a trial people feel grateful to me and give me something, that’s normal I don’t refuse it. . . . I’ve settled a case for them and people feel grateful. Living conditions these days are difficult for me. But if you are talking about pressuring people for bribes—no.”[4]
Having learned of this article, the IENG Sary Defence first took steps to obtain more information. First, the IENG Sary Defence attempted to locate Ms. Pike and obtain the video footage from her interview with Judge Nil Nonn and Judge Nil Nonn’s release form to be filmed. Ms. Pike responded that she would not release the material voluntarily on “journalistic grounds.”[5] Similarly, the IENG Sary Defence wrote to Mr. Welsh at the Cambodia Daily who also declined to provide information.[6] Shortly thereafter, the IENG Sary Defence filed a motion to the Trial Chamber seeking to disqualify Judge Nil Nonn on the basis of corruption and a related request to investigate the action.[7]
Continue reading “Sixth Installment: JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS”
This is the fifth installment in a series of posts drawn from a 24 January 2014 lecture on Judicial Ethics at the ADC-ICTY’s Twelfth Defence Symposium for interns and staff at the ICTY. The complete document is available on my website.
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C. A Judge’s Ethical Obligation to Disclose
Next, I discussed a Judge’s ethical obligation to disclose. Judges must disclose facts that may affect (or perceive to affect) their impartiality; facts that could lead a reasonable, informed observer to objectively apprehend bias.
ICTR Prosecutor v. Karemera, Disqualification of Judge Vaz
In the ICTR case Karemera, the Defence requested that Judge Vaz recuse herself because of her alleged cohabitation with Ms. Dior Fall, one of the trial attorneys for the prosecution during the case.[1] Although Judge Vaz ultimately withdrew, the Appeals Chamber noted the improper conduct and held that the Judge should have disclosed the facts of her accommodation prior to the Defence’s objection: Continue reading “Fifth Installment: JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS”
This is the fourth installment in a series of posts drawn from a 24 January 2014 lecture on Judicial Ethics at the ADC-ICTY’s Twelfth Defence Symposium for interns and staff at the ICTY. The complete document is available on my website.
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III. APPLICATION OF THE Furundžija PRINCIPLE—SITUATIONS OF BIAS
A. Ex parte Communications
ECCC Case 002, Ieng Sary’s motion to Disqualify Judge Silvia Cartwright
I first discussed the issue of ex parte communications on the part of the judge, which in most cases, is to the detriment to the Defence. I chose an example from the ECCC, where the Defence learned that one of the sitting Judges, Judge Silvia Cartwright, was participating in meetings with the International Co-Prosecutor Andrew Cayley and the ECCC Deputy Director of Administration. No one from any of the Defence teams were invited and neither was the head of the ECCC Defence Support Section (DSS). Obviously, these meetings were of concern to the Defence once they were learned about. They certainly amounted to ex parte communications. But as I noted earlier, when in doubt or not in possession of sufficient information showing bias, best to move incrementally. So, after all sorts of efforts to get the participants to these private meetings to come clean, the Defence filed a request for investigation into these ex parte communications.[1] The Trial Chamber declined to investigate, justifying the meetings as necessary for the coordination of the UN component of the ECCC.[2] Having no choice, the Defence appealed, seeking Judge Cartwright’s disqualification on the grounds that the meetings had no express legal basis. Since Prosecutor Cayley would continue to appear before Judge Cartwright, these ex parte communications violated applicable ethics standards.[3] Continue reading “Fourth Installment: JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS”
