Ethics Archives - michaelgkarnavas.net/Blog

KHAN PART 1 — WHEN OPACITY FRAMES PERCEPTIONS: Is the Karim Khan affair investigation being slow-walked to deep-six the results?

“… many accounts of bullying behaviour amounting to harassment in all Organs of the Court though particularly the OTP … complaints that the culture of the Court’s workplace was adversarial and implicitly discriminatory against women. … a number of accounts of sexual harassment, notably uninvited and unwanted sexual advances from more senior male staff to their female subordinates.”(para. 209.)

Independent Expert Review

Throughout its history, the International Criminal Court (ICC) has struggled with workplace harassment – not as an occasional lapse, but as a recurring, deeply rooted institutional problem. The issue is neither marginal nor conjectural. As the Assembly of State Parties (ASP) commissioned Independent Expert Review (discussed here), concluded in its 30 September 2020 Final Report, harassment – sexual and otherwise – was pervasive across the ICC and, within the Office of the Prosecutor (OTP), virtually systemic. That the OTP emerged as the “gold medalist” in this ignominious category surprised few insiders at the time.

Yes, reforms have been undertaken, and yes, some progress has been made. But when a culture of harassment becomes embedded – tolerated, normalized, and allowed to proliferate – optimism must be tempered by realism. Eradicating a deep-rooted institutional malaise requires far more than rewritten policies or aspirational memos. It demands vigilance, transparency, and a willingness to confront misconduct at every level, including the highest.

This brings us to the present and the allegations against Prosecutor Karim A. A. Khan KC (discussed here). To be clear, these are allegations; nothing has been proven. However, they include conduct that, in some national jurisdictions, could be classified as sexual assault or even rape. The possible permutations are limited: the encounter was consensual; it started consensually but became non-consensual; or it never happened and was fabricated. There are also claims of attempts to improperly influence the complainant and witnesses – conduct that, if true, could have Article 70 implications. Continue reading “KHAN PART 1 — WHEN OPACITY FRAMES PERCEPTIONS: Is the Karim Khan affair investigation being slow-walked to deep-six the results?”

Workplace Harassment at the ICC Stubbornly Persistent — Part 2: willful blindness, callous indifference, blissful incompetence or institutional protectiveness?

Part 2

The Disciplinary Committee takes into consideration, however, that the investigations carried out were not sufficiently thorough, particularly with regard to the role played by Mr. Emmanuel Altit in the management methods that led to the inappropriate behavior denounced by the complainants … nevertheless noted the particular seriousness of the alleged offences, repeated over several years and resulting in deep-seated trauma from which some of the complainants are still suffering today, as evidenced by the tears and clear signs of suffering observed at the hearing.

The International Criminal Court’s award [fine] of costs is justified by the fact that Ms. Jennifer Naouri’s actions were reported by the plaintiffs to both the Registry and the CSS prior to the filing of the complaints, without the Court’s bodies having taken adequate measures (instructions, investigation, control, call to order) to stop or prevent them.

Disciplinary Committee Decision, Disciplinary proceedings against Ms Jennifer Naouri

Part 1 dealt with general context and why the Registry in no small measure is responsible for much of the persistent workplace harassment as it relates to the defence. Part 2 will focus on the Disciplinary Board’s (Board) findings against ICC Defence Counsel Jennifer Naouri. Without reading too much into the tea leaves and mainly relying on what was reported by the complainants/victims and now proven by the Board, as well as what I have heard and observed and surmised for nearly a decade, I will offer my take on why Naouri behaved as she did, and why others in like circumstances are susceptible to behaving likewise. My aim is neither to demean nor moralize. Rather, in examining the findings, I aim to see what lessons can be learned for improving workplace conditions for all members of defence teams. For this it will be necessary to examine how the Registry, Naouri, and all of us in the ICC List of Counsel might improve in providing the best possible representation to suspects and accused during pre-trial and trial and convicted persons on appeal.

Before turning to the Decision, it is important to consider three preliminary points and one key caveat. Continue reading “Workplace Harassment at the ICC Stubbornly Persistent — Part 2: willful blindness, callous indifference, blissful incompetence or institutional protectiveness? “

Workplace Harassment at the ICC Stubbornly Persistent — Part 1: willful blindness, callous indifference, blissful incompetence or institutional protectiveness?

The Disciplinary Committee also notes that all of them [complainants] report after-effects resulting from Ms. Jennifer Naouri’s behavior and management style: diagnosis of post-traumatic stress disorder (Exhibit PL138), anxiety attacks, loss of confidence, feelings of fear and intense stress, burnout, taking medication, even suicidal thoughts.

Disciplinary proceedings against Ms Jennifer Naouri, Decision, p.6.

This made me most angry. Young women come to the ICC with great enthusiasm and dreams, and what happens? They are psychologically mutilated, harassed, they are told that they cannot understand the dossier and cannot analyse all the dangers, so they can only obey.

Catherine Mabille, ICC Disciplinary Commissioner, quoted in Justice Info

Prolegomena

The ICC is yet again at a crossroad. This time the Registry faces a self-inflicted conundrum. The recent Disciplinary Board decision against Defence Counsel Jennifer Naouri exposed numerous systemic weaknesses known to the Registry for years. Sadly, the Registry has been listless and lazy. When it opts to act, it’s too little, too late. And even then, it embraces opaqueness and obfuscation. Query: will the Registry take the path that fosters a workplace free of abusive behavior inflicted on subordinate staff across all organs and independent actors in the court, or will it continue down the path of business as usual.

Harsh but well-earned criticism. The Registry has been too lax and too indisposed to bother with providing the necessary training, upholding high standards, affording adequate remuneration for qualified personnel, and monitoring the working conditions of the Defence. If there is an existing standard, it is one of marginal competence, marginal remuneration, marginal resources, marginal training, and marginal workplace oversight. Quality of representation, quality of competence, quality of skill level, quality of training, quality of the working environment has been of little concern to the Registry. Some have suggested that this is purposeful to give the Office of the Prosecutor (OTP) a winning chance. Cynical as it sounds, subliminally, such intentions may be a factor when considering the OTP’s modest successes in the trial and appeal trenches. Continue reading “Workplace Harassment at the ICC Stubbornly Persistent — Part 1: willful blindness, callous indifference, blissful incompetence or institutional protectiveness? “

THE IILAT ETHICS SYMPOSIUM AT THE ICC: Sharing views on professional responsibilities and working through ethical dilemmas

[I]f we have to find our way over difficult seas and under murky skies without a compass or chronometer, we need not on that account allow the ship to drive at random.

A. Balfour, The Foundations of Belief, Being Notes Introductory to the Study of Theology (Longman, Green & Co., New York, 1902), p. 244.

You need to know what you don’t know, to know what you need to know.

Michael G. Karnavas, Training Aphorism

On 13-14 March 2024, I was privileged to have been invited as a panelist to an ethics symposium held at the International Criminal Court (ICC), organized by the Institute for International Legal and Advocacy Training (IILAT).

Founded in 2013 in The Hague, IILAT’s mission over the years has been “to address the growing need for courtroom advocacy training at international courts and tribunals.” Training, which might I add, is practical, relevant, and qualitatively excellent – and badly needed, considering the importance of adversarial skills required in virtually all international(ized) criminal tribunals and courts (ICTs). As for this symposium, I found it exceptionally useful and insightful. Continue reading “THE IILAT ETHICS SYMPOSIUM AT THE ICC: Sharing views on professional responsibilities and working through ethical dilemmas”

Judicial Ethics: containing the dubious aroma of uninhibited judicial conduct

The recent descriptions of the behavior of some of our justices and particularly their attempts to defend their conduct have not just raised my eyebrows; they’ve raised the whole top of my head. Lavish, no-cost vacations? Hypertechnical arguments about how a free private airplane flight is a kind of facility? A justice’s spouse prominently involved in advocating on issues before the court without the justice’s recusal? Repeated omissions in mandatory financial disclosure statements brushed under the rug as inadvertent? A justice’s taxpayer-financed staff reportedly helping to promote her books? Private school tuition for a justice’s family member covered by a wealthy benefactor? Wow.

Michael Ponsor, Senior Judge on the US District Court for the District of Massachusetts, A Federal Judge Asks: Does the Supreme Court Realize How Bad It Smells? New York Times, 14 July 2023

On 11 November 2023, I had the privilege of being a panelist at the International Association of Conference Interpreters (AIIC) 14^th Legal Symposium organized by the AIIC Netherlands Chapter on Ethics in Law and Interpreting: Lawyers and Interpreters Talk Ethics: Mutal Expectations, Shared Experiences, which I have already written about. With a couple of international judges on the panel – Kosovo Specialist Chamber Judge Guénaël Mettraux and International Criminal Court (ICC) Judge Joanna Korner – the issue of judicial ethics and codes of conduct was bound to come up. And it did.

Kicking off the discussion, Judge Mettraux touched on judicial ethics and fielded a couple of questions. He stressed, appropriately, the importance of judicial comportment and restraint both inside and outside the courtroom. He recounted how the judges at the International Criminal Tribunal for the former Yugoslavia (ICTY) came to the realization that a judicial code of conduct was needed, and ultimately adopted.

I have long maintained that if the judicial process is not fair, the outcome is meaningless. In the broader sense, it is about procedural justice. Ineluctably, this includes judicial behavior. If court decisions and judgments and sentences are to be accepted as the results of substantive and procedural justice having been served, it is incumbent that the public – nationally and internationally – have confidence in the integrity, independence, and impartiality, of the judges. To that end, codes of conduct provide guidance, albeit framed as general principles requiring the exercise of reason, common sense, and informed judgment. Codes of conduct also provide a measure of comfort to litigants and the public by telling them that the system is committed to a level playing field. Continue reading “Judicial Ethics: containing the dubious aroma of uninhibited judicial conduct”

THE MAGIC IN THE BOOTH: a tribute to interpreters

No international(ized) criminal tribunal or court could function without the translators and interpreters. It never ceases to amaze me how incredibly talented and meticulous they are in capturing not just the language but also the intonations – the spirit, if you will, of that which is being conveyed by the speakers. It is a demanding and exhausting job to be sitting in on proceedings doing simultaneous or near simultaneous interpretations with precision, when witnesses as well as the lawyers, on all sides, are prone to meandering inarticulately or even unintelligibly. Were that not challenging enough, when judges misspeak or are caught making faux pas, reflexively many of them tend to blame the interpreters. Yet, despite the challenges they face every day when in the booth interpreting (translators are constantly working under challenging deadlines), the value of the interpreters and translators in making proceedings and trials possible is rarely fully recognized. Nor do many of us who appear in the international(ized) criminal tribunals and courts spend much time socializing with them, or even getting to know them. We either take them for granted (after all they are not “learned” like us), or we are simply too fixated on our own work and self-importance.

AN ASIDE: In Praise of Interpreters and Translators, Book Review of NO SELL DEAD – A Tale of Cambodia

James Jennings, author of NO SELL DEAD, is an accomplished interpreter of extensive experience before the international(ized) criminal tribunals and courts. I had the privilege to work with him when we were both at the Extraordinary Chambers in the Courts of Cambodia (ECCC). For several years, he was the chief interpreter at the ECCC while I was Ieng Sary’s and Meas Muth’s International Co‑Lawyer. Our paths rarely crossed. Well, that’s not accurate. Whether it be a meeting, a minor hearing, or trial proceeding, interpreters were mandatorily present. Jennings or one or more of his colleagues were there, unobtrusively performing their magic. Through the interpreter serving both as code-breaker and conduit, a speaker utters in one language and other language(s) are magically heard. Strange sounds converted into lucid, intelligible, discernable language, enabling discourse, exchanges, and action. But for the interpreters, none of this would be possible. Ditto for the translators who toil in the backroom turning the inaccessible into the accessible for the monoglots or linguistically challenged.

Jennings exemplifies the talent and cultural sophistication interpreters and translators possess. By nature, they are curious, with an affinity for language, literature, and history. Well-traveled, well-read, culturally sensitive, nuance-attentive, detail-observant. Without them where would we be? Imagine holding an international conference without them. Impossible. They make it happen. They are the unsung and often unrecognized heroes. Not just at the international(ized) criminal tribunals and courts, but wherever they find themselves offering their language skills, turning what would otherwise be a cacophony into a symphony. Continue reading “THE MAGIC IN THE BOOTH: a tribute to interpreters “

A CLARION CALL TO THE ICC COUNSEL SUPPORT SECTION: training for counsel and assistants should be practical and skill-developing

You have to know the why in order to know the when,

But if you don’t know the how

Knowing the why and when won’t help you.

Training Moto, Michael G. Karnavas

Reality Check

Article 7(2) of the ICC Code of Professional Conduct for Counsel (Code) presumes that list counsel possess a high level of knowledge of the applicable law and a high level of skills required for the adopted party-driven, adversarial hybrid procedure, and thus must “participate in training initiatives required to maintain such competence.” This presumption is fanciful. Not all list counsel are sufficiently competent – let alone to a high level – simply because they have managed to get themselves on the list. Counsel cannot “maintain a high level of competence” unless they are already competent to a high level. Query whose responsibility is it to ensure that at least those counsel appearing in proceedings before the ICC have a high level of competence. In no small measure I suggest it is the ICC Registrar, through the Counsel Support Section (CSS), which is responsible for setting the standards for the admission of counsel. Continue reading “A CLARION CALL TO THE ICC COUNSEL SUPPORT SECTION: training for counsel and assistants should be practical and skill-developing”

THE DILIGENCE THAT IS DUE: ICC Counsel Ethics Training

In the nature of law practice, … conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interest in remaining an ethical person while earning a satisfactory living. The Rules of Professional Conduct often prescribe terms for resolving such conflicts. Within the framework of these Rules, however, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules. These principles include the lawyer’s obligation zealously to protect and pursue a client’s legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system.

Preamble to the American Bar Association’s Model Rules of Professional Conduct

On 21 September 2023 I gave a presentation on Professional Conduct at the Hybrid Training for ICC List Counsel, organized by the ICC Counsel Support Section (CSS) and sponsored by the European Commission. It is always daunting to stand before fellow counsel to try to engage them in a discussion on matters of ethics, professional responsibility, and the disciplinary measures and consequences that result when we fall short of what is expected of us, or when we defend ourselves against allegations of ethical breaches. Also, there is only so much that can be covered in a couple of hours. Ethics training should be conducted on a regular basis. Might it also be prudent for ICC CSS to consider making it mandatory to take a modest number of hours of continuing legal education on ethics per year in order to be in good standing and remain on the List of Counsel? I think so.

With the Code being a skimpy 14 pages of 46 concise articles, anyone on the list could go over it while having a cup of coffee, even before it gets cold. Not to mention, one would think that expressing an interest in getting on the List of Counsel and eventually having a client would motivate one to read the Code, along with the Rome Statute and ICC Rules of Procedure and Evidence. So, rather than do an article-by-article commentary, I highlighted aspects of the code to show how, in no small measure, we are guided by the code in our day-to-day activities in representing a client before the ICC. Much of what I covered also applies to other international(ized) criminal tribunals, and except where the Code might conflict with one’s national code, to representing clients in criminal matters before domestic courts. Here is the gist of my presentation. Continue reading “THE DILIGENCE THAT IS DUE: ICC Counsel Ethics Training”

DISCOURSE AT THE INNER TEMPLE ON NAVIGATING THE CODES OF CONDUCT STRAIGHTS IN INTERNATIONAL CRIMINAL PROCEEDINGS: a format that is missing, overlooked, or (un)intentionally rebuffed?

On 29 June 2023, the International Committee of the Inner Temple organized a short training session for aspiring barristers on legal professional ethics before the international criminal tribunals. The Honourable Society of the Inner Temple has been in existence since the 14^th Century. It is one of the four unincorporated, not-for-profit membership associations for barristers and judges in the UK, known as the Inns of Court. Together, they provide high-quality legal education and training for the barrister profession, delivered by senior members of the Bar and other key partners on a pro bono basis, and have the exclusive right to call students to the Bar of England and Wales.

Participating in the seminar were an ICC Judge (Kimberly Prost), an ICC Deputy Prosecutor (Nazhat Khan), and a defence counsel (yours truly). The program was moderated by ICC Judge Joanna Korner CMG KC – who, as an exceptionally experienced Queen’s Counsel, served two stints as a senior trial lawyer before the ICTY prior to becoming a judge of the Crown Court of England and Wales. The event was informative, engaging, and collegially lively. But there was something more to it, something important that is generally absent in most training seminars, especially on ethics: the inclusion of three pillars of criminal proceedings (missing only a representative of victims counsel) on a panel, so they and the audience can hear about each other, from each other, with their different perspectives being aired, considered, debated, appreciated, and/or rejected. Continue reading “DISCOURSE AT THE INNER TEMPLE ON NAVIGATING THE CODES OF CONDUCT STRAIGHTS IN INTERNATIONAL CRIMINAL PROCEEDINGS: a format that is missing, overlooked, or (un)intentionally rebuffed?”

Book Review: JUSTICE IN EXTREME CASES – Criminal Law Theory Meets International Criminal Law

JUSTICE IN EXTREME CASES – Criminal Law Theory Meets International Criminal Law, by Darryl Robinson, Cambridge University Press, 2020, 304 pages, £85.00

Law is an enterprise of reasoning, and thus I believe that we must pay careful attention not only to the legal conclusions reached, but also to the structure of arguments employed. A judgement might employ problematic reasoning and still reach a defensible result. Nonetheless, the reasoning matters, because replication of faulty structure of arguments will eventually produce faulty outcomes. Our reasoning is our “math,” and systemic distortions in our math will eventually throw off our calculations in significant ways. (p. 54)

Some twenty years ago when I found myself at the International Criminal Tribunal for the former Yugoslavia (ICTY), I was rather puzzled. I expected (not sure why) to have judges on the bench who, like myself, had cut their teeth in criminal courts, and who, of course, would also have a deep appreciation of international criminal law (ICL) as well as human rights and humanitarian law. I say this because in some of the legal reasonings I noticed how certain fundamental principles were being loosely interpreted to achieve or explain a pre-ordained decision. Eventually it dawned on me. A judge’s understanding of and experience with criminal law (or lack thereof) prior to donning the crimson robe informed their approach to applying fundamental principles intrinsic to criminal law and ICL. Continue reading “Book Review: JUSTICE IN EXTREME CASES – Criminal Law Theory Meets International Criminal Law”