Ethics Archives - michaelgkarnavas.net/Blog

COULD IT BE DÉJÀ VU ALL OVER AGAIN FOR THE ICC: When the “high moral character” standard in judicial elections goes unexamined?

With regard to the requirement of article 36(3)(a) of the Rome Statute concerning the high moral character of the candidate, the Committee considered the information provided through curriculum vitae, statement of qualifications, questionnaire, the signed declaration and the interview. The Committee also considered the preliminary report of the IOM on the due diligence procedure for candidates for judges of the International Criminal Court. The Committee noted that the review of the IOM was ongoing at the end of the Committee’s session and could not make a conclusive determination thereon. The examination of the Committee through the interview, based on the information available at the time, did not put into question the high moral character of the candidate. (emphasis added)

When I first read this language in paragraph 5 of the Report of the Advisory Committee on Nominations of Judges on the work of its eleventh session, ICC-ASP/25/8 (Report) on the assessment of each of the 14 judicial candidates (one deemed unqualified) vying for six ICC judgeships, I was more than a little dumbfounded. As a chronicler of the ICC and its sometimes-curious ways, I have learned to expect the unexpected. Even so, this one stopped me in my tracks.

Really?

Have we learned nothing?

Continue reading “COULD IT BE DÉJÀ VU ALL OVER AGAIN FOR THE ICC: When the “high moral character” standard in judicial elections goes unexamined?”

WHEN JUDICIAL PRESTIGE GOES TO MARKET: Just How Ethical?

Not everything that is faced can be changed, but nothing can be changed until it is faced.

– James Baldwin

A judge’s authority is not a private asset.

A litigant commissions an opinion. A judge writes it for a fee. The finished product then enters public circulation, bearing the prestige and authority that judicial office inevitably confers.

Anything wrong with this picture? I think there is. Quite a bit, actually.

Reasonable lawyers and judges may disagree – it happens all the time. What interests me is not whether a particular opinion is right or wrong, but what happens when remunerated judicial opinions become part of a broader strategy of advocacy, narrative shaping, and institutional positioning. Continue reading “WHEN JUDICIAL PRESTIGE GOES TO MARKET: Just How Ethical?”

THE ELECTIONEERING OF A DISCIPLINARY PROCESS: Ex Parte Advocacy Before ASP Review of the Evidence

Ethics is knowing the difference between what you have the right to do and what is right to do.

– Justice Potter Stewart

In L’Affaire Khan, however, the issue increasingly appears to involve both.

The question is not merely whether on-leave Prosecutor Karim A. A. Khan KC has the practical ability to privately approach representatives of ICC States Parties before any Assembly consideration of his disciplinary affair. The question is whether doing so is ethically compatible with the integrity, fairness, and institutional seriousness expected of the ICC’s chief prosecutor.

It is not. Continue reading “THE ELECTIONEERING OF A DISCIPLINARY PROCESS: Ex Parte Advocacy Before ASP Review of the Evidence”

INSTITUTIONAL PROTECTION AND INVESTIGATIVE FAILURE: Confronting Sexual Misconduct at the Highest Levels

At the heart of this process lies a fundamental procedural mismatch. According to public reporting, the OIOS was mandated to conduct fact-finding, not adjudication. The ad hoc Judicial Panel was tasked with legally characterising OIOS’ findings, but had no authority to address their deficiencies considering the seriousness of this matter, including the failure to assess witness credibility or resolve material narrative inconsistencies.

Association of International Criminal Law Prosecutors (AICLP)

No, I am not suggesting that there is an ongoing cover-up in L’Affaire Khan, nor that there is institutional indifference at the International Criminal Court (ICC). Nor am I attributing the process for handling allegations of sexual assault, witness interference, and retaliatory conduct attributed to ICC Prosecutor Karim A. A. Khan KC to incompetence on the part of the Bureau (all laid out in the Rules of Procedure and Evidence (RPE) and the Staff Regulations, save for the standard of proof issue). Continue reading “INSTITUTIONAL PROTECTION AND INVESTIGATIVE FAILURE: Confronting Sexual Misconduct at the Highest Levels”

THE ICC AT AN INFLECTION POINT: But Which One?

Individuals alleging sexual violence often don’t report because they perceive – in many cases, correctly – the justice system as not being genuinely responsive to them.… In the case of Mr Khan, however, the bureau established an ad hoc process specifically for this complaint, and worked to ensure there was a victim-centred approach in a system that also respected due process. That is apparent in both the OIOS investigation and in the lengthy reasoned analysis of the eminent panel of jurists. If the Bureau starts to step away from the reasoned and unanimous analysis of the judges, they open up a conversation about whether the process that they established is founded upon law and due process, or on politics and power.

— Sareta Ashraph, lead counsel for Karim A. A. Khan

Perhaps it is a touch indecorous to weigh in on L’Affaire Khan now that the matter has moved into disciplinary territory and beyond the rather transparent lobbying by Ashraph and assorted proxies urging the ICC Bureau to adopt, without reservation, the findings of the three judicial experts.

With the Assembly of States Parties (ASP) now effectively holding the reins, the question presents itself in the terms Ashraph has framed it: is this an inflection point? Will any deviation from the panel’s findings “open up a conversation” about whether the process is grounded in law and due process—or in politics and power?

A debate will be had. That much is inevitable. And, frankly, healthy.

But an inflection point? An existential moment for the ICC? I think not. That characterization owes more to advocacy than analysis. Continue reading “THE ICC AT AN INFLECTION POINT: But Which One?”

REBUILDING ETHOS: Know How Judges Form Credibility Assessments in Real Time (Part III of the Effective Advocacy Trilogy)

You pursued a man only insofar as you can talk his language, by speech, gesture, tonality, order, image, attitude, idea, identifying your ways with his.

Kenneth Burke, A Rhetoric of Motives, p. 53.

In Part I, I framed ethos as the foundation of persuasive advocacy — credibility established in real time. In Part II, I examined how it deteriorates: not through scandal, but through accumulation — overstatement, shading of the record, tonal slips, evasiveness, and small habits that quietly reshape how you are perceived.

Now comes the difficult question: once trust is strained, can it be restored?

WHY HOME MAINTENANCE IS IMPORTANT Mservo While it can happen, it can’t be achieved through superficial fixes or mere pretense. Credibility doesn’t increase simply because we desire it to; judges are aware of what has occurred. Restoring trust requires a more solid foundation: acknowledging mistakes when necessary, exercising restraint when tempted, and maintaining consistent discipline over time. It involves behavior that shows reliability before seeking renewed confidence. Restoration is about actions, not words. Continue reading “REBUILDING ETHOS: Know How Judges Form Credibility Assessments in Real Time (Part III of the Effective Advocacy Trilogy)”

HOW ADVOCATES LOSE ETHOS: A Gradual Erosion (Part II of the Effective Advocacy Trilogy)

[E]thos counts more than any other aspect of rhetoric because it puts your audience in the ideal state of persuadability. Cicero said you want them to be attentive, trusting, and willing to be persuaded. They’re more likely to be interested if they find you worth their attention. The trusting part goes with the ethical territory of cuse, craft, and caring. As for their willingness to be persuaded, you want them to consider you a role model-the essence of leadership. And where does this attitude come from? The same perceived traits: cause, craft, caring.

Jay Henrichs, Thank You for Arguing, p. 79

In my previous post, I explored ethos as the core of persuasive advocacy—credibility demonstrated through action. I emphasized that ethos is not your résumé. It is not seniority. It is not even reputation in the abstract. It is trust built in real time: sentence by sentence, answer by answer, concession by concession. It is the quiet but decisive assessment judges form about whether you are reliable.

And here is the uncomfortable truth: most advocates do not lose their ethos through dramatic misconduct. They lose it quietly. Gradually. Often without realizing it.

Saving Face vs Losing Face: Important Etiquette in Asia Few advocates start their day intending to deceive the judges. Most are intelligent, conscientious, and genuinely dedicated to their clients and the pursuit of justice. However, credibility is rarely destroyed by major ethical violations. Instead, it is often damaged by small habits, subconscious impulses, and misguided strategic instincts—patterns that seem harmless on their own but become harmful over time. For example: adding an adjective for emphasis, framing a fact too strongly, citing an authority without full context, resisting a concession longer than necessary, or answering a question defensively instead of directly.

None of these, when considered alone, seems dreadful. But judges do not evaluate advocates in isolated moments. They assess patterns. They listen for proportionality. They observe tone. They note whether an advocate appears genuinely committed to helping them or just trying to win a debate, to score a point, or to pull a fast one over them. Continue reading “HOW ADVOCATES LOSE ETHOS: A Gradual Erosion (Part II of the Effective Advocacy Trilogy)”

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? “