ICC 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?”

THE HARDEST PROSECUTORIAL DECISION: Beyond the Decision to Charge

The highest measure of prosecutorial judgment is knowing when not to proceed.

It is remarkable how a single sentence buried deep within an otherwise routine legal filing can resurrect lessons long thought settled. Sometimes a legal submission does more than advance an argument. Occasionally, almost unexpectedly, it reminds us that the strength of legal institutions depends not only on the rules that govern them but also on the judgment of those entrusted with applying them.

The Prosecution’s submission in Banda did exactly that. Before I finished reading it, I found myself transported more than forty years into the past. Continue reading “THE HARDEST PROSECUTORIAL DECISION: Beyond the Decision to Charge”

THE OFFICE BEFORE THE OFFICEHOLDER: Merit, Judgment, and Institutional Leadership – Part II — Toward a Forensic Method of Institutional Judgment

Part II — THE DISCIPLINE OF CHOOSING: Toward a Forensic Method of Institutional Judgment

The Office confers authority, not judgment; judgment must already exist.

Part I argued that before an institution entrusts extraordinary constitutional authority, it must first determine what qualities the Office of the Prosecutor (OTP) requires and whether the available evidence justifies confidence that those qualities genuinely exist in the individual seeking to occupy it. Part II asks the next question: How should a mature institution reach that judgment?

Not how should it identify an impressive candidate. Not how should it reward a distinguished career. Not how should it reconcile political, regional, or diplomatic considerations. Important though those considerations may be, they are secondary. The central inquiry is evidentiary: What should persuade an institution that one individual, rather than another, should be entrusted with extraordinary constitutional authority?

Institutions do not appoint ideals. They entrust authority to people. Their responsibility is neither to identify perfection nor to select, in some abstract sense, “the best” candidate. Such conclusions inevitably reflect differing views of excellence, experience, personality, or leadership. Reasonable people will disagree. Rather, through disciplined inquiry, the institution must satisfy itself that the available evidence reasonably and confidently supports the conclusion that the individual it will select possesses the judgment, character, temperament, leadership, executive ability, and moral authority necessary to exercise extraordinary public power responsibly over time. Continue reading “THE OFFICE BEFORE THE OFFICEHOLDER: Merit, Judgment, and Institutional Leadership – Part II — Toward a Forensic Method of Institutional Judgment”

THE OFFICE BEFORE THE OFFICEHOLDER: Merit, Judgment, and Institutional Leadership – Part I of a Two-Part Series on Institutional Judgment and the Selection of the ICC Prosecutor

WHAT THE OFFICE REQUIRES: Judgment Before Power

Before an institution entrusts power, it should first determine what qualities the responsible exercise of that power demands.

There are times when experience teaches us less by providing new answers than by revealing that we have been asking the wrong question.

Several years ago, I wrote (here and here) about the election of the Prosecutor of the International Criminal Court (ICC). My purpose then was straightforward. I sought to identify the qualities the next Prosecutor should possess. Drawing on decades of experience before national and international courts and tribunals, I compiled what I regarded as the essential attributes of an effective chief prosecutor: extensive prosecutorial experience, sound judgment, strategic thinking, leadership, management, diplomacy, professional gravitas, legal knowledge, and, not least, a restrained ego. I continue to believe those qualities remain indispensable.

Looking back, however, I have come to think that I approached the matter from the wrong direction. Continue reading “THE OFFICE BEFORE THE OFFICEHOLDER: Merit, Judgment, and Institutional Leadership – Part I of a Two-Part Series on Institutional Judgment and the Selection of the ICC Prosecutor”

THE INTERNATIONAL CRIMINAL COURT’S UNFINISHED CONSTITUTIONAL DEVELOPMENT — PART III

COMPLETING THE ARCHITECTURE: Designing a Disciplinary Process Worthy of the International Criminal Court

A permanent institution cannot rely on temporary solutions for permanent challenges.

The first two Parts of this trilogy have argued that the present controversy has revealed something larger than the allegations themselves.

In the first part, I argued that the International Criminal Court’s external authority has matured more quickly than its internal disciplinary architecture. My central proposition was simple: permanent courts require permanent procedures. The issue is not whether accountability should exist. The Rome Statute settled that question long ago. The issue is whether accountability has become sufficiently institutionalized to command confidence before anyone knows the outcome of a particular case.

The second part then turned to the constitutional principles that, in my view, should guide its resolution. It argued that disciplinary proceedings involving senior officials should be grounded in procedures that are independent, transparent, predictable, and insulated from political influence. It further suggested that those principles are best achieved when the distinct functions of investigation, adjudication, and institutional oversight are clearly separated rather than concentrated in a single process. Continue reading “THE INTERNATIONAL CRIMINAL COURT’S UNFINISHED CONSTITUTIONAL DEVELOPMENT — PART III”

THE INTERNATIONAL CRIMINAL COURT’S UNFINISHED CONSTITUTIONAL DEVELOPMENT — PART II

JUSTICE CANNOT BE LOBBIED: Why Institutional Accountability Cannot Be Decided by Political Negotiation

When the outcome of disciplinary proceedings depends on lobbying, accountability becomes a matter of influence rather than of law.

Every mature legal institution eventually confronts the same constitutional imperative: as authority expands, so must the procedural safeguards that govern its exercise. Institutional permanence requires procedural permanence.

The public discussion surrounding the present controversy has largely focused on one question: What, if anything, should happen to Prosecutor Karim A. A Khan KC?

It is an understandable question, but it is also the wrong one. The more important question is not what should happen to one individual. It is what procedures a permanent international court should already have in place before allegations of serious misconduct arise against any of its senior officials.

This distinction changes the entire conversation. The issue is no longer about personalities. It is about constitutional design. This is not merely a semantic distinction. It is the difference between responding to today’s controversy and designing institutions capable of responding to every comparable controversy that may follow. Continue reading “THE INTERNATIONAL CRIMINAL COURT’S UNFINISHED CONSTITUTIONAL DEVELOPMENT — PART II”

THE INTERNATIONAL CRIMINAL COURT’S UNFINISHED CONSTITUTIONAL DEVELOPMENT – Part I

A PERMANENT COURT REQUIRES PERMANENT PROCEDURES: What L’Affaire Khan Reveals About the International Criminal Court’s Unfinished Constitutional Development

Procedure is where principle becomes practice.

Every permanent institution eventually reaches a moment when its own procedures become as important as the substantive work it was created to perform. I believe the International Criminal Court (ICC) has reached that moment. This trilogy explains why.

I have been thinking about this piece for some time.

Not because I have reached any conclusion about the allegations against Prosecutor Karim A. A. Khan KC. I have not. I have neither seen the evidence nor reviewed the investigative file. Like everyone else outside the process, I know only what has entered the public domain. That is rarely enough to form responsible conclusions.

After more than four decades as a criminal defense lawyer, appearing before national and international courts and tribunals as counsel, lecturer, trainer, and observer, I have become deeply suspicious of those who profess certainty without seeing the evidence. One of the occupational hazards of our profession is the temptation to mistake allegations for proof, confidence for accuracy, and repetition for truth. Experience has taught me to resist all three. Continue reading “THE INTERNATIONAL CRIMINAL COURT’S UNFINISHED CONSTITUTIONAL DEVELOPMENT – Part I”

When Justice Becomes a Montage: Public Narratives, L’Affaire Khan, and Institutional Legitimacy

When the facts change, I change my mind. What do you do, sir?

– commonly attributed to John Maynard Keynes

A montage is a sequence of separate images assembled to create a particular impression. Each image may be entirely authentic. The power of the montage lies not in fabrication, but in selection, arrangement, timing, and presentation. It does not merely depict reality; it constructs a narrative about reality.

That distinction matters, perhaps more than ever.

I deliberately borrow the French expression l’affaire. Like the great public affairs that have periodically consumed institutions, this has long since ceased to be merely an investigation into allegations. It has become a contest over narratives, institutional credibility, public legitimacy, and, ultimately, the ICC’s reputation. Continue reading “When Justice Becomes a Montage: Public Narratives, L’Affaire Khan, and Institutional Legitimacy”

Response to Professor Heller’s Comment to My Post, ICC PROSECUTOR SUSPENSION: Process, Perception, and the Cost of Prolonged Uncertainty

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

-Evelyn Beatrice Hall, under the pseudonym S. G. Tallentyre (widely misattributed to Voltaire)

One of the prerogatives of being the owner of a self-funded eponymous blog is that I get to decide what I want on it. However, as the saying goes, “With great power comes great responsibility.”¹ When it comes to the hundreds of comments to my posts, I believe I have only exercised my power of non-publication twice in the dozen years I have been hosting this blog. In both cases, I did so because I felt an attack on another commenter crossed a line from fair comment to nastiness. The most recent such withheld comment came in April of this year, and, ironically, it was directed at Professor Kevin Jon Heller. Even then, I reached out to the author and invited him to rewrite the comment but I never heard back. That said, I have never rejected a comment directed at me, no matter how needlessly ad hominem or vitriolic. Although I have, on a handful of occasions, exercised my editorial droits to remove some expletives.

What I do reserve unto myself, though, is the option to respond, which I now take the opportunity to do in response to Professor Heller’s comment to my recent post, ICC PROSECUTOR SUSPENSION: Process, Perception, and the Cost of Prolonged Uncertainty.² Continue reading “Response to Professor Heller’s Comment to My Post, ICC PROSECUTOR SUSPENSION: Process, Perception, and the Cost of Prolonged Uncertainty”

The modern attribution of this saying is to Stan Lee, in the first appearance of Spider-Man in 1962. [↩]
Professor Heller’s comment can be viewed in the sidebar to this post, or in the comment section at the end of the post to which it was appended. [↩]

ICC PROSECUTOR SUSPENSION: Process, Perception, and the Cost of Prolonged Uncertainty

What is not good for the swarm is not good for the bee.

– Marcus Aurelius

What the Bureau of the Assembly of States Parties (ASP) has done in the past day is, in procedural terms, relatively clear, even if the implications are anything but routine.

By qualified majority, the Bureau has decided to initiate disciplinary proceedings against Prosecutor Karim A. A. Khan KC of the International Criminal Court (ICC): it referred the matter to the ASP for final determination and suspended him from duty with immediate effect. It has also made clear that the suspension is not determinative of the outcome and that due process continues.

That much is straightforward. Continue reading “ICC PROSECUTOR SUSPENSION: Process, Perception, and the Cost of Prolonged Uncertainty “