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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?”

Defending Russian suspects and accused on mass atrocity charges: challenges beyond the court of public opinion

With an opening gambit that potential Russian accused charged with atrocity crimes witnessed daily on the news and social media cannot get a fair trial because they’ve been already tried, judged, and convicted in the court of public opinion (as if this is not the norm for all suspects and accused before international and even national criminal tribunals), I was asked by a colleague my views. Read on.

Convictions from courts of public opinion or from the now fashionable Peoples Courts are the least of my worries when I represent any suspect or accused. Ditto were I to represent a Russian officer – presumably of high rank, since the International Criminal Court (ICC) or other international criminal tribunal will be disinclined to go after foot-soldiers – alleged to have committed crimes in the ongoing Russo-Ukrainian war. Continue reading “Defending Russian suspects and accused on mass atrocity charges: challenges beyond the court of public opinion”

Why a tribunal for aggression is unrealistic, why the ICC should step aside, and why a tribunal established by the UNGA is the optimal option

Bringing fresh ideas to an ongoing debate of some duration and substance rarely happens. But do read on for my brief take on why establishing a boutique tribunal to try Putin for the crime of aggression is unrealistic, and why there may be a more practical and achievable solution in investigating and prosecuting those most responsible for crimes being committed in the Russo-Ukrainian war – save for the crime of aggression.

Most agree that Putin’s war-making was unprovoked, unjustified, and unlawful. I say most because there are some who believe that Russia had legitimate reasons for initiating what Putin has characterized as Russia’s “special military operation.” Most also agree – or seem to agree despite any legitimate findings by an independent international tribunal – that Putin is guilty beyond any doubt of the crime of aggression. And many of those who have made their findings and conclusions of Putin’s guilt, call for the establishment of a tribunal with the singular purpose to try and convict Putin, expeditiously, for aggression. Of course, they envisage that a few others would also be charged and tried as well for aggression, but Putin is the great white whale (though it should be remembered that Moby Dick was both Ahab’s obsession and the prize he could not have). Continue reading “Why a tribunal for aggression is unrealistic, why the ICC should step aside, and why a tribunal established by the UNGA is the optimal option”

Defending in the age of open source digital user-generated evidence

By Michael G. Karnavas and Noah Al-Malt

Recently we had the opportunity to attend a panel discussion at the Leiden University Grotius Center for International Legal Studies on Filling an Accountability Gap? How a Standing UN Investigative Mechanism Would Further International Justice. Bluntly, it seemed more like a promotional event for the International Commission of Jurists’ (“ICJ”) concept of establishing a Standing Independent Mechanism (“SIIM”) as set out in its September 2022 report: “Options for the establishment of a Standing Independent Investigative Mechanism (SIIM).”

The panelists (but for one appearing remotely) were all in The Hague for the International Criminal Court (“ICC”) Assembly of State Parties, which, with all the side events, has turned into an annual convention for networking and promotion – a regular law-fest. Kudos to the Grotius Center for taking advantage of the presence of the panelists and organizing the discussion on the benefits, needs, and presumptions associated with establishing a SIIM. Noteworthy, the proponents for a SIIM did not argue that the either the International, Impartial and Independent Mechanism for Syria (“IIIM”) or Independent Investigative Mechanism for Myanmar (“IIMM”) – both of whom heavily rely on digital evidence of all sorts – were underperforming because of the lack of a SIIM.

Maybe there is merit in establishing a SIIM to support the work of other accountability mandates (we think not, for a host of reasons). But isn’t the real elephant in the room how to ensure quality control of open source digital user-generated evidence, from collection to preservation to admission to assessment to reliance. As practitioners, we think so. Continue reading “Defending in the age of open source digital user-generated evidence”

THE BIG PIVOT: ICC Prosecutor Khan’s not so slight, Afghan slight sleight of hand

In preparing to resume my investigation, if authorisation is granted, I am cognizant of the limited resources available to my Office relative to the scale and nature of crimes within the jurisdiction of the Court that are being or have been committed in various parts of the world. I have therefore decided to focus my Office’s investigations in Afghanistan on crimes allegedly committed by the Taliban and the Islamic State – Khorasan Province (“IS-K”) and to deprioritise other aspects of this investigation. —Karim A. A. Khan QC, 27 September 2021

In a well-crafted public relations message, ICC Prosecutor Karim A. A. Khan QC keeps hope alive for the Afghan victims of Article 5 crimes and atrocities suffered over the past twenty years. What a relief. Hooray!

But hold on. Continue reading “THE BIG PIVOT: ICC Prosecutor Khan’s not so slight, Afghan slight sleight of hand”

Ecocide: the environmental crime of crimes or ill-conceived concept?

… man has consciously and unconsciously inflicted irreparable damage to the environment in times of war and peace. — Richard A. Falk, 1973

And will continue to inflict irreparable harm. Environmental degradation and climate change are coming to the forefront of global anxieties with reports of CO₂ emissions hitting record levels in 2020 (with a minor dip thanks to COVID), 178 million hectares of forest – an area the size of Libya – being deforested since 1990 (and continuing with impunity), and oil pipelines bursting, leaking into the sea, and causing massive damage to coastal communities (while underneath, 70% of the earth’s coral reefs are at risk due to long-term threats). More desertification, drought, fires, and floods are only expected – at least by the majority of 1.2 million people surveyed worldwide by the United Nations Development Programme who consider that climate change is a global emergency. And this is just peace time pollution. Aside from the obvious environmental damage caused during conflicts, War Junk – weapons and military materials such as landmines, cluster munitions, chemical and radiological weapons – also leaves environmental legacies post-conflict, restricting the use of agricultural land and polluting soil and water sources with explosives and deadly chemicals such as TNT, adamsite, Clark I and Clark II, tabun, and mustard gas, just to name a few.

Claiming that “scientific evidence points to the conclusion that the emission of greenhouse gasses and the destruction of ecosystems at their current rates will have catastrophic consequences for our common environment,” the Independent Expert Panel for the Legal Definition of Ecocide (IEP) assembled by the Stop Ecocide Foundation proposes that the Rome Statute be amended to include the crime of ecocide. Bold, impressive, even alluring. But is the proposed crime necessary, is the definition of it sound, and more pragmatically, how realistic is it that the Assembly of States Parties (ASP) will adopt a fifth international core crime – even if the proposed Article 8 ter crime of ecocide is considered necessary and sound? Continue reading “Ecocide: the environmental crime of crimes or ill-conceived concept?”

ICC Prosecutor Fatou Bensouda decides to investigate the situation in the Philippines: was it appropriate to do so two days before the end of her tenure?

As I stated many times before, the Court today stands at a cross-roads in several concurrent situations, where the basis to proceed is legally and factually clear, but the operational means to do so are severely lacking. It is a situation that requires not only prioritization by the Office, which is constantly being undertaken, but also open and frank discussions with the Assembly of States Parties, and other stakeholders of the Rome Statute system, on the real resource needs of the Court that will allow it effectively to execute its statutory mandate. There is a serious mismatch between situations where the Rome Statute demands action by the Prosecutor and the resources made available to the Office. As the end of my term approaches, I reiterate my call for a broader strategic and operational reflection on the needs of the institution, and what it is intended to achieve – in short, an honest reflection on our collective responsibility under the Rome Statute to advance the fight against impunity for atrocity crimes. The victims of these egregious crimes deserve nothing less. — Prosecutor Fatou Bensouda, 14 June 2021

Before the virtual ink was dry on the press release, questions were being raised as to whether it was appropriate for ICC Prosecutor Fatou Bensouda to forward a request to investigate the situation in the Philippines pursuant to Article 15 of the Rome Statute just two days before the end of her tenure. The request was actually filed on 24 May 2021, but for some, even that was too close for comfort – believing that such a momentous decision (making a request to investigate a situation) should be left for her successor, Mr. Karim A. Khan, QC. The short answer is yes, Prosecutor Bensouda acted appropriately. Here is why. Continue reading “ICC Prosecutor Fatou Bensouda decides to investigate the situation in the Philippines: was it appropriate to do so two days before the end of her tenure?”

Book Review: ADAPTING INTERNATIONAL CRIMINAL JUSTICE IN SOUTHEAST ASIA – Beyond the International Criminal Court

ADAPTING INTERNATIONAL CRIMINAL JUSTICE IN SOUTHEAST ASIA – Beyond the International Criminal Court, by Emma Palmer, Cambridge University Press, 2020, 325 pages, $85.00

Principles of sovereignty, related fears of international interference or selective prosecutions, a preference for domestic proceedings, the influence of other states such as the United States, and the existence of other priorities – including development and threats to stability arising from armed conflict – are all features of the debate about international criminal justice in Southeast Asia, although they may also be relevant beyond the region. (p. 237)

When I first arrived in Cambodia in 1994 to train human rights advocates to act as public defenders for the Cambodia Defenders Project, followed by a year of training judges and prosecutors (1995-1996), foreigners working at NGOs and international organizations were beating the drums of accountability – raising the prospect of bringing to trial those responsible for the atrocities that had occurred before, during, and after the Democratic Kampuchea (DK) period. The NGO industry was flourishing. It was like the wild West with experts, much like out-of-town hired guns, offering their services – much of which I would say was half-baked at best. I rarely heard local Cambodians calling for trials or justice; the primary, if not exclusive, preoccupation was having a roof over one’s head, food on the table, and schooling for the children.

Back then Cambodia was much different, though some things, as in the rule of law, have remained the same. There were only a handful of Cambodian lawyers (mainly from abroad), no bar association, a medley of applicable criminal codes and procedures, an untrained and unsophisticated judiciary (ditto for prosecutors), ethically challenged police (highly corrupt), and an exhausted yet hopeful population looking to promising days ahead. Continue reading “Book Review: ADAPTING INTERNATIONAL CRIMINAL JUSTICE IN SOUTHEAST ASIA – Beyond the International Criminal Court”