International Criminal Law Archives - michaelgkarnavas.net/Blog

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”

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?”

REFLECTIONS ON MASS ATROCITIES, HISTORICAL MEMORY, AND THE ECCC LEGACY: Cambodia – Past, Present, Future — Part V

MEMORY IN THE PRESENT TENSE: History, Sovereignty, and the Return of the Past

Who controls the past controls the future. Who controls the present controls the past.

– George Orwell, 1984

If Part III examined the Extraordinary Chambers in the Courts of Cambodia’s (ECCC) institutional legacy and its imperfect success in producing an authoritative judicial record of crimes committed in Democratic Kampuchea, and Part IV considered what follows once such institutions recede, Part V turns to what lies beyond the courtroom: how memory, once dispersed, continues to operate in the present.

Memory is often discussed as though it concerns only the past. Yet its influence extends well beyond recollection. In societies that have experienced profound upheaval, the past rarely disappears entirely. Instead, it becomes embedded in institutions, family histories, educational systems, public commemorations, collective habits of thought, and individual psyches. As a result, memory does more than preserve experience. It helps shape perception itself, influencing how information is received, how events are interpreted, how competing explanations are evaluated, and how communities understand periods of tension, uncertainty, and change.

Memories may be personal and lived. They may also be inherited through schools, museums, archives, family stories, films, memorials, and public narratives. Both matter and shape the lens through which contemporary events are viewed. Continue reading “REFLECTIONS ON MASS ATROCITIES, HISTORICAL MEMORY, AND THE ECCC LEGACY: Cambodia – Past, Present, Future — Part V”

REFLECTIONS ON MASS ATROCITIES, HISTORICAL MEMORY, AND THE ECCC LEGACY: Cambodia – Past, Present, Future — Part IV

MEMORY AFTER DEMOCRATIC KAMPUCHEA: Museums, Narrative, and Cambodia’s Unfinished Reckoning

The struggle of man against power is the struggle of memory against forgetting.

– Milan Kundera

If Part III examined the Extraordinary Chambers in the Courts of Cambodia’s (ECCC) institutional legacy and the extent to which it imperfectly created an authoritative judicial record of some of the crimes committed during Democratic Kampuchea, Part IV begins from a different premise: not what the ECCC established, but what its closure reveals.

Once a tribunal ends, the record remains. The judgments remain. The archives remain. But the institutional force that produced them is no longer active. The process of adjudication ends. The process of interpretation does not. Continue reading “REFLECTIONS ON MASS ATROCITIES, HISTORICAL MEMORY, AND THE ECCC LEGACY: Cambodia – Past, Present, Future — Part IV”

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. [↩]

REFLECTIONS ON MASS ATROCITIES, HISTORICAL MEMORY, AND THE ECCC LEGACY: Cambodia – Past, Present, Future — Part III

BEYOND CONVICTIONS: The ECCC’s Enduring Legacy in Cambodia

Memory is not only a repository of the past, but a work of reconstruction.

– Paul Ricoeur

If Part II explored the relationship between memory, law, history, and interpretation, Part III now turns to the institution through which many of those tensions ultimately found expression in Cambodia: The Extraordinary Chambers in the Courts of Cambodia (ECCC).

The questions explored earlier do not remain abstract for long. Debates about genocide, crimes against humanity, historical responsibility, collective memory, and the meaning of Democratic Kampuchea eventually become concrete. They arrive in courtrooms. Once there, they change form, becoming questions of evidence, procedure, witness testimony, prosecutorial discretion, judicial reasoning, and legal judgment.

At that point, the issue is no longer simply what happened. It becomes a question of who has the authority to describe what happened, which narratives gain institutional legitimacy, and how legal conclusions gradually become embedded in the historical record. Continue reading “REFLECTIONS ON MASS ATROCITIES, HISTORICAL MEMORY, AND THE ECCC LEGACY: Cambodia – Past, Present, Future — Part III”

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 “

REFLECTIONS ON MASS ATROCITIES, HISTORICAL MEMORY, AND THE ECCC LEGACY: Cambodia – Past, Present, Future – Part II

THE CRIME OF CRIMES: Law, Memory, And The Limits Of Genocide

No question is ever settled until it is settled right.

– Ella-Wheeler-Wilcox

Part I was about memory as lived experience. Part II is about memory as interpretation.

If Part I explored memory as something lived, inherited, and carried by individuals, Part II asks what happens when those memories enter institutions. Courts, tribunals, museums, textbooks, commissions, archives, and official narratives do not merely preserve memory. They organize it. They classify it. They assign categories and meanings to experiences that often resist easy definition. The transition from personal memory to institutional memory is therefore not merely a change of setting; it is a change in how the past is understood. Once that process begins, memory becomes structured, contested, and filtered through the categories available to the institutions interpreting it.

Nowhere is this process more evident than in Cambodia’s ongoing effort to understand Democratic Kampuchea. Continue reading “REFLECTIONS ON MASS ATROCITIES, HISTORICAL MEMORY, AND THE ECCC LEGACY: Cambodia – Past, Present, Future – Part II”