International Criminal Law Archives - Page 31 of 36

THE USE OF TORTURE-TAINTED EVIDENCE AT THE ECCC

THE USE OF TORTURE-TAINTED EVIDENCE AT THE ECCC: What is the applicable standard for assessing whether a statement is established as being made under torture and what are the parameters, if any, for the admissibility of torture tainted evidence?

The issue of the admissibility and permissible uses of evidence obtained through torture has arisen repeatedly at the Extraordinary Chambers in the Courts of Cambodia (ECCC) in Cases 001 and 002, due to the fact that there is a large body of material before the ECCC Court emanating from the notorious security center S-21 (also known as Tuol Sleng) and other alleged security centers around Cambodia.

Recently the issue has come up again, after the Trial Chamber prohibited the Nuon Chea Defence in Case 002/02 from questioning a witness on the contents of a confession. The Nuon Chea Defence asserted that the Trial Chamber was using a double standard, allowing the Prosecution to ask questions concerning confessions, but not the Defence. The Prosecution requested to file written submissions and to have oral arguments on the issue. The Trial Chamber agreed and the parties’ submissions were received 21 May 2015. Oral arguments occurred 25 May 2015. Continue reading “THE USE OF TORTURE-TAINTED EVIDENCE AT THE ECCC”

Musing on the ICCBA Draft Constitution

As I noted in a prior post, I was selected to chair the Committee for drafting a Constitution for a Bar/Association at the ICC. The latest draft of the Constitution (English / French) has just been sent around to List Counsel with a commentary (English / French) to assist in understanding the efforts and aims of the Committee, and to further guide deliberations and contributions on this draft. Comments are being solicited to ensure that the Constitution is representative of List Counsel’s collective views. As I have done before, I would like to present my vision on the draft Constitution. Continue reading “Musing on the ICCBA Draft Constitution”

Sketches of a Bar for the ICC Counsel

In my last post on establishing a Bar for the ICC, I noted that a committee had been formed to draft a Constitution to be circulated for comments, and that my draft was selected as the working draft. Now I would like further elaborate upon my vision for and concerns of a Constitution for a Bar for Counsel practicing at the ICC; a Bar that should also be open for Counsel practicing before other international tribunals. Continue reading “Sketches of a Bar for the ICC Counsel”

ADC-ICTY Advocacy Training: Case Preparation, Direct and Cross-Examination

On 28 March 2015, the Association of Defence Counsel Practising Before the International Criminal Tribunal for the Former Yugoslavia (ADC-ICTY) invited me to present a full day of Advocacy Training. The event was held from 9am to 7pm at the ICTY in The Hague, The Netherlands. The aim of the training day was to help guide legal professionals through the process of preparing a case and to provide tips and approaches for direct and cross-examination. I also re-examined the core principles of evidence and objections that were covered in the Defence Symposium on 12 March 2015. Continue reading “ADC-ICTY Advocacy Training: Case Preparation, Direct and Cross-Examination”

Establishment of a Victims and Defence Office at the ICC

Expert Conference on the Establishment of an ICC Victims and Defence Office
&
Establishment of committee to draft a constitution for and ICC Bar for List Counsel

On the 23rd and 24th of March 2015, the ICC Registrar held a conference of experts to discuss the establishment of a Victims Office and a Defence Office and the potential establishment of an association or bar for List Counsel. I was privileged to have been invited. Prior to the conference, the Registrar distributed his concept for the reorganization of the current setup with that envisaged by him and the ReVision team he set up for reorganizing the entire Registry. In addition to the Concept Note, there was an agenda which reflected the areas of discussion, and a draft basic outline of the Registrar’s proposals. Continue reading “Establishment of a Victims and Defence Office at the ICC”

Evidence and Objections: ADC-ICTY Defence Symposium

You need to know the WHY in order to know the WHEN;
but if you do not know the HOW,
knowing the WHY and WHEN will be of no help.

On Thursday 12 March 2015, I conducted a Defence Symposium as part of the Advocacy Training at the Association of Defence Counsel Practising Before the International Criminal Tribunal for the Former Yugoslavia (“ADC-ICTY”). The topic was “Evidence and Objections”. The two-hour Symposium covered general principles and types of evidence, and how, why and when to make objections. The objective was to familiarize young lawyers, especially those coming from a civil law system, with the general evidentiary principles one is likely to encounter during a trial at one of the international criminal tribunals.

Introduction

I began by highlighting two critical obligations of Counsel: due diligence and making the record. These obligations to the client cannot be stressed enough. Counsel must satisfy the duty of due diligence to ensure the client’s fair trial rights are protected. One element of being due diligent is to make timely and specific objections that preserve the errors for appeal, i.e. making the record. Since on appeal we are bound by the four corners of the record, failure to preserve errors in the record at the time when the errors were made can be fatal to a possible appeal. God may know but the record must show.((Jones v. Vacco, 126 F.3d 408, 417 (2d Cir. 1997).)) Continue reading “Evidence and Objections: ADC-ICTY Defence Symposium”

The ADC-ICTY Publishes its Legacy Conference Proceedings

In 2002 Defence Counsel at the International Criminal Tribunal for the Former Yugoslavia (ICTY) formed the Association of Defence Counsel Practicing Before the ICTY (ADC-ICTY) to assist in promoting the fairness of the proceedings and to protect the interests of Defence Counsel. Eleven years later and after countless accomplishments, the ADC-ICTY held its Legacy Conference on 29 November 2013. And now the ADC-ICTY has published the Legacy Conference Proceedings, making it available online. Privileged to moderate the panel on the Rights of the Accused, I followed up with a short article, The Rights of the Accused, intending to capture the essence of the fair trial rights Defence Counsel endeavor to ensure for all suspects and accused appearing before international criminal tribunals.

POPOVIĆ APPEAL CHAMBER REFUSES TO REVIEW JCE III APPLICABILITY

In my last post, I addressed the applicability of JCE III, arguing that as a product of judicial creation, JCE III does not exist in customary international law and should not be applied. This post is a follow up in light of the 30 January 2015 ICTY Appeals Chamber Judgement in the Srebrenica case, Prosecutor v. Popović et al., affirming the convictions for genocide.((Prosecutor v. Popović et al., IT-05-88-A, Judgement, 30 January 2015, paras. 1670-1674.))

One of the Popović Accused, Miletić, had argued that the Trial Chamber erred in law in holding that JCE III existed in customary international law at the time of the events.((Prosecutor v. Popović et al., IT-05-88-A, Judgement, 30 January 2015, para. 1670.)) He emphasized that the Extraordinary Chambers in the Courts of Cambodia’s (“ECCC”) rejection of JCE III shows that it is not generally accepted and that its application is contrary to the nullum crimen sine lege principle.

Unfortunately, the Popović Appeals Judgement missed an exquisite opportunity to rectify the long-perpetuated error of law first made by the Tadić Appeals Chamber, which found that JCE existed in customary international law. Rather than engage in a constructive analysis, the Popović Appeals Chamber merely referred to its previous jurisprudence and found that Miletić failed to demonstrate any cogent reason to depart from it.((Prosecutor v. Popović et al., IT-05-88-A, Judgement, 30 January 2015, para. 1674.)) This has been the problem from the outset. No ICTY Chamber has been willing to thoroughly analyze the state of customary international law; instead they choose to refer back to prior Judgements as if these Judgements themselves are evidence of JCE’s customary status. Continue reading “POPOVIĆ APPEAL CHAMBER REFUSES TO REVIEW JCE III APPLICABILITY”

The fiction of JCE III in customary international law

After countless challenges and criticism from a wide-range of legal traditions regarding the extended form of joint criminal enterprise (“JCE III”), the Pre-Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (“ECCC”) held that JCE III does not exist in customary international law.((Case of NUON Chea et al., 002/19-09-2007-ECCC/OCIJ (PTC38), Decision on the Appeals of the Co-Investigative Judges[’] on Joint Criminal Enterprise (JCE), 20 May 2010, para. 78.)) The ECCC Trial Chamber, in its Decision on the Applicability of JCE, examined additional case law relied upon for JCE III support, and upheld and affirmed the Pre-Trial Chamber’s conclusion.((Case of NUON Chea et al., 002/19-09-2007-ECCC-TC, Decision on the Applicability of Joint Criminal Enterprise, 12 September 2011, paras. 33-35.)) Continue reading “The fiction of JCE III in customary international law”

Karnavas delivers ethics keynote in The Hague

On November 8, 2014, the Association of Defence Counsel Practising Before the International Criminal Tribunal for the Former Yugoslavia (ADC-ICTY) held an ethics training in The Hague, The Netherlands. Program attendees included ADC-ICTY members, interns and staff, as well as defence team members from the International Criminal Court (ICC) and the Special Tribunal for Lebanon (STL), staff of the ICTY/ICTR/MICT Registry, Prosecution and Chambers, and students from various universities around The Hague. The Keynote address, which appears below, was delivered by Michael Karnavas. Continue reading “Karnavas delivers ethics keynote in The Hague”