Having elaborated on the importance of perfecting the record, and having the standards of appellate review in mind, I began to discuss in detail how to perfect the record. Counsel needs to see clearly how the case may unfold in each step of the proceedings, from the pre-trial stage to appeal stage. Cases are organic. Everything that is done at the pre-trial and trial stages may eventually be relevant on appeal. Even at the pre-trial stage, Counsel should be able to see far ahead what sorts of challenges he or she may raise at each stage, reopen at a later stage and bring on appeal. Conversely, on appeal Counsel is limited to whatever is already in the record unless there is a mechanism to adduce additional evidence such as Rule 115 of the ICTY Rules of Procedure and Evidence (ICTY RPE). Counsel ought to be aware of all options and mechanisms at each stage. This means being diligent in investigating the case, skilfully challenging all legal and factual issues through written submissions that fully preserve all errors, making and meeting oral objections during the proceedings, and putting on a case (which can be done strictly through confronting the prosecution case) that has a consistent, plausible, and well-developed theory. Continue reading “The Diligence That Is Due – Part II: How to Make the Record”
While we do not believe the trial judge testified untruthfully, we recognize that the written word in the record is ‘black and white’ evidence of what did or did not occur, whereas an individual’s recollection of those same events blur into gray. This case demonstrates the validity of an old legal truism: God may know but the record must show.
Jones v. Vacco, 126 F.3d 408, 417 (2d Cir. 1997) (emphasis added).
“‘Conflict of interests’ is a term that is often used and seldom defined.” 1Cuyler v. Sullivan, 446 U.S. 335, 356 (1980) (United States Supreme Court Justice Thurgood Marshall, dissenting).
On 16 April 2014 I was invited by the Association of Defence Counsel practicing before the International Criminal Tribunal for the Former Yugoslavia (ADC-ICTY) to conduct training for its members and others on ethics. The topic chosen was Conflicts of Interest. The lecture lasted 2 hours. A modest PowerPoint presentation was used to guide the lecture which was based on handout material made available after the lecture. Certificates were also issued to the participants for those who wished to claim 2 hours of CLE on ethics with their national / state bar.
The lecture focused on the lawyer’s core responsibilities to the client in both national and international jurisdictions: competence, diligence, communication, confidentiality, loyalty, honesty, and independence. Principles that are universal.
Finally, it was time to focus on Syria: what are the realistic prospects of Bashar Al-Assad and others being prosecuted at the ICC? Recalling how a case comes before the ICC, I noted that it was highly unlikely that Assad or others would end up at The Hague any time soon, if at all. Syria has not signed on to the Rome Statute. This Syrian government is not about to agree to ICC jurisdiction. Assuming the Assad regime falls, the next government would be poised to ask the ICC to investigate and prosecute, but given that all sides to the conflict seem to be committing mass atrocities, it does call into question whether there would be a genuine desire to get the ICC involved. The Security Council is unlikely to refer the matter to the ICC Prosecutor, when it cannot even agree on the need to intervene for humanitarian reasons. But hope springs eternal. Theoretically, nothing can be precluded. Continue reading “Just How Relevant is the ICC – Part VII and Conclusion”
My next vignette dealt with the Kenya case and the African Union (AU)’s reaction to the ICC, focusing exclusively on Africa, and in particular, the ICC efforts to prosecute sitting Heads of State. Kenya has had a long history of election violence. On 30 December 2007, following the announcement of the Kenyan election results, large-scale political violence broke out amid claims that the electoral commission of Kenya had rigged the elections in favor of incumbent Mwai Kibaki. Two months of bloodshed between the two rival coalitions (Ralia Odigna’s Orange Democratic Movement [“ODP”] and Mwai Kibaki’s Government/Party for National Unity [“PNU”]) left an estimated 1,000 people dead, and as many as 500,000 internally displaced persons. In the midst of the violence, former UN Secretary General Kofi Annan received a call from President Kufor of Ghana, then Chairman of the AU, asking Kofi Annan to mediate the crisis in Kenya. Kofi Annan led the Panel of African Eminent Personalities through 41 days of mediation and the political violence ended upon the two parties signing a peace agreement: TheAgreement on the Principles of Partnership of the Coalition Government. On 4 March 2008, the parties agreed to form two fact-finding commissions: the Independent Review Committee and the Commission of Inquiry on Post-Election Violence (CIPEV). The CIPEV made a number of recommendations to the government, and findings were presented to Kofi Annan, the appointing authority for the commission. The CIPEV recommended investigation, and eventual prosecution of certain persons alleged to have masterminded the violence and recommended that a Special Tribunal adjudicate serious crimes: particularly, crimes against humanity.The names were placed in a secret envelope and were kept with the Panel led by Kofi Annan and pending the establishment of a Special Tribunal. If the government failed to establish the Tribunal, the Panel would forward the names of the perpetrators to the ICC. The Kenyan parliament failed—due to political stalemate—to establish the Tribunal and Kofi Annan handed over the sealed envelope to the ICC Chief Prosecutor, Luis Moreno-Ocampo.
I next turned to a vignette from Cambodia since it seemed to nicely compliment the Egyptian one. On 7 January 2014, the Cambodia National Rescue Party (CNRP) issued a press release that it had engaged an international lawyer to lead a team of international lawyers to “analyse the evidence of crimes committed by Cambodian security forces and, if justified, file a request to the Prosecutor of the International Criminal court to initiate investigations into the situation in Cambodia under Article 15 of the Rome Statute.” Seemingly, the trip wire for this investigation was an incident where military police dedicated effectively to the ruling party, the Cambodian People’s Party (CPP), shot dead five civilians, injured more and imprisoned demonstrating garment factory workers on 3 January 2014. The investigation is expected to go well beyond this incident, since the CNRP is alleging that the CPP security forces “commit illegal violent acts as part of a widespread or systematic attack against the civilian population” amounting to crimes against humanity. On the same day, the international lawyer chosen to spearhead the investigation was quoted saying that the underlying criminal acts are “likely to include murder, arbitrary imprisonment, forced transfer and persecution on political grounds,” with the likelihood of there being “tens or even hundreds of thousands of victims.”
To add a bit more fuel to debate, I moved on to the ICC preliminary inquiry into the Israeli raid on the Gaza bound flotilla—the M.V. Mavi Marmara incident. On 31 May 2010, the Free Gaza Flotilla, carrying humanitarian aid and more than 600 pro-Palestinian activists, attempted to break Israel’s naval blockade. Israeli commandos boarded (or, as some put it, assaulted) one of the vessels, the M.V. Mavi Marmara, resulting in nine deaths. According to the referral filed by the Union of the Comoros, some 600 passengers were also victimized by the conduct of Israeli Defence Forces (IDF), in violation of international humanitarian law, human rights law and international criminal law.
Now it was time to go through some examples—vignettes as I like to call them—and see just how relevant the ICC may be. As noted, the ICC is meant to be a court of last resort for victims to seek justice beyond the reach of obstruction by the political authorities generally complicit to the crimes being alleged and who by virtue of their power and authority, control the national courts and thus the outcomes. The ICC is expected to step into the breach where national courts are unable or unwilling to prosecute crimes of a universal nature: war crimes, crimes against humanity, genocide. I had hoped that the vignettes would lead to questions, comments and reflection on whether in its twelve year history the ICC has met expectations; whether it was rendering justice, or whether has it had the makings of a political tool?
To get the discussion going, I thought I would start with a few complaints or requests for investigation to the ICC Prosecutor to show the various reasons certain actors were trying use the ICC to advance seemingly political agenda – not exactly why the ICC was set up – and why certain non-signatories may have legitimate concerns for not signing on to the Rome Statue. Continue reading “Just How Relevant is the ICC – Part III”
The discussion then turned to the legacy of the Nuremberg and Tokyo trials. It seemed that the global community had come to the realization of the need for permanent mechanisms and modalities in dealing with mass atrocities resulting from human rights and humanitarian violations in peacetime or in war, during internal armed conflicts or international armed conflicts. For decades there were discussions and position papers on the need to establish a permanent international criminal court, and of course on what law and procedure it would apply. This was a rather Herculean task when considering that a general consensus needed to be reached by the drafters who were jurists, academics and diplomats from all over the globe, from different legal traditions, with different agendas—all while the Cold War was being waged psychologically and by proxy—with no end in sight.
On 26 February 2014, I was invited by the Brown University International Organization (BRIO), at Brown University, Providence, Rhode Island, to present a lecture on the International Criminal Court (ICC) relevant to the ongoing events in Syria. It is beyond cavil that the ICC is a response to the international community’s concern for mass atrocities around the world—genocide, war crimes, and crimes against humanity—designed “to put an end to impunity” and bring justice to countless victims and survivors. Merciless leaders have escaped prosecutions by threatening or corrupting their own judiciaries. The ICC is meant to be a court of last resort for victims seeking justice beyond the reach of obstruction. In its twelve year history is the ICC meeting expectations? Is the ICC rendering justice, or has it become a political tool? Today the ICC faces many complex challenges that call into question the viability of the institution.
With the Syrian conflict in full bloom and no end in sight to the mass atrocities being committed by all sides to the conflict, I settled on the topic of: Just how relevant is the ICC: A viable court of last resort or a politicized court of low expectations? My aim was not to lecture on international criminal law or on the establishment of the ICC, but to highlight some of the ongoing legal and political challenges relating to jurisdictional issues. After taking the students through the historical development of international justice—from pre-Nuremberg to Syria—I offerred several vignettes to provoke a discussion and critical thinking. It would be up to the students to decide on the ICC’s report card. Personally, I give it an overall average of D+/C-.