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Hybrid Courts: a marriage of inconvenience

Last December I had the privilege of being invited to participate at a conference hosted by the International Research and Documentation Centre War Crimes Trials, in Marburg, Germany. The conference, titled The Defence in International Criminal Courts, was by far the best conference I have ever attended, focusing on defence issues from Nuremberg and onwards. The presentations and discussions were excellent. Here is an excerpt of my presentation. The full version is scheduled for publication.

Hybrid Courts: a marriage of inconvenience
Michael G. Karnavas

Imagine being on the football pitch. The stakes are high – it’s a championship game. You and your teammates have been preparing for this game, sharpening your skills, studying your opponent, developing your game plan, mastering the intricacies of the rules, doing everything possible to take advantage of every opportunity that may present itself and every weakness that your opponent may have. All is riding on this game, so you have thought of everything. You are ready. You are ready to control the ball, control your opponent, control the slightest openings. Ready to control it all. All except the referee. That’s the wildcard. The unknown, the unpredictable, the uncontrollable. The luck of the draw. If the referee knows the rules and applies the rules as they are intended, then you have only yourself to blame if the game is lost. But what if the referee does not follow the rules or applies them unevenly, or interprets them in a manner that is not in keeping with the spirit and tradition of the game? What if the referee decides to also play with the ball, handle it a bit, kick it around, pass it to your opponents, or, worse yet, lay in wait near your goalpost for the opportune moment to tap the ball into your net (even if it takes using his hands) and, having done so, smugly signals the goal? Continue reading “Hybrid Courts: a marriage of inconvenience”

Upcoming Seminar concerning ICC List Counsel – 16-17 July 2015

On 16-17 July 2015, Dr Fabián O. Raimondo, Assistant Professor of Public International Law, Maastricht University, is hosting a Seminar directed exclusively to ICC List Counsel. The program is topical, relevant and practical.

Moreover, the Registrar will not only present his proposal for restructuring the Registry under the ReVision project, but will also engage the participants in what promises to be a lively discussion on many of the issues related to his vision and expectations on restructuring two of the most critical sections deemed by many List Counsel as essential in their representation of their clients: the OPCD and OPCV. See my prior post on Establishment of a Victims and Defence Office at the ICC. Continue reading “Upcoming Seminar concerning ICC List Counsel – 16-17 July 2015”

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”

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.

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”

The Diligence That Is Due – Part II: How to Make the Record

How to Make the Record

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”

The Diligence That Is Due: Making the Record & Perfecting Grounds for Appeal

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).

On 18 June 2014, I delivered the third installment of a lecture series on ethics to members of the Association of Defence Counsel Practicing before the International Criminal Tribunal for the Former Yugoslavia (ADC-ICTY) and others. The previous lectures were on Judicial Ethics in the International Tribunals and Conflicts of Interest. This lecture focused on due diligence and the imperative of perfecting the record by properly preserving all potential errors for appellate review. The lecture lasted 2 hours. Certificates were issued to the participants for those who wished to claim 2 hours of CLE credits on ethics with their national / state bar. Continue reading “The Diligence That Is Due: Making the Record & Perfecting Grounds for Appeal”

ADC-ICTY LECTURE ON CONFLICTS OF INTEREST

“‘Conflict of interests’ is a term that is often used and seldom defined.” ¹

Michael Karnavas delivers ADC-ICTY Confilcts Lecture

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.

Continue reading “ADC-ICTY LECTURE ON CONFLICTS OF INTEREST”

Cuyler v. Sullivan, 446 U.S. 335, 356 (1980) (United States Supreme Court Justice Thurgood Marshall, dissenting). [↩]

Just How Relevant is the ICC – Part VII and Conclusion

This multi-part blog post is drawn from Michael G. Karnavas’s Lecture at the Brown University International Organization (BRIO) February 26, 2014. The complete piece is available on Michael’s website.

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h. Syria

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.[1] 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.[2] But hope springs eternal. Theoretically, nothing can be precluded. Continue reading “Just How Relevant is the ICC – Part VII and Conclusion”