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Dawn over Midnight: a brighter future for international norms

O! say, can you see, by the dawn’s early light …

Francis Scott Key’s poem The Defence of Fort McHenry, later renamed The Star Spangled Banner, recounts the Battle of Baltimore during the War of 1812. Detained by the British, Key witnessed the bombardment of Fort McHenry on the night of 13-14 September 1814. As dawn was breaking, he feared he would see the dreadful sight of the Union Jack flying over Fort McHenry. Instead, elatedly, he saw the Star Spangled Banner, the American flag, proudly standing. The Americans had prevailed. The tumultuous Trump presidency, which, to half the nation and many others around the globe, has felt like an incessant bombardment of insults, venom, and ill-will, is coming to an end. The battle for the soul of America has yet to be won, the struggle for a more perfect union remains, but dawn is breaking. Continue reading “Dawn over Midnight: a brighter future for international norms”

Taking Trump literally: a lethal consequence

Anybody throwing stones, rocks — like they did to Mexico and the Mexican military, Mexican police, where they badly hurt police and soldiers of Mexico — we will consider that a firearm, because there’s not much difference…. Because there’s not much difference when you get hit in the face with a rock.

President Donald J. Trump, 1 November 2018

For the past few weeks, we have witnessed scenes of a caravan of Central Americans, mainly from Honduras, heading toward the US. They are asylum seekers and migrants, escaping extreme violence and poverty. Laden with despair yet armed with hope, they are seeking a better life for themselves, their children, their grandchildren – they are seeking a shot at the American dream. Continue reading “Taking Trump literally: a lethal consequence”

Cutting the Gordian Knot: Settling the “Macedonian” question – Part 3

Part 3 – Getting to Yes

It helps to sit literally on the same side of a table and to have in front of you the contract, the map, the blank pad of paper, or whatever else depicts the problem. If you have established a basis for mutual trust, so much the better. But however precarious your relationship may be, try to structure your negotiation as a side-by-side activity in which the two of you–with your different interests and perceptions, and your emotional involvement–jointly face a common task.

Roger Fisher and William Ury
GETTING TO YES: Negotiating An Agreement Without Giving In, Penguin Books, 2nd ed. p. 38

Mr. Matthew Nimetz, Personal Envoy of the United Nation Secretary-General

A good day. His 79^th birthday. He would celebrate it in a day or two with his family. Now he just wanted to take in the moment, to reflect, to enjoy the festive occasion. Not his birthday, but the signing of the Agreement between Greece and the former Yugoslav Republic of Macedonia (FYROM). Finally. Since 1991 when FYROM declared its independence, the two countries have been in a diplomatic row over FYROM’s adoption of the name “Republic of Macedonia,” naming its Slavic language “Macedonian,” calling its Slav citizens Macedonians, descendants of Philip II of Macedon and Alexander the Great, and adopting symbols which Greeks claim as part of their patrimony. Continue reading “Cutting the Gordian Knot: Settling the “Macedonian” question – Part 3”

Cutting the Gordian Knot: Settling the “Macedonian” question – Part 2

Part 2 – Northern Exposures & Southern Fears

To ask whether Macedonia is Greek is rather like asking whether Prussia was German. If one talks of distant origins, the answer in both cases must be “No.” Ancient Macedonia started its career in the orbit of Illyrian or Thracian civilization. But, as shown by excavation of the royal tombs, it was subject to a high degree of hellenization before Philip of Macedon conquered Greece.

Norman Davies, Europe: A history, p. 134

In 1991, the Socialist Federal Republic of Yugoslavia (Yugoslavia) began to break up into five parts. It all began around 25 June 1991 when Slovenia, followed by Croatia, declared their independence. Other Republics followed suit.

The contemporary geographical region of Macedonia is not officially defined by any international organisation or state. In some contexts it appears to span six states: Albania, Bulgaria, Greece, Kosovo, the Republic of Macedonia and Serbia:
–Aegean Macedonia (or Greek Macedonia)
–Pirin Macedonia (or Bulgarian Macedonia)
–Vardar Macedonia (or the Republic of Macedonia)
–Mala Prespa and Golo Bardo (in Albania)
–Gora (in Kosovo or Serbia) and Prohor Pchinski (in Serbia)

On 17 September 1991, the former Yugoslav Republic of Macedonia (FYROM) declared its independence, with Bosnia and Herzegovina doing likewise a month later on 16 October 1991, resulting in a rump-Yugoslavia of Serbia, Montenegro, and Kosovo. A civil war broke out in Croatia and later in Bosnia and Herzegovina. And as the saying goes, the rest is history. Continue reading “Cutting the Gordian Knot: Settling the “Macedonian” question – Part 2”

Cutting the Gordian Knot: Settling the “Macedonian” question – Part 1

Part 1 – Macedonia here (and there)

Macedonia

Inhabit the brain with telltale imagery…
For metal breeds in dark places.
So, thenceforth, journey through bright brilliant skies…
Clouds laced intricately in a macramé.
And worry not of planets falling like maces.
Look unto your wild, lynx-eyed lover
And beckon forth the lyricist in the clouds.
Let him play lute or madder flute…
Onward to Macedonia.

Tyler Mason

As the airplane landed at the airport in Thessaloniki, Greece’s second largest city, in the northern Greek administrative region of Macedonia, the pilot announced emphatically, εδώ Μακεδονία, εδώ Μακεδονία! (Macedonia here, Macedonia here). To the Greeks on board, it was obvious that he was not referring to the airport, also called “Macedonia.” It was more of a declaration to all passengers of any origin that we had landed in Macedonia – the one and only Macedonia located in Greece (and nowhere else).

This was a few years ago. I remember thinking how jingoistic it was. Was it necessary? To many Greeks, especially the northern Greeks, placing such an emphasis on the name and location of Macedonia for all to know was an essential reaffirmation of their control and ownership of all that is Macedonian – not just land title, but exclusive copyrights over the name “Macedonia,” and proprietary rights over all historical and cultural truths associated with Macedonia as far back as Ancient Greece. How dare its northern neighbor expropriate the name, the heritage of Alexander the Great, his symbol of the Sun of Vergina which adorned their flag, call themselves Macedonians and their Slavic-based language Macedonian, and lay historical claim to a good chunk of modern Greece as far as Thessaly, the central region of Greece? Continue reading “Cutting the Gordian Knot: Settling the “Macedonian” question – Part 1”

Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof, Part III-A – Common Law

Part III-A — Common Law Approach

Good men everywhere praise the presumption of innocence. And be they Frenchmen, Germans, or Americans, they agree on the demand of the presumption in practice. Both here and abroad, the state’s invocation of criminal sanctions demands a high degree of proof that the accused has committed the offense charged. To express the requisite standard of proof, common lawyers speak of the prosecutor’s duty to prove his case beyond a reasonable doubt. And Continental lawyers invoke the maxim in dubio pro reo – a precept requiring triers of fact to acquit in cases of doubt.((George P. Fletcher, Two Kinds of Legal Rules: A Comparative Study of Burden-of-Persuasion Practices in Criminal Cases, 77 Yale L. J. 880, 880 (1968). ))

This post follows up on my discussion on the common and civil law approaches to the standards and burdens of proofs. I began this series of posts by setting out the background and discussing relevant terms and definitions. I then provided a brief overview of how the common and civil law systems split off and developed over the centuries and how the reasonable doubt standard came about. I also touched upon the in dubio pro reo principle as it relates to the standard of proof. In the next two posts I will separately discuss the common and civil law systems in order to compare and contrast their respective approaches to the standards and burdens of proof. Continue reading “Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof, Part III-A – Common Law”

Historical Aspects of the Standard of Proof Beyond a Reasonable Doubt & The Principle of In Dubio Pro Reo

We all know that, when a criminal lawyer has to defend a case where the facts are all against him, his uniform and too often unfailing resource is the law. Upon this he falls back. The doctrine of ‘reasonable doubt’ is kept always in the front. The reports are ransacked for loose definitions by careless judges in insignificant cases. The extravagant and unsupported ‘dicta’ of the text-writers, made perhaps in support of a theory of what the law ought to be, rather than as proof of what it has been authoritatively declared to be, are hunted up with untiring zeal. These are reenforced by a series of cases – fabulous and authentic – scattered through the musty annals of crime, in which, it is said that innocent persons have been convicted. The whole mass of bewildering definitions, extravagant ‘dicta,’ astounding facts, or fictions, as the case may be, is then arrayed with greater or less skill, according to the ability of counsel, and paraded before the jury with pathetic solemnity. Of course, the object of all of this is to confound and befog; to bring the jury into that state of amazement, apprehension and uncertainty, which will disqualify them to deal calmly and rationally with the facts of the case before them….((John W. May, Some Rules of Evidence: Reasonable Doubt in Civil and Criminal Cases, 10 Am. L. Rev. 642, 662-663 (1876). ))

In common law and hybrid systems where the proceedings are adversarial defense lawyers are ethically bound to represent zealously their clients. This duty is universally recognized in virtually all national and international codes of professional ethics. Continue reading “Historical Aspects of the Standard of Proof Beyond a Reasonable Doubt & The Principle of In Dubio Pro Reo”

Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof

Hybrid: Anything derived from heterogeneous sources, or composed of elements of different incongruous kinds. (The Oxford English Dictionary, Second edition, Vol. VII, Oxford University Press 1989)

Since Nuremberg, every international or internationalized criminal tribunal (ICTY, ICTR, SCSL, ECCC, ICC, STL) has adopted hybrid proceedings: mixing, matching, and manipulating procedural modalities from common law and civil law systems. I use the plural for “systems” because there is no such thing as the common law system or the civil law system. There are small and large differences among the legal traditions. In common law systems one sees significant differences between the US model, virtually exclusive to the US, and the UK model, seen the world over in the Commonwealth and former UK colonies. The civil law systems can roughly be divided into two major models, the French model (with the investigative judge) and the German model, where the prosecutor charges and investigates, though even between each of these models there can be significant differences. And of course there are also what I would call the hybrid civil law systems, as in Italy, Bosnia and Herzegovina, Macedonia, and elsewhere, where adversarial modalities have been added to the proceedings, i.e., allowing the accused to gather evidence, permitting the parties to initiate the questioning of witnesses and to cross-examine opposing witnesses with leading questions, and even placing the burden of proof on the prosecution to a standard of proof beyond a reasonable doubt. Continue reading “Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof”

Attorney-Client Privilege – Part II: Foundation in National Systems

In my previous post, I explained why I filed a request for leave to file an amicus brief in Prosecutor v. Bemba Gombo et al. (“Bemba”) at the ICC, and provided the factual context of the case relevant to the issue of attorney-client privilege communications. In Bemba, the Trial Chamber ordered several communications between Counsel, the client, the case-manager, and others to be transmitted to the Office of the Prosecutor (“OTP”) and other parties.((Prosecutor v. Bemba Gombo et al., ICC-01/05-01/13-947, Decision Providing Materials in Two Independent Counsel Reports and Related Matters, 15 May 2015, paras. 22, 32, 33, 35-37.)) Thus, several issues surfaced. What is the scope of the attorney-client privilege? What types of communications does it cover? Who does it cover? As this privilege has its foundations in national systems, before addressing the overarching issue of attorney-client privilege before international tribunals and specifically the ICC, a brief discussion of its basic principles in national jurisprudence may be helpful. This post will provide a historical background of the attorney-client privilege, its parameters, and its exceptions in national jurisdictions. The intent is to provide the basic principles with some illustrative examples, as opposed to an extensive exegesis with an exhaustive list of relevant jurisprudence. Continue reading “Attorney-Client Privilege – Part II: Foundation in National Systems”

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”