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Just How Relevant is the ICC – Part V

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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e. Cambodia

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.”[1] 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.[2] 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.^[3] 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.”^[4]

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Just How Relevant is the ICC – Part IV

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c. The M.V. Mavi Marmara Incident

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.[1] Israeli commandos boarded (or, as some put it, assaulted) one of the vessels, the M.V. Mavi Marmara, resulting in nine deaths.[2] 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.^[3]

Continue reading “Just How Relevant is the ICC – Part IV”

Just How Relevant is the ICC – Part II

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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.

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The Co-Prosecutors’ attempt to eviscerate the principle of legalism at the ECCC … and beyond

Lok Ta Dambong Dek, a.k.a. the Lord of the Iron Staff, before whom all Buddhist witnesses at the ECCC take an oath prior to testifying

On 4 March 2014 the ECCC Co-Prosecutors proposed amendments to ECCC Internal Rules 55 and 89ter to enable crime sites and criminal incidents to be excluded from the scope of investigation or trial upon their proposal. The proposed amendments, if recommended by the Rules and Procedure Committee and adopted by the Plenary, would introduce a procedure that is that is not founded in the Cambodian civil law system and which would not respect the principle of legalism that is unquestionably applicable before the courts of Cambodia, including the ECCC. Bluntly, the Co-Prosecutors are urging the Rules and Procedure Committee and the Plenary to engage in “situational ethics” to disregard the applicable law and legal system because it does not accommodate them. The Co-Prosecutors are urging the Judges to act ultra vires. Accordingly, I have submitted observations urging the Judges to reject the Co-Prosecutors’ proposed amendments in their entirety.

Essentially, under the principle of legalism, also called prosecutorial legalism, the prosecutor must prosecute when it is clear that a crime has been committed. The prosecution has no discretion as to whether to investigate crimes known to have been committed or to drop charges once an indictment has been secured. Judges have no discretion to abandon charges: whatever is in the indictment must be tried. Continue reading “The Co-Prosecutors’ attempt to eviscerate the principle of legalism at the ECCC … and beyond”

Second Installment: JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS

This is the second installment in a series of posts drawn from a 24 January 2014 lecture on Judicial Ethics at the ADC-ICTY’s Twelfth Defence Symposium for interns and staff at the ICTY. The complete document is available on my website.

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With the stage set, it was time to dissect the Harhoff matter. Judge Harhoff’s folly, due to what I would later refer to as the Harhoff syndrome is a treasure trove for a lecture on judicial ethics – the perfect point of departure for discussing the Furundžija “reasonable apprehension of bias” test.

The Harhoff Syndrome

Judge Frederik Harhoff, in a letter to fifty-six personal contacts^[1] that was apparently leaked to the press, expressed some of his innermost thoughts, which, even when viewed in the light most favorable to him, demonstrate his inability (or perhaps his unwillingness) to adhere to the universally recognized fair trial right to the presumption of innocence, with the burden being with the prosecution.^[2] Judge Harhoff’s sentiments are quite frequently shared (though not revealed – at least not on paper or in transparent gatherings) by many human rights/humanitarian advocates appointed as international judges, who, although possessing impressive credentials, lack necessary practical experience, and, more worrisome, are challenged when it comes to rigorously applying the most fundamental precepts of fair-trial rights: the presumption of innocence afforded to the accused and burden of proof resting on the prosecution. Judge Harhoff assuredly understands as a theoretical construct the presumption of innocence. But when it came to applying it, his predilection for victim-based justice and unwillingness to conform to the standards of justice led him to take the position that an accused (at least if a high military officer) must, ineluctably, be deemed guilty as charged, unless proved otherwise. A classic case of inappropriate burden-shifting. This, in my opinion, is the Harhoff syndrome in its purest form. Judges at the international tribunals who suffer from this affliction—and there are a few—are generally discreet, frustrating a defence counsel’s ability to establish the objective prong of Furundžija when the need to disqualify is seemingly palpable. Continue reading “Second Installment: JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS”

Reflections on the Final Declaration of the First International Meeting of Defence Offices

On December 4-5 2013, the French Bar Association along with François Roux, the Head of the Defence Office of the Special Tribunal for Lebanon (STL), hosted the First International Meeting of Defence Offices. The discussions provided a forum to exchange ideas concerning various challenges defence counsel face before the international criminal tribunals, especially the “difficulty of ensuring that the defence is recognised as one of the essential pillars of a fair and credible justice system.”

These feel-good congregations are useful for inspiring defence lawyers to bond over common concerns. Occasionally they produce aspirational declarations – emphasis on aspirational. Understandably, Final Declarations were proclaimed at this gathering. From the Final Declarations, two specific matters are worth commenting on: a. the need for a defence section to be an organ of the tribunal (as at the STL); and b. the recent events in the Bemba case, where part of the defence team was arrested for witness tampering. Reticent to intrude, since I did not attend the conference, I’ve decided to weigh in with my thoughts, annoying as they may be. Continue reading “Reflections on the Final Declaration of the First International Meeting of Defence Offices”

News and Events

On 29 June 2023, Michael G. Karnavas was a member of a panel on legal professional ethics before the international criminal tribunals, hosted in London by the International Committee of the Inner Temple.
On May 8 to May 9, 2023, Michael G. Karnavas taught at a Training of Trainers and Advocacy Training Program organized by International Bridges to Justice (IBJ) in Gaziantep, Turkey, for Syrian criminal defense lawyers living and working in northwest Syria, notably, in and around Aleppo.
On 9 and 10 January 2023, Michael G. Karnavas conducted a virtual training for Chinese lawyers, at the Defender Advocacy Workshop, hosted by the University of Tokyo, Research Center for Sustainable Peace. The topics of his presentations were: Building Rapport and Trust with Clients from Vulnerable Populations through the Initial Client Interview; and Skills in Cross-Cultural Representation.
On 7 November 2022, Michael G. Karnavas participated in a discussion on transitional justice in Myanmar, focusing his remarks on the legacy of the Extraordinary Chambers in the Courts of Cambodia (“ECCC”) and the role of the defence in hybrid international(ized) criminal tribunals.
In July 2020, the Oxford University Press published Codes of Conduct for Counsel in International Criminal Proceedings, by Michael G. Karnavas, as part of the Max Planck Encyclopedia of International Procedural Law. The volume provides a detailed overview of the codes of conduct at international criminal tribunals and the challenges counsel face in meeting their ethical and professional obligations.
Prof. Dr. h.c. Wolfgang Schomburg

Michael G. Karnavaswrote a chapter entitled The Serendipitous Nature of the ICC Trial Proceedings Risks the ICC’s Credibility (pp.: 202–247), in Justice Without Borders a collection of essays on international criminal law, European criminal law and international cooperation, honoring Judge Wolfgang Schomburg on the occasion of his 70th birthday on 9 April 2018.

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The New RPE 134 Provisions: cowardly capitulation or pragmatic resolution?

Much of the commentary on the Assembly of State Parties (ASP) added provisions to Rules 134 (bis, ter and quater) of the ICC Rules of Procedure and Evidence (RPE), which ease the requirement for an accused to be physically present at trial, has been disdainful. But before we consider potential effects of these new provisions, or lack thereof, let’s first look at the substance. Does the ICC Statute permit the Rules to be amended so accused – political leaders, no less – can be excused from attending parts of their trials due to “exceptional circumstances” or because of “extraordinary public duties”? Were the amendments necessary? Did the ASP exercise sound judgment? Though the answers to these questions seem to be yes, guarded cynicism is justified. From time to time, trial chambers will no doubt be tempted by the political siren calls for accommodation and realpolitik. Implementing these added provisions to Rule 134 will require prudence, finesse and judiciousness. As they saying goes: the proof of the pudding is in the eating.

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The ADC-ICTY Legacy Conference: The Defence perspective on what really happened at the ICTY

The Association of Defence Counsel Practicing Before the ICTY (“ADC”), established under Dutch law, came into existence on 20 September 2002 when it held its first General Assembly. With the blessings of the ICTY Judges at their July 2002 plenary meeting, the Rules of Procedure and Evidence were amended to require counsel’s membership in the ADC. Essentially, the ADC has been the Bar for some 350 plus counsel at the ICTY. While not always appreciated for its true worth, the ADC has lived up to much of the expectations by providing a unified voice championing the causes of Defence Counsel and of their client’s fair trial rights.

Before the ADC, counsel had no say in the amendment of rules, no say in the setting of policies and practice directives that affected counsel, and no say in the remuneration schemes adopted by the Registry. Counsel had to go through extra security, required escort to use the library and did not even have access to the canteen where prosecution and chambers’ staff mingled. That all changed with the establishment of ADC. Continue reading “The ADC-ICTY Legacy Conference: The Defence perspective on what really happened at the ICTY”

A draft Constitution for the Bar of List Counsel: Let the discussions begin!

As promised, a few days ago I circulated the draft constitution I have been working on for the past month. (Links to Draft: English / French) There was no real need to re-invent the wheel and start from scratch. I took as a base the ADC-ICTY Constitution. While not perfect and certainly limited to the ICTY matrix, it has been tried and tested. Based on my experience both as a member and having served on numerous ADC-ICTY committees, including three years on the Executive Committee, two of which as President, I believe this document provides a solid point of departure. Last year I forwarded it to the Coordinators of the ALC-ICC, recommending its utility. Continue reading