michaelgkarnavas.net/Blog

British QC Agrees To Prosecute Hong Kong Pro-Democracy Activists: Should it matter?

I know how you feel. You don’t believe me, but I do know. I’m going to tell you something that I learned when I was your age. I’d prepared a case and old man White said to me, “How did you do?” And, uh, I said, “Did my best.” And he said, “You’re not paid to do your best. You’re paid to win.” And that’s what pays for this office … pays for the pro bono work that we do for the poor … pays for the type of law that you want to practice … pays for my whiskey … pays for your clothes … pays for the leisure we have to sit back and discuss philosophy as we’re doing tonight. We’re paid to win the case. You finished your marriage. You wanted to come back and practice the law. You wanted to come back to the world. Welcome back.

Ed Concannon, The Verdict (1982)

Show me an advocate who has nothing to prove and I’ll show you an advocate who proves nothing. Kid yourself not, it is all about winning, especially in common law proceedings. No one hires a lawyer to just do his or her best; they want the lawyer to win the case. This also goes for prosecutors. No supervisor or hiring authority wants to hear from their prosecutor that the case was lost but justice was done. The presumption for going forward with the prosecution is that the cause is righteous, and the accused is guilty. Continue reading “British QC Agrees To Prosecute Hong Kong Pro-Democracy Activists: Should it matter? “

LIES TURNED RIGHTEOUSNESS / RIGHTEOUSNESS TURNED SEDITIOUSNESS

As of 10 January, armed protests are being planned at all 50 state capitols from 16 January through at least 20 January, and at the US Capitol from 17 January through 20 January.

Internal FBI bulletin obtained by ABC News

As President of the United States, Trump has lied to Americans for years.

In his ghost-written book, TRUMP: The Art of the Deal, President Trump packaged lies as truthful hyperboles. After his inauguration, truthful hyperboles became alternative facts. Soon thereafter, alternative facts became fake news, (in)famously beseeching to his beloved base to believe that what you’re seeing and what you’re reading is not what’s happening. Attacking the free press, the fourth pilar of US’s constitutional democracy, he accused it of being the enemy of the people. Simply, whenever the facts got in the way of President Trump’s narrative for the past four years, he, along with his enablers, have used every conceivable means to promote intoxicatingly repugnant falsehoods – however void of any credible evidence, however untrue, however incendiary. Continue reading “LIES TURNED RIGHTEOUSNESS / RIGHTEOUSNESS TURNED SEDITIOUSNESS”

IT CAN HAPPEN HERE – It nearly did

An honest propagandist for any Cause, that is, one who honestly studies and figures our the most effective way of putting over his Message, will learn fairly early that it is not fair to ordinary folks—it just confuses them—to try to make them swallow all the true facts that would be suitable to a higher class of people. And one seemingly small but almighty important point he learns, if he does much speechifying, is that you can win over folks to your point of view much better in the evening, when they are tired out from work and not so likely to resist you, then at any other time of the day.

Zero Hour, Berzelius Windrip
Sinclair Lewis, IT CAN’T HAPPEN HERE, New American Library (republished 2005), p. 180.

Fearing mob violence, insurrection, and the erosion of democratic norms – consequences of Benito Mussolini’s and Adolph Hitler’s propaganda, and indulgence in unrelenting and unbridled repletion of alternative facts – Sinclair Lewis wrote his 1935 tour de force dystopian novel, IT CAN’T HAPPEN HERE, depicting the slow-burning rise of an American dictator in the ilk of Il Duce and Der Führer.

Lewis, who would go on to win the Nobel Prize for Literature, had good reason to be concerned – aside from what he saw happening in Europe. Media mogul William Randolph Hearst, fond of engaging in incendiary propaganda, had defined Americanism in Trumpian style (here I am thinking of when US President Trump called the racist, anti-Semitic, Confederate-flag-waving, Ku Klux Klan Chanting demonstrators “very fine people”):

Whenever you hear a prominent American called “fascist”, you can usually make up your mind that the man is simply a LOYAL CITIZEN WHO STANDS FOR AMERICANISM.

Watching the assault on Capitol Hill and desecration of the US Congress, the citadel of the US’s democracy, who would have believed that this was the United States of America? Who would have thought that it could happen here – in the US? It was not a coup. No dictator emerged. At dawn, the Republic was still intact, though marred, bruised, tested, weakened, humbled and humiliated. Continue reading “IT CAN HAPPEN HERE – It nearly did”

The ICC-ASP Independent Expert Review: Scrutinizing the past / proposing the future

Inherent in the structure of any international court or tribunal is the dual nature of the institution: the ICC is both a judicial entity (ICC/Court) and an international organisation (ICC/IO). As a judicial entity, the Court must benefit from judicial independence. As an international organisation, States Parties reasonably expect to be able to guide and shape the institution. Contradictions can arise between the two attributes of the ICC, and in practice such differences have led to tension between the ICC and the ASP. Whereas the dual nature of the ICC cannot be changed, employing this distinction can improve the clarity of reporting lines and improve cooperation.

Independent Expert Review of the International Criminal Court and the Rome Statute System, Final Report (IER), 30 September 2020, para. 26 (internal citations omitted).

Since we are starting a new year, it may be good to reflect on the 2020 Independent Expert Review (IER) of the International Criminal Court (ICC) and the Rome Statute System, commissioned by the Assembly of States Parties (ASP):

with a view to making concrete, achievable and actionable recommendations aimed at enhancing the performance, efficiency and effectiveness of the Court and the Rome Statute system as a whole, taking full account of the working languages of the Court, and submit those to the Assembly and the Court for consideration.(( Review of the International Criminal Court and the Rome Statute System, ICC-ASP/18/Res.7 (2019), para. 6.))

Hemingwayesque in prose (modestly adorned short, plain sentences), Tolstoyesque in length (War and Peace in size and discordance), and Trumanesque in bluntness (unvarnished, curt, straight-talk), the final report of IER of the ICC is a dark, disenchanting, dispiriting read. But a must-read, nonetheless. Anyone currently working or hoping to work at the ICC, anyone working in any of the international(ized) criminal courts or tribunals, and anyone involved in establishing or aspiring to establish any future such courts, would be well served to carefully review and reflect on this report. Continue reading “The ICC-ASP Independent Expert Review: Scrutinizing the past / proposing the future”

Book Review: Lives of the Stoics – The Art of Living from Zeno to Marcus Aurelius

Lives of the Stoics – The Art of Living from Zeno to Marcus Aurelius, by Ryan Holiday and Stephen Hanselman, Profile Books, 2020, 326 pages, €19.95

Panaetius argues that if we are to live an ethical life and chose appropriate actions, we must find a way to balance:

1) the roles and duties common to us all as human beings;

2) the roles and duties unique to our individual daimon, or personal genius/calling;

3) the roles and duties assigned to us by the chance of our social station (family and profession);

4) the roles and duties that arise from decisions and commitments we have made.

Lives of the Stoics, p. 81

It has been a trying and challenging year. Although there is light at the end of this dark COVID-19 tunnel in which we find ourselves, this light – promised by miracle vaccines discovered in record time – sadly, may not come soon enough for many. The winter holiday season is supposed to make us jolly and joyful. But let’s be honest. For some, even under normal circumstances, it is not the best of times.

Marcus Aurelius wrote in Meditations, “[t]here is no role so well suited to philosophy as the one you happen to be in right now.” Words that were as relevant for his days as they are for ours. Some of us, our friends, our family members, may be or believe themselves to be in a difficult, dispirited, disconnected place with no relief on the horizon. Some of us may be blessed with unusual success, feeling euphoric. Some of us may simply be doing okay, grateful to have survived 2020 and happy to be where we are – physically, mentally, and professionally. Continue reading “Book Review: Lives of the Stoics – The Art of Living from Zeno to Marcus Aurelius”

Book Review: Just Mercy: A story of Justice and Redemption and The Guardians

Just Mercy: A story of Justice and Redemption, by Bryan Stevenson, One World (Reprint edition), 2015, 368 pages, €9.79

The Guardians, by John Grisham, Hodder & Stoughton Ltd, 2020, 384 pages, €10.75

If you think you’re too small to make a difference, try sleeping with a mosquito.

Tenzin Gyatso, the 14th Dalai Lama

On 10 December 2020, Brandon Bernard was put to death after spending 20 years on death row for his involvement in a double homicide when he was 18 years old. By all accounts, he was a model prisoner, genuinely remorseful, and rehabilitated. His dying words to the victims’ families were:

I’m sorry. That’s the only words that I can say that completely capture how I feel now and how I felt that day. Continue reading “Book Review: Just Mercy: A story of Justice and Redemption and The Guardians”

JCE Redux – THE KSC’S FIRST CONFIRMED INDICTMENT (Part 3)

It is with great relief to observe that the Pre-Trial Chamber reverses the prior order of the Co-Investigative Judges of 8 December 2009 that held JCE III applicable in relation to international crimes before the ECCC…. By the same token, the Pre-Trial Chamber declares JCE I and JCE II applicable before the court in regard to international crimes…. In doing so, the court omits to scrutinize the necessity to give these recognized forms of liability under international criminal law and in particular universal state practice law new labels.

Judge Wolfgang Schomburg(( Jurisprudence on JCE – Revisiting a Never Ending Story ))

Just as in the Wizard of Oz, when Dorothy discovers there is no wizard behind the curtain, the Pre-Trial Chamber Judges of the Extraordinary Chambers in the Courts of Cambodia (ECCC) – rebuffing the wizardry behind the curtain by thoroughly analyzing the law and jurisprudence relied on by the Tadić Appeals Chamber (and parroted by successive chambers at the ad hoc tribunals) – discovered that JCE III, founded on unsupportive and unpersuasive legal authority, did not enjoy customary international law (CIL) status. Continue reading “JCE Redux – THE KSC’S FIRST CONFIRMED INDICTMENT (Part 3)”

JCE Redux – THE KSC’S FIRST CONFIRMED INDICTMENT (Part 2)

The writer has referred to an error of the Tribunal, to which he was a party; it concerns the question whether joint criminal enterprise was customary international law insofar as it permits of a conviction without proof of intent…. [T]wo rival theories – joint criminal enterprise and co-perpetratorship – hold sway in major parts of the world, but not generally; neither is therefore entitled to be regarded as customary international law.

Judge Mohamed Shahabuddeen(( Mohamed Shahabuddeen, Judicial Creativity and Joint Criminal Enterprise, in Judicial Creativity at the International Criminal Tribunals 202-03 (Shane Darcy & Joseph Powderly, eds., Oxford University Press, 2010). ))

Judge Mohamed Shahabuddeen presided over the Tadić Appeals Chamber,(( Prosecutor v. Tadić, IT-94-1-A, Judgement, 15 July 1999, paras. 185-234 (Tadić Appeals Judgement). )) the progenitor of one of the most controversial legal issues at the ad hoc tribunals (the ICTY and ICTR) and elsewhere((Much has been written on the modes of liability and JCE. In particular, I recommend Gideon Boas, James Bischoff, and Natalie Ried, Forms of Responsibility in International Criminal Law: International Criminal Law Practitioner Library Series, (Cambridge University Press 2007); Ciara Damgaard, The Joint Criminal Enterprise Doctrine: A “Monster Theory of Liability” or a Legitimate and Satisfactory Tool in the Prosecution of the Perpetrators of Core International Crimes?, in Individual Criminal Responsibility For Core International Crimes 129 (Springer, 2008). See also William A. Schabas, Mens Rea and the International Criminal Tribunal for the Former Yugoslavia, 37 New England L. Rev. 1015 (2002); For more on my point of view, see Joint Criminal Enterprise at The ECCC: A critical analysis of two divergent commentaries on the Pre-Trial Chamber’s Decision against the application of JCE, available at http://michaelgkarnavas.net/files/JCE_at_the_ECCC_MGKarnavas.pdf.)) – the individual mode of criminal liability known as joint criminal enterprise (JCE), claimed to be a form of “commission” reflected in customary international law (CIL).(( The moniker joint criminal enterprise as an individual mode of liability has been variously and interchangeably labeled at the ICTY as “common criminal plan,” “common criminal purpose,” “common design or purpose,” “common criminal design,” “common purpose,” “common design,” or “common concerted design.” The common purpose has been more generally described to form part of a “criminal enterprise,” a “common enterprise,” and a “joint criminal enterprise.” See Prosecutor v. Brđanin and Talić, IT-99-36-PT, Decision on Form of Further Amended Indictment and Prosecution Application to Amend, 26 June 2001, para. 24.)) Continue reading “JCE Redux – THE KSC’S FIRST CONFIRMED INDICTMENT (Part 2)”

JCE Redux – THE KSC’S FIRST CONFIRMED INDICTMENT (Part 1)

This common purpose involved the commission of the crimes of persecution, imprisonment, arbitrary detention, other inhumane acts, cruel treatment, torture, murder and enforced disappearance. Its existence and contours are indicated by: (i) early public statements of the [Kosovo Liberation Army (KLA)], preceding the period of the charges; (ii) communiqués and political declarations of the KLA General Staff, public statements of KLA General Staff members, as well as other KLA publications, during the period of the charges; (iii) regulations, structures, directions and orders drafted, issued or approved by the Suspects; (iv) the pattern of crimes committed at the locations indicated under Counts 1-10; and the personal participation of the Suspects and other senior KLA/[Provisional Government of Kosovo (PGoK)] members in the commission of the crimes.

Prosecutor v. Thaçi et al., KSC-BC-2020-06/F00026/RED, Public Redacted Version of Decision on the Confirmation of the Indictment Against Hashim Thaçi, Kadri Veseli, Rexhep Selimi and Jakup Krasniqi, 26 October 2020 (“Confirmation Decision”), para. 454 (footnotes omitted).

In the heavily redacted 235-page public decision issued by the Kosovo Specialist Chambers (KSC) on 30 November 2020 confirming its first Indictment, the Specialist Prosecutor’s Office (SPO) lays out a cascade of crimes. A four-year trial lies ahead. Continue reading “JCE Redux – THE KSC’S FIRST CONFIRMED INDICTMENT (Part 1)”

Book Review – Comparative Reasoning in International Courts and Tribunals

Comparative Reasoning in International Courts and Tribunals, by Daniel Peat, Cambridge University Press, 2019, 258 pages, € 29 (paperback). Winner of the 2020 European Society of International Law Book Prize.

A word is not a crystal, transparent, and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.

Oliver Wendall Holmes, Towne v. Eisner, 245 US 418, 425 (1918)

Daniel Peat’s parting thoughts in Comparative Reasoning in International Courts and Tribunals are that if we are to “understand the complexity and contextuality that interpretation inevitably entails” in both international law and domestic law, we need to acknowledge the “mutability” that US Supreme Court Justice Holmes speaks of in Towne v. Eisner (p. 221). Put differently, when interpreting a word, a term, a rule, a law, a treaty, context matters. Any practitioner worth his salt knows this. So, what’s new? Continue reading “Book Review – Comparative Reasoning in International Courts and Tribunals”