HASPEL’S CIA NOMINATION: legality v. morality in the balance

CIA follows the law. We followed the law then. We follow the law today.

Gina Haspel, US Senate Intelligence Committee Confirmation Hearing, 9 May 2018

Gina Haspel is supremely qualified to be the next director of the US Central Intelligence Agency (CIA). For the past 33 years, she has worked her way up the CIA ladder from entry-level operative to station chief to Deputy Director. We do not know most of what she has done because the CIA – per its directives to which Haspel, as the current Acting CIA Director, is adhering – will not release most of the classified information in its files on Haspel’s activities. We do know however that she was directly – and some may say enthusiastically – involved in the CIA’s post 9/11 (2001) rendition, detention, and interrogation program, where torture (euphemistically referred to as enhanced interrogation techniques) was used with exuberant abandon.

If only the selection process for the next CIA Director was based solely on qualifications. Thankfully, it is not. Continue reading “HASPEL’S CIA NOMINATION: legality v. morality in the balance”

Part II – Panel Discussion on The Peacemaker’s Paradox: Pursuing Justice in the Shadow of Conflict

Prosecutorial Discretion & The Interests of Justice: what, when, how

In my previous post I reviewed Priscilla Hayner’s The Peacemaker’s Paradox: Pursuing Justice in the Shadow of Conflict, giving it a superb rating and recommending it to anyone working in the field of transitional justice – from mediators to civil society and human rights advocates. As I noted, Hayner draws from her wealth of experience and from her in-depth and critical examination of past efforts by various actors in the peacemaking and transitional justice chain, including international(ized) criminal tribunals and courts – most notably the International Criminal Court (ICC) – to see what has worked or failed in peacemaking. Presenting a clinical analysis of the what, how, and why of these past examples, Hayner shows that during peacemaking efforts, process matters, intrinsic to which are timing, strategy, and context. This is particularly relevant when the ICC Prosecutor exercises her authority: depending on the strategy and tactics adopted, she can be instrumental or detrimental to the peacemaking process. Continue reading “Part II – Panel Discussion on The Peacemaker’s Paradox: Pursuing Justice in the Shadow of Conflict”

Book Review – The PEACEMAKER’S PARADOX: Pursuing Justice in the Shadows of Conflict

There is no peace without justice; there is no justice without truth.

Professor Mahmoud Cherif Bassiouni

Recently, I participated in a Flash-Colloquium titled: Justice, Truth and Peace. The topic was inspired by the sage Professor Bassiouni – a giant in the field of international humanitarian and human rights law. Sadly, he left us on 25 September 2017.

The presenters were given a maximum of three minutes to speak on one of the six permutations of these three words: Truth, Justice, Peace, Peace-Justice, Justice-Truth, and Truth-Justice-Peace.

About three minutes before the start of the colloquium, I was asked to make a presentation on peace within the context of Professor Bassiouni’s refrain. I agreed, though I knew I would have to speak off-the-cuff. I began feeling uneasy when I started hearing the presentations, which ranged from the philosophical to the theoretical to the sublime (poetry). What did I really know about peace? Continue reading “Book Review – The PEACEMAKER’S PARADOX: Pursuing Justice in the Shadows of Conflict”

The Šešelj Appeal Judgement: making sense of instigation

The crux of the Prosecution’s argument on appeal is the temporal link between Šešelj’s statements [statements threatening with “rivers of blood” and using inflammatory and derogatory epithets] and the contemporaneous or subsequent commission of crimes in various locations. The Appeals Chamber considers that a reasonable trier of fact could find such a link to be tenuous in circumstances where there was a significant lapse of time between the statement and the offences, allowing for the reasonable possibility that Šešelj’s statement did not substantially contribute to the commission of the specific crimes and other factors may have influenced the conduct of the perpetrators.

Prosecutor v. Šešelj, MICT-16-99, 11 April 2018, para. 132.

On 11 April 2018, the Mechanism for International Criminal Tribunals (MICT) issued the much-anticipated judgement in Šešelj. The outright acquittal by the Trial Chamber on three counts of crimes against humanity (persecution, deportation, and the other inhumane act of forcible transfer) and six of war crimes (murder, torture and cruel treatment, wanton destruction, destruction or willful damage done to institutions dedicated to religion or education, plunder of public or private property), was greeted with disbelief and disdain – a shocker. How could this demagogue – whom many looked up to as a god-like figure (para. 147) and acted on his inflammatory refrains against non-Serbs – be acquitted?

Assuredly the Appeals Chamber would completely reverse – so the thinking was. Continue reading “The Šešelj Appeal Judgement: making sense of instigation “

Response to Professor Claudio Guillermo Morassutti’s comment on When Reality Trumps Legality and Morality

Professor Claudio Guillermo Morassutti

Professor Claudio Guillermo Morassutti of the University of Entrepreneurial and Social Sciences in Buenos Aires, Argentina, was gracious enough to provide a lengthy and insightful comment on my post Striking Syria for using chemical weapons: legality, morality, reality. Occasionally, a comment comes along that deserves more than just a brief response. This is one of them. Because of the length and depth of Professor Morassutti’s observations and for convenience, Professor Morassutti’s comment and my response appear back to back. Continue reading “Response to Professor Claudio Guillermo Morassutti’s comment on When Reality Trumps Legality and Morality”

THE ICC-OTP’S REQUEST FOR A JURISDICTIONAL RULING: bold move or timid half-step?

Two weeks ago the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) filed a request to the Pre-Trial Chamber (PTC) seeking, for all intents and purposes, an advisory opinion on whether the ICC may exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh.

Some of the commentaries on this have been interesting and insightful (see Kevin Jon Heller’s Three Cautionary Thoughts on the OTP’s Rohingya Request and Implications of the Rohingya Argument for Libya and Syria (and Jordan) in Opinio Juris, Andrea Raab’s and Siobhan Hobbs’s The Prosecutor’s Request for a Ruling on the ICC’s Jurisdiction over the Deportation of Rohingya from Myanmar to Bangladesh: A Gender Perspective in EJIL: Talk!, and Geoff Curfman’s ICC Jurisdiction and the Rohingya Crisis in Myanmar in Just Security). For the most part, I agree with these analyses. Continue reading “THE ICC-OTP’S REQUEST FOR A JURISDICTIONAL RULING: bold move or timid half-step?”

Striking Syria for using chemical weapons: legality, morality, reality

The debate goes on: was it legal for the United States, the United Kingdom, and France to strike Syria for using chemical weapons against armed “rebels” and unarmed civilians?

Image result for syria chemical weapons There seems to be sufficient evidence that Syrian government-backed forces used chemical weapons. It is not the first time, nor probably the last. Russia – whether it accepts it or not – bears responsibility for the use of what appears to be chlorine gas by the Bashar Al-Assad regime. No stranger to using chemical or biological weapons on its own nationals (albeit only sparingly and clandestinely, at least in the UK), Russia is giving aid and comfort to Assad in his use of chemical weapons. How else does one explain Russia’s involvement in blocking the Organization for the Prohibition of Chemical Weapons (OPCW) inspectors in having access to the areas and victims in question? Though Russia and Syria are claiming that this is all fake news, the direct and circumstantial evidence shows otherwise. But that is beside the point – at least for this post. I am willing to suspend belief and give the benefit of the doubt to the Russian and Syrian version of what happened in Douma until more proof is forthcoming.

My interest in this topic has more to do with the ongoing debate: whether – assuming chemical weapons were used – international law permits a state or a group of states (a coalition of the willing – as the concept has come to be known) to strike the offending state absent the United Nations’ (UN) approval? Continue reading “Striking Syria for using chemical weapons: legality, morality, reality “

Attorney-Client Privilege — The Crime-Fraud Exception

Recently there has been a sharp uptick in traffic to an October 2015 post I wrote on the crime-fraud exception to attorney-client privilege (reproduced below). This post was part of a four-part series on attorney client-privilege issues in domestic and international(ized) courts. I can only assume that the renewed interest in this subject is fueled by last week’s FBI execution of a search warrant on the office, home and hotel room of Michael Cohen, lawyer (some say “fixer”) for President Donald Trump. As I write, the issue is playing out in a United States District Court in New York, where Cohen, supported by Mr. Trump’s lawyers, is seeking an injunction to prevent the prosecutor from examining seized materials, based on attorney-client privilege.

Before this litigation is over we are likely to see a very high-profile addition to the canon of law on the crime-fraud exception to attorney-client privilege.

Attorney-Client Privilege — Part IV: The Crime-Fraud Exception

This post follows up on the discussion of the attorney-client privilege and the crime-fraud exception raised in Prosecutor v. Bemba et al. (“Bemba”) before the International Criminal Court (“ICC”). In my previous post, I presented an overview of the attorney-client privilege (otherwise known as “lawyer-client privilege” or “legal professional privilege”) in the international criminal tribunals. As previously discussed, one of the exceptions to the attorney-client privilege is the crime-fraud exception. This exception applies when communications are made in furtherance of a crime or fraud. In other words, the attorney-client privilege is not a shield to be used by either the attorney or the client to pursue or cover up criminal activity, including acts contributing to the obstruction or perversion of justice. The ICC Pre-Trial and Trial Chamber decisions in Bemba raise several questions concerning the scope of this exception. Before I get into those questions, let’s briefly review the history of the case. Continue reading “Attorney-Client Privilege — The Crime-Fraud Exception”

INTERVIEW: Prlić et al. in retrospect

Gloria Lujanović

I was recently contacted by Gloria Lujanović, a journalist in Bosnia and Herzegovina working for Dnevnik.ba and asked whether I would be willing to answer some questions about the Prlić et al. case now that six months have passed since the appeals judgment was rendered. Presumably she was interested in whether my views have evolved. Might my perspective (see here, here and here) be different now that I have had some distance from that fateful day when General Slobodan Praljak defiantly (I would say honorably) took his life, rather than accept what he (and others, such as myself) believed were the unjust results of a terribly flawed trial that yielded an error-riddled judgment – a judgment which, regrettably, the Appeals Chamber failed to cure? On 30 March 2018, Ms. Lujanović posted the Q&A in Dnevnik.ba: Karnavas: Alija Izetbegović je trebao na optuženičku klupu, suđenje hercegbosanskoj šestorci farsa, nalik cirkusu / Karnavas: Alija Izetbegović should have been prosecuted, the trial against the six from Herceg-Bosnia was a farce, and resembled a circus.

Here is the English version of the Q&A: Continue reading “INTERVIEW: Prlić et al. in retrospect”

BOOK REVIEW – A Conviction In Question: The First Trial at the International Criminal Court

The Court and this trial were different. It was a Court for nearly all places and all times promising something most everyone in the world wanted badly, even if some state authorities remained wary. It was to bring tyrants to account, punish them according to their crimes, and give pause to others with tyrannical pretentions.

…

It was not just what kind of justice would be rendered for Lubanga. The Court itself was on trial.… Lubanga’s atrocities spoke for themselves, or so it appeared. They were well known in his country. They were well known abroad among the international organizations that had been forced to intervene to protect his victims, and they were well known among human rights organizations whose reporting brought his crimes to word attention. Something would have to go woefully askew for the trial to end up questioning the severity of the crimes. And yet, as the trial unfolded, the crimes became strangely and increasingly beside the point, buried under a spectacle of legal combat between counsellors who seemed more concerned with prevailing in the courtroom than worrying about what atrocities had been committed in Ituri and how to assign responsibility.

A Conviction In Question: The First Trial at the International Criminal Court, by Jim Freedman, University of Toronto Press, 2017, $32.95, 219 pages, pp. xiii, xvi-xvii

After reading Mark Kersten’s review of A Conviction In Question: The First Trial at the International Criminal Court by Jim Freedman, Professor Emeritus at Western University Ontario’s Department of Anthropology, I was intrigued. Could I have been so off on my assessment of the Lubanga trial? Continue reading “BOOK REVIEW – A Conviction In Question: The First Trial at the International Criminal Court”