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Representing Multiple Witnesses: a risky gambit

It’s a general pool type of relationship where, if a conflict arises, where everyone in good faith will try to figure out what the best way to proceed is. I can never be adverse to one of those guys.

William Burck in Darren Samuelsohn, Bannon Lawyer Juggles Clients, Risks Conflicts in Russia Probe, POLITICO, 25 January 2018

A conflict of interest between an attorney and a client arises in any situation where, by reason of certain circumstances, representation by such an attorney prejudices, or could prejudice, the interests of the client and the wider interests of justice. Most systems of law have rules governing the participation of an attorney in a trial when there is a conflict of interest between the attorney and the client; such a conflict affects the essential fairness of the trial, and in respect of the Tribunal, implicates, first, the responsibility of the Trial Chamber … to ‘ensure that a trial is fair … with full respect for the rights of the accused…,’ and secondly, the right of the accused … to a fair trial.

Prosecutor v. Simić et al., IT-95-9-PT, Decision on the Prosecution Motion to Resolve Conflict of Interest Regarding Attorney Borislav Pisarević, 25 March 1999, p. 6.

Whose interests are you really looking after when you represent multiple clients in a case?

Imagine you are called upon to represent several witnesses in an ongoing investigation. As you conduct your initial interview with these potential clients, can you guarantee that you can fully, fairly, and forthrightly represent their interests, that you will utterly respect and keep secret any information they pass on to you, that you will not compromise their interests while zealously representing one of the other potential clients/witnesses, that you will not suggest an adjustment of perceptions or inferences drawn from a memory of events, or that you will not abandon any of the potential clients midway through the case after amassing institutional memory for a handsome, non-refundable fee?

Identifying and dealing with conflicts of interest can be pesky, especially when there are huge fees and/or lots of publicity to be had. Indulging in self-delusion that a conflict does not really exist – or that if one does, there is a way around it (all the stars are aligned) – is not as uncommon as one might expect, even amongst the very best of lawyers. Whether it is greed, publicity, irrational self-confidence, or profound obliviousness that causes lawyers to ignore or attempt to minimize conflicts matters not. What is at stake is the client’s fate. Continue reading “Representing Multiple Witnesses: a risky gambit”

ARGUING YOUR CLIENT’S GUILT OVER HIS OBJECTIONS AS A SENTENCE-MITIGATION STRATEGY: An ethically impermissible objective

People can walk themselves into jail. They can walk themselves, regrettably, into the gas chamber. But they have a right to tell their story.

U.S. Supreme Court Justice Sonia Sotomayor

Is it constitutionally permissible for defense counsel to admit his client’s guilt over the client’s express objection?

This was the question argued before the U.S. Supreme Court last week on 17 January 2018, in Robert McCoy v. Louisiana. At play is the Sixth Amendment of the U.S. Constitution:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. Continue reading “ARGUING YOUR CLIENT’S GUILT OVER HIS OBJECTIONS AS A SENTENCE-MITIGATION STRATEGY: An ethically impermissible objective”

The MICT’s opaque practice of varying witness protective measures: time to recalibrate

[T]he Mechanism is making excellent progress with its judicial work in general, all the while continuing to learn from experience, and recalibrating internal practices as necessary to ensure optimal efficiency and economy.

MICT President Theodor Meron’s Address to the UN Security Council, 7 June 2017

Reflecting on last year’s events, I noted how the Mechanism for International Criminal Tribunals (MICT) – the post-conviction judicial institution which has taken over all residual matters of the now-defunct International Criminal Tribunal for Rwanda (ICTR) and International Criminal Tribunal for the former Yugoslavia (ICTY) – was working efficiently, though parsimoniously (providing no legal aid to convicted persons unless any claims for post-conviction relief prepared by pro bono defence counsel are found to be meritorious). In retrospect, I should have presented a more guarded and less sanguine picture. It seems I may have been too generous in my assessment. Mea culpa. Continue reading “The MICT’s opaque practice of varying witness protective measures: time to recalibrate”

BOOK REVIEW: Legal Responses to Transnational and International Crimes – Towards an Integrative Approach

Legal Responses to Transnational and International Crimes – Towards an Integrative Approach, edited by Harmen Van der Wilt and Christophe Paulussen, Edward Elgar Publishing, 2017, 301 pages, £90

As a triggering condition for international coordination through the suppression conventions – and thus for what we might call transnational criminal law – transnationality is a relatively vacant concept, probably because it has no obvious general moral or metaphysical content, and surprisingly little attention has been paid to it.

Neil Boister, Chapter 2, p. 33

Turn on the news on any given day and you are inundated with stories about mass atrocities, terrorism, human trafficking, piracy, money laundering, cybercrime, and so on. You hear journalists, politicians, pundits, and occasionally “experts” characterize these crimes as “international crimes.” But are they?

Because these crimes transcend national borders, having – to some extent – an international character, may give the impression that they neatly fit within the ambit of International Criminal Law. Piracy on the high seas is a good example. It most certainly has an international character, and while it has been considered an international crime, it is not in the strictest sense (or as scholars say, “international crime stricto sensu”), if one applies this definition to the “core crimes” prosecuted at the ICC, for instance. The same can be said for terrorism, human trafficking, cybercrime, and so on. It does not mean that under certain sets of circumstances, these crimes – such as cyber-terrorism – would not amount to crimes against humanity, and thus international crimes stricto sensu. Save for war crimes, crimes against humanity, and genocide (and now for some states, aggression), these crimes are generally considered transnational crimes, falling within the ambit of Transnational Criminal Law (TCL) and are punished in national, as opposed to, international courts. Continue reading “BOOK REVIEW: Legal Responses to Transnational and International Crimes – Towards an Integrative Approach”

Reflections on 2017: past is prologue

In 1788, Robert Burns, Scotland’s prodigious poet who is universally loved for his simple yet penetrating versus, penned the words to Auld Lang Syne – a song usually heard the world over on New Year’s Eve. Hard to find a Scot who does not know the words to and meaning of Auld Lang Syne (or the lines to most of Bobby Burns’ poems for that matter). But in case you have ever wondered, it basically means “a long time ago,” “days gone by,” or “for old times’ sake.”

In 1788 the Robert Burns sent the poem ‘Auld Lang Syne’ to the Scots Musical Museum, indicating that it was an ancient song but that he’d been the first to record it on paper.¹

The poem/song is about looking back at old memories and friendships, reminding us to cling to these special moments and bonds as we are about to forge ahead into the New Year. But it is not so much about not letting go, as opposed to not forgetting – about cherishing past friendships and the past.

Caught in the moment of singing along (or trying like the devil to remember the lines we have mechanically mumbled through in previous years) as we celebrate the coming of the New Year and make our soon-to-be unkept resolutions, we tend to unconsciously ignore the biddings of Auld Lang Syne to reflect on the year passed. Imprudently, we habitually delude ourselves into thinking that looking in the rearview mirror is a superfluous indulgence that risks impeding our desire (and perhaps necessity) of letting go of the past for the sake of moving on.

With time waiting for no one, we have already started pressing into 2018. Unquestionably, 2018 promises to be an interesting year – if for no other reason than because of 2017. Hard to predict what is in store over the next 12 months, though much like examining a treasure map or a crossword puzzle, reflecting on some of the events over the past 12 months provide us with abundant clues. Not intending to present a summary of world affairs (such as The Economist, Time Magazine, and others do every December), I will merely refer to some of the events I have posted on, primarily limited to international criminal law (ICL) matters. And for anyone interested in what I have posted in 2017, here is a chronological list. You can also check the archives section of my blog. Continue reading “Reflections on 2017: past is prologue”

https://www.scotland.org/features/the-history-and-words-of-auld-lang-syne [↩]

THE 2017 DEFENSE LAWYER PROFILE OF COURAGE

Marine Brigadier General John Baker, Chief Defense Counsel, Military Commissions Defense Organization

Put simply, the military commissions in their current state are a farce …. Instead of being a beacon for the rule of law, the Guantanamo Bay military commissions have been characterized by delay, government misconduct and incompetence, and even more delay.

Brigadier General John G. Baker, Keynote Speech, 15 September 2017

On 1 November 2017, Marine Brigadier General John Baker, Chief Defense Counsel of the Military Commissions Defense Organization at Guantanamo Bay(( The Military Commissions are a post-9/11 war crimes trial system, which prosecutes detainees held in the US Guantanamo Bay detainment camp.)) was held in contempt and sentenced to 21 days confinement and a $1000 fine by the Military Judge, Colonel Vance Spath. After serving two days, he was released by the Convening Authority (CA),(( The Office of the Convening Authority is responsible for the overall management of the military commissions process, including logistics and personnel support. The Convening Authority is empowered to convene military commissions, refer charges to trial, negotiate pre-trial agreements, and review records of trials. The Convening Authority also provides the accused an opportunity for clemency before taking action on the findings and sentence of all military commission cases.)) Director of the Office of Military Commissions Harvey Rishikof, just before his Habeas Corpus petition of unlawful detention was about to be heard by Judge Royce C. Lamberth of the US District Court for the District of Columbia. Continue reading “THE 2017 DEFENSE LAWYER PROFILE OF COURAGE”

To opt-out or to opt-in, that is the crime of aggression

Confirms that … in the case of a state referral or proprio motu investigation the Court shall not exercise its jurisdiction regarding a crime of aggression when committed by a national or on the territory of a State Party that has not ratified or accepted these amendments.

Draft Resolution proposed by the Vice-Presidents of the Assembly Activation of the jurisdiction of the Court over the crime of aggression, ICC-ASP/16/L.10, 14 December 2017

On 14 December 2017, the Assembly of States Parties (ASP) activated by consensus the crime of aggression amendments adopted during the Kampala Review Conference in 2010. It had been agreed that the amendments would not be activated until at least 30 States Parties ratified the amendments and until the ASP decided to activate them.

The crime of aggression was already listed in the Rome Statute as the fourth crime when the States Parties signed on to it, but the International Criminal Court (ICC) would only exercise jurisdiction over this crime once a provision would be “adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime.” So, while the crime of aggression has been on the books, as it were, it was not defined, and the States Parties effectively provided themselves (their political leaders and military elite – the usual suspects in waging war) an escape clause. The adopted Draft Resolution is a manifestation of this escape clause. Continue reading “To opt-out or to opt-in, that is the crime of aggression “

The Legacy Game: embroidering achievement while concealing failures

No sooner than an international(ized) criminal tribunal or court is established, it begins thinking of its legacy: what sort of bragging rights it can hope to claim as its contribution to the development of international criminal law and justice. This term is rarely heard in domestic settings, unless discussing some dark past in a State’s judicial affairs, such as the Inquisition or Star Chamber, or when the US Supreme Court ruled that it was constitutional for the US government to intern a segment of its citizens based on race, or imprison indefinitely so-called enemy combatants on an offshore military base. The negative connotation of legacy in these situations is seen as the aberrations in the life span of a nation’s history – something to remember and learn from, and to avoid.

At the international(ized) criminal tribunals and courts, however, legacy seems to mean something else – at least to the Presidents, Prosecutors, and Registrars. To them, legacy seems to be something that reflects only the positive, the achievements, the favorable statistics: how many trials were conducted, how many convictions resulted, what positive jurisprudence was generated, and of course, why other courts should be so lucky as to have such a successful track-record. Continue reading “The Legacy Game: embroidering achievement while concealing failures”

Karnavas Responds to John Doe’s Comment on Post: General Slobodan Praljak’s honorable defiance

I greatly appreciate that many colleagues and interested persons have taken the time to comment on my recent post: General Slobodan Praljak’s honorable defiance. One comment in particular, posted by “John Doe”, warrants a response. Below the comment is reproduced, followed by my response. Continue reading “Karnavas Responds to John Doe’s Comment on Post: General Slobodan Praljak’s honorable defiance”

General Slobodan Praljak’s honorable defiance

Ukoliko želite pročitati ovaj tekst na hrvatskom jeziku kliknite ovdje.

Having listened to the summary of the Appeal Judgment and having stood up to hear the litany of crimes affirmed by the Appeals Chamber before his sentence of 20 years was upheld, General Slobodan Praljak took his own life by drinking poison – but not before expressing his utter contempt for the Judgment, and by extension, his contempt for the Judges and the ICTY as a judicial institution.

Questions abound. How did General Praljak smuggle the vial of poison into the courtroom? How could he have gotten it through the numerous check-points where he would have been searched? Did he have it on him when he arrived at the ICTY? Did someone smuggle it to him there? Or, was it waiting for him at the ICTY, secretly planted in his cell or in the toilet?

Relevant as these questions are, few are asking what I think is perhaps the more important question: why did General Praljak take his life? Continue reading “General Slobodan Praljak’s honorable defiance”