michaelgkarnavas.net/Blog

Striking Syria: is there international law or is there only power?

Was President Trump legally justified in striking Syria over Assad’s use of chemical weapons?

In February 2014, I was invited by the Brown University International Organization to hold a seminar: Red lines and Game Changers – The Legality of Unilateral or Collective Use of Force in Syria. The topic was inspired by President Obama’s public pronouncement that any use of chemical weapons by the Assad regime would cross a read line, bringing to bear a military reaction by the U.S. with or without approval from the United Nations Security Council (UNSC). Continue reading “Striking Syria: is there international law or is there only power?”

And the waiting goes on …

Oral arguments in Prlić et al. concluded this Tuesday before the International Criminal Tribunal for the former Yugoslavia (ICTY) Appeals Chamber – some 12 years since I began representing Dr. Jadranko Prlić. The Appeal Judgement is expected by November. When all is said and done, it will have taken over 13 years from the time the accused turned themselves over to the ICTY to the conclusion of the appeal proceedings.

What a journey! Lawyers, assistants, investigators, and interns have come and gone. Babies born, brothers, sisters, mothers, and fathers departed. Heart attacks suffered, kidneys replaced, weight gained, hair lost. Engagements, affairs, marriages, and divorces. And wrinkles, lots of wrinkles. No one spared. Continue reading “And the waiting goes on …”

Sentencing Judgment in Article 70 case at the ICC: No accumulation of sentences, suspended sentences & deduction of time

On 22 March 2017, the Trial Chamber VII of the International Criminal Court (ICC) pronounced the sentences in the Bemba et al. Article 70 case, following its judgment on 19 October 2016, where it found Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu, and Narcisse Arido guilty of various offenses against the administration of justice in Prosecutor v. Jean-Pierre Bemba Gombo (Main Case).

Three interesting points came out of the sentencing: 1) even if an accused is convicted of multiple Article 70 offenses, the maximum sentence he or she can face is five years; 2) the Trial Chamber has inherent discretionary power to suspend a sentence; and 3) time may be deducted in cases where the accused is already serving his or her sentence in another case. Continue reading “Sentencing Judgment in Article 70 case at the ICC: No accumulation of sentences, suspended sentences & deduction of time”

Bakir Izetbegović’s political stunt quashed by the International Court of Justice

The Court duly examined the various communications described above. The Court considered that their content demonstrates that no decision has been taken by the competent authorities, on behalf of Bosnia and Herzegovina as a State, to request the revision of the Judgment of 26 February 2007 in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia), and that it is therefore not properly seised of the matter. Accordingly, no action can be taken with regard to the document entitled “Application for revision of the Judgment of 26 February 2007 in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia)”(( International Court of Justice, Press Release No. 2017/12, Document entitled “Application for revision of the Judgment of 26 February 2007 in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia)”, Statement by H.E. Judge Ronny Abraham, President of the International Court of Justice, 9 March 2017, p. 2.))

As predicted, the International Court of Justice (ICJ) made short work of the so-called Bosnian application to have the 2007 decision in the Serbia Genocide case revised (reconsidered). Swiftly and unceremoniously, Bakir Izetbegović’s request was dismissed for what it was: a divisive political ploy to garner publicity, devoid of any legal grounding and – surprise, surprise – ultra vires to boot. Continue reading “Bakir Izetbegović’s political stunt quashed by the International Court of Justice”

Bosniak Member of the BiH Presidency asks the ICJ to reconsider the Serbia Genocide Case

“It’s like déjà vu all over again.”(( Perhaps the most memorable and exquisite quote of American professional baseball player, manager, coach, and Hall of Famer, Yogi Berra.))

On 23 February 2017, it was reported that “Bosnia” filed a formal request with the International Court of Justice (“ICJ”) to reconsider its 2007 decision in the Serbia Genocide case, in which it found that Serbia had neither been involved in nor committed genocide. The ICJ did however find, curiously, that Serbia “violated the obligation to prevent genocide, under the Convention on the Prevention and Punishment of the Crime of Genocide, in respect of the genocide that occurred in Srebrenica.”(( International Court of Justice (“ICJ”), Case Concerning Application of The Convention on the Prevention and Punishment of The Crime of Genocide, Bosnia and Herzegovina v. Serbia and Montenegro, Judgment, 26 February 2007, para. 471.))

Bosnia and Herzegovina (“BiH”), the actual name of the country, did not file for reconsideration. What was submitted to the ICJ – which has yet to be made public((Last checked 7 March 2017, the ICJ public record does not show the application filed on the 23^rd of February 2017. )) – was a unilateral request by one of the three members of the BiH Presidency, Bakir Izetbegović (the son of Alija Izetbegović), currently serving as the Bosniak member of the Presidency of BiH.

Some facts may be useful to understand why this request indubitably is a political ploy, a publicity stunt, not a legitimate request that merits consideration by the ICJ. Continue reading “Bosniak Member of the BiH Presidency asks the ICJ to reconsider the Serbia Genocide Case”

“But Duch is a senior leader/most responsible while Chaem is not?”

Michael,

I notice that you express admiration for Judge Bohlander’s integrity here but do not say the same for Judge Bunleng. I presume this is because he refused to investigate at all in Cases 003/004? It’s been several years since I followed KRT developments closely. Perhaps you can enlighten me.

We have yet to see the reasoning behind the dismissal for Chaem and I know very little of Judge Bohlander, having left the country some time before he started work.

But to a non-legal observer, two very sad questions jump to the fore:

1) OCIJ’s decision not to exercise jurisdiction over Chaem took eight years. Isn’t this what lawyers would call a “threshold” matter best disposed of at the beginning? And can’t it be decided without examining much of the evidence supporting the charges?

I interviewed victims and witnesses from crime scenes allegedly overseen by Chaem. They told me how much they suffered.

Did this process build up hopes of justice only to let them down, not by deciding guilt or innocence but on what to the general public will appear to be an abstruse technicality? One baked into the process not by impartial judges but during heavily politicized negotiations?

2) Please help me understand — how could the ECCC accept jurisdiction over Duch but not over Chaem? In making this decision, is Judge Bohlander at odds with the court’s own jurisprudence?

Duch may have been responsible for the systematic extermination of 12,000 to perhaps 20,000 people. Chaem, if rough OCP estimates are to be believed, had a hand in a number of deaths that could quadruple the upper bound of Duch’s death toll.

But Duch is a senior leader/most responsible while Chaem is not?

Douglas Gillisson((Douglas Gillison, an investigative reporter, has written for Time, the Village Voice, the New York Times and Foreign Policy. He was a staff writer at 100Reporters from 2013 to 2016. He served as Executive Editor of the Cambodia Daily from 2009 to 2011 and covered the ECCC from 2006 to 2011.))

Thank you, Doug, for your comment and questions!

My “express admiration for Judge Bohlander’s integrity,” as you put it, is no reflection, as you seem to suggest, that I find Judge You Bunleng to have less integrity or to be less deserving of appreciation. By your own admission, you have not been following the Extraordinary Chambers in the Courts of Cambodia (“ECCC”) for years. You are also not privy to much of what the Office of the Co-Investigating Judges (“OCIJ”) has done, how it has been functioning, how it interacts with the parties, and, most of all, how the two Co-Investigating Judges work together. Continue reading ““But Duch is a senior leader/most responsible while Chaem is not?””

International Observers to Saif al-Islam Gaddafi: don’t count on ne bis in idem

What? The trial of Saif al-Islam Gaddafi was unfair? Shocking!

The United Nations Support Mission in Libya (UNSMIL) and the United Nations Office of the High Commissioner for Human Rights (UNOHCHR) urge Libya to turn over Saif al-Islam Gaddafi, son of the late Muammar Gaddafi who ruled over Libya for 42 years, to the International Criminal Court (ICC) for a proper trial.(( United Nations, Support Mission in Libya and Office of the High Commissioner for Human Rights, Report on the Trial of 37 Former Members of the Qadhafi Regime (Case 630/2012), 21 February 2017, p. 55, para. 9.)) Surprise, surprise. Or not! Continue reading “International Observers to Saif al-Islam Gaddafi: don’t count on ne bis in idem”

When indiscretion leads to misinformation: irresponsible and impugning comments concerning Cases 003 and 004 at the ECCC

Judge You Bunleng (l) and
Judge Michael Bohlander (r)

On 22 February 2017, the Co-Investigating Judges at the ECCC decided to dismiss the case against Ms. Im Chaem finding that she did not meet the ECCC jurisdictional requirements of being a senior leader or one of those most responsible for alleged crimes during the Democratic Kampuchea regime during the ECCC’s temporal jurisdictional period of 17 April 1975 to 6 January 1979.

Almost immediately after the decision was made public, critics began beating the drums. Expected. Decisions of this sort can be disappointing, especially to civil parties / victims. Lost in the scrum of blame-fixing are the facts. Continue reading “When indiscretion leads to misinformation: irresponsible and impugning comments concerning Cases 003 and 004 at the ECCC”

Book Review – The Rohingyas: Inside Myanmar’s Hidden Genocide

The Rohingyas: Inside Myanmar’s Hidden Genocide, By Azeem Ibrahim. 235 pages. C. Hurst & Company, 2016. $23.50.

The rejection of citizenship rights for Rohingyas, denial of freedom of movement, eviction campaigns, violence against Rohingya women, forced labour, expulsion from their lands and property, violence and torture have made Myanmar’s ethnic Rohingyas the most persecuted minority in the world. I humbly add my voice to the simple demand of the Rohingya people: that their rights as our fellow human beings be respected, that they be granted the right to live peacefully and without fear in the land of their parents, and without persecution on grounds of their ethnicity or their form or worship.

Nobel laureate Muhammad Yunus, Foreword

In a few words, Muhammad Yunus encapsulates the plight of the Rohingyas and the essence of Azeem Ibrahim’s The Rohingyas: Inside Myanmar’s Hidden Genocide (hereinafter “The Rohingyas”). Citizenship, or the lack of it, is at the center of all that troubles the Rohingyas in the northern Rakhine State (“nRS”) of Myanmar. The discrimination and persecution they have endured over the decades in no small measure is due to the question of their origin. Where are they from? When did they arrive in Myanmar? How did they arrive in Arakan (Rakhine)? Are they indigenous or recent transplants? How far back must their existence in Arakan be established before they can be viewed and accepted as citizens of Myanmar?

Theories abound. So what? Continue reading “Book Review – The Rohingyas: Inside Myanmar’s Hidden Genocide”

Myanmar’s disproportionate security response to the Muslim insurgency in the northern Rakhine State & its indiscriminate attacks against the Rohingyas: a perfect storm for a mass atrocity

A heavy-handed security response that fails to respect fundamental principles of proportionality and distinction is not only in violation of international norms; it is also deeply counterproductive. It will likely create further despair and animosity, increasing support for HaY [Harakah al-Yaqin (Faith Movement)] and further entrenching violence. International experience strongly suggests that an aggressive military response, particularly if not embedded in a broader policy framework, will be ineffective against the armed group and has the potential to considerably aggravate matters.

International Crisis Group Report, Myanmar: A New Muslim Insurgency in Rakhine State, 15 December 2016((International Crisis Group, Asia Report N°283, Myanmar: A New Muslim Insurgency in Rakhine State, 15 December 2016, Executive Summary, p. ii (“ICG Report”). ))

I have previously intimated that the Myanmar government may be flirting with acts of genocide by being involved in or turning a blind eye to the human rights violations against the Rohingyas in the northern Rakhine State (“nRS”). Three weeks later, on 3 February 2017, the United Nations (“UN”) Office of the High Commissioner for Human Rights (“OHCHR”) mission to Bangladesh issued a report (“OHCHR Report”). Apropos.

Though I do not consider myself a human rights advocate (international criminal defense lawyers are hardly viewed as humanitarians), I was prompted by the OHCHR Report to do a bit more digging. Recognizing the challenges involved in appreciating the complexities of the situation in Myanmar, the historical context of the Rohingyas in the nRS, and the ongoing events as they are unfolding (it is hard to get complete and accurate information), I will nonetheless attempt to offer an assessment of what I believe is the making of a perfect storm for a mass atrocity. Continue reading “Myanmar’s disproportionate security response to the Muslim insurgency in the northern Rakhine State & its indiscriminate attacks against the Rohingyas: a perfect storm for a mass atrocity”