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The Mahmoud Mustafa Busayf Al-Werfalli Indictment: Picking low-hanging fruit or chasing windmills

On 15 August 2017, the International Criminal Court (ICC) issued an arrest warrant for Libyan military commander Mahmoud Mustafa Busayf Al-Werfalli, accused of having committed or ordered 33 murders in Benghazi or surrounding areas from June 2016 to July 2017. The supporting evidence suggests that the Office of the Prosecutor (OTP) has overwhelmingly met the rather low threshold of “reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court” (Article 58(1)(a) of the Rome Statute) in charging Al-Werfalli. Should this case to go to trial, Al-Werfalli will find that he has stacked the deck against himself: video footage of him conducting summary executions of captives published on social media.

As cases go, this is a prosecutor’s dream. For the OTP, this must have been one of those cases that is just too good to pass up. But is it? The 33 victims deserve justice, but is the ICC able to deliver it? And at what cost? Continue reading “The Mahmoud Mustafa Busayf Al-Werfalli Indictment: Picking low-hanging fruit or chasing windmills”

The dark shadow of US political interference at the ECCC: no free lunch

On 11 August 2017, the Co-Investigating Judges of the Extraordinary Chambers in the Courts of Cambodia (ECCC) rendered their decision on the impact of the budgetary situation on Cases 003, 004, and 004/2. Last week I wrote about it, encouraging readers to review it. Analysis aside, nothing beats the original source, especially when it is well-reasoned and well-crafted.

So why the post? Well, for those who may not have the time or may not wish to get too much into the nitty-gritty of the comings and goings of the ECCC, there is one aspect of the decision that deserves scrutiny: the actual or perceived political interference in Case 003 by one of the major donors of the tribunal, the US. Continue reading “The dark shadow of US political interference at the ECCC: no free lunch”

The ECCC Co-Investigating Judges on ensuring respect for procedural safeguards in Cases 003, 004, and 004/2

It surely is common acquis among “civilized nations” in the meaning of Article 38(1)(d) of the Statute of the International Court of Justice by now that judges also have to ensure respect for the procedural safeguards in criminal proceedings.

ECCC Co-Investigating Judges (Combined Decision, para. 17)

If you practice international criminal law – no matter in which venue or capacity – the recent Decision handed down by the Co-Investigating Judges (CIJ) of the Extraordinary Chambers in the Courts of Cambodia (ECCC) dealing with the impact of the budgetary situation on Cases 003, 004, and 004/2 is worth reading. Sans hyperbole, it is impressive, illuminating, and instructive.

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

Ever since the CIJ requested the parties (Prosecution, Defence, and Civil Parties) and the ECCC Office of Administration (OA) to make submissions on the possibility of a permanent stay of the proceedings due to a lack of funding on 5 May 2017 (Request), there has been lots of drama in the form of mischaracterizations, disinformation, misunderstandings, and genuine concern, swirling around the ECCC (see here, here, here, here, and here). I doubt the drama will subside with this Decision, as it ought to – at least for the time being. The CIJ have stirred up a hornet’s nest, deservedly so. Continue reading “The ECCC Co-Investigating Judges on ensuring respect for procedural safeguards in Cases 003, 004, and 004/2”

Book Review: Scott Turow disappoints and affronts in Testimony

Few can match Scott Turow’s writing and storytelling abilities. Very few. Over the years he spoiled us with his prose, his canny insight, his attention to detail. His freshman work, One L, was a must-read for a generation of law students. Some of the courtroom scenes in Presumed Innocent are as riveting as they are authentic. And Identical, his last novel before his recently released Testimony, was a true masterpiece, capturing all the nuances of Greek and Greek-American culture.

So, with deep regret, I suggest that if you were looking to escape (or vacate as I put it) from the daily pressures with a good novel – especially one that may hit close to home – Turow’s Testimony is not one of them. If you have yet to set off for the beach, pull it from your bag and grab something else (perhaps the new John Grisham novel, Camino Island) desist from buying it at the airport while waiting for your flight, and refrain from gifting it to a friend or colleague. Harsh warnings, but I think justifiable. Continue reading “Book Review: Scott Turow disappoints and affronts in Testimony”

VACATIONING WITHOUT VACATING: an imperative for reflecting on the Blood Telegram

It is vacation time in Europe, where many of those working in the international(ized) tribunals and courts have taken off for the summer recess. One way of describing vacation is taking a leave of absence to do fun and enjoyable things such as visiting exciting places, laying on the beach, camping out, and so on. Another way to describe it is to vacate; to vacate from the grind at work, from the daily chores, from the pressures that come with being a responsible adult. More importantly, or should I say satisfying, vacationing is about vacating from thinking about matters that we, as members of our community, citizens of our states, and inhabitants of this planet, should care about. Continue reading “VACATIONING WITHOUT VACATING: an imperative for reflecting on the Blood Telegram”

Taking the international out of justice: An imaginary conversation on the ICC’s Decision on South Africa

A woman dressed in a traditional Sudanese thobe walks out of Courtroom I of the International Criminal Court on 6 July 2017, having heard the decision of Pre-Trial Chamber II on the Situation in Darfur, Sudan – In the Case of the Prosecutor v. Omar Ahmad Al-Bashir. Shaking her head slightly, she has a look of disbelief, visibly upset. She is a Darfur victim, having moved to the Netherlands several years ago. Next to her is a smartly dressed gentleman, obviously someone important – or at least his appearance would so suggest: gold-rimmed round glasses, bespoke summer suit, crisp white shirt, with a stylish Montblanc pen visibly displayed in the pocket of his contrasting vest, glimpses of his tastefully matching Montblanc cuff links and Orbis Terrarum pocket watch, casually knotted bow tie, holding a white Panama hat of definite high quality, and a mahogany handled umbrella – probably an affectation but then one can never be too prepared in The Hague no matter the time of the year.

Suddenly, without the slightest trace of ambivalence, the woman turns to the gentleman and asks: What just happened? I thought I heard the Judges find that South Africa failed to comply with its obligation to arrest Al-Bashir but then said there was no need to do anything about it? If that’s the case, what’s the point of all of this? I thought the United Nations Security Council (UNSC) referred Al-Bashir to the International Criminal Court (ICC)? If there is an arrest warrant out for him, how can he have immunity? And if South Africa signed on to the ICC, why is it not cooperating? I don’t get all this stuff about South Africa having to consult with the ICC to figure out the obligations it agreed to under the Rome Statute. Continue reading “Taking the international out of justice: An imaginary conversation on the ICC’s Decision on South Africa”

Book Review: International Criminal Justice by Gideon Boas and Pascale Chifflet

International Criminal Justice by Gideon Boas and Pascale Chifflet, Edward Elgar Publishing, 2017, 235 pages, £ 80.00

How does what has been done, and what is to come, leave the world? Can we really ameliorate the horror of mass atrocity; can our responses be seen as a normative shift toward more accountability and prevention? Or are we merely travelling in circles? (p. x)

Reflecting on international criminal justice in the context of war crimes trials, Gideon Boas and Pascale Chifflet muse:

“[C]an it be said that war crimes trials are a successful method of achieving international criminal justice? Do they at least contribute to ending impunity? Are they really a deterrent for murderous dictators and would be genocidaires? Do they promote reconciliation in transitional communities? Or do they adversely impact on community rebuilding and on victims’ need to establish the truth, to be heard and to take control of their own narrative?” (pp. 7-8, italics added)

In International Criminal Justice, Boas and Chifflet attempt, among other things, to answer this set of questions, or better yet, to lay out and comment on the divergent views held on what is international criminal justice and how to achieve it. Balanced and measured in recounting the views of others, Boas and Chifflet interject their own nuanced and qualified views without imposing them on the reader, allowing space for reflection. If there are strengths to this text – and there are many – this one stands out. Continue reading “Book Review: International Criminal Justice by Gideon Boas and Pascale Chifflet”

Distrusting the Standard Total View: A Tribute to Michael Vickery

Michael No. 2 (l) with Michael No. 1 – Michael Vickery

On 29 June 2017, Michael Vickery, the legendary historian on Southeast Asia and perhaps the very best expert on ancient Khmer (Cambodian) civilization, passed away. He was, as one writer put it, a historian’s historian. I knew Vickery (or Michael no. 1 as I kiddingly referred to him when his name came up) for over two decades. I had the privilege of spending hundreds of hours with him. We talked about history and politics, but mostly about the pre-Khmer Rouge period when he first came to Cambodia, his research on the Khmer Rouge period (formally known as Democratic Kampuchea – “DK”), which generated several articles and perhaps one of the most lucid texts on that period, Cambodia 1975-1982, and the post-DK / post-Paris Peace Accords (1991) Cambodia. Vickery was my friend, my teacher, and when it came to critical historical analysis from which credible conclusions could be drawn, my mentor. Continue reading “Distrusting the Standard Total View: A Tribute to Michael Vickery”

Kosovo Specialist Chambers – Part 7: The Code of Judicial Ethics

This is the final post in my series on the Kosovo Specialist Chambers (“KSC”), a hybrid internationalized set of chambers founded to try war crimes, crimes against humanity, and other crimes under Kosovo law committed during the aftermath of the conflict in Kosovo (1998-2000).

For those of you who are just picking up on this series, a brief recap before diving into the Code of Judicial Ethics for Judges Appointed to the Roster of International Judges of the Kosovo Specialist Chambers (“KSC Code of Judicial Ethics”).

The KSC was established on 3 August 2015 with the passing of the Law on Specialist Chambers and Specialist Prosecutor’s Office (“KSC Statute”) and an amendment to the Kosovo Constitution by the Kosovo Assembly, following a report by the Council of Europe and investigations by a Special Investigative Task Force into alleged organ harvesting and various war crimes and crimes against humanity committed in the fallout of the conflict in Kosovo. Soon after being sworn in, the Judges adopted the KSC Code of Judicial Ethics on 14 March 2017, and on 27 March 2017 submitted the Rules of Procedure and Evidence (“RPE”) to the Specialist Chamber of the Constitutional Court (“SCCC”) for review – the Chamber responsible for interpreting the Kosovo Constitution as it relates to the KSC.(( KSC Statute, Art. 49(1). )) The SCCC found nine of the RPE to be unconstitutional, and a new draft of the RPE was referred back to the SCCC on 31 May 2017; judgment pending. Continue reading “Kosovo Specialist Chambers – Part 7: The Code of Judicial Ethics”

Cambodia conversation on being a criminal defense lawyer published in The Champion magazine

The May issue of The Champion, magazine of the National Association of Criminal Defense Lawyers (NACDL), contains an essay on being a criminal defense lawyer by my friend and colleague, Alan Yatvin.

Informal Opinion: Representing ‘Those People’ Achieves Justice

By Alan L. Yatvin

“How can you represent those people?” In three decades as a criminal defense attorney, I had heard that question many times — at cocktail parties and from prosecutors, police, victims, law students, and once even from a judge. It comes with the territory. I understand that people accused of crimes are often automatically condemned, while their lawyers are regarded with contempt. However, as I walked along that steamy January afternoon, I was shocked by the source of the question. This time it was my wife, Laura, prompted by a just completed hour-long audio tour of a former fruit orchard on the outskirts of Phnom Penh, Cambodia.

Read the rest on Alan’s blog.