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Response to comments on ethics enforcement inequality: the Superman vs. Batman dichotomy

I greatly appreciate that my esteemed colleagues Catherine Mabille and Luc Walleyn took the time to comment on my recent post: Witness tampering convictions at the ICC: repercussions under Article 70. Thanks Catherine and Luc for your comments. Below is my response.

While I can understand the frustration and even anger over the double-standard when it comes to condemning defense lawyers for conduct that prosecutors get away with, I have yet to see where such arguments have traction as an excuse or an explanation for conduct that crosses ethical boundaries. In some instances it may be useful to point out that the prosecution engages in certain conduct to demonstrate that the conduct is within acceptable bounds. But there is no merit to the argument that because the prosecution got away with such conduct in Lubanga, this kind of conduct should also be permitted in another case. Continue reading “Response to comments on ethics enforcement inequality: the Superman vs. Batman dichotomy”

Witness tampering convictions at the ICC: repercussions under Article 70

No legal system in the world can accept the bribing of witnesses, the inducement of witnesses to lie, or the illicit coaching of witnesses, nor can the ICC. Today’s judgement sends a clear message that the Court is not willing to allow its proceedings to be hampered or destroyed. It sends the message that those who try to distort and interfere with the administration of justice of this Court do not go unpunished.((Presiding Judge Bertram Schmitt, see audio visual recording of judgment delivery here.))

Yesterday, 19 October 2016, Trial Chamber VII of the International Criminal Court (ICC) delivered its judgement in the Bemba et al. Article 70 case. All of the five accused were found guilty under Article 70 of the ICC Statute of various offences against the administration of justice in The Prosecutor v. Jean-Pierre Bemba Gombo. Continue reading “Witness tampering convictions at the ICC: repercussions under Article 70”

ICC-OTP sets out its vision: a look at the horizon

On 15 September 2016, the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) published its Policy Paper on Case Selection and Prioritisation (Policy Paper). Long overdue.

Policy papers can be instructive but do not always dictate the course of action that is ultimately taken. Much has to do with the vision, drive, and inclination of the Prosecutor. This was rather apparent with the first ICC Prosecutor, Luis Moreno-Ocampo, who was of the opinion that the goal of the court is to send a message to prevent future crimes, the so called “shadow of the court” goal. Continue reading “ICC-OTP sets out its vision: a look at the horizon”

Learning from the ECCC experience

On 5 October 2016, I was invited to participate in a seminar organized by the United Nations Office of the High Commissioner for Human Rights – Cambodia (OHCHR) in cooperation with the Bar Association of the Kingdom of Cambodia (BAKC), titled Questioning Techniques from the Defense’s Perspective and the Use of National and International Law in Legal Arguments. Held in Phnom Penh, this training was part of the Legal Dialogue Series 2016: a series of trainings organized by the OHCHR as part of its ongoing efforts to support and strengthen the development of Cambodian legal professionals, including by facilitating the dissemination of skills and knowledge from international and Cambodian lawyers at the Extraordinary Chambers in the Courts of Cambodia (ECCC) to Cambodian lawyers practicing in local courts. Continue reading “Learning from the ECCC experience”

Damning international criminal defense with faint praise

Defense lawyers are expected to be flattered to read a purportedly positive piece from an outsider – a non-defense lawyer or someone who has never defended – on what it is they do and why.

Normally such praise-pieces never fail to comment on the obvious, such as the mother of all questions: How can we represent such criminals?, or that the facts are bad but everyone deserves a fair trial, or how clever we need to be to design creative strategies and make acceptable (i.e., passing the laugh test) arguments, and so on. Routinely, the tone is one of feigned empathy and understanding, as if what they really want to say is: you poor thing, it is a dirty job, your client is guilty, you have no choice but to put up a smoke screen of a defense and try to delay and obstruct the proceedings, but someone has to do it so, so better you than me. How thoughtful of them.

And then occasionally there is the concerted attempt by someone who has legal training but has never been in the trenches, never defended (or prosecuted) a domestic case, let alone a case involving serious international crimes, to drill down and really try to explain in a broader context what it is that defense lawyers do and why, even crediting them with making legacy contributions towards the court’s historical narrative. Wow! Alice Murgier does just that in her article “The Legacy of the Extraordinary Chambers in the Courts of Cambodia: Why Defense Work is Essential in Shaping the Historical Narrative of the Court,” posted on the Cambodia Tribunal Monitor’s website on 16 September 2016.

Murgier damns with faint praise. Continue reading “Damning international criminal defense with faint praise”

AL MAHDI CULTURECIDE JUDGMENT: A watershed moment for plea agreements

The rubble left from an ancient mausoleum destroyed by Islamist militants, is seen in Timbuktu, Mali, July 25, 2013. A former trainee teacher accused of damaging monuments in the name of Islam in the ancient Malian city of Timbuktu will stand before the International Criminal Court on March 1, 2016 for a hearing to decide if he should face a landmark trial. Picture taken July 25, 2013. REUTERS/Joe Penney - RTS8MB6 — The rubble left from an ancient mausoleum destroyed by Islamist militants, is seen in Timbuktu, Mali, July 25, 2013.

On 27 September 2016 Ahmad Al Faqi Al Mahdi was sentenced to nine years for the war crime of attacking protected objects under Article 8(2)(e)(iv) of the Statute, specifically, “[i]ntentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives.”((Prosecutor v. Al Mahdi, ICC-01/12-01/15, Judgment and Sentence, 27 September 2016, para. 11.))

In a previous post I discussed the plea bargaining process and trial or, as I call it, slow change of plea hearing. I noted that in all likelihood Trial Chamber VIII would accept the plea agreement if satisfied that the facts proved the crimes admitted and if it found that the agreed period of time was commensurate with the gravity of the crimes. Many have written on the Al Mahdi case. Some questioned the imperative for prosecuting such low-level crimes, and for not including other crimes that Al Mahdi allegedly committed, such as murder. Others looked at the case as a major watershed for the ICC for prosecuting the destruction of religious and cultural property. All who have commented on this case have made a valuable contribution in raising awareness on the importance of combatting against culturecide. Continue reading “AL MAHDI CULTURECIDE JUDGMENT: A watershed moment for plea agreements”

Judges’ questioning: are all questions fair game?

We all know that trials, like games, have their unique set of rules – who does what, when can this or that be done, what is permissible or impermissible, etc. We generally refer to them as the rules of procedure and evidence. In another context we might call them the rules of the road. In sports we just call them the rules. Try playing a game without them. Worse yet, try playing a game where the referee is also a player and when it comes to his or her behavior, the rules apply or are redefined based on whim and fancy. Just how fair would such a game be?

In the trial game, the parties have the right to ask questions, but so do judges. Depending on the procedure, the judges may have the right to take the lead, leaving the prosecution and the defence to mop up. When the parties have the right to take the lead, judges are expected to ask discrete questions, mostly for clarification, and not for the purpose of pursuing a preordained result (as prosecutors of all stripes and shades do). Continue reading “Judges’ questioning: are all questions fair game?”

The MICT model: panacea or chimera?

On 20 September 2016 a press release was issued by the United Nations Mechanism for International Criminal Tribunals (“MICT”), also referred to as “the Mechanism”, describing a presentation given by MICT President Judge Theodor Meron at The Hague Institute for Global Justice. The press release described President Meron’s view that the MICT presented itself as a new model for international justice. Under this model, courts could be more streamlined and cost-effective by having a roster of judges on call who would step into the breach only when needed, as opposed to being in situ, collecting a full-time salary with benefits. This model is likely the brave new world and is being advocated by some who are looking for alternatives or complements to the International Criminal Court (“ICC”). Continue reading “The MICT model: panacea or chimera?”

Crimes Against Humanity – Part III: Is an attack by a state or organization against members of its own armed forces an attack directed against a civilian population amounting to a crime against humanity?

Part III

This is the third and final post dealing with the call for submissions by International Co-Investigating Judge Michael Bohlander of the ECCC who is currently investigating Cases 003 and 004. Querying whether there was a lacuna in defining who may form a “civilian population” for the purpose of crimes against humanity, Judge Bohlander asked the parties and the amici:

Whether, under customary international law applicable between 1975 and 1979 [the temporal jurisdiction of the ECCC], an attack by a state or organisation against members of its own armed forces may amount to an attack directed at a civilian population?

As I noted in the first post, Judge Bohlander hinted that previous discussion on interpreting who constitutes a “civilian population” may have overlooked policy aspects such as whether there is a distinction between soldiers and civilians, and that such distinction “might only make sense if speaking of soldiers and civilians of an enemy population.” He then opined or concluded – at least so it appears from his words – that “it would seem beyond dispute that a regime which in peace times tried to cleanse its own armed forces of, for example, all soldiers holding a particular ethnicity or faith, would be engaging in crimes against humanity, because the victims’ combatant quality merely because they are soldiers would be entirely irrelevant in this context…” and that “there is no reason to think otherwise if such a campaign happened in the course of or otherwise connected to an armed conflict.”(para. 5)

The first post dealt with the contextual background relevant to Judge Bohlander’s question and provided a synopsis of the overarching arguments put forward by the International Co-Prosecutor (“ICP”) and the amici who responded to the call for submissions. Positions of the majority were relatively the same: a state or organization’s own forces can constitute a civilian population for the purposes of crimes against humanity. The second post covers the amici’s and ICP’s arguments in detail though a series of questions inherent in their arguments.

In this final post, I set out the rationale behind the civilian population requirement and argue: Continue reading “Crimes Against Humanity – Part III: Is an attack by a state or organization against members of its own armed forces an attack directed against a civilian population amounting to a crime against humanity?”

Crimes Against Humanity — Part II: Is an attack by a state or organization against members of its own armed forces an attack directed against a civilian population amounting to a crime against humanity?

Part II

In the previous post I introduced the question raised by Judge Bohlander, the International Co-Investigating Judge for the ECCC, in his call for submissions: “whether, under customary international law applicable between 1975 and 1979 [the temporal jurisdiction of the ECCC], an attack by a state or organisation against members of its own armed forces may amount to an attack directed at a civilian population” for the purposes of crimes against humanity. After setting out the context and relevance for posing this question, I provided a brief synopsis of the submissions.

In this post, I will deal the overarching arguments put forward by the amici and International Co-Prosecutor (“ICP”) in submitting that under customary international law between 1975 and 1979, a state or organization’s own armed forces can constitute a civilian population for the purposes of crimes against humanity. I will do so by answering the questions that emerge from their arguments, which I listed in the previous post.

In customary international law, is the term “civilian population” given a broad interpretation to include members of a state’s own armed forces? And would excluding soldiers from the definition of “civilian population” lead to an “absurd result”?

Answer: no and no. Continue reading “Crimes Against Humanity — Part II: Is an attack by a state or organization against members of its own armed forces an attack directed against a civilian population amounting to a crime against humanity?”