michaelgkarnavas.net/Blog

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”

Judicial independence at international courts is at risk: why the UN Security Council must intervene in the release of MICT Judge Aydin Sefa Akay

When national courts are seized of a case in which the immunity of a United Nations agent is in issue, they should immediately be notified of any finding by the Secretary-General concerning that immunity. That finding, and its documentary expression, creates a presumption which can only be set aside for the most compelling reasons and is thus to be given the greatest weight by national courts. The governmental authorities of a party to the General Convention are therefore under an obligation to convey such information to the national courts concerned, since a proper application of the Convention by them is dependent on such information. Failure to comply with this obligation, among others, could give rise to the institution of proceedings under Article VIII, Section 30, of the General Convention.(( Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, 2, ICJ Reports 1999, p. 62 (“ICJ Advisory Opinion on Difference Relating to Immunity from Legal Process”), para. 61.))

On or around 21 September 2016, Judge Aydin Sefa Akay, an international judge of the Mechanism for International Criminal Tribunals (MICT), was arrested for, presumably, being involved in, associated with, or sympathetic to the attempted coup to overthrow Turkish President Recep Tayyip Erdogan. No formal charges have been brought against him, though it is reported that the damning evidence against Judge Akay is a book found in his library about the alleged mastermind of the coup, Fethullah Gülen, and a downloaded messaging app (ByLock), which is claimed to have been used by the coup plotters.(( See Margaret Coker, How a Top International Judge Was Trampled by Turkey’s Purge, Wall Street Journal, 29 December 2016.)) Continue reading “Judicial independence at international courts is at risk: why the UN Security Council must intervene in the release of MICT Judge Aydin Sefa Akay”

Judicial expediency yields to judicial immunity: why relieving MICT Judge Aydin Sefa Akay from judicial duties in the Ngirabatware case is not an option

If a state can arrest a Judge and the Judge has to be replaced because of that action, then our Judges are subject to the restrictions that any state may choose to impose upon them by taking away their immunity in one form or another. That goes to the very heart of judicial independence. We don’t want judges having to answer to their states or be fearful of their states if they take a certain decision or they don’t. They have to be completely independent. That’s why they have diplomatic immunity.(( Prosecutor v. Ngirabatware, MICT-12-29-R, 17 January 2017, Transcript, p. 29.))

Peter Robinson

It came as no surprise that Judge Theodor Meron, the Pre-Review Judge of the Mechanism for International Criminal Tribunals (MICT) Appeals Chamber, would find that Judge Aydin Sefa Akay enjoyed (and continues to enjoy) full diplomatic immunity as a sitting judge at the MICT at the time of his arrest for allegedly participating in or being sympathetic to the attempted overthrow of Turkish President Recep Tayyip Erdogan. Judge Akay was arrested after it was discovered that he had in his 2,000-volume library a book about the alleged coup mastermind, Fethullah Gulen, and that he had downloaded ByLock, a messaging app allegedly used by the coup plotters.(( See Margaret Coker, How a Top International Judge Was Trampled by Turkey’s Purge, Wall Street Journal, 29 December 2016.))

The law is clear, both on its face and in how it has been interpreted. No first impression dilemma as to whether diplomatic immunity and all its appurtenances must be afforded to MICT Judges by all states – including the state where the person cloaked with diplomatic immunity hails from. The fact that Judge Akay was in Turkey, his homeland, at the time of his arrest makes no never mind. Judge Meron’s ruling was spot on. Continue reading “Judicial expediency yields to judicial immunity: why relieving MICT Judge Aydin Sefa Akay from judicial duties in the Ngirabatware case is not an option”

It looks like the Gambia is heading back into the ICC fold: but what of Yahya Jammeh?

Former Gambian President Yahya Jammeh, having joined other African leaders in succumbing to the lure of withdrawal from the International Criminal Court (ICC)(( See also Gambia Follows South Africa’s ICC Exodus: Quelle Surprise, 31 October 2016.)) – no doubt out of fear of one day ending up in the ICC dock – departed the Gambia for Equatorial Guinea (a non-signatory to the Rome Statute) under a brokered deal that fell short of granting him immunity for any crimes he is alleged to have committed during his 22-year long reign.(( For more on the terms of settlement, see Antenor Hallo de Wolf, Rattling Sabers to Save Democracy in The Gambia, EJIL:Talk!, 1 February 2017.))

But let’s face it: immunity from prosecution for crimes against humanity is much like an amnesty (resulting in total amnesia and total prohibition against prosecution for crimes committed) – a thing of the past. The days of kicking and screaming into the night as Uganda’s Idi Amin did when he fled to Saudi Arabia are becoming more difficult. The sanctity of sanctuaries is scarcely sacrosanct. Continue reading “It looks like the Gambia is heading back into the ICC fold: but what of Yahya Jammeh?”

ADC and ICCBA: not a zero-sum game

Whenever you think you are facing a contradiction, check your premises. You will find that one of them is wrong.

Ayn Rand

We must all hang together, or most assuredly we shall all hang separately.

Benjamin Franklin

Commenting on my most recent post “The ADC-ICTY Evolves into an Association of Defense Counsel Practicing before International Courts and Tribunals,” Chima Ayokunle wrote:

As far back as November 2013 you advocated on your blog that ICC ‘List Counsel must form their own Bar’ and ‘Only a Bar of List Counsel, by List Counsel and for List Counsel, can legitimately and passionately advocate for the needs of List Counsel’ (https://michaelgkarnavas.net/blog/2013/11/11/why-establish-a-bar-of-list-counsel-of-the-international-criminal-court/)

After this you were chair of committee drafting the Constitution for a Bar at the ICC and then you ran for president of the ICCBA and didn’t succeed.

It seems a contradiction to me that now you suggest that there could be more than one association at the ICC. Why be involved in establishing the ICCBA if this existing association could do it?

I wonder whether your view would be the same if you had been elected as ICCBA president?

Grateful to Mr. Chima Ayokunle for his musings. My response: Continue reading “ADC and ICCBA: not a zero-sum game”

The ADC-ICTY Evolves into an Association of Defense Counsel Practicing before International Courts and Tribunals

On 16 December 2016, the Association of Defence Counsel Practising before the International Criminal Tribunal for the former Yugoslavia, commonly referred to as the ADC-ICTY, held a second General Assembly Meeting. The agenda had one item only: amending the ADC-ICTY Constitution to change the name of the ADC-ICTY to better reflect its function – effectively transforming it into an association for defense counsel practicing before international tribunals and courts. And so the ADC-ICTY Constitution was amended. Continue reading “The ADC-ICTY Evolves into an Association of Defense Counsel Practicing before International Courts and Tribunals”

The ICC Registrar-Commissioned Reports Assessing the Legal Aid System: reasonable doubt at a reasonable price, realizing equality of arms, resource rationalization, and more

Ever since the International Criminal Court (ICC) was established, it has been rather unfashionable for defense counsel to praise the ICC Registrar for attempting, let along getting, something right for the Defense. Why?

Much lip service is paid to the fair trial rights of the accused, the need for a robust defense for all accused, and, let’s not overlook, the attainment of equality of arms. While the ICC from its inception has extolled the virtues of the role played by defense counsel, it has, unabashedly, provided a pauper’s wage and meager resources. Any prosecutor or judge would cringe were he or she in the dock dependent on a court-financed defense of the type funded by the ICC. Nothing new; with one or two exceptions, other international(ized) tribunals and courts are only marginally better. The ICC, however, has taken it to the near extreme. Continue reading “The ICC Registrar-Commissioned Reports Assessing the Legal Aid System: reasonable doubt at a reasonable price, realizing equality of arms, resource rationalization, and more”

Is the Myanmar government and military flirting with ‘acts of genocide’ against the Rohingya?

As a responsible Government, you don’t just go around hollering ‘genocide.’ You say that acts of genocide may have occurred and they need to be investigated.

David Rawson, United States Ambassador to Rwanda((As quoted in Douglas Jehl, Officials Told to Avoid Calling Rwanda Killings ‘Genocide’, NEW YORK TIMES, 10 June 1994.))

The Rohingya in Myanmar have by all accounts – save for those of the Myanmar government and military – been on the receiving end since at least 2012 of consistent, widespread, presumably organized, and arguably sanctioned acts of violence amounting to crimes against humanity. Take your pick of alleged crimes: persecution, rape, murder, forcible transfer, deportation, extermination, arbitrary detention and imprisonment, and arguably, apartheid. The full treatment.

Ethnic cleansing with tinges of genocidal acts seems to be the obvious goal, or more ominously put, the desired solution: to expel and, if necessary, eradicate the Rohingya Muslims from the Rakhine state of Myanmar. Meanwhile, the international community and those most expected to speak loudly and repeatedly contently wait, naively or apathetically, for the criminal acts against the Rohingya to dissipate, for their plight to be resolved. Wishful thinking based in part on willful blindness. Continue reading “Is the Myanmar government and military flirting with ‘acts of genocide’ against the Rohingya?”