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TRUE Project and Inner Temple Demystify the “New Frontiers in Evidence” – User Generated and Open Source Material

“We’re not gonna have a war, we’re gonna have the appearance of a war.”

Conrad Brean (Robert de Niro)

“Look at that! That is a complete f….. fraud, and it looks a hundred percent real. It’s the best work I’ve ever done in my life, because it’s so honest.”

Stanley Motss (Dustin Hoffman)

Wag the Dog (1997)

In Barry Levinson’s dark comedy Wag the Dog, we see a savvy political operative/spin doctor (Robert de Niro) get together with an exuberantly resourceful Hollywood executive (Dustin Hoffman) to generate images and footage of a fictional war to distract and misdirect the public from focusing on a scandal involving the US President. Over the course of a week or so, an ensemble of writers, actors, song writers, cameramen, and technicians put together a persuasive, realistic, bamboozling visual narrative. Crisis averted; scandal disremembered.

Not that what we see on TV and social media today on the events unfolding in Ukraine or Gaza or elsewhere are fictional. To the contrary, these are real events with real victims, real destruction, real misery, real consequences. But how much of what we see (and hear about what is being seen) should we believe? Most I suspect. Yet, most is not sufficient, just as close enough is not trustworthy in criminal proceedings where the evidence (as in any type of trial whether civil, commercial, or criminal) needs to be authentic and reliable – assuming it is relevant.

The process of determining the admissibility of evidence is rather straight forward. A foundation needs to be laid. The proponent will adduce evidence from witnesses who will testify as to the provenance of the evidence. In some cases, it may also be necessary to establish the reliability of the evidence through witnesses who have generated or collected and/or analyzed the evidence – before testimony on the substance of the evidence can/should be taken. Of course, before the evidence is admitted for the purposes of eliciting substantive evidence on what it purports to prove or disprove, the opposing side should be given an opportunity to conduct a voir dire, i.e., a cross-examination on the provenance, authenticity, reliability, and in some instances, the relevance. Continue reading “TRUE Project and Inner Temple Demystify the “New Frontiers in Evidence” – User Generated and Open Source Material”

Judicial Ethics: containing the dubious aroma of uninhibited judicial conduct

The recent descriptions of the behavior of some of our justices and particularly their attempts to defend their conduct have not just raised my eyebrows; they’ve raised the whole top of my head. Lavish, no-cost vacations? Hypertechnical arguments about how a free private airplane flight is a kind of facility? A justice’s spouse prominently involved in advocating on issues before the court without the justice’s recusal? Repeated omissions in mandatory financial disclosure statements brushed under the rug as inadvertent? A justice’s taxpayer-financed staff reportedly helping to promote her books? Private school tuition for a justice’s family member covered by a wealthy benefactor? Wow.

Michael Ponsor, Senior Judge on the US District Court for the District of Massachusetts, A Federal Judge Asks: Does the Supreme Court Realize How Bad It Smells? New York Times, 14 July 2023

On 11 November 2023, I had the privilege of being a panelist at the International Association of Conference Interpreters (AIIC) 14^th Legal Symposium organized by the AIIC Netherlands Chapter on Ethics in Law and Interpreting: Lawyers and Interpreters Talk Ethics: Mutal Expectations, Shared Experiences, which I have already written about. With a couple of international judges on the panel – Kosovo Specialist Chamber Judge Guénaël Mettraux and International Criminal Court (ICC) Judge Joanna Korner – the issue of judicial ethics and codes of conduct was bound to come up. And it did.

Kicking off the discussion, Judge Mettraux touched on judicial ethics and fielded a couple of questions. He stressed, appropriately, the importance of judicial comportment and restraint both inside and outside the courtroom. He recounted how the judges at the International Criminal Tribunal for the former Yugoslavia (ICTY) came to the realization that a judicial code of conduct was needed, and ultimately adopted.

I have long maintained that if the judicial process is not fair, the outcome is meaningless. In the broader sense, it is about procedural justice. Ineluctably, this includes judicial behavior. If court decisions and judgments and sentences are to be accepted as the results of substantive and procedural justice having been served, it is incumbent that the public – nationally and internationally – have confidence in the integrity, independence, and impartiality, of the judges. To that end, codes of conduct provide guidance, albeit framed as general principles requiring the exercise of reason, common sense, and informed judgment. Codes of conduct also provide a measure of comfort to litigants and the public by telling them that the system is committed to a level playing field. Continue reading “Judicial Ethics: containing the dubious aroma of uninhibited judicial conduct”

THE MAGIC IN THE BOOTH: a tribute to interpreters

No international(ized) criminal tribunal or court could function without the translators and interpreters. It never ceases to amaze me how incredibly talented and meticulous they are in capturing not just the language but also the intonations – the spirit, if you will, of that which is being conveyed by the speakers. It is a demanding and exhausting job to be sitting in on proceedings doing simultaneous or near simultaneous interpretations with precision, when witnesses as well as the lawyers, on all sides, are prone to meandering inarticulately or even unintelligibly. Were that not challenging enough, when judges misspeak or are caught making faux pas, reflexively many of them tend to blame the interpreters. Yet, despite the challenges they face every day when in the booth interpreting (translators are constantly working under challenging deadlines), the value of the interpreters and translators in making proceedings and trials possible is rarely fully recognized. Nor do many of us who appear in the international(ized) criminal tribunals and courts spend much time socializing with them, or even getting to know them. We either take them for granted (after all they are not “learned” like us), or we are simply too fixated on our own work and self-importance.

AN ASIDE: In Praise of Interpreters and Translators, Book Review of NO SELL DEAD – A Tale of Cambodia

James Jennings, author of NO SELL DEAD, is an accomplished interpreter of extensive experience before the international(ized) criminal tribunals and courts. I had the privilege to work with him when we were both at the Extraordinary Chambers in the Courts of Cambodia (ECCC). For several years, he was the chief interpreter at the ECCC while I was Ieng Sary’s and Meas Muth’s International Co‑Lawyer. Our paths rarely crossed. Well, that’s not accurate. Whether it be a meeting, a minor hearing, or trial proceeding, interpreters were mandatorily present. Jennings or one or more of his colleagues were there, unobtrusively performing their magic. Through the interpreter serving both as code-breaker and conduit, a speaker utters in one language and other language(s) are magically heard. Strange sounds converted into lucid, intelligible, discernable language, enabling discourse, exchanges, and action. But for the interpreters, none of this would be possible. Ditto for the translators who toil in the backroom turning the inaccessible into the accessible for the monoglots or linguistically challenged.

Jennings exemplifies the talent and cultural sophistication interpreters and translators possess. By nature, they are curious, with an affinity for language, literature, and history. Well-traveled, well-read, culturally sensitive, nuance-attentive, detail-observant. Without them where would we be? Imagine holding an international conference without them. Impossible. They make it happen. They are the unsung and often unrecognized heroes. Not just at the international(ized) criminal tribunals and courts, but wherever they find themselves offering their language skills, turning what would otherwise be a cacophony into a symphony. Continue reading “THE MAGIC IN THE BOOTH: a tribute to interpreters “

THE DARK SIDE OF ADHERING TO THE LAWS OF WAR: The seeming unfairness of taking the legal and moral high-ground

In armed conflicts between sovereign states of conspicuously unequal capacities there is sometimes a particular kind of unequal application, or rather abuse, of the law. Some relatively less powerful states (as well as non-state bodies) have engaged in consistently unlawful operations against the more powerful adversary such as hostage-taking, co-location of their military objects with civilian objects, use of human shields, use of suicide bombers disguised as civilians, indiscriminate attacks, use of proxy forces to engage in unlawful operations while denying all responsibility for their actions and deliberate attacks on civilians. Such unlawful operations have been prevalent during the period of US military dominance since the end of the Cold War, and can be seen as a response to the US ability to fight war from the air with impunity and with a high degree of accuracy. In many cases, they are intended to lure the United States and its coalition partners into causing civilian damage and incurring international criticism: as such, they are part of what Charlie Dunlap of the US Air Force has called ‘lawfare’, or ‘the strategy of using – or misusing – law as a substitute for traditional means to achieve an operational objective’.

Adam Roberts((Adam Roberts, The equal application of the laws of war: a principle under pressure, 90(872) International Review of the Red Cross 931, 949-950 (2008). ))

The laws of war – aka “law of armed conflict” or “international humanitarian law”– at times fall short of their intended purpose. They are imprecise in providing exacting guidance. They afford vague margins of discretion to what may seem, semantically, to be malleable standards, and may reflect over‑permissiveness of conduct incongruous with moral philosophy’s meaning of justice and the nature of the good life (or the good war). But they are reflective of and consistent with the realities faced by those who must apply them in the war theater, as opposed to paradigmatically in a classroom amphitheater. Nonetheless, the facilitative aspect of laws of war, i.e., that which it aims to achieve – whether viewed from a prohibitive lens or a permissive lens – carries the imprimatur of moral acceptability, however imperfect or unsatisfying. Continue reading “THE DARK SIDE OF ADHERING TO THE LAWS OF WAR: The seeming unfairness of taking the legal and moral high-ground”

Draft Policy on Complementarity and Cooperation: Everything Everywhere All at Once

There is a great evil that has taken root in my world and has begun spreading its chaos throughout the many verses. I have spent years searching for the one who might be able to match this great evil with an even greater good and bring back balance. All these years of searching have brought me here, to this universe. To you.

You saw her potential, so you pushed her beyond her limit. Though the overloaded mind usually dies, instead her mind was fractured. Now her mind experiences every world, every possibility, at the same exact time, commanding the infinite knowledge and power of the multiverse. Now she’s seen too much, lost any sense of morality, any belief in objective truth.

I’ve seen thousands of Evelyns, but never an Evelyn like you. You have so many goals you never finished, dreams you never followed. You’re living your worst you.

Everything Everywhere All at Once

Bold or brash, expansive or unfeasible, imaginative or chimerical.

In his two-page preface to the 39-page Draft Policy on Complementarity and Cooperation, International Criminal Court (ICC) Prosecutor Karim A. A. Khan KC explains his “novel and imaginative ways to partner with national authorities, civil society and all actors to bring new life” in realizing the Rome Statute’s goals. Having made this promise in his swearing in speech in June 2021, Prosecutor Khan sets out to make good on his word. In response to a claimed new reality and changed landscape where domestic authorities are asserting themselves in prosecuting core international crimes in domestic courts, he purports to offer a renewed approach where the:

efflorescence of joint efforts of domestic authorities to exchange information and complement evidence collection activities … can be achieved through a proactive and dynamic approach by all actors involved, with the [Office of the Prosecution (OTP)] focused simultaneously on delivering on its core investigative mandate while significantly increasing its ability to interface with, and support, efforts of other criminal jurisdictions and accountability actors.

Is this a new dawn for the OTP? Has the ICC leviathan awakened, ready to be all it can be? Have the international and domestic landscapes been altered by ongoing events or epiphanic eurekas or moments of clarity? Continue reading “Draft Policy on Complementarity and Cooperation: Everything Everywhere All at Once”

BOOK REVIEW: International Criminal Tribunals and Domestic Accountability – In the Court’s Shadow

International Criminal Tribunals and Domestic Accountability – In the Court’s Shadow, Patryk I. Labuda, Oxford University Press, 2023, 368 pages, £110

Complementarity has emerged as a byword for international criminal law’s preoccupation with domestic accountability.… But the word complementarity, derived from the Rome Statute, designates not merely the ICC’s institutional design vis-à-vis states. More importantly, it has come to embody diverse assumptions, expectations, and beliefs about how international and domestic actors should interact with one another in the anti-impunity project. One especially prominent idea is that international tribunals exist not just to hold trials but also to cast a shadow over states and to serve as a ‘catalyst’ for the domestic rule of law. (p. 258)

Complementarity, positive complementarity, and to a lesser extent, court shadow or shadow of the court are words and phrases of malleable and nebulous substance. Their invocation inspires as much as they perplex. Injected into the lexicon of international criminal law practice and procedure, these words and phrases have become ubiquitous, if not indispensable, when considering the works of the International Criminal Tribunals (ICTs). Lately, positive complementarity – the notion that the International Criminal Court (ICC) should be engaging national jurisdictions in prosecutions of international crimes and encouraging states to prosecute cases domestically when possible (shifting enforcement of international criminal law from ICTs to domestic courts) – seems to be dominating at conferences and legal writings, often referenced in regards to the court’s shadow (a multi-definitional phase, ranging from positive affects to swords of Damocles).

When the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) were established by the United Nations Security Counsil (UNSC) with primacy as to who would be prosecuted, it was understood that once these courts ceased to operate, anti-impunity trials would have to continue through domestic courts. Of course, it was also understood that before cases under ICTY and ICTR jurisdiction could be transferred to or allowed to proceed in domestic courts, significant legal and judicial reforms would be required. Continue reading “BOOK REVIEW: International Criminal Tribunals and Domestic Accountability – In the Court’s Shadow”

ICC Prosecutor Withdraws Charges Against Mokom: Commendable, Yet Questions Abound

Code of Conduct for the Office of the Prosecutor

Chapter 3. Specific duties

Section 1. Objective truth-seeking

49. In compliance with the duty to establish the truth under article 54(1)(a) of the Statute, the Office shall investigate incriminating and exonerating circumstances equally in all steps involved in the planning and conduct of investigative and prosecutorial activities. In particular, Members of the Office shall:

(a) conduct investigations with the goal of establishing the truth, and in the interests of justice;

(b) consider all relevant circumstances when assessing evidence, irrespective of whether they are to the advantage or the disadvantage of the prosecution;

(c) ensure that all necessary and reasonable enquiries are made and the results disclosed in accordance with the requirements of a fair trial, whether they point to the guilt or the innocence of the suspect.

50. Staff members shall report to the Prosecutor concerns which, if substantiated, would tend to render a previous conviction made by the Court unsafe, bring the administration of justice into disrepute or constitute a miscarriage of justice.

It should be an article of faith that before the International Criminal Court’s Office of the Prosecutor (ICC OTP) seeks an arrest warrant on a person, it has reliable, authentic, and relevant evidence to achieve a conviction. Put differently, the prosecution must not only have evidence to overcome the low hurdle of sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged for confirmation, but evidence that would: (a) overcome any challenges raised in a motion for a directed verdict (judgment of acquittal) at the end of the prosecution’s case-in-chief; and (b) secure a conviction at the end of trial, having met its burden of proof beyond a reasonable doubt.

Nothing is guaranteed. The evidence gathered by the prosecution between the arrest and trial can alter or even be lost – as witnesses become unavailable or with the discovery of new evidence that was previously unknown or unavailable. Of course, with the opportunity to collect additional evidence during this interim period, the prosecution can and usually does enhance its case. Continue reading “ICC Prosecutor Withdraws Charges Against Mokom: Commendable, Yet Questions Abound”

RESPONDING TO ACTS OF GENOCIDE WITH CRIMES AGAINST HUMANITY IS NOT THE ANSWER

It is possible to grieve and honor the hundreds of Israeli women, children, and men killed or injured in last Saturday’s brutal attack without simultaneously devaluing the lives, suffering and basic humanity of Palestinians.

Khaled Elgindy, Senior Fellow Middle East Institute.

News cycles shift attention.

Russian rockets brazenly demolished Hroza, a Ukrainian village on 5 October 2023. Hroza was not a legitimate military target. It posed no military threat and was of no military significance. 50 civilians were killed, hundreds more wounded. One of the deadliest attacks of unarmed, unthreatening, uninvolved citizens, it got worldwide attention. The attack was of a harmless village with harmless men, women, children, and elderly, away from the front, and far removed from any military objective. With no disclaimers of this being the handiwork of an undisciplined and uncontrolled rogue unit, or of a barrage of rockets gone astray, or of a mistaken target, this has all the hallmarks of a calculated, deliberated, and targeted attack to kill Ukrainian civilians. Outcries of genocide followed. As hard as it may be to shock the conscience after witnessing on media outlets unrelenting and indiscriminate Russian attacks, this one seemed different – maybe a game-changer. Until two days later.

Hamas’ merciless and vicious and deliberated killing and kidnapping spree of innocent Israeli civilians shifted the world’s attention. Just as the Hroza rocket attack was seemingly designed to eliminate a part of the Ukrainian people because of their ethnicity, so too the attacks by Hamas, especially at Kibbutz Kfar Aza, Kibbutz Beeri, Kibbutz Nir Oz and the Nova Music Festival, were seemingly designed to eliminate a part of the Israeli people because of their ethnicity and religion. Continue reading “RESPONDING TO ACTS OF GENOCIDE WITH CRIMES AGAINST HUMANITY IS NOT THE ANSWER”

Palestine has responsibilities just as any other State Party: it can’t have it both ways

The Chamber notes that Palestine acceded to the Statute in accordance with the procedure defined in article 125(3) of the Statute. On 2 January 2015, Palestine submitted its instrument of accession to the Statute, and became a State Party to the ICC on 1 April 2015, following the entry into force of the Statute in its territory.((Situation in the State of Palestine, ICC-01/18-143 05-02-2021, Decision on the ‘Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine’, 5 February 2021.))

Palestine cannot have it both ways. As a State Party, it cannot expect the ICC to investigate crimes alleged to have been committed against Palestinians by Israel (through the Israeli Defense Forces), yet not be held to account for crimes alleged to have been committed by Hamas against Israelis. Continue reading “Palestine has responsibilities just as any other State Party: it can’t have it both ways”

AN ARAB SPRING REVIVAL: Sharing adversarial techniques with Tunisian criminal defense lawyers for advancing their clients’ fair trial rights and greater access to justice

Take courage friends. The way is often hard, the path is never clear, and the stakes are very high. Take courage. For deep down, there is another truth: you are not alone.

Rev. Wayne B. Arnason

Exquisite timing.

Michael G. Karnavas at IBJ AAJT Training in Tunis

I was returning to The Hague from Tunis following a three-day training of Tunisian lawyers (29 September to 1 October), when I read that family members of seven imprisoned Tunisian opposition figures submitted a communication to the International Criminal Court (ICC) to investigate political persecution and human rights violations by President Kais Saied’s administration – not that I expect the ICC’s Office of the Prosecution (OTP) to do anything soon, if it decides to do anything at all. Rare is the occasion where a communication is acted upon, even when meritorious. The OTP can only do so much. And if perhaps it decides to do something, expect a frustratingly long preliminary examination, which, for all intents and purposes, can be nothing more than internet surfing and looking at open-source material. Even if the matter progresses, the journey leading to potential charges takes years. Communications, however, do serve a purpose beyond their intended design – they bring international attention, occasionally contributing to a tempering by those who could find themselves in the OTP’s crosshairs.

I was in Tunis playing a small part in the International Bridges of Justice’s (IBJ) Advancing Access to Justice in Tunisia (AAJT) initiative, funded by the United Nations Democracy Fund (UNDF), and hosted by the Tunisian National Bar Association (Ordre National des Avocats de Tunisie) and Tunisian Association of Young Lawyers (Association Tunisienne des Jeunes Avocats). Continue reading “AN ARAB SPRING REVIVAL: Sharing adversarial techniques with Tunisian criminal defense lawyers for advancing their clients’ fair trial rights and greater access to justice”