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BOOK REVIEW – HELENA STAR – an Epic Adventure Through the Murky Underworld of International Drug Smuggling

HELENA STAR – an Epic Adventure Through the Murky Underworld of International Drug Smuggling, Stewart Riley, Robert D. Reed Publishers, 2021, 228 pages, $17.95

I was never known for having a great bedside manner when meeting with clients. I wasn’t going to be their social worker. Some attorneys in my view get too close to their clients. I tried to avoid that. I was not their friend. I was their lawyer. Becoming good friends with one’s client eliminates perspective and may color one’s objectivity. I was not about to invite a client home for dinner while his future was in my hands, even my white-collar clients.

Under cover of dark on 4 April 1978, the Joli, a sleek electric blue 61-foot racing yacht with swollen sails gracing its 90-foot masts is rapidly, perhaps too rapidly, headed towards the nearly exhausted 161-foot freighter, the M/V Helena Star, in the high seas of the North Pacific, some 70 miles off the coast of Washington State and British Columbia. As the skipper of the Joli approached the Helena Star, it becomes obvious that the purpose of the rendezvous – offloading “Colombian Gold” – is too dangerous at that location; calmer waters were needed to compensate for the incompatibility of the two vessels for offloading the precious and very illegal cargo. Nearly two weeks later, the US Coast Guard would board and seize the Helena Star about 140 miles from the coast of Washington State laden with 37 tons of marijuana, valued at the time at around $74 million.

Enter Stewart Riley for the defense for Helena Star Captain Roman Rubies. The subtitle may seem like a plot-spoiler, but this little gem is about much more – an intriguing story that entertains as much as it instructs us defense lawyers. Continue reading “BOOK REVIEW – HELENA STAR – an Epic Adventure Through the Murky Underworld of International Drug Smuggling”

A CLARION CALL TO THE ICC COUNSEL SUPPORT SECTION: training for counsel and assistants should be practical and skill-developing

You have to know the why in order to know the when,

But if you don’t know the how

Knowing the why and when won’t help you.

Training Moto, Michael G. Karnavas

Reality Check

Article 7(2) of the ICC Code of Professional Conduct for Counsel (Code) presumes that list counsel possess a high level of knowledge of the applicable law and a high level of skills required for the adopted party-driven, adversarial hybrid procedure, and thus must “participate in training initiatives required to maintain such competence.” This presumption is fanciful. Not all list counsel are sufficiently competent – let alone to a high level – simply because they have managed to get themselves on the list. Counsel cannot “maintain a high level of competence” unless they are already competent to a high level. Query whose responsibility is it to ensure that at least those counsel appearing in proceedings before the ICC have a high level of competence. In no small measure I suggest it is the ICC Registrar, through the Counsel Support Section (CSS), which is responsible for setting the standards for the admission of counsel. Continue reading “A CLARION CALL TO THE ICC COUNSEL SUPPORT SECTION: training for counsel and assistants should be practical and skill-developing”

THE DILIGENCE THAT IS DUE: ICC Counsel Ethics Training

In the nature of law practice, … conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interest in remaining an ethical person while earning a satisfactory living. The Rules of Professional Conduct often prescribe terms for resolving such conflicts. Within the framework of these Rules, however, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules. These principles include the lawyer’s obligation zealously to protect and pursue a client’s legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system.

Preamble to the American Bar Association’s Model Rules of Professional Conduct

On 21 September 2023 I gave a presentation on Professional Conduct at the Hybrid Training for ICC List Counsel, organized by the ICC Counsel Support Section (CSS) and sponsored by the European Commission. It is always daunting to stand before fellow counsel to try to engage them in a discussion on matters of ethics, professional responsibility, and the disciplinary measures and consequences that result when we fall short of what is expected of us, or when we defend ourselves against allegations of ethical breaches. Also, there is only so much that can be covered in a couple of hours. Ethics training should be conducted on a regular basis. Might it also be prudent for ICC CSS to consider making it mandatory to take a modest number of hours of continuing legal education on ethics per year in order to be in good standing and remain on the List of Counsel? I think so.

With the Code being a skimpy 14 pages of 46 concise articles, anyone on the list could go over it while having a cup of coffee, even before it gets cold. Not to mention, one would think that expressing an interest in getting on the List of Counsel and eventually having a client would motivate one to read the Code, along with the Rome Statute and ICC Rules of Procedure and Evidence. So, rather than do an article-by-article commentary, I highlighted aspects of the code to show how, in no small measure, we are guided by the code in our day-to-day activities in representing a client before the ICC. Much of what I covered also applies to other international(ized) criminal tribunals, and except where the Code might conflict with one’s national code, to representing clients in criminal matters before domestic courts. Here is the gist of my presentation. Continue reading “THE DILIGENCE THAT IS DUE: ICC Counsel Ethics Training”

Book Review: Kennedy’s Avenger – Assassination, Conspiracy, and the Forgotten Trial of Jack Ruby,

Kennedy’s Avenger – Assassination, Conspiracy, and the Forgotten Trial of Jack Ruby, Dan Abrams & David Fisher, Hanover Square Press, 2022, 400 pages, $17.99

May I thank this jury for a verdict that is a victory for bigotry.…

I want to assure you we will appeal this to a court where there is justice and impartiality. This is one of the most shocking things I’ve seen in my lifetime. We have a little bit of Russia…. The festering sore that is now the most shocking place in the nation. If the venomous infection spreads throughout the country, God save us all!!!…. I hope the people of Dallas are proud of this jury … this is a kangaroo court, a railroad court and everybody knew it…. We are back a thousand years. The jury has made this city a shame forever… You talk of the shame of Dallas; now you see it in full glory.

I can’t shake hands with you, judge. You’ve got blood on your hands.

Melvin Belli, on hearing the verdict in The State of Texas v. Jacob Rubenstein, (p. 349)

At 8:22 p.m., after hearing 66 witnesses over a 10-day period, including complex testimony from a dozen or so medical and mental health experts, the jury begin hearing closing arguments. Melvin Belli, lead defense lawyer for Jacob Rubenstein alias Jack Ruby, began his closing argument at midnight. Minutes after 1:00 am Judge Joseph Brantley Brown, Sr., gave final instructions. The jury of eight men and four women, selected over 14 intense days of voir dire and a fair amount of crystal gazing, deliberated for two hours and nineteen minutes later that morning.

In the jury room, with little discussion or debate, the jurors had agreed unanimously that Jack Ruby was guilty of murder. They agreed unanimously he was sane when he shot Lee Harvey Oswald. They agreed unanimously that he was sane at the present time. They agreed unanimously that he had committed murder with malice. When they began deliberating the sentence, however, the initial vote was nine to three for the death penalty. (p. 351)

Death it was.

Ruby shot and killed Lee Harvey Oswald who shot US President John F. Kennedy.

As detectives escort a handcuffed Oswald through the basement of the Dallas Municipal Court Building, dozens of journalists, anxiously waiting to get a glimpse of Oswald, shout questions. Ruby, a Dallas striptease nightclub owner, is in the scrum. With neither finesse nor concealment, Ruby pulls out his gun and fires, letting Oswald have it in the gut.

The shooting is captured in film, still photos, and national television. Next to the shooting of President Kennedy two days earlier on 22 November 1963 (also captured on national television), this is the most celebrated news event in Dallas, a.k.a. Big D. Those who do not witness it live on television later see it again and again and again on the news.

Conspiracies to this day run amok. Was Ruby Oswald’s collaborator? Was he a pinko commie (communist) like Oswald? Did Ruby kill Oswald to silence him? Was Ruby part of or connected to the mafia underworld that might have been behind President Kennedy’s assassination?

The actus reas was never seriously in dispute. Ruby’s means rea was. Did he act with malice? If yes, he faced death. If not, he faced a maximum of five years in prison. Death is different. Good, qualified, experienced defense lawyers tend to play it safe when imposing the death penalty is in the jury’s (or judge’s) hands. With suicide, accident, natural causes, and self-defense not available as defenses, Ruby had two viable defenses: acting without malice – killing Oswald in a moment of insanity or passion (acting in the heat of passion), and insanity – not appreciating the difference between right and wrong when he shot Oswald, not being capable of understanding the consequences of his actions. The former a partial defense, the latter a complete (affirmative) defense. Continue reading “Book Review: Kennedy’s Avenger – Assassination, Conspiracy, and the Forgotten Trial of Jack Ruby,”

Book Review: Raylan, Desert Star, The Boys From Biloxi, and Golden Age Bibliomysteries

Raylan, Elmore Leonard, William Morrow, 2012, 228 pages, $15.53

Desert Star, Michael Connelly, Little-Brown, 2022, 395 pages, $10.99

The Boys from Biloxi, John Grisham, Penguin Random House, 2022, 464 pages, $18.00

Golden Age Bibliomysteries, Otto Penzler, editor, Penzler Publishers, 2023, 426 pages, $17.95

Being at a beach without a good crime novel is like showing up to a party in no mood for partying.

Whether pulp fiction, short crime stories, or who-done-it mysteries, nothing better vacates the mind while on vacation from the drudgery, grind and toll of plowing through disclosure material, expert reports, witness statements, or the ever so très fashionable open-source material with all its foundational challenges.

Occasionally (or not so occasionally) we indulge in the guilty pleasure of reading a fast-paced page-turner during our busy schedules when we should be working or getting a proper rest before a busy day ahead. This pleasurable diversionary frolic is frequently followed with ex post facto lament, much like that experienced after decadently enjoying a nutrition-less, calorie-dense, artery-clogging, fast-food favorite. Not so when we leave for the beaches or the mountains or wherever you escape to when court is in recess or when vacation leave arrives with all the promises of rest, relaxation, and revelry. Continue reading “Book Review: Raylan, Desert Star, The Boys From Biloxi, and Golden Age Bibliomysteries”

BOOK REVIEW: Martial Arts – The Lessons

Martial Arts – The Lessons, Tomislav S. Perić, Gregson & Lestrade, 2021, 222 pages, $14.95

Taking action, I believe, is the most significant and common stumbling block we all confront. For most of us, inertia reigns supreme and, in fairness, having a whimsical dream or desire doesn’t really require action. It’s when a thought or idea passes beyond the daydreaming phase that we need to give it serious consideration. Martial Arts – The Lessons, pp. 209-210

In these dog days of summer, and while in the back of our mind the end of our vacation is rapidly approaching, I thought I would wait for the slew of reviews that I have in the pipeline and steer you to some lighter reading. The selection is motley. Most are fast-paced novels with trial advocacy or ethics tips worth pondering over. But if you are like me and sense the end of the summer as the time to give some serious consideration as to how or what the remainder of the year should yield, let me start with an amuse-bouche review of a nonfiction gem: Martial Arts – The Lessons, by Tomislav S. Perić. Continue reading “BOOK REVIEW: Martial Arts – The Lessons”

Guidance to English Museums for Responding to Restitution and Repatriation Cases: Are the winds blowing in the direction for the return of the Parthenon Marbles?

Sometimes, stripping back the complexities to think about issues on a human level can be helpful in overcoming the fear of difficult conversations, or of ‘making mistakes’ which can otherwise hinder progress towards resolution. It is important to be alert to the possible sensitivities of claimants, and to the deep sense of hurt and alienation which some of them may feel. It is also worth remembering that the cost to a claimant of bringing a claim – both financially and emotionally – can often be very significant. Equally it is important to establish whether the claimant has standing to make the claim, and whether they are entitled or authorised to do so.

Restitution and Repatriation: A Practical Guide for Museums in England, p. 2.

As I finished reading the recently released Restitution and Repatriation Cases: A Practical Guide for Museums in England, unconsciously, I found myself humming the first lyrics of the 1977 song Love is in the air, substituting love for change:

Change is in the air
Everywhere I look around
Change is in the air
Every sight and every sound Continue reading “Guidance to English Museums for Responding to Restitution and Repatriation Cases: Are the winds blowing in the direction for the return of the Parthenon Marbles? “

Kabuga Reexamined: An “alternative finding procedure” that comes as close to a trial as possible is no substitute for a trial

The Appeals Chamber is cognizant that victims and survivors of the crimes that Kabuga is charged with have waited long to see justice delivered, and that the inability to complete the trial proceedings in this case, due to Kabuga’s lack of fitness to stand trial, must be disappointing. However, justice can be delivered only by holding trials that are fair and conducted with full respect for the rights of the accused set out in the Statute. This is a fundamental feature of the legal framework of the Mechanism and its predecessor tribunals, which is vital to the credibility and endurance of their legacy. In arriving at its decision, the Appeals Chamber has been guided by its duty to ensure that decisions are based solely on justice and law. It is axiomatic that justice must be done and must be seen to be done. (para. 78)

In my earlier post – When inventiveness leads to absurdity: the Trial Chamber’s “non-trial” trial solution for non compos mentis Félicien Kabuga – I discussed the Trial Chamber’s decision to carry on with an in absentia non-trial trial of Kabuga who, by Trial Chamber majority, was found to be incompetent to stand trial.

As a reminder, the majority found that “Kabuga retains three relevant capacities: to enter a plea, understand the nature of the charges, and understand the consequences of the proceedings”, but that his “level of cognition related to these capacities is superficial,” considering that he:

- - has a such a “limited ability to communicate” that he is unable “to participate meaningfully in his trial as such participation would require a higher level of cognitive function than he possesses;”
- - “is incapable of subtle, consequential reasoning;”
- - lacks the capacity to “participat[e] in a complex proceeding, such as the present trial [that] requires, at a minimum, a functioning memory, including the ability to retain information over a period of time, as well as the ability to process and express a view about that information;”
- - is “unlikely” to be “malingering” given his illness and medical diagnosis; and
- - “is not fit for trial and is very unlikely to regain fitness in the future.”

Despite this, Judge Mustapha El Baaj, dissenting, had no problem continuing the Kabuga trial. Continue reading “Kabuga Reexamined: An “alternative finding procedure” that comes as close to a trial as possible is no substitute for a trial”

Book Review: The Parthenon Marbles and International Law, by Prof. Catherine Titi

The Parthenon Marbles and International Law, Catherine Titi, Springer, 2023, 311 pages, €171.19

One may perhaps have some reason for amassing gold and silver; in fact, it would be impossible to attain universal dominion without appropriating these resources from other peoples, in order to weaken them. In the case of every other form of wealth, however, it is more glorious to leave it where it was, together with the envy which it inspired, and to base our country’s glory, not on the abundance and beauty of its paintings and statutes, but on its sober customs and noble sentiments. Moreover, I hope that the future conquers will learn from these thought not to plunder the cities subjugated by them, and not to make the misfortunes of other peoples the adornment of their own country.

Polybius of Athens (writing before 146 BCE), as quoted in ICJ Judge Charles de Visscher, International Protection of Works of Art and Historic Monuments, 823 (1949).

It would, I think, now be universally accepted, certainly by the People of Ireland, and by the people of most modern States, that one of the most important national assets belonging to the people is their heritage and knowledge of its true origins and the buildings and objects which constitute keys to their ancient history.

Supreme Court of Ireland, Chief Justice Finlay, Webb v. Ireland, 1988, I.R. 353.

The fate of the Parthenon marbles in the “Elgin Collection” and the merits of their return have been debated ever since Elgin’s agents excised them from the Parthenon on the Acropolis at Athens. Such is the nature of the discussion about the return of cultural property that numerous studies on the topic start with a question purportedly about ownership. Who owns history? Who owns antiquity? Who owns the past? In reality. The questions are aspirational. What they really mean is: who should own antiquity? Or who should own the past? While the questions about ownership and return are legal, the answer to them have been built around a debate.

The Parthenon Marbles and International Law, p. 21.

During a recent visit to London, the proprietorship of the Parthenon Marbles came up in a conversation. I argued that the marbles – which the Brits kept referring to as the “Elgin marbles” – must be returned to Greece. The Brits argued that the marbles were bought by Britain from Elgin, and therefore must remain in the British Museum. Predictably, my interlocutors, who, indecently, were highly educated, learned, if you will, were either misinformed or uninformed of some of some critical facts. In any event, it did not seem to matter much since as one of them put it, Greece would lose on legal grounds because of undue delay, estoppel, implied waiver, or laches in asserting ownership and making a legal claim for redress. Another canard among many peddled over the years, which, as my good friend Michael Vickery, the eminent historian would put it, is part of the Standard Total View (STV): repeating and re-repeating what has been heard as unquestionable truths without questioning the original source. Since 1836, Greece in one form or another has repeatedly requested and demanded the return of the marbles, only to be rebuffed by Britain. Simply because Greece never brought a lawsuit against Britain but has tried repeatedly and uncompromisingly to resolve the matter diplomatically does not mean that Greece has abandoned its claim or has unduly delayed its claim. Greece had partially gained its independent around 1828. While still in the midst of liberating the rest of modern-day Greece, it nonetheless acted with significant alacrity in requesting the return of the marbles from a then-empire (Britain) that it depended on in gaining its full independence. Continue reading “Book Review: The Parthenon Marbles and International Law, by Prof. Catherine Titi”

Untroubled Asymmetry in International Criminal Justice: Dare we look in the mirror – sincerely?

Much can be said about the politics of international criminal justice, the tolerated/excused hypocrisy in the behavior of certain states (in particular the permanent five members of the UN Security Council), and yes, the callousness or indifference or obliviousness in viewing, accepting, and even promoting inequity. We often tend to justify or minimize inaction or overreaction or selective action when it either suits us or when we lazily adopt a so what or a that’s the way things are attitude. Even when occasionally we truly believe something is off-kilter, irreconcilable, or just plain wrong, we rarely are willing to call it for what it is, to speak truth to power, to dare voice an unpopular position because it is simply the right thing to do. With no agenda in mind, here are a couple of matters worth expressing, however seemingly distasteful it may be to criticize anything related to Ukraine and its efforts in seeking peace and justice. Continue reading “Untroubled Asymmetry in International Criminal Justice: Dare we look in the mirror – sincerely?”