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A memorable experience with the AIJA at the Peace Palace

International Association of Young Lawyers (AIJA) Half-Year Conference — Panel on International Criminal Institutions And Their Role In Combatting Crimes Against Humanity

Who would expect a full house of young (under 45 years old) lawyers from around the globe to eagerly (and punctually) arrive at the Peace Palace in The Hague, on 27 May 2023, one of those rare bright sunny days, to hear from and exchange views with a couple of speakers on the topic of International Criminal Institutions And Their Role In Combatting Crimes Against Humanity? This was to be the last event (other than the Gala later that evening, another memorable experience) of the four-day International Association of Young Lawyers (AIJA) Half-Year Conference.

Continue reading “A memorable experience with the AIJA at the Peace Palace”

DISCOURSE AT THE INNER TEMPLE ON NAVIGATING THE CODES OF CONDUCT STRAIGHTS IN INTERNATIONAL CRIMINAL PROCEEDINGS: a format that is missing, overlooked, or (un)intentionally rebuffed?

On 29 June 2023, the International Committee of the Inner Temple organized a short training session for aspiring barristers on legal professional ethics before the international criminal tribunals. The Honourable Society of the Inner Temple has been in existence since the 14^th Century. It is one of the four unincorporated, not-for-profit membership associations for barristers and judges in the UK, known as the Inns of Court. Together, they provide high-quality legal education and training for the barrister profession, delivered by senior members of the Bar and other key partners on a pro bono basis, and have the exclusive right to call students to the Bar of England and Wales.

Participating in the seminar were an ICC Judge (Kimberly Prost), an ICC Deputy Prosecutor (Nazhat Khan), and a defence counsel (yours truly). The program was moderated by ICC Judge Joanna Korner CMG KC – who, as an exceptionally experienced Queen’s Counsel, served two stints as a senior trial lawyer before the ICTY prior to becoming a judge of the Crown Court of England and Wales. The event was informative, engaging, and collegially lively. But there was something more to it, something important that is generally absent in most training seminars, especially on ethics: the inclusion of three pillars of criminal proceedings (missing only a representative of victims counsel) on a panel, so they and the audience can hear about each other, from each other, with their different perspectives being aired, considered, debated, appreciated, and/or rejected. Continue reading “DISCOURSE AT THE INNER TEMPLE ON NAVIGATING THE CODES OF CONDUCT STRAIGHTS IN INTERNATIONAL CRIMINAL PROCEEDINGS: a format that is missing, overlooked, or (un)intentionally rebuffed?”

When inventiveness leads to absurdity: The Trial Chamber’s “non-trial” trial solution for non compos mentis Félicien Kabuga

Everything is what it is, and not another thing. Joseph Butler

“I don’t know what you mean by ‘glory.’ Alice said. Humpty Dumpty smiled contemptuously. “Of course you don’t – till I tell you. I meant ‘there’s a nice knock-down argument for you!’” “But glory doesn’t mean ‘a nice knock-down argument,’” Alice objected. “When I use a word,” Humpty Dumpty said, in a rather scornful tone, “it means just what I choose it to mean-neither more nor less.”

Lewis Carroll, Through the Looking Glass

On 6 June 2023, the Trial Chamber of the International Residual Mechanism for Criminal Tribunals (IRMCT), by majority, found Félicien Kabuga “unfit to participate meaningfully in his trial” and “very unlikely to regain fitness in the future.” Nonetheless, the majority decided to “proceed with an alternative finding procedure” resembling “a trial as closely as possible, but without the possibility of a conviction,” with the prosecution “retain[ing] the burden to prove both the actus reus and mens rea of each charge beyond reasonable doubt,” while making Kabuga’s attendance “unnecessary”.

The authority cited to support the legality of this alternative finding procedure neither represents objective widespread and consistent practice of States, nor subjective practice that is observed out of obligation as opposed to respect (opinio juris), nor any statutory provisions from any of the past or existing international(ized) criminal courts and tribunals, nor any of IRMCT’s own jurisprudence. Rather, what is cited are national criminal provisions from England and Wales, Scotland, South Africa, Australia, Guatemala, and the US state of New Mexico – with the latter two jurisdiction highlighted for being outside the Commonwealth, as if this makes a difference. Of course, there are also notable distinctions in the procedures applied by these jurisdictions. In some jurisdictions that engage in alternative procedures upon findings of unfitness, the courts are to focus only on the actus reus (whether the accused committed the acts) and not his or her mens rea, while other jurisdictions’ procedures attempt to resemble trial as closely as possible. Not that this makes a difference when, as argued below, the accused is unable to participate meaningfully in his or her trial through exercising, with full mental capacity, his or her guaranteed fair trial rights. Continue reading “When inventiveness leads to absurdity: The Trial Chamber’s “non-trial” trial solution for non compos mentis Félicien Kabuga”

Empowering the Syrian Defenders of the Free Aleppo Bar Association

On May 8 to May 9, 2023, I had the privilege of being involved in a Training of Trainers and Advocacy Training Program organized by International Bridges to Justice (IBJ) in Gaziantep, Turkey, for Syrian criminal defense lawyers living and working in northwest Syria, notably, in and around Aleppo. Continue reading “Empowering the Syrian Defenders of the Free Aleppo Bar Association”

ADMONISHING THE ADMONISHERS: The Legal Review Panel’s Report on Amnesty International’s Press Release on Ukrainian Fighting Tactics

The dark side of social media is that, within seconds, anything can be blown out of proportion and taken out of context. And it’s very difficult not to get swept up in it all. – Nicola Formichetti

Ditto with press releases. In the age of soundbites, short attention spans, and instant messaging, errors in content are made with such frequency and such magnitude that unless one is well informed, scrumptiously analytical, and persistently skeptical, they go unnoticed. Nuance – the quality of something that can be hard to perceive yet vital for full appreciation – is often ignored or sacrificed when sloppily, lazily, or indifferently narrating complex matters in broad of categorical terms with little or no regard to context and/or all the facts. Continue reading “ADMONISHING THE ADMONISHERS: The Legal Review Panel’s Report on Amnesty International’s Press Release on Ukrainian Fighting Tactics”

Defending Russian suspects and accused on mass atrocity charges: challenges beyond the court of public opinion

With an opening gambit that potential Russian accused charged with atrocity crimes witnessed daily on the news and social media cannot get a fair trial because they’ve been already tried, judged, and convicted in the court of public opinion (as if this is not the norm for all suspects and accused before international and even national criminal tribunals), I was asked by a colleague my views. Read on.

Convictions from courts of public opinion or from the now fashionable Peoples Courts are the least of my worries when I represent any suspect or accused. Ditto were I to represent a Russian officer – presumably of high rank, since the International Criminal Court (ICC) or other international criminal tribunal will be disinclined to go after foot-soldiers – alleged to have committed crimes in the ongoing Russo-Ukrainian war. Continue reading “Defending Russian suspects and accused on mass atrocity charges: challenges beyond the court of public opinion”

Why a tribunal for aggression is unrealistic, why the ICC should step aside, and why a tribunal established by the UNGA is the optimal option

Bringing fresh ideas to an ongoing debate of some duration and substance rarely happens. But do read on for my brief take on why establishing a boutique tribunal to try Putin for the crime of aggression is unrealistic, and why there may be a more practical and achievable solution in investigating and prosecuting those most responsible for crimes being committed in the Russo-Ukrainian war – save for the crime of aggression.

Most agree that Putin’s war-making was unprovoked, unjustified, and unlawful. I say most because there are some who believe that Russia had legitimate reasons for initiating what Putin has characterized as Russia’s “special military operation.” Most also agree – or seem to agree despite any legitimate findings by an independent international tribunal – that Putin is guilty beyond any doubt of the crime of aggression. And many of those who have made their findings and conclusions of Putin’s guilt, call for the establishment of a tribunal with the singular purpose to try and convict Putin, expeditiously, for aggression. Of course, they envisage that a few others would also be charged and tried as well for aggression, but Putin is the great white whale (though it should be remembered that Moby Dick was both Ahab’s obsession and the prize he could not have). Continue reading “Why a tribunal for aggression is unrealistic, why the ICC should step aside, and why a tribunal established by the UNGA is the optimal option”

Defending in the age of open source digital user-generated evidence

By Michael G. Karnavas and Noah Al-Malt

Recently we had the opportunity to attend a panel discussion at the Leiden University Grotius Center for International Legal Studies on Filling an Accountability Gap? How a Standing UN Investigative Mechanism Would Further International Justice. Bluntly, it seemed more like a promotional event for the International Commission of Jurists’ (“ICJ”) concept of establishing a Standing Independent Mechanism (“SIIM”) as set out in its September 2022 report: “Options for the establishment of a Standing Independent Investigative Mechanism (SIIM).”

The panelists (but for one appearing remotely) were all in The Hague for the International Criminal Court (“ICC”) Assembly of State Parties, which, with all the side events, has turned into an annual convention for networking and promotion – a regular law-fest. Kudos to the Grotius Center for taking advantage of the presence of the panelists and organizing the discussion on the benefits, needs, and presumptions associated with establishing a SIIM. Noteworthy, the proponents for a SIIM did not argue that the either the International, Impartial and Independent Mechanism for Syria (“IIIM”) or Independent Investigative Mechanism for Myanmar (“IIMM”) – both of whom heavily rely on digital evidence of all sorts – were underperforming because of the lack of a SIIM.

Maybe there is merit in establishing a SIIM to support the work of other accountability mandates (we think not, for a host of reasons). But isn’t the real elephant in the room how to ensure quality control of open source digital user-generated evidence, from collection to preservation to admission to assessment to reliance. As practitioners, we think so. Continue reading “Defending in the age of open source digital user-generated evidence”

Karnavas publishes paper on reparations to Khmer Rouge victims through sustainable health care

Remedying Victims Of Khmer Rouge Crimes With Sustainable Healthcare Through Reparations Or Transitional Justice Principles

By Michael G. Karnavas

Michael G. Karnavas was commissioned by the Documentation Center of Cambodia (“DC-Cam”), funded by USAID, to examine and propose healthcare as a means of reparation’s to victims of the Khmer Rouge. His paper was published 11 May 2022.

Victims of large-scale human rights violations have a fundamental right to reparations grounded in the Universal Declaration of Human Rights and international human rights treaties such as the International Covenant on Civil and Political Rights. Unfortunately, rarely, if ever, are mechanisms adopted and implemented that would meaningfully redress the victims. The Cambodian victims of the violations of human rights committed during the Democratic Kampuchea (“DK”) period of 1975 to 1979 – many of whom were admitted as Civil Parties participating in proceedings at the Extraordinary Chambers in the Courts of Cambodia (“ECCC”) – are no different.

Although virtually the entire population was severely traumatized during the DK period, formal mental healthcare services for the survivors, as well as others, have been either lacking or woefully inadequate to meet demand. The ECCC – which was established by an Agreement between the United Nations and the Royal Government of Cambodia to “brin[g] to trial senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations” in Cambodia between 17 April 1975 and 6 January 1979 – can only award non-compensatory and symbolic reparations.

Given this gap, DC-Cam has been advocating that Cambodia and the international community can and should do more to repair victims of the Khmer Rouge atrocities. As part of DC-Cam’s ongoing initiative to implement a program that sustainably supports the health and welfare of survivors, this paper explores: (a) to what extent providing healthcare services for DK period victims fits within the reparations frameworks of the international(ized) criminal courts and tribunals, including the ECCC; and (b) whether absent such possibilities, healthcare services should be provided as part of a transitional justice package designed to help Cambodian society sustainably deal with the legacy of the DK period.

Concluding that the reparations frameworks of international(ized) criminal courts and tribunals and the ECCC show that providing healthcare services as a reparations measure is effectively unrealizable, this paper provides recommendations on implementing a sustainable healthcare initiative in Cambodia as a transitional justice measure and presents further areas for exploration.

Interested in hearing Michael’s pull-no-punches observations about the ECCC and its legacy? Pour yourself a glass and settle back to listen to this wide-ranging interview he gave DC-Cam.

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Book Review: The Kosovo Specialist Chambers The last resort for justice in Kosovo?

The Kosovo Specialist Chambers The last resort for justice in Kosovo?, by Maria Stefania Cataleta and Chiara Loiero, LAP Lambert Academic Publishing, 2021, 180 pp.

A universal value is stymied by particularistic thinking. It is a matter of experience that in all societies torn by violence – but indeed even in societies at large – persons are unable to think in a reciprocal and equal way under the polar star of the Kantian imperative. On the contrary, they view persons having committed even most heinous crimes under the lens of political considerations of a particularistic nature. Thus, a person is a national hero or a war criminal according to the side where a person stands. The same acts can for the same person be heroic or criminal according to whether they are done by friends or by foe. During the Bosnian war, the communities in the former Yugoslavia reasoned more than largely on such fault lines.… There seems to be an inability of a greater number of persons to attach to the acts and only to the acts, and to condemn them from whichever side they come when they are criminal. — Robert Kolb, Preface

In an exquisitely cogent preface, Robert Kolb, Professor of Public International Law at the Law Faculty of the University of Geneva, distills the particularistic nature of ad hoc or hybrid international(ized) criminal tribunals and courts, which, in part, due to political considerations, are incapable of delivering unqualified/objective local acceptance. This is not necessarily because of the quality of justice – though there is much that can be said about the unevenness in charging and the more-than-the-occasional unimpressive qualifications of some judges – but because, to use an aphorism, acceptance or rejection of the judicial process and results is dependent on whose ox is being gored. Continue reading “Book Review: The Kosovo Specialist Chambers The last resort for justice in Kosovo?”