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SOUTH AFRICA’S ICJ APPLICATION: A convincing genocide claim or a compelling off-ramp for Israel (and cautionary refrain for the US)

South Africa is highly cognisant of the fact that acts of genocide are distinct from other violations of international law sanctioned or perpetrated by the Israeli government and military in Gaza — including intentionally directing attacks against the civilian population, civilian objects and buildings dedicated to religion, education, art, science, historic monuments, hospitals, and places where the sick and wounded are collected; torture; the starvation of civilians as a method of warfare; and other war crimes and crimes against humanity — though there is often a close connection between all such acts. South Africa is also aware that acts of genocide inevitably form part of a continuum — as Raphael Lemkin who coined the term ‘genocide’ himself recognised. For this reason it is important to place the acts of genocide in the broader context of Israel’s conduct towards Palestinians during its 75-year-long apartheid, its 56-yearlong belligerent occupation of Palestinian territory and its 16-year-long blockade of Gaza, including the serious and ongoing violations of international law associated there,,,with, including grave breaches of the Fourth Geneva Convention, and other war crimes and crimes against humanity. However, when referring in this Application to acts and omissions by Israel which are capable of amounting to other violations of international law, South Africa’s case is that those acts and omissions are genocidal in character, as they are committed with the requisite specific intent (dolus specialis) to destroy Palestinians in Gaza as a part of the broader Palestinian national, racial and ethnical group.

Application Instituting Proceedings (para. 2).

Relying on the Genocide Convention, South Africa in its Application Instituting Proceedings (SA Application) to the International Court of Justice (ICJ) seeks a finding of the existence of genocidal intent, and injunctive relief as provisional measures – an order requiring Israel to cease or limit its military operations in Gaza. I expected a cogent, balanced, and persuasive submission – to perhaps even be convinced since I’ve not seen evidence from which to conclude the existence of the requisite dolus specialis (genocidal intent). Disappointingly, the SA Application ignores or glosses over critical context as it relates to Israel’s right of self-defense – relevant to objectively assessing the SA Application. The legal analysis is also less than impressive. Suffice it to say, the facts as marshalled, and the arguments as crafted in the SA Application have not nudged me one iota towards the more vocal and ostensibly conformist assessment. I remain unmoved that a genocide, strictly in the legal sense, is ongoing in Gaza, just as I remain unpersuaded that the ICJ can order provisional measures which may infringe on Israel’s right of self-defense. Hence this post. Continue reading “SOUTH AFRICA’S ICJ APPLICATION: A convincing genocide claim or a compelling off-ramp for Israel (and cautionary refrain for the US)”

Book Review Series: Musings and meanderings from my 2023 reading explorations – Part 5

It was never my intention to be a reporter, a critic, an advocate. It was also never my intention to provide audiences with “everything” they needed to know about a place – or even a balanced or comprehensive overview. I am a storyteller. I go places, I come back. I tell you how the places made me feel.

Anthony Bourdain

I’m a criminal defense lawyer. I do some training and lecturing, and occasionally work on rule of law and development projects. I claim no particular expertise other than in my narrow field of work. I claim no Delphic insight on history, international relations, geopolitics, or on many of the areas that interest me. “All men by nature desire to know,” according to Aristotle. I know I do. So, I read, sometimes writing about what I read. My intention was never to be a book reviewer, a critic, a blogger. Like Anthony Bourdain, that wonderful, quirky, irreverent globetrotting chronicler, it has not been (nor will ever be) my intention to provide you “everything” you need to know about the books reviewed in this series or in previous posts (or future ones). I try to be balanced but by no means comprehensive. I try to convey how visiting a particular book made me feel, and in some small measure, vicariously take you, the reader, the audience, to places you may wish to visit. In this last post of the series, I will recommend some of the memorable books I read this year for pleasure and just to know. I have loosely categorized them with a brief commentary. Continue reading “Book Review Series: Musings and meanderings from my 2023 reading explorations – Part 5”

Book Review Series: Musings and meanderings from my 2023 reading explorations – Part 4

War is hell, but that’s not the half of it, because war is mystery and terror and adventure and courage and discovery and holiness and pity and despair and longing and love. War is nasty; war is fun. War is thrilling; war is drudgery. War makes you a man; war makes you dead. The truths are contradictory.

Tim O’Brien, The Things They Carry (pp. 76-77)

For citizens, garlands of euphonism and a fog of glorious myth shroud th[e] bloody past. The battles that shaped the nation are most often remembered by the citizenry as defending the country, usually in the service of peace, justice, freedom, or other noble ideas. Dressed in this way, the wars of the past justify the wars of the present for which the citizen is willing to fight or at least pay taxes, wave flags, cast votes, and carry forth all the duties and rituals that affirm her or his identity as being one with the nation’s.

Viet Thanh Nguyen, Nothing Ever Dies (p.5)

Memory affects us. It shapes our identity, who we are, how we perceive the past, how we view the present, and how we envision and might act in the future. Other than what we personally experience – to which a degree of uncertainty, bias and misapprehension must be taken into account – our memory of past events as our perception of present ones, in no small measure, is based on what we are told. Where the truth lies, assuming there is a truth, depends on who is telling the story, based on what information, from what vantage point in examining the events, the quality of the information, the objectivity of witnesses and their ability to accurately recount, and the intentions of those who write and lecture and promote historical truths as they would have others believe and be influenced by. Having tried my share of small, big, and mega cases, I’ve come to realize that few things are as they often appear. Court judgments may determine the existence of certain facts to satisfy a beyond reasonable doubt finding, but even seemingly correct findings, occasionally prove not to be. Memory, or the unreliability of memory, is partly responsible. When it comes to historical events, especially those that touch us, our memory is at risk of being manipulated – being influenced to see and believe (and thus drilled into our memory) things as told by authority figures, government officials, museums, monuments, memorials, textbooks, and so on. Harking back to my reasons for venturing into this book review series as explained in Part 1, the books reviewed here tie in the theme of memory and war. Continue reading “Book Review Series: Musings and meanderings from my 2023 reading explorations – Part 4”

Book Review Series: Musings and meanderings from my 2023 reading explorations – Part 3

All organized groups and structures of normative conduct – that is to say, conduct which is regarded by each actor, and by the group as a whole, as being obligatory, and for which violations carries a price. Normative systems make possible that degree of order if society is to maximize the common good – and, indeed, even to avoid chaos in the web of bilateral and multilateral relationships that society embraces.

Rosalyn Higgins, Problems and Process: International Law and How We Use It (p. 1)

Staying informed on the news of the day, any day, has become unsettling. The world order is in disorder. We are all affected and pay the price one way or another. After WWI – the war that was supposed to end all wars – the League of Nations was formed. The hope and expectations were that as states would be governed by civilized citizens in a new(ish) world order, one that looked beyond the narrow contours of the 1648 Peace of Westphalia, nation-states would accept the notion (reality) that they were part and parcel of a community of states with rights and obligations and a normative structure and institutions to solve differences and disputes in a civilized manner. Well, we all know things did not work out as planned. After World War II, a new model was designed – The United Nations. Hopes and expectations were high. Though many states were reticent to give the extraordinary power of the veto to five states sitting as permanent members on the UN Security Council, they went along. What else could they do? Unsurprisingly, things have not worked out as hoped. Yet, hope remains. It must.

The books reviewed in this part of the series deal with the UN, international conflict and security, public international law, and includes a short treat on political philosophy relevant to international law/relations. The selection is idiosyncratic. My discretionary reading (anything not related to a case or project I am involved in) is capricious, unstructured. Nonetheless, a sliver of reason and rhyme can be found – especially if like me, you are habitually attempting to synthesize ideas, facts, concepts, and knowledge wherever found. Continue reading “Book Review Series: Musings and meanderings from my 2023 reading explorations – Part 3”

Book Review Series: Musings and meanderings from my 2023 reading explorations – Part 2

In a sense all historians are revisionists, for each tries to make some contribution that changes our understanding of the past. When we use the term revisionist, however, we generally mean something more fundamental: a writer who tries to change the reader’s mind in a major way by providing a new general interpretation, one that sharply and thoroughly reexamines the established way of looking at a matter.

Donalds Kagan, Thucydides: The Reinvention of History (p. 23)

As I noted in Part 1, in thinking of the geopolitical events of the day, particularly the Russo‑Ukrainian war, I happened to come across Telford Taylor’s MUNICH: The Price of Peace. I was intrigued by it because at the time – and as much today, where we can see the disinterest by many conservative Republicans in the US Senate and House of Representatives in further funding Ukraine – I assumed that at some point the US and other European allies assisting Ukraine would resort to appeasement. By this, I mean reducing the military aid and support to Ukraine – kneecapping them in a sense – to convince/pressurize Ukraine to give up its sovereignty over Ukrainian land coveted by Russian President Vladimir Putin. Understandable. After all, Ukraine is far away, Russian missiles are not falling on any US territory, there are pressing issues at home, and then there is inflation – the price of gasoline at the pump is up, as it is for eggs, bread, meat, clothes – so why not spend the money on fixing things that voters can relate to? As shortsighted and misguided as this thinking may be, one cannot blame the hardworking, taxpaying, citizen-voter. The onus, the responsibility, rests with the elected officials to give valid and persuasive reasons why appeasement is not an option. Expecting what is playing out today with donor-fatigue by the US and its European allies supporting Ukraine, I thought I would cast a wide reading net, starting with history and international affairs. Here are five books in this category. Nothing links them other than certain themes that relate to statecraft and war-making. Continue reading “Book Review Series: Musings and meanderings from my 2023 reading explorations – Part 2”

Book Review Series: Musings and meanderings from my 2023 reading explorations – Part 1

They arrived four days ago, but for 48 hours the reviewer was prevented by moral paralysis from opening the parcel. Yesterday in a resolute moment he ripped the string off it and found the five volumes to be Palestine at the Cross Roads, Scientific Dairy Farming, A Short History of European Democracy (this one 680 pages and weighs four pounds), Tribal Customs in Portuguese East Africa, and a novel, It’s Nicer Lying Down, probably included by mistake. His review — 800 words, say — has got to be ‘in’ by midday tomorrow.

George Orwell, Confessions of a Book Reviewer

January 2023 rolled in with the zero-sum driven Russo-Ukrainian war raging, which, by any informed observer’s account, has evolved into a war of attrition. With neither Russia nor Ukraine contemplating a negotiated settlement, the killings and destruction and atrocities and suffering will run the ever-predictable course. Will either side give in? Doubtful – at least not as long as Russia has the means to wage war and Ukraine has the means to repel and respond in kind (save for an unpardonable but not improbable tactical nuclear strike by Russia).

Russia, or shall I say Putin, is convinced of the righteousness of initiating the war – not as the aggressor but because of the existential threat posed to Russia by Ukraine. Whether we agree or disagree with Putin’s perceptions – which, indubitably, accounts for the ruthlessness with which he is prosecuting his euphemistically branded limited military intervention – his perception is his reality. Inversely, Ukraine’s reality is that Russia is waging an un-provoked and unjustifiable war, an un-righteous act of aggression which it perceives as an existential threat to Ukraine’s existence – of its sovereignty, territorial integrity, heritage, and culture. Continue reading “Book Review Series: Musings and meanderings from my 2023 reading explorations – Part 1”

REASONABLE DOUBT FOR A REASONABLE PRICE: Just how reasonable is the ICC’s draft Legal Aid Policy?

There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.

US Supreme Court Justice Hugo Black

A fair trial is one in which the rules of evidence are honored, the accused has competent counsel, and the judge enforces the proper courtroom procedures – a trial in which every assumption can be challenged.

Harry Browne

There is much to be said about money buying a good defence. By this I mean a suspect or accused being able to have highly qualified and experienced counsel, to have a defence team that is both ideally suited and diligent, and to have sufficient resources to hire discrete investigators and experts essential in challenging every assumption.

Money does not necessarily guarantee quality, no more than being on the List of Counsel guarantees that counsel has the relevant experience and competence to lead a case before the ICC. But money does generally help when not dependent on legal aid for the quality of lead counsel and the resources in mounting a defence. Don’t get me wrong, there are plenty of top shelf advocates on the ICC List of Counsel. Truth be told, however, the vast majority of suspects and accused are not sophisticated enough to distinguish the excellent from the good, the mediocre, or the inadequate. Generally, they will rely on others (rumors abound on who some of them are and of their methods) to help them out in picking a name off the list of 600-700 names. But this is an issue for another time. Here I want to focus on the draft Legal Aid Policy that the Assembly of State Parties will consider, and most likely adopt – though I would not be surprised if it balks at the modest remuneration increases being offered. Continue reading “REASONABLE DOUBT FOR A REASONABLE PRICE: Just how reasonable is the ICC’s draft Legal Aid Policy? “

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 “