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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”

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”