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Ahmed al Faqi al Mahdi’s trial or slow change of plea hearing at the ICC?

On 22 August 2016, Ahmad Al Faqi Al Mahdi entered a guilty plea before the Trial Chamber for destruction of cultural monuments in the UNESCO world heritage site in Timbuktu, Mali.((Prosecutor v. Al Mahdi, ICC-01/12-01/15-T, Video Recording of the Admission of Guilt, 22 August 2016, available at https://www.icc-cpi.int/mali/al-mahdi.)) Despite having admitted to the crimes charged, the case proceeded to a two-day trial. The judgement and sentence are expected by 27 September 2016.((Prosecutor v. Al Mahdi, ICC-01/12-01/15-T-6-ENG, Transcript of the Trial Hearing, 24 August 2016, available at https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-01/12-01/15-T-6-ENG.))

Interesting as it may be to debate the merits of going after the likes of Al Mahdi and the significance of this case (see e.g., Mark Kersten in Justice in Conflict (2 posts) or Owen Bowcott’s article in The Guardian), I am interested in the trial. Or is it a trial? After all, Al Mahdi pled guilty, acknowledged the factual matrix in the charging document as accurately reflecting his conduct, and voluntarily, knowingly, and intelligently (understandingly) waived guaranteed fair trial rights, in particular the rights to be presumed innocent, against self-incrimination, and to have the prosecution prove each charge against him beyond a reasonable doubt.

So what is there to try? Why put Al Mahdi through the crucible of having to retell that which presumably he has already told the Prosecutor or force him to effectively prove his guilt (having entered a guilty plea, there is a presumption that Al Mahdi is guilty) for the crimes for which he has already accepted responsibility and for which he is willing to bear the consequences? Continue reading “Ahmed al Faqi al Mahdi’s trial or slow change of plea hearing at the ICC?”

ECCC Prosecutorial Awakening is No Profile in Courage

One has a moral obligation to take responsibility for one’s actions, and that includes one’s words and silence, yes, one’s silence …

Roberto Bolaño, By Night in Chile

A couple of weeks ago I posted a commentary that appeared in the Cambodia Daily concerning Henri Locard’s remarks while being examined by International Co-Lawyer for Accused Khieu Samphan, Ms. Anta Guisse, and his out-of-court remarks about the defence in general, which also appeared in the Cambodia Daily.

Locard’s out-of-court remarks prompted the Nuon Chea Defence to file a submission requesting a. that the press article that reported on Locard’s remarks be placed on the case file, and b. for the Trial Chamber to disregard Locard’s testimony because, having prejudged Nuon Chea’s guilt, Locard’s testimony was “not impartial or neutral and therefore fails to meet the criteria required to be considered expert evidence.” The Co-Prosecutors responded.((Case of NUON Chea, 002/19-09-2007-ECCC/TC, Co-Prosecutors’ Response to Nuon Chea’s Rule 87(4) Request to Admit into Evidence a Document an Article Concerning Henri Locard (2-TCE-90), 16 August 2016.)) Hence this post.

The Co-Prosecutors have no objections to the press article being included in the case file. What other position could they take? Hardly a bold manifestation of fairness.

The Co-Prosecutors did however object to the Nuon Chea Defence’s characterization of Locard and his testimony. Despite Locard’s in-court and out-of-court remarks, the Co-Prosecutors find him to be an erudite, objective and credible expert witness. Predictable. Although, what else could they be expected to say? It takes a particularly honest and moral sense of a prosecutor’s higher duty to justice to step out of the adversarial boots and cease vouching for a demonstrably defective witness. Continue reading “ECCC Prosecutorial Awakening is No Profile in Courage”

Amnesty Part IV: The Case Against Saif al-Islam Gaddafi Before the ICC

In the previous post I examined the principle of ne bis in idem / double jeopardy, setting out the general characteristics, underlying rationale, exceptions to the principle, and its transnational applications.

This series on Saif al-Islam Gaddafi and the ICC was prompted by the press conference organized by Gaddafi’s lawyers calling for the ICC to dismiss the crimes against humanity (murder and persecution) charges against Gaddafi for which he has been indicted. Continue reading “Amnesty Part IV: The Case Against Saif al-Islam Gaddafi Before the ICC”

Judges called to task for failure to defend the defence

On 2 August 2016, a prosecution expert lashed out at the Defence while being cross-examined at the ECCC. The judges of the trial chamber sat silent. In an opinion piece published 8 August 2016 in The Cambodia Daily, Michael G. Karnavas takes the judges to task for their complicit passivity.

Apathy Signals Open Season on Defense Lawyers in Case 002

BY MICHAEL KARNAVAS AUGUST 8, 2016

On August 2, 2016, Henri Locard, testifying as an “expert” in Case 002, lashed out at Khieu Samphan’s lawyer, Anta Guisse, claiming to have been put under “cold torture” the previous day when examined—“Historian Accuses Tribunal Lawyers Of ‘Cold Torture,’” (August 3).

The reference to cold torture, for those who have not followed the trial, is about one of the methods employed by Kaing Guek Eav, better known as Duch, at S-21, or Tuol Sleng, in extracting confessions. Mr. Locard then went on to say that if Ms. Guisse continued to apply cold torture, after three days maybe he would gift his persona to Angkar, implying that the questioning was a form of re-education to conform his thinking to that of the Democratic Kampuchea regime. Continue reading “Judges called to task for failure to defend the defence”

Amnesties and Pardons in International Criminal Law – Part II

Amnesty is defined as complete and lasting forgetfulness of wrongs and offences previously committed. Therefore, when an amnesty is given, since all deeds are consigned to perpetual oblivion and everlasting silence, no one can be accused or punished for acts before committed.((CHRISTIAN WOLFF, JUS GENTIUM METHODO SCIENTIFICA PERTRACTATUM Vol. 2, para. 989 (transl. by and Joseph H. Drake, Oxford 1995). ))

In my previous post I briefly recounted the background and recent developments in the case against Saif al-Islam Gaddafi at the ICC, and how these recent developments relate to the issues of amnesties, pardons, and ne bis in idem. I was prompted by recent news reports that Saif al-Islam Gaddafi was pardoned and released from prison after being convicted and sentenced to death, and his legal teams’ press conference and statements that the ICC should dismiss the case against Saif al-Islam Gaddafi because he was pardoned and because of double jeopardy. Continue reading “Amnesties and Pardons in International Criminal Law – Part II”

Saif al-Islam Gaddafi and the ICC: is the purported “amnesty” (or pardon) and “double jeopardy” a game-changer?

On 26 February 2011, the United Nations Security Council voted unanimously to refer the situation in Libya since 15 February 2011 to the ICC Prosecutor to hold accountable those responsible for attacks on civilians by forces under the control of those responsible. After conducting a preliminary examination, the ICC Prosecutor concluded on 3 March 2011 that there is a reasonable basis to believe that crimes under the ICC’s jurisdiction have been committed in Libya, and decided to open an investigation. Continue reading “Saif al-Islam Gaddafi and the ICC: is the purported “amnesty” (or pardon) and “double jeopardy” a game-changer?”

Cambodia Daily publishes Karnavas rebuttal to defence of US Senate’s ECCC interference

On 6 July 16 The Cambodia Daily published a commentary by Michael G. Karnavas, entitled Inducing Case 003 Outcome: US Purse Strings Wielded as a Whip. Heather Ryan, a consultant to the Open Society Justice Initiative, responded in a commentary, Tribunal Is Tainted by Political Interference, but Not From US, published on 12 July 16. Mr. Karnavas replied in the following commentary, Consultant’s Analysis of US Senate Bill Cherry-Picks Facts, published on 13 July 16.

Consultant’s Analysis of US Senate Bill Cherry-Picks Facts

BY MICHAEL KARNAVAS | JULY 13, 2016

In an op-ed published on Tuesday—“Tribunal Is Tainted by Political Interference, but Not From U.S.”—Heather Ryan, a consultant to the Open Society Justice Initiative, responded to my commentary concerning U.S. Senate Appropriations Committee bill S.3117, wherein I asserted that the Senate is effectively engaging in political interference, impliedly calling on the co-investigating judges to indict my client, Meas Muth. Continue reading “Cambodia Daily publishes Karnavas rebuttal to defence of US Senate’s ECCC interference”

Cambodia Daily publishes Karnavas commentary on US Senate pressure on ECCC to indict in Case 003

On 6 July 2016, The Cambodia Daily published a commentary by Michael G. Karnavas on US Senate Appropriations Committee Bill S.3117.((section 7043(c)(2)) The bill, as explained in the Committee’s Report, seeks to tie US funding of the ECCC to the indictment of Mr. Meas Muth in Case 003. Mr. Karnavas calls out the bill’s drafters on their disregard for international standards of justice and respect for the rule of law, and for their lack of understanding of the very procedural rules with which they seek to tamper.

Inducing Case 003 Outcome: US Purse Strings Wielded as a Whip

BY MICHAEL KARNAVAS | JULY 6, 2016

Last Wednesday, the U.S. Senate Appropriations Committee approved a bill: S.3117. Buried 221 pages into that bill is a provision that would stop U.S. contributions to the Extraordinary Chambers in the Courts of Cambodia unless the U.S. secretary of state certifies and reports to the committee that the ECCC “will consider Case 003.” Continue reading “Cambodia Daily publishes Karnavas commentary on US Senate pressure on ECCC to indict in Case 003”

The Lawyer’s Independence — Part II

The Lawyer’s Independence: A Universal Principle of Disparate Meanings

Part II – A Critical Analysis of International Legal Ethics

This post follows up on my discussion of the ethical principle of a lawyer’s independence. Though virtually all national and international codes of conduct codify the lawyer’s independence, a lawyer’s understanding of this principle and the ethical duties deriving therefrom differs depending on his or her legal tradition.

In my first post, I attempted to clarify what it means to be “independent” in the national context by discussing the lawyer’s role in the civil and common law systems and how the principle of independence is interpreted in various domestic legal systems. This post will focus on the ethical principle of a lawyer’s independence in the context of international and internationalized criminal tribunals based on the various applicable and aspirational codes of conduct.

Lawyers (hereinafter “Counsel” as generally referred to at international tribunals and courts) from different legal traditions have different experiences and are beholden to their own canons and traditions of professional ethics. What may be permissible in one national jurisdiction may not be permissible in another, and depending on the circumstance, may or may not be permissible at one of the ad hoc international or internationalized criminal tribunals, or the International Criminal Court (“ICC”). And herein lies the conundrum: with which code of conduct and with which interpretation of any of the ethical principles must Counsel abide when practicing at any of the international or internationalized tribunals? Is it as simple as saying that Counsel must abide by the code of conduct of the tribunal or court before which he or she is appearing? What if there is a conflict or a notable difference between Counsel’s national code and the court’s code? This fundamental ethical issue, which Counsel will invariably encounter in representing accused or victims before these courts and tribunals, will be the topic of another post. I merely raise this point now to highlight just how not so simple or straightforward it really is in practice to straddle codes of conduct with diverging meanings of ethical principles that textually and with an unadorned reading seem identical. Continue reading “The Lawyer’s Independence — Part II”

Judgement by essay at the Extraordinary Chambers in the Courts of Cambodia results in public apology

On 2 December 2015, the Public Affairs Section (PAS) of the Extraordinary Chambers in the Courts of Cambodia (ECCC) published its November Court Report. The PAS saw fit to include in the Court Report an essay titled “Exploring Transgenerational Justice at the ECCC”, which was published without attribution. In the essay, which discussed PAS interviews of high school students and senior citizens about their perspectives on trauma and justice, the author reached some astonishing conclusions about crimes purportedly committed from 1975 to 1979 (the period in which the Khmer Rouge governed Cambodia). In the author’s view, “some of the most gruesome crimes against humanity were perpetrated [in the years between 1975 and 1979]” and, “[d]espite having only second-hand information about the genocide perpetrated in their nation, [students] envision a peaceful Cambodia similar to the pre-1975 Cambodian society.”((ECCC Court Report, November 2015, Issue 91, p. 2 (emphasis added).)) Continue reading “Judgement by essay at the Extraordinary Chambers in the Courts of Cambodia results in public apology”