After countless challenges and criticism from a wide-range of legal traditions regarding the extended form of joint criminal enterprise (“JCE III”), the Pre-Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (“ECCC”) held that JCE III does not exist in customary international law.((Case of NUON Chea et al., 002/19-09-2007-ECCC/OCIJ (PTC38), Decision on the Appeals of the Co-Investigative Judges[’] on Joint Criminal Enterprise (JCE), 20 May 2010, para. 78.)) The ECCC Trial Chamber, in its Decision on the Applicability of JCE, examined additional case law relied upon for JCE III support, and upheld and affirmed the Pre-Trial Chamber’s conclusion.((Case of NUON Chea et al., 002/19-09-2007-ECCC-TC, Decision on the Applicability of Joint Criminal Enterprise, 12 September 2011, paras. 33-35.)) Continue reading “The fiction of JCE III in customary international law”
Tag: ECCC
Karnavas critiques DeFalco article on “most responsible” at the ECCC
The ECCC has jurisdiction over “senior leaders of Democratic Kampuchea and those who were most responsible” for certain crimes within the ECCC’s jurisdiction.1 Randle DeFalco’s article Cases 003 and 004 at the Khmer Rouge Tribunal: The Definition of “Most Responsible” Individuals According to International Criminal Law, concludes that the suspects in Cases 003 and 004 fall within the meaning of “most responsible” and that the only legally sound option is to bring the cases to trial.
According to Michael G. Karnavas:
DeFalco’s analysis is result-determinative and based on the premise that if the suspects are not found “most responsible” there will be no other trials and the suspects would escape criminal responsibility. Although DeFalco’s basic approach to determine the meaning of “most responsible” is sensible, through his analysis he commits several errors that lead him to his pre-determined conclusion. DeFalco’s conclusions are unsurprising when considering his association with Documentation Center of Cambodia (“DC-Cam”) and interest in verifying its pre-determined conclusion that genocide and crimes against humanity occurred in Cambodia.
Click here to read Karnavas’ full critique of DeFalco’s arguments, which has been submitted to DC-CAM for publication.
- Agreement Between the United Nations and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, 6 June 2003, Preamble. [↩]
Associated Press quotes Karnavas on eve of Khmer Rouge verdict
On the eve of the Khmer Rouge Tribunal Trial Chamber’s pronouncement of the judgement in Case 002/01 against KHIEU Samphan and NUON Chea, the Associated Press asked experts, including Michael Karnavas, to discuss the significance of the trial.
Read the story: With verdicts due, experts explain importance of trial of Cambodia’s Khmer Rouge leaders
Karnavas files ECCC Amicus on Geneva Conventions Statute of Limitations
On 14 May 2014 Michael G. Karnavas and Co-Lawyer ANG Udom filed an Amicus Curiae Brief urging that the ECCC is unable to exercise subject matter jurisdiction over grave breaches of the Geneva Conventions because those crimes are subject to a 10-year statute of limitation, which has expired for crimes committed from 1975-79. Read the brief here.
ADC-ICTY LECTURE ON CONFLICTS OF INTEREST
“‘Conflict of interests’ is a term that is often used and seldom defined.” 1
On 16 April 2014 I was invited by the Association of Defence Counsel practicing before the International Criminal Tribunal for the Former Yugoslavia (ADC-ICTY) to conduct training for its members and others on ethics. The topic chosen was Conflicts of Interest. The lecture lasted 2 hours. A modest PowerPoint presentation was used to guide the lecture which was based on handout material made available after the lecture. Certificates were also issued to the participants for those who wished to claim 2 hours of CLE on ethics with their national / state bar.
The lecture focused on the lawyer’s core responsibilities to the client in both national and international jurisdictions: competence, diligence, communication, confidentiality, loyalty, honesty, and independence. Principles that are universal.
Continue reading “ADC-ICTY LECTURE ON CONFLICTS OF INTEREST”
- Cuyler v. Sullivan, 446 U.S. 335, 356 (1980) (United States Supreme Court Justice Thurgood Marshall, dissenting). [↩]
Al Jazeerah article quotes Karnavas on ECCC aspiration vs. actuality
I was recently asked by journalist Julia Wallace to provide some thoughts for an article she was writing for Al Jazeera, focusing whether the ECCC has had a positive impact on the Cambodian court system. Though I was quoted correctly and reasonably in context, much of what I had provided was lost during the editing process. Since the article came out (http://www.aljazeera.com/indepth/features/2014/03/khmer-rouge-tribunal-failing-expectations-20143293030347313.html) some have commented that my views are overly harsh and dismissive, or that I fail to acknowledge the challenges in Cambodia. I think not, but you be the judge. Here is the full text of what I provided to Ms. Wallace for the Al Jazeera article:
I have been involved in various projects over the past 20 years dealing with the Cambodian judicial system. I am also a big supporter of harvesting what is useful and applicable from the ECCC, both procedurally and substantively, and to apply it in the regular courts. (See my article, based on my presentation at the ECCC legacy conference: Bringing Domestic Cambodian Cases into Compliance with International Standards – Applicability of ECCC Jurisprudence and Procedural Mechanisms at the Domestic Level, posted on my blog michaelgkarnavas.net/blog). With this as a backdrop, I’ll attempt to provide some answers to your questions.
Continue reading “Al Jazeerah article quotes Karnavas on ECCC aspiration vs. actuality”
Eighth and Final Installment: JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS
This is the eighth, and final installment, in a series of posts drawn from a 24 January 2014 lecture on Judicial Ethics at the ADC-ICTY’s Twelfth Defence Symposium for interns and staff at the ICTY. The complete document is available on my website.
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H. The Obligations of Defence Counsel in exercising due diligence
Lastly, I discussed obligations that also lie with Defence counsel. Indeed, Defence counsel have to be diligent to raise disqualifications early in the proceedings and to the right authority. I put the accent on how important is to make the record. I used the Čelebići case as an example in which the issue was whether a Judge was fit to be a Judge.
ICTY Prosecutor v. Delalić et al. (Čelebići), The Case of the sleeping Judge, and the Defence’s failure to raise
In Čelebići, Judge Karibi-Whyte was sleeping during substantial portions the trial proceedings.[1] Defence counsel for Landžo did not formally raise this issue before the Trial Chamber but filed this issue as a ground of appeal.[2] Counsel for Landžo explained the failure to raise this issue during trial proceedings stating that she had approached “this sensitive issue in the most diplomatic way possible.”[3] Indeed, Counsel for Landžo had first raised the issue with the Registrar and President of the ICTY Judge Cassese rather than in court: Continue reading “Eighth and Final Installment: JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS”
Seventh Installment: JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS
This is the seventh installment in a series of posts drawn from a 24 January 2014 lecture on Judicial Ethics at the ADC-ICTY’s Twelfth Defence Symposium for interns and staff at the ICTY. The complete document is available on my website.
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G. Staff Members
Following the discussion on judges, I then moved on to discuss instances bias raised concerning judicial staff. The question is whether Chamber’s staff members are subjected to the same rules as Judges and therefore subject to disqualification. The answer is no, Rule 15(A) ICTY Rules of Procedure and Evidence (RPE) applies only to Judges. Noteworthy, there is no explicit code of conduct for Chambers or Prosecution staff members even though they carry out highly sensitive functions and, in many instances, are, or are presumed to be, agents of the judges and prosecutors whom they serve. Presumably, under their contractual obligations they are to conduct themselves in an ethical manner, though query whether that is enough.
ICTY Case Against Senior Legal Officer Florence Hartmann
In the Hartmann[1] case before the ICTY, in which a Senior Legal Officer allegedly had ex parte communications with the amicus curiae—who was acting on behalf of the Prosecutor—regarding the provision of confidential materials to the Defence.
Continue reading “Seventh Installment: JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS”
Sixth Installment: JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS
This is the sixth installment in a series of posts drawn from a 24 January 2014 lecture on Judicial Ethics at the ADC-ICTY’s Twelfth Defence Symposium for interns and staff at the ICTY. The complete document is available on my website.
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E. Corruption, Impartiality and Fitness to Sit as Judge
ECCC Case 002, Ieng Sary’s Motion to Disqualify Judge Nil Nonn
In 2002, Amanda Pike, a documentary filmmaker, traveled to Cambodia and produced the documentary “Cambodia: Pol Pot’s Shadow.”[1] While filming the documentary, Ms. Pike interviewed Judge Nil Nonn, the then President of the Provincial Court of Battambang. This interview served as a basis for her article “Battambang: The Judge.” In this article, Ms. Pike reported:
We talk with Judge Nil, who says that he’s upset by people’s lack of faith in the justice system. He laments that he often has to defend his profession to his friends. He admits that, yes, he does take bribes—of course—but only after a case is over. After all, he earns only $30 a month, not nearly enough to provide for his family. What else, he asks with that toothy grin, is he supposed to do?[2]
Judge Nil Nonn, when interviewed in 2006 by the Cambodia Daily, denied that he had ever taken bribes from the public or participated in the interview.[3] He stated “however, if after a trial people feel grateful to me and give me something, that’s normal I don’t refuse it. . . . I’ve settled a case for them and people feel grateful. Living conditions these days are difficult for me. But if you are talking about pressuring people for bribes—no.”[4]
Having learned of this article, the IENG Sary Defence first took steps to obtain more information. First, the IENG Sary Defence attempted to locate Ms. Pike and obtain the video footage from her interview with Judge Nil Nonn and Judge Nil Nonn’s release form to be filmed. Ms. Pike responded that she would not release the material voluntarily on “journalistic grounds.”[5] Similarly, the IENG Sary Defence wrote to Mr. Welsh at the Cambodia Daily who also declined to provide information.[6] Shortly thereafter, the IENG Sary Defence filed a motion to the Trial Chamber seeking to disqualify Judge Nil Nonn on the basis of corruption and a related request to investigate the action.[7]
Continue reading “Sixth Installment: JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS”
Fifth Installment: JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS
This is the fifth installment in a series of posts drawn from a 24 January 2014 lecture on Judicial Ethics at the ADC-ICTY’s Twelfth Defence Symposium for interns and staff at the ICTY. The complete document is available on my website.
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C. A Judge’s Ethical Obligation to Disclose
Next, I discussed a Judge’s ethical obligation to disclose. Judges must disclose facts that may affect (or perceive to affect) their impartiality; facts that could lead a reasonable, informed observer to objectively apprehend bias.
ICTR Prosecutor v. Karemera, Disqualification of Judge Vaz
In the ICTR case Karemera, the Defence requested that Judge Vaz recuse herself because of her alleged cohabitation with Ms. Dior Fall, one of the trial attorneys for the prosecution during the case.[1] Although Judge Vaz ultimately withdrew, the Appeals Chamber noted the improper conduct and held that the Judge should have disclosed the facts of her accommodation prior to the Defence’s objection: Continue reading “Fifth Installment: JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS”