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RUMORS OF PENDING ICC ARREST WARRANTS FOR ISRAEL AND HAMAS OFFICIALS: Conflating self-defence with accountability for crimes, and why “in the interests of justice” (in)action is a viable non-interfering option to the ongoing negotiations

There is nothing more distorted than attempting to prevent Israel from defending itself against a murderous enemy openly calling for the destruction of the state of Israel. If the warrants are issued, they will harm the commanders and soldiers of the IDF and provide a morale boost to the terrorist organisation Hamas and the axis of radical Islam led by Iran against which we are fighting.

Israel Katz, Israel’s Foreign Minister

Such a lawless action by the ICC would directly undermine US national security interests. If unchallenged by the Biden administration, the ICC could create and assume unprecedented power to issue arrest warrants against American political leaders, American diplomats, and American military personnel, thereby endangering our country’s sovereign authority.

Mike Johnson, Speaker of US House of Representatives

We’ve been really clear about the ICC investigation. We don’t support it; we don’t believe that they have the jurisdiction.

Karine Jean-Pierre, White House spokesperson

It would be a fatal blow to the judicial and moral standing of ICC to pursue this path against Israel.

John Fetterman, US Senator

The fact that innocent civilians are trapped under the weight of a war they cannot escape and which is not their fault is not tenable.

Karim Khan KC, ICC Prosecutor

The above quotes are from The Guardian. A mere sampling. Aside from the obvious hypocrisy of US President Biden and his administration of supporting the International Criminal Court (ICC) when it comes to investigating alleged Russian atrocities in Ukraine while not recognizing the ICC’s jurisdiction to investigate and prosecute crimes alleged to have been committed by Israeli officials and the Israel Defense Forces (IDF), these quotes are as illuminating as they are alarming.

Auditions for RUMORS — Tacoma Little Theatre Rumors abound. Potential arrest warrants for Prime Minister Benjamin Netanyahu, Defense Minister Yoav Gallant, and IDF chief of staff Herzi Halevi may be in the offing. According to Axios, Netanyahu has asked US President Biden to intervene. Netanyahu wants the US to assist in preventing the ICC from exercising its jurisdiction and carrying out its mandate – to prevent arrest warrants from being issued against senior Israeli officials and IDF members in connection with the war in Gaza. Continue reading “RUMORS OF PENDING ICC ARREST WARRANTS FOR ISRAEL AND HAMAS OFFICIALS: Conflating self-defence with accountability for crimes, and why “in the interests of justice” (in)action is a viable non-interfering option to the ongoing negotiations “

MUSINGS WITH PROF. ANDRÉ KLIP ON THE LEGACY OF INTERNATIONAL CRIMINAL TRIBUNALS: Have expectations been met or were they (and remain) overly aspirational?

Reflection… Looking back so the view looking forward is clearer.

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Unrealistic expectations often lead to disappointment while simple unbiased attention and detachment to outcome lead to pleasant surprises.

Gary Hopkins

While the Nuremberg trial has come to symbolize a grand moment of moral clarity, the Tokyo trial is engrossing precisely because it remains so controversial. Nuremberg is exalted precisely by lawyers and human rights activists as a template for recent efforts at international justice from Bosnia to Rwanda to the permanent International Criminal Court, while Tokyo is seen as an embarrassment best forgotten. The suffering of Asians gets little attention in the United States and Western Europe. If Nuremberg stands as a metaphor for ethical purity, then Tokyo represents a dive into murk.

Gary J Bass, Judgement at Tokyo: World War II on Trial and the Making of Modern Asia, p. 12

It seems inconceivable that prior to the early 1990s, there were no functioning international(ized) criminal tribunals/courts (ICTs). Since the establishment of the initial ad hocs – the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) – a slew of ICTs have come and gone or morphed into mechanisms. More are expected. Regional tribunals have emerged, filling in some of the gaps and picking up the slack. The application of universal jurisdiction in domestic courts is on the rise, though, only few states with highly developed prosecutorial and judicial systems are genuinely capable of handling cases of mass atrocities with due regard for international procedural and substantive justice standards.

And then there is the International Criminal Court (ICC). Established in 2002, it is a permanent fixture, ushered in with great fanfare and enthusiasm and hope, as the bulwark against impunity – the vanguard that would lead the charge, set the standards, and cast its shadow to presage and prompt. But after more than two decades in existence, with scant trials and even scanter convictions, the jury is still out. Permanence and relevance are not mutually inclusive. Nor does calling something permanent immunize it from withering to defunction. Even the most ardent devotees of the ICC (I am an unsentimentally strong, but clear-eyed and guarded supporter) must admit that thus far the ICC has underperformed.

Continue reading “MUSINGS WITH PROF. ANDRÉ KLIP ON THE LEGACY OF INTERNATIONAL CRIMINAL TRIBUNALS: Have expectations been met or were they (and remain) overly aspirational?”

THE IILAT ETHICS SYMPOSIUM AT THE ICC: Sharing views on professional responsibilities and working through ethical dilemmas

[I]f we have to find our way over difficult seas and under murky skies without a compass or chronometer, we need not on that account allow the ship to drive at random.

A. Balfour, The Foundations of Belief, Being Notes Introductory to the Study of Theology (Longman, Green & Co., New York, 1902), p. 244.

You need to know what you don’t know, to know what you need to know.

Michael G. Karnavas, Training Aphorism

On 13-14 March 2024, I was privileged to have been invited as a panelist to an ethics symposium held at the International Criminal Court (ICC), organized by the Institute for International Legal and Advocacy Training (IILAT).

Founded in 2013 in The Hague, IILAT’s mission over the years has been “to address the growing need for courtroom advocacy training at international courts and tribunals.” Training, which might I add, is practical, relevant, and qualitatively excellent – and badly needed, considering the importance of adversarial skills required in virtually all international(ized) criminal tribunals and courts (ICTs). As for this symposium, I found it exceptionally useful and insightful. Continue reading “THE IILAT ETHICS SYMPOSIUM AT THE ICC: Sharing views on professional responsibilities and working through ethical dilemmas”

THE DELAY IN PRONOUNCING THE AL-HASSAN TRIAL JUDGMENT – Inquiring minds want to know more!!!

Justice delayed is justice denied.

William E. Gladstone

Sunlight is said to be the best of disinfectants.

Louis Brandeis

The written decision under Article 74 of the Statute shall be delivered within 10 months from the date the closing statements end.

ICC Chambers Practice Manual, Seventh Edition (2023), para. 88.

On 6 December 2023, Trial Chamber X of the International Criminal Court (ICC) issued an order scheduling the pronouncement of its trial judgment in the Al Hassan case for 14:00 on Thursday, 18 January 2024 — over a month ago. Closing arguments had ended on 25 May 2023. With plenty of recesses during the trial proceedings, 10 months to render a decision (as required by the Chambers Practice Manual) is more than reasonable – assuming the Chamber is organized and efficient. Not being rocket science, and with plenty of best practices developed over the decades since the first ad hoc and successive international(ized) criminal tribunals and courts (ICTs) were established, drafting a judgment within this period should be no challenge. Continue reading “THE DELAY IN PRONOUNCING THE AL-HASSAN TRIAL JUDGMENT – Inquiring minds want to know more!!!”

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? “

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”

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”

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”

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”

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”