ICTY Archives - Page 4 of 6 - michaelgkarnavas.net/Blog

The ADC’s Continuing Relevance: MICT’s Rules Committee Practice Direction

The Association of Defence Counsel Practising Before the International Tribunal for the Former Yugoslavia, commonly referred to as the ADC-ICTY, is the association of defence counsel formally recognized by the ICTY. As part of the completion strategy of both the ICTY and the International Criminal Tribunal for Rwanda (ICTR), the International Residual Mechanism for Criminal Tribunals (MICT) was established for both these courts. Trials, appeals, and post-conviction relief have been under the MICT since 1 July 2012 for the ICTR and 1 July 2013 for the ICTY, as ongoing matters are winding down.

The ADC-ICTY remains the only professional association recognized as the official and exclusive association of any of the past and present international and internationalized courts or tribunals. In October 2002, Rule 44 of the ICTY Rules of Procedure and Evidence (RPE) was amended to make membership in an association of defence counsel compulsory,((ICTY Press Release ‘Judges’ Plenary Session Adopt Reforms Concerning Defense Counsel Teams’ (19 July 2002) http://www.icty.org/sid/8083.)) firmly establishing the ADC-ICTY as the sole professional association dedicated to the interests of all defence counsel – and by extension their staff – practicing at the ICTY.

The original draft of the MICT RPE did not include this requirement, but after the ADC-ICTY requested an amendment, the final version of the Rules included the requirement of compulsory membership of an association of defence counsel in Rule 42. With the MICT coming into existence, the ADC-ICTY was selected to continue in its capacity as the association for counsel practicing before the MICT. The ADC-ICTY was initially provisionally recognized in December 2012 and has been functioning as the de facto Association for the MICT. This recognition was confirmed on 24 August 2015.((MICT-12-01/25-08-2015/(5-3), Decision Recognizing the ADC-ICTY as an Association of Defence Counsel Practicing at the Mechanism, 24 August 2015.)) Other budding associations at international or internationalized courts and tribunals would do well to emulate the lessons learned by the ADC-ICTY over the past 14 years.

Now my point for indulging in this post. Continue reading “The ADC’s Continuing Relevance: MICT’s Rules Committee Practice Direction”

Amnesty Part III: Ne Bis in Idem in International Criminal Law

In my previous post in this series I discussed some general points on amnesties and pardons, and examined the validity of domestic amnesties for jus cogens crimes with reference to some international examples of this issue in practice.

In this post I will examine the principle of ne bis in idem, or, as it is known in common law systems, double jeopardy.((“The Right to be Protected from Double Jeopardy. This right is designed to prevent the state from repeatedly subjecting a person to prosecution for offenses arising out of the same event until the desired results are achieved. It derives from a sense of fairness, and can be analogized to the civil law concept of res judicata. The non-common law countries refer to it as non bis in idem.” M. Cherif Bassiouni, Human Rights in the Context of Criminal Justice: Identifying International Procedural Protections and Equivalent Protections in National Constitutions, 3 Duke J. Comp. & Int’l L. 235, 288 (1993). )) This principle prevents prosecution by a subsequent court of an individual for the same offense (and sometimes the same conduct, facts or cause of action) for which that individual was already finally convicted or acquitted. In the United States (“US”), it is enshrined in the Fifth Amendment to the US Constitution, which states: “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.”

To start with, I will set out some general characteristics, underlying rationale, and exceptions to this principle. I will then discuss the question of whether the ne bis in idem principle has transnational application. I will conclude with a checklist to consider when determining the applicability of the ne bis in idem principle to bar prosecution. Continue reading “Amnesty Part III: Ne Bis in Idem in International Criminal Law”

Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof

Hybrid: Anything derived from heterogeneous sources, or composed of elements of different incongruous kinds. (The Oxford English Dictionary, Second edition, Vol. VII, Oxford University Press 1989)

Since Nuremberg, every international or internationalized criminal tribunal (ICTY, ICTR, SCSL, ECCC, ICC, STL) has adopted hybrid proceedings: mixing, matching, and manipulating procedural modalities from common law and civil law systems. I use the plural for “systems” because there is no such thing as the common law system or the civil law system. There are small and large differences among the legal traditions. In common law systems one sees significant differences between the US model, virtually exclusive to the US, and the UK model, seen the world over in the Commonwealth and former UK colonies. The civil law systems can roughly be divided into two major models, the French model (with the investigative judge) and the German model, where the prosecutor charges and investigates, though even between each of these models there can be significant differences. And of course there are also what I would call the hybrid civil law systems, as in Italy, Bosnia and Herzegovina, Macedonia, and elsewhere, where adversarial modalities have been added to the proceedings, i.e., allowing the accused to gather evidence, permitting the parties to initiate the questioning of witnesses and to cross-examine opposing witnesses with leading questions, and even placing the burden of proof on the prosecution to a standard of proof beyond a reasonable doubt. Continue reading “Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof”

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”

Attorney-Client Privilege – Part VI: So Just How Immunized Am I Before the International Tribunals?

This is the final post on my discussion of the attorney-client privilege and the crime-fraud exception raised in Prosecutor v. Bemba et al. (“Bemba”) before the International Criminal Court (“ICC”). In my first post, I set out the factual context of the case. In the second and third posts, I discussed the attorney-client privilege in national tribunals and international tribunals. In the fourth post, I gave an overview of the crime-fraud exception and a legal analysis of the issues arising from the Pre-Trial Chamber((Situation in the Central African Republic, ICC-01/05-52-Red2, Decision on the Prosecutor’s “Request for Judicial Order to Obtain Evidence for Investigation under Article 70”, 29 July 2013.)) and Trial Chamber((Prosecutor v. Bemba Gombo et al., ICC-01/05-01/13-1096, Decision on Defence Request for Leave to Appeal the “Decision Providing Materials in Two Independent Counsel Reports and Related Matters”, 21 July 2015.)) decisions relating to the ICC Office of the Prosecutor’s (“OTP”) request for a judicial order to obtain evidence. In my fifth post, I discussed the application of other types of evidentiary privileges at the international criminal tribunals. In this final post I will discuss the privileges and immunities accorded to those working at the international criminal tribunals, focusing primarily on the immunities afforded to Counsel. Continue reading “Attorney-Client Privilege – Part VI: So Just How Immunized Am I Before the International Tribunals?”

Attorney-Client Privilege – Part V: Other Privileges in International Criminal Tribunals

This is the fifth post in my series on the issue of attorney-client privilege in a contempt case in Prosecutor v. Bemba et al. (“Bemba”) at the International Criminal Court (“ICC”). In my first post, I set out the factual background to the case. In the second and third posts, I discussed the attorney-client privilege in national tribunals and international tribunals. Wrapping up my discussion of Bemba, in the fourth post, I gave an overview of the crime-fraud exception and an analysis of the legal issues arising from the Pre-Trial Chamber((Situation in the Central African Republic, ICC-01/05-52-Red2, Decision on the Prosecutor’s “Request for Judicial Order to Obtain Evidence for Investigation under Article 70”, 29 July 2013.)) and Trial Chamber((Prosecutor v. Bemba Gombo et al., ICC-01/05-01/13-1096, Decision on Defence Request for Leave to Appeal the “Decision Providing Materials in Two Independent Counsel Reports and Related Matters”, 21 July 2015.)) decisions relating to the ICC Office of the Prosecutor’s (“OTP”) request for a judicial order to obtain evidence.

One issue that arose in Bemba was whether privileged attorney-client communications could be used as admissible evidence. To elaborate on this question, it is useful to look at the application of other types of evidentiary privileges at the international criminal tribunals.

This blog post is just a sampling of other types of privileges at the international criminal tribunals. It does not list all types of possible privileges, but only gives some illustrative examples of how other privileges apply. Continue reading “Attorney-Client Privilege – Part V: Other Privileges in International Criminal Tribunals”

Attorney-Client Privilege – Part III: International Tribunals

The third post in this blog series discussing questions of attorney-client privilege raised in Prosecutor v. Bemba Gombo et al. (“Bemba”) will explore the contours of the attorney-client privilege used in international criminal tribunals. As discussed in my previous post, the attorney-client privilege is the oldest privilege for confidential communications firmly established in domestic legal systems. Its rationale is founded upon fundamental fair trial rights, primarily the freedom from self-incrimination and the right to communicate freely with Counsel. This privilege – which is not absolute – does not cover all communications between the lawyer and client. Continue reading “Attorney-Client Privilege – Part III: International Tribunals”

Hybrid Courts: a marriage of inconvenience

Last December I had the privilege of being invited to participate at a conference hosted by the International Research and Documentation Centre War Crimes Trials, in Marburg, Germany. The conference, titled The Defence in International Criminal Courts, was by far the best conference I have ever attended, focusing on defence issues from Nuremberg and onwards. The presentations and discussions were excellent. Here is an excerpt of my presentation. The full version is scheduled for publication.

Hybrid Courts: a marriage of inconvenience
Michael G. Karnavas

Imagine being on the football pitch. The stakes are high – it’s a championship game. You and your teammates have been preparing for this game, sharpening your skills, studying your opponent, developing your game plan, mastering the intricacies of the rules, doing everything possible to take advantage of every opportunity that may present itself and every weakness that your opponent may have. All is riding on this game, so you have thought of everything. You are ready. You are ready to control the ball, control your opponent, control the slightest openings. Ready to control it all. All except the referee. That’s the wildcard. The unknown, the unpredictable, the uncontrollable. The luck of the draw. If the referee knows the rules and applies the rules as they are intended, then you have only yourself to blame if the game is lost. But what if the referee does not follow the rules or applies them unevenly, or interprets them in a manner that is not in keeping with the spirit and tradition of the game? What if the referee decides to also play with the ball, handle it a bit, kick it around, pass it to your opponents, or, worse yet, lay in wait near your goalpost for the opportune moment to tap the ball into your net (even if it takes using his hands) and, having done so, smugly signals the goal? Continue reading “Hybrid Courts: a marriage of inconvenience”

ADC-ICTY Advocacy Training: Case Preparation, Direct and Cross-Examination

On 28 March 2015, the Association of Defence Counsel Practising Before the International Criminal Tribunal for the Former Yugoslavia (ADC-ICTY) invited me to present a full day of Advocacy Training. The event was held from 9am to 7pm at the ICTY in The Hague, The Netherlands. The aim of the training day was to help guide legal professionals through the process of preparing a case and to provide tips and approaches for direct and cross-examination. I also re-examined the core principles of evidence and objections that were covered in the Defence Symposium on 12 March 2015. Continue reading “ADC-ICTY Advocacy Training: Case Preparation, Direct and Cross-Examination”

Evidence and Objections: ADC-ICTY Defence Symposium

You need to know the WHY in order to know the WHEN;
but if you do not know the HOW,
knowing the WHY and WHEN will be of no help.

On Thursday 12 March 2015, I conducted a Defence Symposium as part of the Advocacy Training at the Association of Defence Counsel Practising Before the International Criminal Tribunal for the Former Yugoslavia (“ADC-ICTY”). The topic was “Evidence and Objections”. The two-hour Symposium covered general principles and types of evidence, and how, why and when to make objections. The objective was to familiarize young lawyers, especially those coming from a civil law system, with the general evidentiary principles one is likely to encounter during a trial at one of the international criminal tribunals.

Introduction

I began by highlighting two critical obligations of Counsel: due diligence and making the record. These obligations to the client cannot be stressed enough. Counsel must satisfy the duty of due diligence to ensure the client’s fair trial rights are protected. One element of being due diligent is to make timely and specific objections that preserve the errors for appeal, i.e. making the record. Since on appeal we are bound by the four corners of the record, failure to preserve errors in the record at the time when the errors were made can be fatal to a possible appeal. God may know but the record must show.((Jones v. Vacco, 126 F.3d 408, 417 (2d Cir. 1997).)) Continue reading “Evidence and Objections: ADC-ICTY Defence Symposium”