International Criminal Law Archives - michaelgkarnavas.net/Blog

THE ICC-OTP DRAFT POLICY ON ENVIRONMENTAL CRIMES: more circumlocutory huffing and puffing

This Tribunal will not be judged by the number of convictions which it enters, or by the speed with which it concludes the Completion Strategy which the Security Council has endorsed, but by the fairness of its trials.

ICTY Judge David Hunt

Nor will the International Criminal Court (ICC) be judged by the number of policies issued by its Office of the Prosecution (OTP), but by the quality and quantity of cases it resolves fairly and justly. Policy papers without tangible efforts and results are a pretense, a veneer, a charade that unrealistically raise expectations and inevitably disappoint.

Not to sound even more curmudgeonly than usual but I find little to nothing of substance in the OTP’s 18 December 2024 Draft Policy on Environmental Crime Under the Rome Statute that is not already baked into the cake: the Rome Statute, the OTP’s overarching remit, prosecutorial best practices, and dust-collecting idle policy papers spawning the past couple of decades. Continue reading “THE ICC-OTP DRAFT POLICY ON ENVIRONMENTAL CRIMES: more circumlocutory huffing and puffing”

SYRIA MUST FIRST ESTABLISH RULE OF LAW: Avoid expedient justice and accountability measures that produce expeditious but unreliable and insupportable results

In international criminal justice, which prioritizes the prosecution of fewer but more extreme crimes in countries often devastated by internal armed conflict and political breakdown, procedure’s demonstrative role in reestablishing the rule of law is particularly significant. Yet, regardless of the context, the sine qua non of criminal procedure is to make possible a fair adjudication of facts and principled determination of the guilt or innocence of accused persons. If procedure fails in that elemental task, it undermines not only ICL’s core aim of assigning individual criminal responsibility, but also its broader goals, such as promoting peace and stability in affected countries and regions.

Johnathan Hafetz, Punishing Atrocities Through a Fair Trial

I see more clearly than ever before that even our troubles spring from something that is admirable and sound as it is dangerous—from our impatience to better the lot of our fellows.

Karl Popper, The Open Society and Its Enemies

In national criminal justice, which seeks to address the crimes of all offenders rather than the few most responsible, criminal procedure is equally the sine qua non for ensuring a fair adjudication of facts and determination of individual criminal responsibility. Procedural fairness enhances the acceptance of the results, which in turn enhances confidence in the rule of law, thus promoting peace and stability. Getting the procedure right is essential. But there are a host of challenges that must also be resolved before trials can be held. Hence why Karl Popper’s refrain on impatience despite good intentions should be heeded. Designing a comprehensive and holistic rule of law blueprint tailored to Syria should be at the top of the transitional justice list.

Syria may be free of the Bashar al-Assad regime, but it risks becoming another failed state like Libya – fragmented, chaotic, conflict-ridden, unstable, and unsafe. Toppling al-Assad (given the serendipity of circumstances) may prove to be easier than establishing and maintaining peace and freedom, pursuing justice and accountability, and forming a free, democratic, inclusive, tolerant, and independent Syria. The dramatic psychological lift brought about by the ousting of the al-Assad regime must be quickly built upon, so the perception of progress is not lost. Continue reading “SYRIA MUST FIRST ESTABLISH RULE OF LAW: Avoid expedient justice and accountability measures that produce expeditious but unreliable and insupportable results”

BOOK REVIEW: Proving International Crimes, by Yvonne McDermott

Proving International Crimes, Yvonne McDermott, Oxford University Press 2024, 207 pages, £100.00

Fact-finding in the international criminal tribunals will always be probabilistic in nature, because the evidence is invariably incomplete, rarely conclusive, often ambiguous, frequently dissonant, and always with varying degrees of credibility and reliability.… Probabilistic reasoning often involves updating one’s prior beliefs in light of each new piece of information as it is presented. Under what is commonly called ‘relative plausibility theory’ or ‘inference to the best explanation,’ a fact-finder evaluates the different likely explanations of the evidence, and considers which of these explanations is most likely. (pp. 128-129)

If international criminal judgements cannot rigorously demonstrate the evidence and inference that led to particular conclusions … this could jeopardize their legitimacy and claim to authority to try and punish alleged perpetrators of international crimes. (p. 67)

A trial – reduced to its essence in so far as what a prosecutor or counsel can influence – is about having evidence admitted or excluded: getting good/favorable stuff in and keeping bad/unfavorable stuff out. The outcome rests on the evidence: what it is and how it was admitted, screened, assessed, connected, weighed, and applied to the law.

In national jurisdictions, how evidence is treated is ordinarily settled law and practice. All involved (judges, prosecutors, defence counsel, victims’ representatives) sing from the same music sheet. This cultivates uniform, consistent, and predictable procedure. Save for occasional deviations or lapses, criminal case resolutions at the appellate level are largely deemed just and accepted. If only judges at international criminal tribunals were as uniform and consistent and mindful and experienced and receptive to a set approach in admitting and assessing evidence.

With judges of different systems and disparate judicial experience (some don the judicial robe having no relevant experience), and with no detailed rules of evidence such as those found in common law traditions, and with no set approach on how evidence should be admitted, let alone assessed, how international criminal trials are conducted vary perceptibly, both procedurally and substantively. As such, it should come as no surprise that outcomes of trials at any of the international criminal tribunals are not always embraced as fair and just. Looking at some trial and appeal judgments and the attendant separate and dissenting opinion, one gets the sense that among the judges, to paraphrase from the classic film Cool Hand Luke: What we’ve got here is failure to communicate. Continue reading “BOOK REVIEW: Proving International Crimes, by Yvonne McDermott”

THE ICC’S ACHILLES HEEL IS BARE: will Netanyahu arrest warrant be the poison arrow that devastates the ICC?

The Court has been subjected to attacks seeking to undermine its legitimacy and ability to administer justice and realise international law and fundamental rights; coercive measures, threats, pressure and acts of sabotage. Several elected officials are being severely threatened and are subjected to arrest warrants from a permanent member of the UN Security Council, merely for having faithfully and diligently carried out their judicial mandate per the statutory framework and international law. Two other warrants have been newly issued, as in the Presidency’s recent public statement. The Court is being threatened with draconian economic sanctions from institutions of another permanent member of the Security Council as if it was a terrorist organisation. These measures would rapidly undermine the Court’s operations in all situations and cases and jeopardise its very existence. We firmly reject any attempt to influence the independence and the impartiality of the Court. We resolutely dismiss efforts to politicise our function. We have and always will comply only with the law, under all circumstances.

Judge Tomoko Akane, ICC President, 2 December 2024

ICC President Akane’s remarks at the 23rd session of the International Criminal Court’s (ICC) Assembly of States Parties are as alarming as they are Cassandraesque.

The ICC is at a watershed moment. Since its inception, it overpromises and underperforms, trying to be all things, all places, all at once. The unfolding drama and panic over the arrest warrants against Israeli Prime Minister Benjamin Netanyahu and former Israeli Defence Minister Yoav Gallant may prove the ICC’s critics right: that is more of an African court, willing and able to prosecute Africans, but unwilling or unable to prosecute Westerners and their friends. Continue reading “THE ICC’S ACHILLES HEEL IS BARE: will Netanyahu arrest warrant be the poison arrow that devastates the ICC?”

PRIME TAKEAWAY ON ICC PROSECUTOR KHAN SEEKING GAZA RELATED ARREST WARRANTS: a bold, calculated, and inevitable move

Comply now, don’t complain later.

ICC Prosecutor Karim A. A. Khan KC

It came as no surprise. Yet surprised many were. After being “warned” by US Senator Tom Cotton et al. of the consequences that would follow were the ICC Office of the Prosecutor to seek arrest warrants against Benjamin Netanyahu and other top Israeli Government and military officials, Prosecutor Karim A. A. Khan KC lowered the boom and went ahead anyway. Yesterday, he submitted applications for arrest warrants against Israeli Prime Minister Benjamin Netanyahu, Defense Minister Yoav Gallant as well as Hamas Head Yahya Sinwar, Commander-in-Chief of the Al-Qassam Brigades Mohammed Diab Ibrahim Al-Masri, and Head of Hamas Political Bureau Ismail Haniyeh.

Was it a response to Cotton’s silly and school-yard bully / Dirty Harryish “Go ahead, make my day” threat? Or is it more like “a tailgate done dropped”, to borrow Charlie Crocker’s aphorism in A Man in Full? Conspiracy theorists will try to read things into the timing of this high-risk maneuver by Khan. I’ve already heard a few – some plausible, some farfetched. Continue reading “PRIME TAKEAWAY ON ICC PROSECUTOR KHAN SEEKING GAZA RELATED ARREST WARRANTS: a bold, calculated, and inevitable move”

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 “

MYOPICALLY “REASSESSING” THE ECCC’S LEGACY: Same Tune, Different Lyrics

Rather than merely increasing the technocratic proficiencies of Cambodian legal professionals, the ECCC has instead modeled how to leverage such expertise to construct more convincing legal façades to provide cover for decision-making processes wholly determined by power and political interests. Importantly, key Cambodian lawyers and judges at the ECCC have done so by seizing on the ambiguous term “most responsible” in the Court’s constitutive documents, interpreting it in an inconsistent manner that conveniently conforms to the publicly stated views of the CPP, thereby borrowing a page from the CPP’s playbook of manipulating vague legal provisions. Not only has this produced incongruent outcomes in cases against similarly situated accused, but participating in the process has enhanced the capacity of relevant Cambodian legal actors who worked for the Court to more artfully engage in similar tactics domestically.

Randle C. DeFalco, Reassessing the Rule of Law Legacy of the Khmer Rouge Tribunal, 45 U. Pa. J. Int’l L 549, p. 560.

DeFalco’s conclusion is based on emotional reasoning masquerading for rational legal analysis. In failing to objectively assess the law, DeFalco displays a profound lack of appreciation of the basic tenets of the Rule of Law, including the principle of the presumption of innocence and the procedural system in place at the ECCC.

Michael G. Karnavas, A Response to Defalco’s: The Proper Interpretation of “Most Responsible” at the ECCC

Reading Randle C. DeFalco’s latest polemic on the legacy of the Extraordinary Chambers in the Courts of Cambodia (ECCC) – Reassessing the Rule of Law Legacy of the Khmer Rouge Tribunal – reminded me of Ronald Reagan’s famous quip “There you go again”. Reagan was responding to what he believed was a repeated misrepresentation of his position by President Jimmy Carter during a debate. Commenting on DeFalco’s 2014 article Cases 003 and 004 at the Khmer Rouge Tribunal: The Definition of “Most Responsible” Individuals According to International Criminal Law, I found his analysis wanting and his conclusions the product of a result-oriented approach. Ten years later DeFalco is at it again. Continue reading “MYOPICALLY “REASSESSING” THE ECCC’S LEGACY: Same Tune, Different Lyrics”

Bringing practical applications of international criminal procedure into Prof. Joe Powderly’s classroom: should Leiden University (re)consider establishing a clinical program?

The young man knows the rules, but the old man knows the exceptions.

Oliver Wendell Holmes, Sr.

Judge Chamberlain Haller: All I ask from you is a very simple answer to a very simple question. There are only two ways to answer it: guilty or not guilty.

Attorney Vinny Gambini: But your honor, my clients didn’t do anything.

Judge Haller: Once again, the communication process broken down. It appears to me that you want to skip the arraignment process, go directly to trial, skip that, and get a dismissal. Well, I’m not about to revamp the entire judicial process just because you find yourself in the unique position of defending clients who say they didn’t do it.

My Cousin Vinny (film, 1992)

Universiteit Leiden It was a delightful evening at the Grotius Centre for International Legal Studies at Leiden University Law School. The students came armed with serious questions. To my relief, none asked the usual how could I defend those people? or what if you know (or believe) your client is guilty? With the exception of one or two occasionally checking their smart phones, they seemed focused and interested. While I like to think my presentation had something to do with this, I believe the real reason is because these bright, motivated and prepared students were keen to hear about the practical applications of the theoretical substance of international criminal procedure.

For nearly three hours, I fielded questions. I went into the class with no prepared notes or plan. My intention was not to lecture but to provide the defence perspective on whatever topics interested them. The students have had a semester on international criminal law. This semester, well under way, is about the procedure. Prof. Powderly has brought other practitioners to give their perspectives and share their experiences. This evening, it was about the defence. The questions were practical, grounded and focused on issues related to the procedural rights of the accused. Continue reading “Bringing practical applications of international criminal procedure into Prof. Joe Powderly’s classroom: should Leiden University (re)consider establishing a clinical program?”

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?”

Restorative Justice of Nazi Looting, Intangible Cultural Heritage Rights, and Plundering of Cultural Heritage Sites: My conversation with Nicoletta M in Avant-Gardes Dialogues

Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected. Private property cannot be confiscated. (Art. 46)

Pillage is formally forbidden. (Art. 47)

1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land

K. To make restitution of art and cultural property that remains in state-owned collections and private hands possible, countries should consider making exceptions to barriers such as regulations against deaccessioning from state collections, statutes of limitations, market overt, usucapion (mode of acquiring title to property by uninterrupted possession of it for a definite period), good faith acquisition, and export bans.

Best Practices for the Washington Conference Principles on Nazi Confiscated Art

In early 1997, the Meili affair exposed pervasive cover-up schemes by Swiss banks to conceal the laundering of Nazi-looted assets by destroying documents of confiscated and looted Holocaust-era assets. This scandal was emblematic of the lack of political will and commitment to the 20 January 1943 London Inter-Allied Declaration Against Acts of Dispossession Committed in Territories Under Enemy Occupation or Control, which called on neutral countries not to trade in property (art included) looted by the Nazis. Seemingly, the Meili affair was the tripwire for Washington Conference On Holocaust-Era Assets that endorsed the Washington Conference Principles on Nazi Confiscated Art. Credit, however, must go to a three-day symposium in 1995. Commemorating the 50^th anniversary of the end of WWII, the Bard Graduate Center for Studies in the Decorative Arts hosted a symposium organized by Elizabeth Simpson to discuss the Nazi plunder of art work, cultural property, and historic sites. Simpson, an archaeologist and professor at Bard, would exquisitely write on the substance of the symposium in The Spoils of War: World War II and Its Aftermath: The Loss, Reappearance and Recovery of Cultural Property – a highly recommended read. Continue reading “Restorative Justice of Nazi Looting, Intangible Cultural Heritage Rights, and Plundering of Cultural Heritage Sites: My conversation with Nicoletta M in Avant-Gardes Dialogues “