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!!!”

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War Crimes and the Meaning of Genocide: A conversation with war crimes lawyer Michael Karnavas.

Michael G Karnavas spoke with The Diplomat’s Luke Hunt about the meaning of genocide and the legal precedents established in Cambodia, including the relatively new charge of aggression, which is reserved for crimes committed by those holding the highest levels of power.

Listen to the interview here.

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REALITY CHECK: Conference on special international tribunal for the crime of aggression against Ukraine exposes fatal defects

There is a difference between two competing groups as to the nature of the institution that should be set up – on the one side led by Ukraine but with strong support from Baltic countries and Poland and various other countries, a full on international criminal tribunal with exclusive competence in relation to the crime of aggression to be set up in The Hague à la Nuremberg – and on the other side the G7 led in particular (by no particular order), the UK, the US, and France who have sort of given a thumbs up to the idea but want uh an institution which is sort of more hybrid and in particular which is not going to set a clear precedent in relation to future tribunals of this kind being set up for other P5 members, their minds having been concentrated by the prospect that if you create a special criminal tribunal for one permanent member of the Security Council today why can’t you do it for another one tomorrow.


Philippe Sands at the Conference on Special Tribunal for the crime of aggression against Ukraine, London, 1 February 2024.

On 1 February 2024, the London-based independent human rights NGO Justice and Accountability for Ukraine (JAFUA) – “which seeks to establish legal channels of accountability for violations of international law in Ukraine” – hosted a conference on establishing a special international tribunal for the crime of aggression. As argued, given the International Criminal Court’s (ICC) lack of jurisdiction over the crime of aggression with respect to the Russo-Ukrainian war, resulting in a supposed impunity gap, this special tribunal would be empowered to charge only this crime. Ostensibly, it would only try three individuals – Russia’s President Vladimir Putin, Prime Minister Mikhail Mishustin, and Foreign Minister Sergey Lavrov. Other crimes that may have been committed by them could be tried by the ICC – assuming, of course, they are ever arrested. Continue reading “REALITY CHECK: Conference on special international tribunal for the crime of aggression against Ukraine exposes fatal defects”

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Cambodia Needs a Genocide Museum

Published in the Diplomat 2 February 2024

Cambodia Needs a Genocide Museum

By Michael G. Karnavas
February 03, 2024

An artistic rendering of the planned Sleuk Rith Institute, as envisioned by late architect Zaha Hadid. Credit: Image courtesy of DC-Cam

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MY TAKE ON THE ICJ’S SOUTH AFRICA v. ISRAEL ORDER

Even though I do not find it plausible that the military operation is being conducted with genocidal intent, I voted in favour of the measures indicated by the Court. To indicate those measures, it is not necessary for the Court to find that the military operation as such implicates plausible rights of Palestinians in the Gaza Strip. My decision to vote in favour of the measures indicated rests on the plausible claims by South Africa that certain statements by Israeli State officials, including members of its military, give rise to a real and imminent risk of irreparable prejudice to the rights of Palestinians under the Genocide Convention (see paragraphs 50-52 of the Order).


Judge Georg Nolte, Declaration (para. 15)

The celebrated French existentialist philosopher Jean-Paul Sartre is credited with having coined the incisive aphorism “Words are loaded pistols”. Like weapons, when hitting the intended target, words have the capacity to affect opinions and behavior. And like bullets, once they leave the chamber, once uttered and heard by the intended audience, they are irretrievable. Yes, they can be retracted and repackaged and recalibrated, followed by a contrite mea culpa or transparently trite excuse, but effectively the desired effect in uttering the words in the first place remains. Ominously, when words are uttered – intentionally, recklessly, or carelessly – by high-level officials and respected members of a community and revered military officers (whether active or retired), the potential to inspire, induce, and incite to act in a desired fashioned is rather high. Unintended interpretations of words can also lead to unintended greenlighting of impermissible actions, not to mention unavoidable implied impressions generally formed from actions followed from words. Continue reading “MY TAKE ON THE ICJ’S SOUTH AFRICA v. ISRAEL ORDER”

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SOUTH AFRICA’S ICJ APPLICATION: A convincing genocide claim or a compelling off-ramp for Israel (and cautionary refrain for the US)

 

South Africa is highly cognisant of the fact that acts of genocide are distinct from other violations of international law sanctioned or perpetrated by the Israeli government and military in Gaza — including intentionally directing attacks against the civilian population, civilian objects and buildings dedicated to religion, education, art, science, historic monuments, hospitals, and places where the sick and wounded are collected; torture; the starvation of civilians as a method of warfare; and other war crimes and crimes against humanity — though there is often a close connection between all such acts. South Africa is also aware that acts of genocide inevitably form part of a continuum — as Raphael Lemkin who coined the term ‘genocide’ himself recognised. For this reason it is important to place the acts of genocide in the broader context of Israel’s conduct towards Palestinians during its 75-year-long apartheid, its 56-yearlong belligerent occupation of Palestinian territory and its 16-year-long blockade of Gaza, including the serious and ongoing violations of international law associated there,,,with, including grave breaches of the Fourth Geneva Convention, and other war crimes and crimes against humanity. However, when referring in this Application to acts and omissions by Israel which are capable of amounting to other violations of international law, South Africa’s case is that those acts and omissions are genocidal in character, as they are committed with the requisite specific intent (dolus specialis) to destroy Palestinians in Gaza as a part of the broader Palestinian national, racial and ethnical group.


Application Instituting Proceedings (para. 2).

Relying on the Genocide Convention, South Africa in its Application Instituting Proceedings (SA Application) to the International Court of Justice (ICJ) seeks a finding of the existence of genocidal intent, and injunctive relief as provisional measures – an order requiring Israel to cease or limit its military operations in Gaza. I expected a cogent, balanced, and persuasive submission – to perhaps even be convinced since I’ve not seen evidence from which to conclude the existence of the requisite dolus specialis (genocidal intent). Disappointingly, the SA Application ignores or glosses over critical context as it relates to Israel’s right of self-defense – relevant to objectively assessing the SA Application. The legal analysis is also less than impressive. Suffice it to say, the facts as marshalled, and the arguments as crafted in the SA Application have not nudged me one iota towards the more vocal and ostensibly conformist assessment. I remain unmoved that a genocide, strictly in the legal sense, is ongoing in Gaza, just as I remain unpersuaded that the ICJ can order provisional measures which may infringe on Israel’s right of self-defense. Hence this post. Continue reading “SOUTH AFRICA’S ICJ APPLICATION: A convincing genocide claim or a compelling off-ramp for Israel (and cautionary refrain for the US)”

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Book Review Series: Musings and meanderings from my 2023 reading explorations – Part 4

War is hell, but that’s not the half of it, because war is mystery and terror and adventure and courage and discovery and holiness and pity and despair and longing and love. War is nasty; war is fun. War is thrilling; war is drudgery. War makes you a man; war makes you dead. The truths are contradictory.


Tim O’Brien, The Things They Carry (pp. 76-77)

For citizens, garlands of euphonism and a fog of glorious myth shroud th[e] bloody past. The battles that shaped the nation are most often remembered by the citizenry as defending the country, usually in the service of peace, justice, freedom, or other noble ideas. Dressed in this way, the wars of the past justify the wars of the present for which the citizen is willing to fight or at least pay taxes, wave flags, cast votes, and carry forth all the duties and rituals that affirm her or his identity as being one with the nation’s.


Viet Thanh Nguyen, Nothing Ever Dies (p.5)

Memory affects us. It shapes our identity, who we are, how we perceive the past, how we view the present, and how we envision and might act in the future. Other than what we personally experience – to which a degree of uncertainty, bias and misapprehension must be taken into account – our memory of past events as our perception of present ones, in no small measure, is based on what we are told. Where the truth lies, assuming there is a truth, depends on who is telling the story, based on what information, from what vantage point in examining the events, the quality of the information, the objectivity of witnesses and their ability to accurately recount, and the intentions of those who write and lecture and promote historical truths as they would have others believe and be influenced by. Having tried my share of small, big, and mega cases, I’ve come to realize that few things are as they often appear. Court judgments may determine the existence of certain facts to satisfy a beyond reasonable doubt finding, but even seemingly correct findings, occasionally prove not to be. Memory, or the unreliability of memory, is partly responsible. When it comes to historical events, especially those that touch us, our memory is at risk of being manipulated – being influenced to see and believe (and thus drilled into our memory) things as told by authority figures, government officials, museums, monuments, memorials, textbooks, and so on. Harking back to my reasons for venturing into this book review series as explained in Part 1, the books reviewed here tie in the theme of memory and war. Continue reading “Book Review Series: Musings and meanderings from my 2023 reading explorations – Part 4”

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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? “

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TRUE Project and Inner Temple Demystify the “New Frontiers in Evidence” – User Generated and Open Source Material

“We’re not gonna have a war, we’re gonna have the appearance of a war.”

Conrad Brean (Robert de Niro)


“Look at that! That is a complete f….. fraud, and it looks a hundred percent real. It’s the best work I’ve ever done in my life, because it’s so honest.”

Stanley Motss (Dustin Hoffman)


Wag the Dog (1997)

In Barry Levinson’s dark comedy Wag the Dog, we see a savvy political operative/spin doctor (Robert de Niro) get together with an exuberantly resourceful Hollywood executive (Dustin Hoffman) to generate images and footage of a fictional war to distract and misdirect the public from focusing on a scandal involving the US President. Over the course of a week or so, an ensemble of writers, actors, song writers, cameramen, and technicians put together a persuasive, realistic, bamboozling visual narrative. Crisis averted; scandal disremembered.

Not that what we see on TV and social media today on the events unfolding in Ukraine or Gaza or elsewhere are fictional. To the contrary, these are real events with real victims, real destruction, real misery, real consequences. But how much of what we see (and hear about what is being seen) should we believe? Most I suspect. Yet, most is not sufficient, just as close enough is not trustworthy in criminal proceedings where the evidence (as in any type of trial whether civil, commercial, or criminal) needs to be authentic and reliable – assuming it is relevant.

The process of determining the admissibility of evidence is rather straight forward. A foundation needs to be laid. The proponent will adduce evidence from witnesses who will testify as to the provenance of the evidence. In some cases, it may also be necessary to establish the reliability of the evidence through witnesses who have generated or collected and/or analyzed the evidence – before testimony on the substance of the evidence can/should be taken. Of course, before the evidence is admitted for the purposes of eliciting substantive evidence on what it purports to prove or disprove, the opposing side should be given an opportunity to conduct a voir dire, i.e., a cross-examination on the provenance, authenticity, reliability, and in some instances, the relevance. Continue reading “TRUE Project and Inner Temple Demystify the “New Frontiers in Evidence” – User Generated and Open Source Material”

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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) 14th 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.

Judge Guénaël Mettraux

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”

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