International Criminal Law Archives - michaelgkarnavas.net/Blog

THE HARDEST PROSECUTORIAL DECISION: Beyond the Decision to Charge

The highest measure of prosecutorial judgment is knowing when not to proceed.

It is remarkable how a single sentence buried deep within an otherwise routine legal filing can resurrect lessons long thought settled. Sometimes a legal submission does more than advance an argument. Occasionally, almost unexpectedly, it reminds us that the strength of legal institutions depends not only on the rules that govern them but also on the judgment of those entrusted with applying them.

The Prosecution’s submission in Banda did exactly that. Before I finished reading it, I found myself transported more than forty years into the past. Continue reading “THE HARDEST PROSECUTORIAL DECISION: Beyond the Decision to Charge”

THE OFFICE BEFORE THE OFFICEHOLDER: Merit, Judgment, and Institutional Leadership – Part II — Toward a Forensic Method of Institutional Judgment

Part II — THE DISCIPLINE OF CHOOSING: Toward a Forensic Method of Institutional Judgment

The Office confers authority, not judgment; judgment must already exist.

Part I argued that before an institution entrusts extraordinary constitutional authority, it must first determine what qualities the Office of the Prosecutor (OTP) requires and whether the available evidence justifies confidence that those qualities genuinely exist in the individual seeking to occupy it. Part II asks the next question: How should a mature institution reach that judgment?

Not how should it identify an impressive candidate. Not how should it reward a distinguished career. Not how should it reconcile political, regional, or diplomatic considerations. Important though those considerations may be, they are secondary. The central inquiry is evidentiary: What should persuade an institution that one individual, rather than another, should be entrusted with extraordinary constitutional authority?

Institutions do not appoint ideals. They entrust authority to people. Their responsibility is neither to identify perfection nor to select, in some abstract sense, “the best” candidate. Such conclusions inevitably reflect differing views of excellence, experience, personality, or leadership. Reasonable people will disagree. Rather, through disciplined inquiry, the institution must satisfy itself that the available evidence reasonably and confidently supports the conclusion that the individual it will select possesses the judgment, character, temperament, leadership, executive ability, and moral authority necessary to exercise extraordinary public power responsibly over time. Continue reading “THE OFFICE BEFORE THE OFFICEHOLDER: Merit, Judgment, and Institutional Leadership – Part II — Toward a Forensic Method of Institutional Judgment”

THE OFFICE BEFORE THE OFFICEHOLDER: Merit, Judgment, and Institutional Leadership – Part I of a Two-Part Series on Institutional Judgment and the Selection of the ICC Prosecutor

WHAT THE OFFICE REQUIRES: Judgment Before Power

Before an institution entrusts power, it should first determine what qualities the responsible exercise of that power demands.

There are times when experience teaches us less by providing new answers than by revealing that we have been asking the wrong question.

Several years ago, I wrote (here and here) about the election of the Prosecutor of the International Criminal Court (ICC). My purpose then was straightforward. I sought to identify the qualities the next Prosecutor should possess. Drawing on decades of experience before national and international courts and tribunals, I compiled what I regarded as the essential attributes of an effective chief prosecutor: extensive prosecutorial experience, sound judgment, strategic thinking, leadership, management, diplomacy, professional gravitas, legal knowledge, and, not least, a restrained ego. I continue to believe those qualities remain indispensable.

Looking back, however, I have come to think that I approached the matter from the wrong direction. Continue reading “THE OFFICE BEFORE THE OFFICEHOLDER: Merit, Judgment, and Institutional Leadership – Part I of a Two-Part Series on Institutional Judgment and the Selection of the ICC Prosecutor”

THE INTERNATIONAL CRIMINAL COURT’S UNFINISHED CONSTITUTIONAL DEVELOPMENT — PART III

COMPLETING THE ARCHITECTURE: Designing a Disciplinary Process Worthy of the International Criminal Court

A permanent institution cannot rely on temporary solutions for permanent challenges.

The first two Parts of this trilogy have argued that the present controversy has revealed something larger than the allegations themselves.

In the first part, I argued that the International Criminal Court’s external authority has matured more quickly than its internal disciplinary architecture. My central proposition was simple: permanent courts require permanent procedures. The issue is not whether accountability should exist. The Rome Statute settled that question long ago. The issue is whether accountability has become sufficiently institutionalized to command confidence before anyone knows the outcome of a particular case.

The second part then turned to the constitutional principles that, in my view, should guide its resolution. It argued that disciplinary proceedings involving senior officials should be grounded in procedures that are independent, transparent, predictable, and insulated from political influence. It further suggested that those principles are best achieved when the distinct functions of investigation, adjudication, and institutional oversight are clearly separated rather than concentrated in a single process. Continue reading “THE INTERNATIONAL CRIMINAL COURT’S UNFINISHED CONSTITUTIONAL DEVELOPMENT — PART III”

THE INTERNATIONAL CRIMINAL COURT’S UNFINISHED CONSTITUTIONAL DEVELOPMENT — PART II

JUSTICE CANNOT BE LOBBIED: Why Institutional Accountability Cannot Be Decided by Political Negotiation

When the outcome of disciplinary proceedings depends on lobbying, accountability becomes a matter of influence rather than of law.

Every mature legal institution eventually confronts the same constitutional imperative: as authority expands, so must the procedural safeguards that govern its exercise. Institutional permanence requires procedural permanence.

The public discussion surrounding the present controversy has largely focused on one question: What, if anything, should happen to Prosecutor Karim A. A Khan KC?

It is an understandable question, but it is also the wrong one. The more important question is not what should happen to one individual. It is what procedures a permanent international court should already have in place before allegations of serious misconduct arise against any of its senior officials.

This distinction changes the entire conversation. The issue is no longer about personalities. It is about constitutional design. This is not merely a semantic distinction. It is the difference between responding to today’s controversy and designing institutions capable of responding to every comparable controversy that may follow. Continue reading “THE INTERNATIONAL CRIMINAL COURT’S UNFINISHED CONSTITUTIONAL DEVELOPMENT — PART II”

THE INTERNATIONAL CRIMINAL COURT’S UNFINISHED CONSTITUTIONAL DEVELOPMENT – Part I

A PERMANENT COURT REQUIRES PERMANENT PROCEDURES: What L’Affaire Khan Reveals About the International Criminal Court’s Unfinished Constitutional Development

Procedure is where principle becomes practice.

Every permanent institution eventually reaches a moment when its own procedures become as important as the substantive work it was created to perform. I believe the International Criminal Court (ICC) has reached that moment. This trilogy explains why.

I have been thinking about this piece for some time.

Not because I have reached any conclusion about the allegations against Prosecutor Karim A. A. Khan KC. I have not. I have neither seen the evidence nor reviewed the investigative file. Like everyone else outside the process, I know only what has entered the public domain. That is rarely enough to form responsible conclusions.

After more than four decades as a criminal defense lawyer, appearing before national and international courts and tribunals as counsel, lecturer, trainer, and observer, I have become deeply suspicious of those who profess certainty without seeing the evidence. One of the occupational hazards of our profession is the temptation to mistake allegations for proof, confidence for accuracy, and repetition for truth. Experience has taught me to resist all three. Continue reading “THE INTERNATIONAL CRIMINAL COURT’S UNFINISHED CONSTITUTIONAL DEVELOPMENT – Part I”

When Justice Becomes a Montage: Public Narratives, L’Affaire Khan, and Institutional Legitimacy

When the facts change, I change my mind. What do you do, sir?

– commonly attributed to John Maynard Keynes

A montage is a sequence of separate images assembled to create a particular impression. Each image may be entirely authentic. The power of the montage lies not in fabrication, but in selection, arrangement, timing, and presentation. It does not merely depict reality; it constructs a narrative about reality.

That distinction matters, perhaps more than ever.

I deliberately borrow the French expression l’affaire. Like the great public affairs that have periodically consumed institutions, this has long since ceased to be merely an investigation into allegations. It has become a contest over narratives, institutional credibility, public legitimacy, and, ultimately, the ICC’s reputation. Continue reading “When Justice Becomes a Montage: Public Narratives, L’Affaire Khan, and Institutional Legitimacy”

WHEN JUDICIAL PRESTIGE GOES TO MARKET: Just How Ethical?

Not everything that is faced can be changed, but nothing can be changed until it is faced.

– James Baldwin

A judge’s authority is not a private asset.

A litigant commissions an opinion. A judge writes it for a fee. The finished product then enters public circulation, bearing the prestige and authority that judicial office inevitably confers.

Anything wrong with this picture? I think there is. Quite a bit, actually.

Reasonable lawyers and judges may disagree – it happens all the time. What interests me is not whether a particular opinion is right or wrong, but what happens when remunerated judicial opinions become part of a broader strategy of advocacy, narrative shaping, and institutional positioning. Continue reading “WHEN JUDICIAL PRESTIGE GOES TO MARKET: Just How Ethical?”

REFLECTIONS ON MASS ATROCITIES, HISTORICAL MEMORY, AND THE ECCC LEGACY: Cambodia – Past, Present, Future — Part V

MEMORY IN THE PRESENT TENSE: History, Sovereignty, and the Return of the Past

Who controls the past controls the future. Who controls the present controls the past.

– George Orwell, 1984

If Part III examined the Extraordinary Chambers in the Courts of Cambodia’s (ECCC) institutional legacy and its imperfect success in producing an authoritative judicial record of crimes committed in Democratic Kampuchea, and Part IV considered what follows once such institutions recede, Part V turns to what lies beyond the courtroom: how memory, once dispersed, continues to operate in the present.

Memory is often discussed as though it concerns only the past. Yet its influence extends well beyond recollection. In societies that have experienced profound upheaval, the past rarely disappears entirely. Instead, it becomes embedded in institutions, family histories, educational systems, public commemorations, collective habits of thought, and individual psyches. As a result, memory does more than preserve experience. It helps shape perception itself, influencing how information is received, how events are interpreted, how competing explanations are evaluated, and how communities understand periods of tension, uncertainty, and change.

Memories may be personal and lived. They may also be inherited through schools, museums, archives, family stories, films, memorials, and public narratives. Both matter and shape the lens through which contemporary events are viewed. Continue reading “REFLECTIONS ON MASS ATROCITIES, HISTORICAL MEMORY, AND THE ECCC LEGACY: Cambodia – Past, Present, Future — Part V”

REFLECTIONS ON MASS ATROCITIES, HISTORICAL MEMORY, AND THE ECCC LEGACY: Cambodia – Past, Present, Future — Part IV

MEMORY AFTER DEMOCRATIC KAMPUCHEA: Museums, Narrative, and Cambodia’s Unfinished Reckoning

The struggle of man against power is the struggle of memory against forgetting.

– Milan Kundera

If Part III examined the Extraordinary Chambers in the Courts of Cambodia’s (ECCC) institutional legacy and the extent to which it imperfectly created an authoritative judicial record of some of the crimes committed during Democratic Kampuchea, Part IV begins from a different premise: not what the ECCC established, but what its closure reveals.

Once a tribunal ends, the record remains. The judgments remain. The archives remain. But the institutional force that produced them is no longer active. The process of adjudication ends. The process of interpretation does not. Continue reading “REFLECTIONS ON MASS ATROCITIES, HISTORICAL MEMORY, AND THE ECCC LEGACY: Cambodia – Past, Present, Future — Part IV”