International Criminal Law Archives - Page 22 of 33

“But Duch is a senior leader/most responsible while Chaem is not?”

Michael,

I notice that you express admiration for Judge Bohlander’s integrity here but do not say the same for Judge Bunleng. I presume this is because he refused to investigate at all in Cases 003/004? It’s been several years since I followed KRT developments closely. Perhaps you can enlighten me.

We have yet to see the reasoning behind the dismissal for Chaem and I know very little of Judge Bohlander, having left the country some time before he started work.

But to a non-legal observer, two very sad questions jump to the fore:

1) OCIJ’s decision not to exercise jurisdiction over Chaem took eight years. Isn’t this what lawyers would call a “threshold” matter best disposed of at the beginning? And can’t it be decided without examining much of the evidence supporting the charges?

I interviewed victims and witnesses from crime scenes allegedly overseen by Chaem. They told me how much they suffered.

Did this process build up hopes of justice only to let them down, not by deciding guilt or innocence but on what to the general public will appear to be an abstruse technicality? One baked into the process not by impartial judges but during heavily politicized negotiations?

2) Please help me understand — how could the ECCC accept jurisdiction over Duch but not over Chaem? In making this decision, is Judge Bohlander at odds with the court’s own jurisprudence?

Duch may have been responsible for the systematic extermination of 12,000 to perhaps 20,000 people. Chaem, if rough OCP estimates are to be believed, had a hand in a number of deaths that could quadruple the upper bound of Duch’s death toll.

But Duch is a senior leader/most responsible while Chaem is not?

Douglas Gillisson((Douglas Gillison, an investigative reporter, has written for Time, the Village Voice, the New York Times and Foreign Policy. He was a staff writer at 100Reporters from 2013 to 2016. He served as Executive Editor of the Cambodia Daily from 2009 to 2011 and covered the ECCC from 2006 to 2011.))

Thank you, Doug, for your comment and questions!

My “express admiration for Judge Bohlander’s integrity,” as you put it, is no reflection, as you seem to suggest, that I find Judge You Bunleng to have less integrity or to be less deserving of appreciation. By your own admission, you have not been following the Extraordinary Chambers in the Courts of Cambodia (“ECCC”) for years. You are also not privy to much of what the Office of the Co-Investigating Judges (“OCIJ”) has done, how it has been functioning, how it interacts with the parties, and, most of all, how the two Co-Investigating Judges work together. Continue reading ““But Duch is a senior leader/most responsible while Chaem is not?””

International Observers to Saif al-Islam Gaddafi: don’t count on ne bis in idem

What? The trial of Saif al-Islam Gaddafi was unfair? Shocking!

The United Nations Support Mission in Libya (UNSMIL) and the United Nations Office of the High Commissioner for Human Rights (UNOHCHR) urge Libya to turn over Saif al-Islam Gaddafi, son of the late Muammar Gaddafi who ruled over Libya for 42 years, to the International Criminal Court (ICC) for a proper trial.(( United Nations, Support Mission in Libya and Office of the High Commissioner for Human Rights, Report on the Trial of 37 Former Members of the Qadhafi Regime (Case 630/2012), 21 February 2017, p. 55, para. 9.)) Surprise, surprise. Or not! Continue reading “International Observers to Saif al-Islam Gaddafi: don’t count on ne bis in idem”

When indiscretion leads to misinformation: irresponsible and impugning comments concerning Cases 003 and 004 at the ECCC

Judge You Bunleng (l) and
Judge Michael Bohlander (r)

On 22 February 2017, the Co-Investigating Judges at the ECCC decided to dismiss the case against Ms. Im Chaem finding that she did not meet the ECCC jurisdictional requirements of being a senior leader or one of those most responsible for alleged crimes during the Democratic Kampuchea regime during the ECCC’s temporal jurisdictional period of 17 April 1975 to 6 January 1979.

Almost immediately after the decision was made public, critics began beating the drums. Expected. Decisions of this sort can be disappointing, especially to civil parties / victims. Lost in the scrum of blame-fixing are the facts. Continue reading “When indiscretion leads to misinformation: irresponsible and impugning comments concerning Cases 003 and 004 at the ECCC”

Book Review – The Rohingyas: Inside Myanmar’s Hidden Genocide

The Rohingyas: Inside Myanmar’s Hidden Genocide, By Azeem Ibrahim. 235 pages. C. Hurst & Company, 2016. $23.50.

The rejection of citizenship rights for Rohingyas, denial of freedom of movement, eviction campaigns, violence against Rohingya women, forced labour, expulsion from their lands and property, violence and torture have made Myanmar’s ethnic Rohingyas the most persecuted minority in the world. I humbly add my voice to the simple demand of the Rohingya people: that their rights as our fellow human beings be respected, that they be granted the right to live peacefully and without fear in the land of their parents, and without persecution on grounds of their ethnicity or their form or worship.

Nobel laureate Muhammad Yunus, Foreword

In a few words, Muhammad Yunus encapsulates the plight of the Rohingyas and the essence of Azeem Ibrahim’s The Rohingyas: Inside Myanmar’s Hidden Genocide (hereinafter “The Rohingyas”). Citizenship, or the lack of it, is at the center of all that troubles the Rohingyas in the northern Rakhine State (“nRS”) of Myanmar. The discrimination and persecution they have endured over the decades in no small measure is due to the question of their origin. Where are they from? When did they arrive in Myanmar? How did they arrive in Arakan (Rakhine)? Are they indigenous or recent transplants? How far back must their existence in Arakan be established before they can be viewed and accepted as citizens of Myanmar?

Theories abound. So what? Continue reading “Book Review – The Rohingyas: Inside Myanmar’s Hidden Genocide”

Myanmar’s disproportionate security response to the Muslim insurgency in the northern Rakhine State & its indiscriminate attacks against the Rohingyas: a perfect storm for a mass atrocity

A heavy-handed security response that fails to respect fundamental principles of proportionality and distinction is not only in violation of international norms; it is also deeply counterproductive. It will likely create further despair and animosity, increasing support for HaY [Harakah al-Yaqin (Faith Movement)] and further entrenching violence. International experience strongly suggests that an aggressive military response, particularly if not embedded in a broader policy framework, will be ineffective against the armed group and has the potential to considerably aggravate matters.

International Crisis Group Report, Myanmar: A New Muslim Insurgency in Rakhine State, 15 December 2016((International Crisis Group, Asia Report N°283, Myanmar: A New Muslim Insurgency in Rakhine State, 15 December 2016, Executive Summary, p. ii (“ICG Report”). ))

I have previously intimated that the Myanmar government may be flirting with acts of genocide by being involved in or turning a blind eye to the human rights violations against the Rohingyas in the northern Rakhine State (“nRS”). Three weeks later, on 3 February 2017, the United Nations (“UN”) Office of the High Commissioner for Human Rights (“OHCHR”) mission to Bangladesh issued a report (“OHCHR Report”). Apropos.

Though I do not consider myself a human rights advocate (international criminal defense lawyers are hardly viewed as humanitarians), I was prompted by the OHCHR Report to do a bit more digging. Recognizing the challenges involved in appreciating the complexities of the situation in Myanmar, the historical context of the Rohingyas in the nRS, and the ongoing events as they are unfolding (it is hard to get complete and accurate information), I will nonetheless attempt to offer an assessment of what I believe is the making of a perfect storm for a mass atrocity. Continue reading “Myanmar’s disproportionate security response to the Muslim insurgency in the northern Rakhine State & its indiscriminate attacks against the Rohingyas: a perfect storm for a mass atrocity”

Judicial independence at international courts is at risk: why the UN Security Council must intervene in the release of MICT Judge Aydin Sefa Akay

When national courts are seized of a case in which the immunity of a United Nations agent is in issue, they should immediately be notified of any finding by the Secretary-General concerning that immunity. That finding, and its documentary expression, creates a presumption which can only be set aside for the most compelling reasons and is thus to be given the greatest weight by national courts. The governmental authorities of a party to the General Convention are therefore under an obligation to convey such information to the national courts concerned, since a proper application of the Convention by them is dependent on such information. Failure to comply with this obligation, among others, could give rise to the institution of proceedings under Article VIII, Section 30, of the General Convention.(( Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, 2, ICJ Reports 1999, p. 62 (“ICJ Advisory Opinion on Difference Relating to Immunity from Legal Process”), para. 61.))

On or around 21 September 2016, Judge Aydin Sefa Akay, an international judge of the Mechanism for International Criminal Tribunals (MICT), was arrested for, presumably, being involved in, associated with, or sympathetic to the attempted coup to overthrow Turkish President Recep Tayyip Erdogan. No formal charges have been brought against him, though it is reported that the damning evidence against Judge Akay is a book found in his library about the alleged mastermind of the coup, Fethullah Gülen, and a downloaded messaging app (ByLock), which is claimed to have been used by the coup plotters.(( See Margaret Coker, How a Top International Judge Was Trampled by Turkey’s Purge, Wall Street Journal, 29 December 2016.)) Continue reading “Judicial independence at international courts is at risk: why the UN Security Council must intervene in the release of MICT Judge Aydin Sefa Akay”

Judicial expediency yields to judicial immunity: why relieving MICT Judge Aydin Sefa Akay from judicial duties in the Ngirabatware case is not an option

If a state can arrest a Judge and the Judge has to be replaced because of that action, then our Judges are subject to the restrictions that any state may choose to impose upon them by taking away their immunity in one form or another. That goes to the very heart of judicial independence. We don’t want judges having to answer to their states or be fearful of their states if they take a certain decision or they don’t. They have to be completely independent. That’s why they have diplomatic immunity.(( Prosecutor v. Ngirabatware, MICT-12-29-R, 17 January 2017, Transcript, p. 29.))

Peter Robinson

It came as no surprise that Judge Theodor Meron, the Pre-Review Judge of the Mechanism for International Criminal Tribunals (MICT) Appeals Chamber, would find that Judge Aydin Sefa Akay enjoyed (and continues to enjoy) full diplomatic immunity as a sitting judge at the MICT at the time of his arrest for allegedly participating in or being sympathetic to the attempted overthrow of Turkish President Recep Tayyip Erdogan. Judge Akay was arrested after it was discovered that he had in his 2,000-volume library a book about the alleged coup mastermind, Fethullah Gulen, and that he had downloaded ByLock, a messaging app allegedly used by the coup plotters.(( See Margaret Coker, How a Top International Judge Was Trampled by Turkey’s Purge, Wall Street Journal, 29 December 2016.))

The law is clear, both on its face and in how it has been interpreted. No first impression dilemma as to whether diplomatic immunity and all its appurtenances must be afforded to MICT Judges by all states – including the state where the person cloaked with diplomatic immunity hails from. The fact that Judge Akay was in Turkey, his homeland, at the time of his arrest makes no never mind. Judge Meron’s ruling was spot on. Continue reading “Judicial expediency yields to judicial immunity: why relieving MICT Judge Aydin Sefa Akay from judicial duties in the Ngirabatware case is not an option”

It looks like the Gambia is heading back into the ICC fold: but what of Yahya Jammeh?

Former Gambian President Yahya Jammeh, having joined other African leaders in succumbing to the lure of withdrawal from the International Criminal Court (ICC)(( See also Gambia Follows South Africa’s ICC Exodus: Quelle Surprise, 31 October 2016.)) – no doubt out of fear of one day ending up in the ICC dock – departed the Gambia for Equatorial Guinea (a non-signatory to the Rome Statute) under a brokered deal that fell short of granting him immunity for any crimes he is alleged to have committed during his 22-year long reign.(( For more on the terms of settlement, see Antenor Hallo de Wolf, Rattling Sabers to Save Democracy in The Gambia, EJIL:Talk!, 1 February 2017.))

But let’s face it: immunity from prosecution for crimes against humanity is much like an amnesty (resulting in total amnesia and total prohibition against prosecution for crimes committed) – a thing of the past. The days of kicking and screaming into the night as Uganda’s Idi Amin did when he fled to Saudi Arabia are becoming more difficult. The sanctity of sanctuaries is scarcely sacrosanct. Continue reading “It looks like the Gambia is heading back into the ICC fold: but what of Yahya Jammeh?”

ADC and ICCBA: not a zero-sum game

Whenever you think you are facing a contradiction, check your premises. You will find that one of them is wrong.

Ayn Rand

We must all hang together, or most assuredly we shall all hang separately.

Benjamin Franklin

Commenting on my most recent post “The ADC-ICTY Evolves into an Association of Defense Counsel Practicing before International Courts and Tribunals,” Chima Ayokunle wrote:

As far back as November 2013 you advocated on your blog that ICC ‘List Counsel must form their own Bar’ and ‘Only a Bar of List Counsel, by List Counsel and for List Counsel, can legitimately and passionately advocate for the needs of List Counsel’ (https://michaelgkarnavas.net/blog/2013/11/11/why-establish-a-bar-of-list-counsel-of-the-international-criminal-court/)

After this you were chair of committee drafting the Constitution for a Bar at the ICC and then you ran for president of the ICCBA and didn’t succeed.

It seems a contradiction to me that now you suggest that there could be more than one association at the ICC. Why be involved in establishing the ICCBA if this existing association could do it?

I wonder whether your view would be the same if you had been elected as ICCBA president?

Grateful to Mr. Chima Ayokunle for his musings. My response: Continue reading “ADC and ICCBA: not a zero-sum game”

The ADC-ICTY Evolves into an Association of Defense Counsel Practicing before International Courts and Tribunals

On 16 December 2016, the Association of Defence Counsel Practising before the International Criminal Tribunal for the former Yugoslavia, commonly referred to as the ADC-ICTY, held a second General Assembly Meeting. The agenda had one item only: amending the ADC-ICTY Constitution to change the name of the ADC-ICTY to better reflect its function – effectively transforming it into an association for defense counsel practicing before international tribunals and courts. And so the ADC-ICTY Constitution was amended. Continue reading “The ADC-ICTY Evolves into an Association of Defense Counsel Practicing before International Courts and Tribunals”