International Criminal Law Archives - Page 26 of 33

Judges called to task for failure to defend the defence

On 2 August 2016, a prosecution expert lashed out at the Defence while being cross-examined at the ECCC. The judges of the trial chamber sat silent. In an opinion piece published 8 August 2016 in The Cambodia Daily, Michael G. Karnavas takes the judges to task for their complicit passivity.

Apathy Signals Open Season on Defense Lawyers in Case 002

BY MICHAEL KARNAVAS AUGUST 8, 2016

On August 2, 2016, Henri Locard, testifying as an “expert” in Case 002, lashed out at Khieu Samphan’s lawyer, Anta Guisse, claiming to have been put under “cold torture” the previous day when examined—“Historian Accuses Tribunal Lawyers Of ‘Cold Torture,’” (August 3).

The reference to cold torture, for those who have not followed the trial, is about one of the methods employed by Kaing Guek Eav, better known as Duch, at S-21, or Tuol Sleng, in extracting confessions. Mr. Locard then went on to say that if Ms. Guisse continued to apply cold torture, after three days maybe he would gift his persona to Angkar, implying that the questioning was a form of re-education to conform his thinking to that of the Democratic Kampuchea regime. Continue reading “Judges called to task for failure to defend the defence”

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”

Amnesties and Pardons in International Criminal Law – Part II

Amnesty is defined as complete and lasting forgetfulness of wrongs and offences previously committed. Therefore, when an amnesty is given, since all deeds are consigned to perpetual oblivion and everlasting silence, no one can be accused or punished for acts before committed.((CHRISTIAN WOLFF, JUS GENTIUM METHODO SCIENTIFICA PERTRACTATUM Vol. 2, para. 989 (transl. by and Joseph H. Drake, Oxford 1995). ))

In my previous post I briefly recounted the background and recent developments in the case against Saif al-Islam Gaddafi at the ICC, and how these recent developments relate to the issues of amnesties, pardons, and ne bis in idem. I was prompted by recent news reports that Saif al-Islam Gaddafi was pardoned and released from prison after being convicted and sentenced to death, and his legal teams’ press conference and statements that the ICC should dismiss the case against Saif al-Islam Gaddafi because he was pardoned and because of double jeopardy. Continue reading “Amnesties and Pardons in International Criminal Law – Part II”

Saif al-Islam Gaddafi and the ICC: is the purported “amnesty” (or pardon) and “double jeopardy” a game-changer?

On 26 February 2011, the United Nations Security Council voted unanimously to refer the situation in Libya since 15 February 2011 to the ICC Prosecutor to hold accountable those responsible for attacks on civilians by forces under the control of those responsible. After conducting a preliminary examination, the ICC Prosecutor concluded on 3 March 2011 that there is a reasonable basis to believe that crimes under the ICC’s jurisdiction have been committed in Libya, and decided to open an investigation. Continue reading “Saif al-Islam Gaddafi and the ICC: is the purported “amnesty” (or pardon) and “double jeopardy” a game-changer?”

Cambodia Daily publishes Karnavas rebuttal to defence of US Senate’s ECCC interference

On 6 July 16 The Cambodia Daily published a commentary by Michael G. Karnavas, entitled Inducing Case 003 Outcome: US Purse Strings Wielded as a Whip. Heather Ryan, a consultant to the Open Society Justice Initiative, responded in a commentary, Tribunal Is Tainted by Political Interference, but Not From US, published on 12 July 16. Mr. Karnavas replied in the following commentary, Consultant’s Analysis of US Senate Bill Cherry-Picks Facts, published on 13 July 16.

Consultant’s Analysis of US Senate Bill Cherry-Picks Facts

BY MICHAEL KARNAVAS | JULY 13, 2016

In an op-ed published on Tuesday—“Tribunal Is Tainted by Political Interference, but Not From U.S.”—Heather Ryan, a consultant to the Open Society Justice Initiative, responded to my commentary concerning U.S. Senate Appropriations Committee bill S.3117, wherein I asserted that the Senate is effectively engaging in political interference, impliedly calling on the co-investigating judges to indict my client, Meas Muth. Continue reading “Cambodia Daily publishes Karnavas rebuttal to defence of US Senate’s ECCC interference”

The ICCBA is born. Huzzah! Now for the steep climb ahead.

On 30 June and 1 July 2016, the International Criminal Court Bar Association (ICCBA) came into being. The ICCBA is the first Bar Association for Counsel and their Assistants practising before the International Criminal Court (ICC). It was launched at the ICC in The Hague, the Netherlands, thanks to the generous support of the ICC Registrar.

For some of us it has been a long journey of persistent hard work. Few believed it could happen. Even fewer rolled up their sleeves to pitch in. As one of the midwives of the ICCBA, I celebrate the birth and respect that the baby has now been handed over to the duly elected leadership. In doing so, however, I take the liberty of also delivering a figurative Finnish baby box of observations, suggestions and warnings. Continue reading “The ICCBA is born. Huzzah! Now for the steep climb ahead.”

Cambodia Daily publishes Karnavas commentary on US Senate pressure on ECCC to indict in Case 003

On 6 July 2016, The Cambodia Daily published a commentary by Michael G. Karnavas on US Senate Appropriations Committee Bill S.3117.((section 7043(c)(2)) The bill, as explained in the Committee’s Report, seeks to tie US funding of the ECCC to the indictment of Mr. Meas Muth in Case 003. Mr. Karnavas calls out the bill’s drafters on their disregard for international standards of justice and respect for the rule of law, and for their lack of understanding of the very procedural rules with which they seek to tamper.

Inducing Case 003 Outcome: US Purse Strings Wielded as a Whip

BY MICHAEL KARNAVAS | JULY 6, 2016

Last Wednesday, the U.S. Senate Appropriations Committee approved a bill: S.3117. Buried 221 pages into that bill is a provision that would stop U.S. contributions to the Extraordinary Chambers in the Courts of Cambodia unless the U.S. secretary of state certifies and reports to the committee that the ECCC “will consider Case 003.” Continue reading “Cambodia Daily publishes Karnavas commentary on US Senate pressure on ECCC to indict in Case 003”

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

Part IV – International criminal courts and tribunals: mixing, matching & inventing

The latest type of international crimes courts, inter alia dubbed ‘hybrid courts’, has been welcomed with great expectations. The hybrid model that is characterized by a mix of national and international components is said to ‘hold a good deal of promise and actually offer an approach that may address some of the concerns about purely international justice, on the one hand, and purely local justice, on the other.’ The hybrid courts are thought to avoid the drawbacks of purely domestic trials and proceedings by purely international courts, such as the International Criminal Tribunals for the former Yugoslavia (ICTY), Rwanda (ICTR) and the International Criminal Court (ICC). The model of hybrid courts ‘endeavors to combine the strengths of the ad hoc tribunals with the benefits of local prosecutions.’((Sarah M.H. Nouwen, ‘Hybrid Courts’ The Hybrid Category of a New Type of International Crimes Courts, 2(2) Utrecht L. Rev. ,190 (2006). An excellent expose on what is referred to as hybrid courts, the features they purportedly share and their fundamental differences. With the vast range of differences, Nouwen questions whether there is a promising model hybrid court.))

This is the final post on my discussion of standards and burdens of proof in hybrid courts. In the first post, I briefly discussed the terms standard and burden of proof. The second post dealt with the history of the reasonable doubt standard of proof and the in dubio pro reo principle to provide some context and a background understanding of how the common law and civil law standards of proof diverged and evolved over the centuries. The third and fourth posts dealt with common law and civil law systems and the practical application of standards and burdens of proof in national criminal systems. In this final post to this series, I will address these issues in the context of the international criminal courts and tribunals. I will also touch upon some of the jurisprudence from the European Court of Human Rights (“ECtHR”). Continue reading “Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof — Part IV”

Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof, Part III-B – Civil Law

Part III-B – Civil Law

Considering the outlined differences between continental and common law attitudes, there remains only one understanding of free proof that can safely be employed across Western legal systems. On this view, free proof rhetoric expresses the preference for a factfinding regime in which adjudicators are permitted to use ordinary processes of cognition, free to follow the same procedures as the informed public in arriving at the verdict. Both continental and common law jurisdictions seem to subscribe to this preference – at least in principle, or as a prima facie matter – as an organizing schema for technical arrangements.((Mirjan Damaška, Free Proof and Its Detractors, 43 Am. J. Comp. L. 343, 347-48 (1995) (hereinafter “Damaška”). ))

Civil law based systems, which are also referred to as Romano-Germanic, are judge-driven, lacking many of the adversarial features essential to common law systems. I use the plural for “systems” because there is no single and uniform civil law system. Each civil law based system has its own nuances and distinctions. Query whether any civil law based system, be it modeled after the French system with the investigative judge conducting the investigation or modeled after the German system with the prosecutor in charge of the investigation, can claim to be procedurally pure in the sense that it solely employs inquisitorial procedures. Even within the French and German models there are significant differences. Few contemporary systems fit neatly into one definition; different elements and tools contribute to the degrees of fusion. Indeed, some civil law based systems can more accurately be characterized as hybrid, having adopted adversarial / common law modalities, such as is the case in Italy. Continue reading “Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof, Part III-B – Civil Law”

Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof, Part III-A – Common Law

Part III-A — Common Law Approach

Good men everywhere praise the presumption of innocence. And be they Frenchmen, Germans, or Americans, they agree on the demand of the presumption in practice. Both here and abroad, the state’s invocation of criminal sanctions demands a high degree of proof that the accused has committed the offense charged. To express the requisite standard of proof, common lawyers speak of the prosecutor’s duty to prove his case beyond a reasonable doubt. And Continental lawyers invoke the maxim in dubio pro reo – a precept requiring triers of fact to acquit in cases of doubt.((George P. Fletcher, Two Kinds of Legal Rules: A Comparative Study of Burden-of-Persuasion Practices in Criminal Cases, 77 Yale L. J. 880, 880 (1968). ))

This post follows up on my discussion on the common and civil law approaches to the standards and burdens of proofs. I began this series of posts by setting out the background and discussing relevant terms and definitions. I then provided a brief overview of how the common and civil law systems split off and developed over the centuries and how the reasonable doubt standard came about. I also touched upon the in dubio pro reo principle as it relates to the standard of proof. In the next two posts I will separately discuss the common and civil law systems in order to compare and contrast their respective approaches to the standards and burdens of proof. Continue reading “Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof, Part III-A – Common Law”