After countless challenges and criticism from a wide-range of legal traditions regarding the extended form of joint criminal enterprise (“JCE III”), the Pre-Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (“ECCC”) held that JCE III does not exist in customary international law.((Case of NUON Chea et al., 002/19-09-2007-ECCC/OCIJ (PTC38), Decision on the Appeals of the Co-Investigative Judges[’] on Joint Criminal Enterprise (JCE), 20 May 2010, para. 78.)) The ECCC Trial Chamber, in its Decision on the Applicability of JCE, examined additional case law relied upon for JCE III support, and upheld and affirmed the Pre-Trial Chamber’s conclusion.((Case of NUON Chea et al., 002/19-09-2007-ECCC-TC, Decision on the Applicability of Joint Criminal Enterprise, 12 September 2011, paras. 33-35.)) Continue reading “The fiction of JCE III in customary international law”
On November 8, 2014, the Association of Defence Counsel Practising Before the International Criminal Tribunal for the Former Yugoslavia (ADC-ICTY) held an ethics training in The Hague, The Netherlands. Program attendees included ADC-ICTY members, interns and staff, as well as defence team members from the International Criminal Court (ICC) and the Special Tribunal for Lebanon (STL), staff of the ICTY/ICTR/MICT Registry, Prosecution and Chambers, and students from various universities around The Hague. The Keynote address, which appears below, was delivered by Michael Karnavas. Continue reading “Karnavas delivers ethics keynote in The Hague”
DeFalco’s analysis is result-determinative and based on the premise that if the suspects are not found “most responsible” there will be no other trials and the suspects would escape criminal responsibility. Although DeFalco’s basic approach to determine the meaning of “most responsible” is sensible, through his analysis he commits several errors that lead him to his pre-determined conclusion. DeFalco’s conclusions are unsurprising when considering his association with Documentation Center of Cambodia (“DC-Cam”) and interest in verifying its pre-determined conclusion that genocide and crimes against humanity occurred in Cambodia.
Agreement Between the United Nations and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, 6 June 2003, Preamble. [↩]
For several years there have been talks and initiatives by members of the ICCList Counsel to establish a Bar or an Association. Indeed, in the last couple of years we have seen a growing interest, if not impatience, for a Bar or Association.
Last year I circulated a draft Constitution for an ICC Bar for List Counsel (click language choice to see draft in English or French) based in part on an earlier initiative and inspired by the ADC-ICTY model. I also circulated a modest commentary. But as in the past, the momentum and enthusiasm waned with the passage of time.
Then, out of the blue, the ICC Registrar, Herman von Hebel, sent an outline of proposals to be discussed during a meeting with List Counsel held on 16 September, wherein he expressed an interest in the establishment of an Association by, for and of List Counsel, that would be officially recognized by the ICC. Just what many of us have been advocating since as far back as 2007.
On the eve of the Khmer Rouge Tribunal Trial Chamber’s pronouncement of the judgement in Case 002/01 against KHIEU Samphan and NUON Chea, the Associated Press asked experts, including Michael Karnavas, to discuss the significance of the trial.
Having elaborated on the importance of perfecting the record, and having the standards of appellate review in mind, I began to discuss in detail how to perfect the record. Counsel needs to see clearly how the case may unfold in each step of the proceedings, from the pre-trial stage to appeal stage. Cases are organic. Everything that is done at the pre-trial and trial stages may eventually be relevant on appeal. Even at the pre-trial stage, Counsel should be able to see far ahead what sorts of challenges he or she may raise at each stage, reopen at a later stage and bring on appeal. Conversely, on appeal Counsel is limited to whatever is already in the record unless there is a mechanism to adduce additional evidence such as Rule 115 of the ICTY Rules of Procedure and Evidence (ICTY RPE). Counsel ought to be aware of all options and mechanisms at each stage. This means being diligent in investigating the case, skilfully challenging all legal and factual issues through written submissions that fully preserve all errors, making and meeting oral objections during the proceedings, and putting on a case (which can be done strictly through confronting the prosecution case) that has a consistent, plausible, and well-developed theory. Continue reading “The Diligence That Is Due – Part II: How to Make the Record”
While we do not believe the trial judge testified untruthfully, we recognize that the written word in the record is ‘black and white’ evidence of what did or did not occur, whereas an individual’s recollection of those same events blur into gray. This case demonstrates the validity of an old legal truism: God may know but the record must show.
Jones v. Vacco, 126 F.3d 408, 417 (2d Cir. 1997) (emphasis added).
On 18 June 2014, I delivered the third installment of a lecture series on ethics to members of the Association of Defence Counsel Practicing before the International Criminal Tribunal for the Former Yugoslavia (ADC-ICTY) and others. The previous lectures were on Judicial Ethics in the International Tribunals and Conflicts of Interest. This lecture focused on due diligence and the imperative of perfecting the record by properly preserving all potential errors for appellate review. The lecture lasted 2 hours. Certificates were issued to the participants for those who wished to claim 2 hours of CLE credits on ethics with their national / state bar. Continue reading “The Diligence That Is Due: Making the Record & Perfecting Grounds for Appeal”
On 14 May 2014 Michael G. Karnavas and Co-Lawyer ANG Udom filed an Amicus Curiae Brief urging that the ECCC is unable to exercise subject matter jurisdiction over grave breaches of the Geneva Conventions because those crimes are subject to a 10-year statute of limitation, which has expired for crimes committed from 1975-79. Read the brief here.
“‘Conflict of interests’ is a term that is often used and seldom defined.” 1
Michael Karnavas delivers ADC-ICTY Confilcts Lecture
On 16 April 2014 I was invited by the Association of Defence Counsel practicing before the International Criminal Tribunal for the Former Yugoslavia (ADC-ICTY) to conduct training for its members and others on ethics. The topic chosen was Conflicts of Interest. The lecture lasted 2 hours. A modest PowerPoint presentation was used to guide the lecture which was based on handout material made available after the lecture. Certificates were also issued to the participants for those who wished to claim 2 hours of CLE on ethics with their national / state bar.
The lecture focused on the lawyer’s core responsibilities to the client in both national and international jurisdictions: competence, diligence, communication, confidentiality, loyalty, honesty, and independence. Principles that are universal.
Finally, it was time to focus on Syria: what are the realistic prospects of Bashar Al-Assad and others being prosecuted at the ICC? Recalling how a case comes before the ICC, I noted that it was highly unlikely that Assad or others would end up at The Hague any time soon, if at all. Syria has not signed on to the Rome Statute.[1] This Syrian government is not about to agree to ICC jurisdiction. Assuming the Assad regime falls, the next government would be poised to ask the ICC to investigate and prosecute, but given that all sides to the conflict seem to be committing mass atrocities, it does call into question whether there would be a genuine desire to get the ICC involved. The Security Council is unlikely to refer the matter to the ICC Prosecutor, when it cannot even agree on the need to intervene for humanitarian reasons.[2] But hope springs eternal. Theoretically, nothing can be precluded. Continue reading “Just How Relevant is the ICC – Part VII and Conclusion”
So the biggest hurdle – that of convincing the Registrar to recognize a Bar or Association for ICC List Counsel – has been removed. Time to move forward, and move swiftly. And here is why. Continue reading “ICC Registrar supports establishment of an Association for List Counsel”
On the eve of the Khmer Rouge Tribunal Trial Chamber’s pronouncement of the judgement in Case 002/01 against KHIEU Samphan and NUON Chea, the Associated Press asked experts, including Michael Karnavas, to discuss the significance of the trial.
Having elaborated on the importance of perfecting the record, and having the standards of appellate review in mind, I began to discuss in detail how to perfect the record. Counsel needs to see clearly how the case may unfold in each step of the proceedings, from the pre-trial stage to appeal stage. Cases are organic. Everything that is done at the pre-trial and trial stages may eventually be relevant on appeal. Even at the pre-trial stage, Counsel should be able to see far ahead what sorts of challenges he or she may raise at each stage, reopen at a later stage and bring on appeal. Conversely, on appeal Counsel is limited to whatever is already in the record unless there is a mechanism to adduce additional evidence such as Rule 115 of the ICTY Rules of Procedure and Evidence (ICTY RPE). Counsel ought to be aware of all options and mechanisms at each stage. This means being diligent in investigating the case, skilfully challenging all legal and factual issues through written submissions that fully preserve all errors, making and meeting oral objections during the proceedings, and putting on a case (which can be done strictly through confronting the prosecution case) that has a consistent, plausible, and well-developed theory. Continue reading “The Diligence That Is Due – Part II: How to Make the Record”
On 18 June 2014, I delivered the third installment of a lecture series on ethics to members of the Association of Defence Counsel Practicing before the International Criminal Tribunal for the Former Yugoslavia (ADC-ICTY) and others. The previous lectures were on Judicial Ethics in the International Tribunals and Conflicts of Interest. This lecture focused on due diligence and the imperative of perfecting the record by properly preserving all potential errors for appellate review. The lecture lasted 2 hours. Certificates were issued to the participants for those who wished to claim 2 hours of CLE credits on ethics with their national / state bar. Continue reading “The Diligence That Is Due: Making the Record & Perfecting Grounds for Appeal”
