Havingdiscussed Harhoff in some detail (an entire day can be spent analyzing all the nuances of this matter), I segued into what I referred to as the Sow dilemma: what can and should a judge do when — rightly or wrongly — he or she is confronted with a perceived act of injustice in the making by fellow judges in a case in which he or she is sitting.
Judge Malik Sow, in an unusual and dramatic fashion, effectively accused his brethren in the Special Court for Sierra Leone (SCSL) Charles Taylor case, in which he was an alternate judge, of not properly engaging in serious deliberations in the case. After the summary of the judgement was read, quite unexpectedly, Judge Sow proceeded to criticize the deliberative process in Taylor, casting a shadow of bias on his fellow judges and calling into question the integrity of the SCSL: Continue reading “Third Installment: JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS”
With the stage set, it was time to dissect the Harhoff matter. Judge Harhoff’s folly, due to what I would later refer to as the Harhoff syndrome is a treasure trove for a lecture on judicial ethics – the perfect point of departure for discussing the Furundžija “reasonable apprehension of bias” test.
The Harhoff Syndrome
Judge Frederik Harhoff, in a letter to fifty-six personal contacts that was apparently leaked to the press, expressed some of his innermost thoughts, which, even when viewed in the light most favorable to him, demonstrate his inability (or perhaps his unwillingness) to adhere to the universally recognized fair trial right to the presumption of innocence, with the burden being with the prosecution. Judge Harhoff’s sentiments are quite frequently shared (though not revealed – at least not on paper or in transparent gatherings) by many human rights/humanitarian advocates appointed as international judges, who, although possessing impressive credentials, lack necessary practical experience, and, more worrisome, are challenged when it comes to rigorously applying the most fundamental precepts of fair-trial rights: the presumption of innocence afforded to the accused and burden of proof resting on the prosecution. Judge Harhoff assuredly understands as a theoretical construct the presumption of innocence. But when it came to applying it, his predilection for victim-based justice and unwillingness to conform to the standards of justice led him to take the position that an accused (at least if a high military officer) must, ineluctably, be deemed guilty as charged, unless proved otherwise. A classic case of inappropriate burden-shifting. This, in my opinion, is the Harhoff syndrome in its purest form. Judges at the international tribunals who suffer from this affliction—and there are a few—are generally discreet, frustrating a defence counsel’s ability to establish the objective prong of Furundžija whenthe need to disqualify is seemingly palpable. Continue reading “Second Installment: JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS”
On 24 January 2014, I was invited to lecture on Judicial Ethics at the ADC-ICTY’s Twelfth Defence Symposium for interns and staff at the ICTY. Some 45 interns and other court staff attended. Hardly an academic exercise in theoretical constructs, I tried to keep the presentation lively with vivid examples such as Harhoff’s folly, Sow’s dilemma, Robertson’s hubris. My aim was to present practical applications of the jurisprudence on judicial ethics (and misconduct) to young lawyers—primarily from the defence perspective—though relevant for young, impressionable lawyers working in Chambers and for the Prosecution.
Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various international tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy. Click here to visit Michael’s web site.
Michael G. Karnavas lectures students at the Grotius Centre for International Legal Studies on the role of defence counsel:
On 9 and 10 January 2023, Michael G. Karnavas conducted a virtual training for Chinese lawyers, at the Defender Advocacy Workshop, hosted by the University of Tokyo, Research Center for Sustainable Peace. The topics of his presentations were: Building Rapport and Trust with Clients from Vulnerable Populations through the Initial Client Interview; and Skills in Cross-Cultural Representation.
On 7 November 2022, Michael G. Karnavas participated in a discussion on transitional justice in Myanmar, focusing his remarks on the legacy of the Extraordinary Chambers in the Courts of Cambodia (“ECCC”) and the role of the defence in hybrid international(ized) criminal tribunals.
The Association of Defence Counsel Practicing Before the ICTY (“ADC”), established under Dutch law, came into existence on 20 September 2002 when it held its first General Assembly. With the blessings of the ICTY Judges at their July 2002 plenary meeting, the Rules of Procedure and Evidence were amended to require counsel’s membership in the ADC. Essentially, the ADC has been the Bar for some 350 plus counsel at the ICTY. While not always appreciated for its true worth, the ADC has lived up to much of the expectations by providing a unified voice championing the causes of Defence Counsel and of their client’s fair trial rights.
As promised, a few days ago I circulated the draft constitution I have been working on for the past month. (Links to Draft: English / French) There was no real need to re-invent the wheel and start from scratch. I took as a base the ADC-ICTY Constitution. While not perfect and certainly limited to the ICTY matrix, it has been tried and tested. Based on my experience both as a member and having served on numerous ADC-ICTY committees, including three years on the Executive Committee, two of which as President, I believe this document provides a solid point of departure. Last year I forwarded it to the Coordinators of the ALC-ICC, recommending its utility. Continue reading “A draft Constitution for the Bar of List Counsel: Let the discussions begin!”
Can justice be achieved at the ICC without due process of law? Can due process of law be achieved at the ICC without List Counsel? Can List Counsel meaningfully fulfil their duties and obligations to their clients if there is inequality of arms or asymmetry between them and the Prosecution? Can the internationally recognized standards and human rights principles be seriously advocated by List Counsel if they are without a collective voice that champions their needs so they can, in turn, champion the needs of their clients?
No reason to tax the mind pondering these questions. Article 67 of the ICC Statute, and Rule 20 of the Rules of Procedure and Evidence require the Registrar to promote a robust defence for all accused based on internationally recognized fair trial rights. Correspondingly, Article 68 of the ICC Statute and Rules 90, 91, 92 and 93 of the Rules of Procedure and Evidence provides for robust victim participation in court proceedings in person or through their legal representatives. Continue reading “Why Establish a Bar of List Counsel of the International Criminal Court?”
The ICC held its annual seminar for List Counsel on October 21 and 22, 2013 in The Hague. Three days of training followed. This was the eleventh time the ICC hosted this event.
As in the past, the seminar was mostly an update, and for the most part not terribly rewarding. It was heartening to hear from the new Registrar, Herman von Hebel, that changes are afoot in the Registry. He brings lots of practical knowledge and experience. There is already a feeling that he will be more understanding to the needs of List Counsel. From my brief conversation with him (I have known him since 2001), he seemed genuinely interested in working constructively with List Counsel. Continue reading “Attending the Eleventh ICC Seminar of Counsel – another letdown!”
28 Oct 13 — The Wall Street Journal’s on-line edition of Southeast Asia – Real Time featured Michael Karnavas in a Q&A on the Future of the Khmer Rouge Tribunal.
Michael Karnavas, an American defense lawyer, has spent more than a third of his 30-year career in international criminal justice, representing defendants in war crimes tribunals at The Hague and in Cambodia. Click here to read the rest of the article.