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:
This chapter considers whether the ad hoc nature of ICC trial proceedings risks undermining the ICC’s credibility. The Rome Statute and the ICC Rules of Procedure and Evidence have sufficient constructive ambiguity as to how trials should be conducted such that, depending on the serendipitous composition of the Trial Chamber, trials can be shaped in a more ‘adversarial’ or more ‘inquisitorial’ fashion. This malleability, which may have been the result of a diplomatic compromise, has resulted in ad hoc trial proceedings at the ICC; no two trials are: conducted in the same manner. Since the hallmarks of any good court are uniformity, predictability, and reliability in its proceedings, does this feature, which is unique to the ICC, risk undermining the legitimacy of the ICC’s judgments and, inexorably, the ICC itself?
Classic understandings about the demarcation between war and peace are not just quixotic remnants of a bygone era, but core underpinnings of the international legal system that are eroded at the peril of the entire world.
Leila Nadya Sadat, p. 556
Had it been up to me I would have retitled Seeking Accountability for the Unlawful Use of Force (Seeking Accountability) to something like: The International Crime of Aggression: past failures, present shortcomings, and future possibilities. Even if you think you know all there is to know about criminalizing aggression as an international crime, you are bound to find this collection of articles exceptionally rewarding. And if you really want to treat yourself, read it cover to cover as it has been smartly organized and edited by Washington University Law School Professor Leila Nadya Sadat. Spoiler alert: Seeking Accountability is dense, packed with information and source material that provokes and stimulates – not a quick or effortless read. Continue reading “Book Review: Seeking Accountability for the Unlawful Use of Force”
In short, the Peace Pact formed the background of rules and assumptions against which the rest of the new system operated. As states adapted to the transformed legal order, their adaptations helped reinforce those new rules and become reasons of their own for playing by them. The Pact did not bring about the end of conquest and interstate war on its own; no treaty, no law could have. But it was a necessary start, the beginning of the end of the Old World Order.
The Internationalists, p. 335
Tensions around the world seemed to have heightened with the election of U.S. President Donald J. Trump. Maybe it has nothing to do with him; maybe it is just his in-your-face style that tends to make us more aware of how dangerous and volatile the world has become. It is hard to point to a region on the global map and not find a conflict that has just ended, is raging on, or about to start. The most eye-popping conflict started as a civil war in Syria in 2011. The end is not in sight despite the use of an inordinate amount of hard and soft power by regional state players and their proxies, permanent members of the United Nations Security Council, the United Nations (UN), the European Union, and so on. Red lines have been drawn and crossed, chemical weapons used against combatants and non-combatants, indiscriminate bombings of civilian-populated areas, acts of terror committed with an aim to make life so unbearable so as to bring about death or forced dislocation. All of this and much more in the name of sovereign rights, self-defense, security (national, regional, international), reprisals, deterrence (sending messages), and, of course, peace. Continue reading “Book Review – The Internationalists: How a Radical Plan to Outlaw War Remade the World”
Following the previous post on the Majority’s reasoning in finding that the ICC has jurisdiction over the alleged deportation of the Rohingya from Myanmar to Bangladesh, let’s look at Judge Marc Perrin de Brichambaut’s Partially Dissenting Opinion. It exclusively deals with the Majority’s analysis of its legal basis for entertaining the Office of the Prosecutor’s (OTP) Request.
On 6 September 2018, the Pre-Trial Chamber (PTC) of the International Criminal Court (ICC) reached a decision on whether the ICC has jurisdiction over the alleged deportation of the Rohingya from Myanmar (non-State Party to the Rome Statute) to Bangladesh (a State Party). The PTC by Majority held that the ICC has jurisdiction “if at least one legal element of a crime within the jurisdiction of the Court or part of such a crime is committed on a territory of a State Party.” (para. 64) While the outcome of the decision seems correct, the partially dissenting opinion raises concerns, mainly whether the issue was ripe for the PTC to entertain. In this post, I will revisit the Majority’s reasoning on its finding that the ICC has jurisdiction, whereas in the next post I will focus on Judge Marc Perrin de Brichambaut’s opinion. Continue reading “Revisiting the ICC’s Ruling on the OTP’s Rohingya Request over Jurisdiction: a more critical look. Part 1 – The Majority’s Decision”
You must put no man on trial under the forms of judicial proceedings if you are not willing to see him freed if not proved guilty…the world yields no respect to courts that are merely organized to convict.
Justice Robert H. Jackson, Speech to American Society of International Law cited in Henry T. King, Jr’s The Legacy of Nuremberg, Case Western Journal of International Law 34 (2002), 335, 336
If asked to recommend three books to a newly-minted judge at any of the international(ized) criminal tribunals or courts, but especially at the International Criminal Court (ICC), Jonathan Hafetz’s Punishing Atrocities Through a Fair Trial – International Criminal Law from Nuremberg to the Age of Global Terrorism (Punishing Atrocities) would be one of them. Indeed, I would suggest it as essential reading for judges, prosecutors, defense lawyers, and any judicial staff. I would also recommend Punishing Atrocities as obligatory reading for any introductory courses on International Criminal Law (ICL).
Jonathan Hafetz, a professor of law at Seton Hall University School of Law, admirably shows the tension between the need for establishing individual accountability for suspects and accused alleged to have committed or contributed to mass atrocities and the need to accord them fair trials based on recognized international principles and standards. Reconciling these two aims has been an ongoing process since the creation of the post-World War II International Military Tribunals at Nuremberg and for the Far East in Tokyo. While the divide remains, much progress has been made in affording greater due process to suspects and accused, in part, because of a higher recognition that acceptance of judicial results at the international(ized) criminal tribunals and courts is enhanced and fostered through fair trials and ensuing perceptions. Meanwhile, the experimentation of cobbling together procedural modalities from different legal systems for fairer procedural justice continues. Continue reading “Book Review – Punishing Atrocities Through a Fair Trial: International Criminal Law from Nuremberg to the Age of Global Terrorism”
Q: You probably saw also, Vice President Pence yesterday appealed to you and to Myanmar to let the two Reuters journalists out of jail. I think they got a sentence of seven years. What is your response to Vice President Pence?
A: Well, I think what I want to know is whether they feel that there has been a miscarriage of justice. And you know of course, that due process allows them to appeal the sentence.
Q: But that, I guess, you also as a democratic leader don’t feel comfortable with journalists being jailed?
A: It’s not a matter of… They were not jailed because they were journalists. They were jailed because the court has…. Well, sentence has been passed on them because the court has decided that they had broken the Official Secrets Act. So, if we believe in the rule of law, they have every right to appeal the judgment and to point out why the judgment is wrong, if they consider it wrong.
Interview of Aung San Suu Kyi, State Counsellor of Myanmar by Børge Brende, World Economic Forum in Hanoi, Vietnam
In December 2017, Reuters journalists Wa Lone and Kyaw Soe Oo came across reliable information (eye-witness accounts and photographs) leading to the uncovering of a mass grave of ten Rohingya civilians in Inn Din, Myanmar, killed during a clearance (ethnic-cleansing) operation carried out in the Northern Rakhine State by Myanmar’s security forces (military and police) and local Buddhists in August 2017. Given the location of the burial site, the ongoing events in that area, the equipment required to dig and cover-up the mass grave, the bulldozing over and destruction of any remaining evidence, and the eye-witness accounts and photographs, it was clear that this atrocity was committed and then covered up by Myanmar’s security forces. Reuters would later write a lengthy story on this and other events (see my post), implicating Myanmar’s security forces along with its proxies – local civilians. Continue reading “Daw Aung San Suu Kyi’s remarks in context: is she defending the convictions and imprisonment of the journalists?”
The United States will use any means necessary to protect our citizens and those of our allies from unjust prosecution by this illegitimate court.
John Bolton, US National Security Advisor
John Bolton’s “happiest moment” as the US Ambassador to the United Nations (UN), so he claims, was when he “personally ‘unsign[ed]’ the Rome Statute” that established the International Criminal Court (ICC).1 John Bolton, Surrender Is Not an Option: Defending America at the United Nations and Abroad, Threshold 2007, as cited by Brian Urquest, One Angry Man, New York Review of Books, March 6, 2008, pp. 12–15. This is the same John Bolton who once said that if the UN Secretariat building in New York “lost ten stories, it wouldn’t make a bit of difference.” And believe it or not, this statement would later bring hope to some of the accused (and some of their lawyers) at the International Criminal Tribunal for the former Yugoslavia (ICTY) when Bolton became US Ambassador to the UN; they naively thought that Bolton would lead the charge to dismantle the ICTY. I was flabbergasted hearing these ludicrous expectations, yet Bolton’s remarks had captured their imagination.
John Bolton, Surrender Is Not an Option: Defending America at the United Nations and Abroad, Threshold 2007, as cited by Brian Urquest, One Angry Man, New York Review of Books, March 6, 2008, pp. 12–15.
On 6 September 2018, the Pre-Trial Chamber (PTC) of the International Criminal Court (ICC) held by Majority (Judge Marc Perrin de Brichambaut dissented in part) that the ICC has jurisdiction over some of the mass atrocity crimes allegedly committed (and, as some may argue, still being committed) in Myanmar against the Rohingya. This comes on the heels of the UN Human Rights Council’s conclusions that violations in Rakhine State (and elsewhere) in Myanmar amounted to the gravest crimes under international law, and, more alarmingly, that certain “clearance operations” conducted by the Myanmar Military (known as “Tatmadaw”) were not a response to a concrete threat from the Arakan Rohingya Salvation Army (ARSA), but the “unfinished job” of “solv(ing) the long-standing Bengali problem” thus warranting an investigation and prosecution of the senior officials in the Tatmadaw chain of command “so that a competent court can determine their liability for genocide in relation to the situation in Rakhine State.” (SeeReport of the Independent International Fact-Finding Mission on Myanmar, Advance Unedited Version, A/HRC/39/64, 24 August 2018, paras. 86-87.) Continue reading “The ICC’s Ruling on the OTP’s Rohingya Request over Jurisdiction: well-reasoned or a judicial overreach?”
a) ORDERS the Registry, to establish, as soon as practicable, a system of public information and outreach activities for the benefit of the victims and affected communities in the situation in Palestine and report back to the Chamber in compliance with the principles established in the present decision;
According to The Times of Israel, Israel has formally complained to the International Criminal Court (ICC) about the outreach program the ICC Registry is launching at the behest of the Pre-Trial Chamber (Judge Péter Kovács Presiding, Judge Marc Perrin de Brichambaut, and Judge Reine Adélaïde Sophie Alapini-Gansou) “for the Victims of the Situation” in Palestine, calling into question the ICC’s impartiality in treating Israel fairly. What took so long?
On 14 August 2018, The Mekong Review published an essay I wrote about my search in the mid 90’s for Vietnamese writer Bao Ninh, author of The Sorrow of War. That essay, Looking for Bao Ninh, is reproduced below.
LOOKING FOR BAO NINH
MICHAEL KARNAVAS – AUG 14, 2018
I took my first trip to Southeast Asia in 1994. I went to Phnom Penh to volunteer, teaching trial advocacy skills for the Cambodian Defender Project. Showing up unannounced, I was told to come back a month later. So I headed north to Hanoi. Vietnam had opened its doors to foreign investment and tourism. It was an exuberant time, full of optimism. Continue reading “LOOKING FOR BAO NINH”