This week, I have been covering the perspectives of some of the people who work on the Defence Teams at the ECCC. Defence lawyers are often seen as defending alleged war criminals, which is exactly what they are doing. However, the important point to remember is that they are only alleged criminals – all charged and accused persons are presumed innocent until proven guilty through a final judgment. The whole purpose of holding trials is to test allegations and evidence through adversarial hearings to determine if a person is guilty or not guilty of the crimes he or she stands accused of.
I spoke to Michael G. Karnavas, who has a history as a Defence lawyer which spans 32 years. He first got involved with the ECCC as a Co-Lawyer for Ieng Sary in Case 002. He is currently representing Meas Muth, in Case 003. I asked him why he became a lawyer; why specifically a Defence lawyer, and why, specifically, a Defence lawyer here at the ECCC.
Michael Karnavas: What motivated me to become a lawyer were a couple of events: the first one when I saw the coup in Greece in 1967 and then the return of the democratic government in 1974, which also included a referendum on whether to keep or do away with the Royalty in Greece. I witnessed people getting picked up to be taken to camps for their political beliefs. I also witnessed students organizing themselves in underground movements to expose the human rights violations of the government run by the generals. I also saw and was remotely impacted by the Turkish invasion of Cyprus which was claimed to have been a reaction to an attempt of the Greek generals to overthrow the democratically elected Cyprian government. All of these events are interconnected. Witnessing the reemergence of democracy in Greece (and I was there at that time) settled any doubts I may have had on selecting the legal profession as a career.
I became a criminal defence lawyer almost by accident. I read a book on the careers of major US lawyers. One in particular I was very familiar with; a giant in the legal profession with a very accomplished career as an advisor to presidents. A wise man, as the term goes in DC. Anyway, this wise man credited his early courtroom experience as a trial lawyer for his ability to solve legal, political, social, etc., issues. Learning the craft of being able to identify and focus on the most essential facts, and determine the issues involved and the possible solutions, was viewed by him to be the most crucial skills for a lawyer – no matter what the specialty. Such skills are best picked up by doing trials, and since criminal cases mostly go to trial, the best place to start would be at a prosecutor’s office or at a public defender agency. It turned out I had a knack for trial advocacy and I got hooked. Having majored in international affairs at university before going to law school, it was inevitable that I would venture on to the international tribunals. Though I prefer doing defence work, under the right circumstances I could be a prosecutor or a judge.
Mr. Karnavas explained that he became the Co-Lawyer for Ieng Sary when recommended to . Ieng Sary by Mr. Ang Udom, his current Cambodian Co-Lawyer and one of his former students at the Cambodian Defenders Project( CDP). Between 1994 and 1996, Mr. Karnavas trained CDP advocates to be legal aid lawyers.
I asked him, furthermore, why someone would want to defend someone who is deemed by many surivors and other members of the public, already prior to trial, to be responsible for very serious crimes.
Michael Karnavas: I have been a public defender and federal defender for a good part of my career. I make no apologies for representing those accused of committing crimes. They have rights and they deserve to exercise their rights.
Mr. Karnavas sent me an article he had written titled ‘The Rights of the Accused’, where he answered the question, ‘How can you represent these mass murders, war criminals, human rights violators, genocide perpetrators?’:
Michael Karnavas: ‘If one of your nearest and dearest was charged with any of these crimes - or any crime for that matter, where there is the possibility of being locked up for years or maybe even a lifetime - what sort of representation would you want and what sort of trial would you expect? And what if your nearest and dearest professed his or her innocence but the evidence - at least from reading the indictment - seemed otherwise? What then? Would you not want a vigorous defence that left no stone unturned, challenged all of the evidence, raised every conceivable legal issue, took advantage of every weakness in the prosecution’s case, and so on?’
‘In the court of public opinion, as soon as an Accused is under investigation, he or she is guilty until proven innocent. A fair trial for them is a quick, inevitable conviction’.
Mr. Karnavas explained his perspective further:
Michael Karnavas: My personal philosophy is that a defence lawyer’s representation of a client is not an endorsement of that client’s factual or legal claims, and certainly it is not an endorsement of the client’s political, economic, social or moral views or activities – however benevolent or malevolent they may be. Put differently, defence lawyers have an obligation to remain detached, as they go about zealously exploiting every conceivable opening and pressing every conceivable advantage that may benefit their clients. Their obligation is to put the prosecution to its proof in every way, and present every legal and factual defence that may benefit their clients, short of knowingly presenting false evidence or making false representations to the Court. This is necessary for the fairness of the trials. A conviction without this sort of robust defence is likely to be unreliable. ICL does not affect only dictators or blatant violators of human rights, but also the populace as a whole from government or prosecutorial overreach.