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Prosecution of Former Nazi Camp Guards: About Restoring Society’s Trust in Law and Participation in a Criminal Enterprise

Published on May 20, 2013        Author: 

The recent debate in Germany about the prosecution of former Nazi concentration camp guards – all about 90 years old – and the detention of one on 6 May near Stuttgart reminds us of the controversy about the trial against John Demjanjuk in the district court (Landgericht) of Munich in 2011. The controversy is by no means limited to Germany but takes place in all countries (for example Cambodia) where old men and sometimes women are held accountable for long passed crimes (for example the crimes of the Khmer Rouge). What these trials have in common is the old age of the accused, who may not survive to the end of their trials. Indeed, Demjanjuk died before the appeal against his conviction was decided. More recently, former Khmer Rouge senior official  Ien Sary died on 14 March 2013, during his trial by the Extraordinary Chambers in the Courts of Cambodia . Typical of these trials are also the enormous difficulties in finding appropriate evidence such a long time after the facts. Moreover, given that camp guards normally just follow orders of mid- or top-level responsible they are only small cogs in the machinery of destruction set up by the criminal system and their individual criminal responsibility is difficult to establish. We will return to this problem at the end of this essay.

On a more fundamental level, one is always confronted with the question of the justification or rationale of such trials in terms of the purposes of punishment. Offender-related rationales, especially re-socialization or rehabilitation, are hardly plausible in the context of system criminality, especially when the perpetrators are facing death anyway. The likelihood of convicted system criminals re-offending in a new system is next to zero. System criminals do not need to be re-socialized through punishment since they have not been deviant in the societies in which they lived in . Indeed, they carried out the atrocities demanded by the former criminal system, for example keep running a concentration camp. If this (their) system is replaced by a new one they usually quickly adapt to this one too and turn into the normal citizens they have always been, except for the period of the criminal system. These citizens are good neighbours who do not come into conflict with the law. Their conflict concerns their conduct in the former criminal system. Thus, they are investigated for past instead of present conduct. In sum, former system criminals neither have to be reintegrated into the new society nor is it necessary that this society must be protected against them, especially if they are harmless old men today.

What about retribution (just deserts) then? Does it justify prosecuting these people? Read the rest of this entry…

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Filed under: EJIL Analysis, International Criminal Law
 

James Stewart on Perisic

Published on April 7, 2013        Author: 

Readers might be interested in James Stewart’s analysis on OJ (here and here) of the ICTY Appeals Chamber’s Perisic judgment – James is rightly highly critical of the Chamber’s analysis with regard to aiding and abetting liability and specific direction. For my own take on the judgment and an outline of the issues see my earlier post here.

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Filed under: EJIL Analysis, International Criminal Law, International Criminal Tribunal for the Former Yugoslavia
 
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The Limits of Aiding and Abetting Liability: The ICTY Appeals Chamber Acquits Momcilo Perisic

Published on March 11, 2013        Author: 

On 28 February by 4 votes to 1 the ICTY Appeals Chamber acquitted Momcilo Perisic (judgment; summary), the former chief of staff of the FRY army and one of Slobodan Milosevic’s pet generals.  With the recent acquittal of Croatian generals Gotovina and Markac, the Appeals Chamber seems to be in something of a forgiving mood. Perisic was previously convicted by a divided Trial Chamber (voting 2 to 1) for aiding and abetting crimes in Sarajevo and Srebrenica committed by Bosnian Serbs, and on the basis of superior responsibility for crimes in Croatia committed by Croatian Serbs, and was sentenced to 27 years in prison.  The Appeals Chamber’s decision is in my view unfortunate for a number of reasons, even though it is not as utterly shambolic as was the Gotovina acquittal.

Some differences between Perisic and Gotovina are readily apparent. While Gotovina and Markac were convicted by a unanimous Trial Chamber and then had their convictions set aside by the Appeals Chamber on the facts (and at that by 3 votes to 2), with regard to Perisic there was already one dissenting opinion in the Trial Chamber on which an appeal could naturally latch itself on, and the Appeals Chamber reversed (mainly, but not exclusively) on points of law rather than fact, as I will now briefly explain.

The Bosnian part of the case indeed turned on a point of law: whether the actus reus of aiding and abetting as a form of liability requires assistance given by the accused to the perpetrators of the crime to have been specifically directed to aiding the commission of the crime. The jurisprudence of the ICTY on this point has not been clear; the majority of the Trial Chamber considered that specific direction should not be a requirement for aiding and abetting, whereas Judge Moloto in dissent did. In essence the majority’s argument was this – the aid given by the FRY as a state and Perisic as an individual to the Bosnian Serbs was instrumental for their war effort, and was given in full knowledge that their forces were committing crimes, with knowledge that the aid given will assist the commission of the crimes satisfying the needed level of mens rea. Therefore, Perisic  was an aidor and abettor. For Judge Moloto, on the other hand, the majority’s approach failed to distinguish between aid to the commission of specific crimes and aid to the war effort generally, which was not intrinsically criminal for the purposes of the ICTY’s Statute (even though, as a matter of general international law, the FRY’s intervention in Bosnia amounted to aggression). In Judge Moloto’s view, there was no evidence that the aid provided by Perisic was specifically directed to the commission of the crimes for which he was indicted.

The Appeals Chamber, Judge Liu dissenting, basically followed Judge Moloto’s approach, finding that specific direction was an essential element of the actus reus of aiding and abetting liability, and that it could not be proven beyond a reasonable doubt that the aid given by Perisic was specifically directed to the commission of crimes in Sarajevo and Srebrenica, particularly bearing in mind the general nature of the aid given in terms of logistics and personnel and Perisic’s lack of proximity to the crimes themselves.

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Filed under: EJIL Analysis, International Criminal Law, International Criminal Tribunal for the Former Yugoslavia
 
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The Mysterious Art of Drafting International Criminal Trial Judgments

Published on January 21, 2013        Author: 

 Marko Divac Öberg is a Legal Officer in Chambers at the ICTY.The opinions expressed here are made in individual capacity and do not necessarily correspond to those of the Tribunal, or the United Nations in general.

The drafting of international criminal trial judgments remains largely shrouded in mystery. There is almost no academic literature on the topic. Of course, the secrecy of deliberations should be respected. However, it takes skill to make a high quality product. Skills need to be learned and it is hard to learn from mystery, so it is worth giving this issue some systematic thought.

Drafting an international criminal trial judgment is a dangerously difficult task. The cases are often very complex. The parties tend to err on the side of tendering more evidence than needed, and in the heat of the action the judges are rarely in a position to deny admission to all the evidence that later turns out to be irrelevant or redundant. Witness testimony and documentary evidence accumulate, at times quite rapidly, for many months if not years. For instance, the trial phase of the Prlić et al. case lasted over four years. The witness transcripts and documentary evidence can easily add up to tens of thousands of pages. In the Popović et al. case, the evidence comprised more than 58,000 exhibit pages and 34,000 transcript pages of trial hearings.

When finally all the evidence has been received, the accused – who are presumed innocent – have often spent years in detention. They are entitled to an expeditious trial, so there is no time to lose before issuing the trial judgment. However, the judges need sufficient time to recall and deliberate on the massive amounts of evidence received over a long period. They also need time to prepare a reasoned, written judgment. In the Nyiramasuhuko et al. case, more than two and a half years passed between the close of evidence and the issuing of the trial judgment.

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Filed under: EJIL Analysis, International Criminal Law, International Tribunal Procedure
 
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Settlements, Territory, and the ICC

Published on January 3, 2013        Author: 

The President of Palestine, Mahmoud Abbas, has threatened to accept the jurisdiction of the International Criminal Court in order to pursue a case against Israeli settlement construction. At first, this seems an odd choice. One might expect suits over more classic war crimes involving military forces, of the kind dealt with by the Goldstone Commission, to be a be a safer course.

Such cases have been repeatedly tried in international and national tribunals, and have a well-established jurisprudence. But the rule against “deporting or transferring” one’s civilian population into occupied territory would be a case of first impression, and thus pose potentially daunting obstacles. The attraction of settlements, however, is that the issue is not bilateral. Israel could not counter-claim, as it were.

The talk of taking settlements to the Court is difficult to understand. States refer “situations” to the ICC, not cases. Countries cannot simply engage in strategic claim-splitting, referring the alleged crimes of their enemies and not their own. What is the “situation” here? The scope of the term is not well understood. One might say, at the broadest level, it would seem be the conflict between Israel and the Palestinians, of which settlements is a part – and Palestinian violence is another part. More narrowly, given the security buffer justification of many settlements, it would still be artificial to split the situation into an Israel-only offense.

However, while the GA vote makes the path to such a referral easier, there remains an under-underappreciated hurdle that a settlements-suit would have to clear. If Palestine accepts the jurisdiction of the ICC under Art. 12(2)(a) of the Rome Statute, the Court would only have jurisdiction over Israel for conduct that occurred “on the territory” of Palestine. Thus exercising jurisdiction requires determining Palestine’s territory.

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Filed under: EJIL Analysis, International Criminal Court, International Criminal Law, Palestine
 

Why the Gotovina Appeals Judgment Matters

Published on December 21, 2012        Author: 

Jens David Ohlin is Associate Professor of Law at Cornell Law School. He is the co-editor of Targeted Killings: Law and Morality in an Asymmetrical World (OUP 2012).  Cross-posted at LieberCode.

When the ICTY Appeals Chamber issued its ruling exonerating Gen. Gotovina, and ordering him released, the decision sent shock waves throughout the region.  In Serbia, the decision was met with consternation, anger and resentment.  In Croatia, the decision was met with jubilation and relief, and Gotovina was given a hero’s welcome upon his return to the country.

As Marko Milanovic has ably articulated, this dualistic popular sentiment is cause for concern among those who care about the tribunal’s long-term legitimacy and success.  The decision fueled resentment among Serbs who view the tribunal as victors’ justice.  And more concerning, according to Marko, it reinforces a Croatian narrative that the Croats were pure victims of Serbian aggression who fought back with only legitimate and lawful methods of warfare. For Marko, this constructed narrative whitewashes a much more complicated reality on the ground.

From a legal perspective, the Appeals decision is also a worrisome development.  The two most important principles of the Law of Armed Conflict are the principles of distinction and proportionality.  The principle of distinction outlaws the direct targeting of civilians, while the principle of proportionality outlaws the launching of attacks against legitimate military targets that will cause civilian deaths that are disproportionate to the military value of the legitimate target.  These are simple principles, but they are difficult for courts to apply in practice.  Although one might have predicted otherwise, there have been virtually no guilty verdicts for launching disproportionate attacks at the ICTY.  The Gotovina Trial Chamber Judgment was one of the few.  And now that verdict has been overturned.

I am not saying that the Appeals Chamber was wrong in making this decision, but I am saying that the jurisprudence as a whole has taken a wrong turn when proportionality is almost entirely absent from the ICTY’s case law.

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Palestine as a UN Observer State: Does this Make Palestine a State?

Published on December 3, 2012        Author: 

Last week, the UN General Assembly voted by 138 to 9 (with 41 abstaining) “to accord to Palestine non-member observer State status in the United Nations”. Thus, Palestine which has been an observer at the UN since 1974 has had its status within the UN upgraded to being an observer State. There has been much euphoria on one side as a result of this decision, and dismay on the other side. However, what are the implications, if any, of this decision. It is thought that one reason why Israel opposed the change, though it asserts that the decision achieves nothing, is that characterising the Palestinian as an observer State would give Palestine access to legal, particularly judicial, remedies that it otherwise would not have (see BBC Q & A report here). It was reported that the United Kingdom, which in the end abstained from voting, was prepared to vote in favour of the resolution, if Palestine had been prepared to pledge not to ratify the Rome Statute of the ICC or to seek to utilise the International Court of Justice. So though the granting of observer Status does not change “the facts on the ground”, it is thought that it would change the legal position of Palestine under international law. But does it? Are there new legal options open to Palestine as a result of the resolution and does the resolution constitute Palestine as a State?

Any student of international law will be familiar with the debate between the declaratory theory of recognition of States and the constitutive theory. Theory, practice and judicial decisions favour the declaratory theory and assert that recognition does not create Statehood. Although last week’s decision does not grant Palestine membership of the UN (which would require Security Council approval), the decision to grant observer State status to Palestine is an act of collective recognition of the statehood of Palestine. If that decision is capable of effecting the legal changes hoped for (by proponents) or feared (by those oppose the decision), this will provide strong support to the view that collective recognition is capable of creating Statehood. Read the rest of this entry…

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Filed under: EJIL Analysis, International Court of Justice, International Criminal Court, International Criminal Law, International Tribunals, Palestine, State Responsibility, States and Statehood
 

The Gotovina Omnishambles

Published on November 18, 2012        Author: 

Friday’s judgment in Gotovina and Markac by the ICTY Appeals Chamber (summary; judgment), in which it by 3 votes to 2 reversed a unanimous Trial Chamber and acquitted the defendants, is a disaster at almost every level. I say this not as an aggrieved Serb lamenting the selectiveness of international justice and its failure to punish crimes against his own people – I have long since developed antibodies to all forms of nationalism, including the very virulent type thriving on self-victimization, and I have no personal axe to grind here. I say this rather as an international (human rights) lawyer who has always thought of the ICTY as an indispensable, if imperfect, instrument of justice for the atrocities of the Yugoslav conflicts. That said, how and why then is the Gotovina appeals judgment so bad? To my mind, the problem is not with the acquittal as such – even though as far as public opinion in the former Yugoslavia is concerned the bottom line is all that mattered. Rather, the problem is with the process, the reasoning, the appearances, and the broader repercussions that all these will have.

First, with regard to process: as the dissents by Judges Agius and Pocar correctly point out, the majority make a complete mess of the appellate standards for review. Readers will recall that in the common law-inspired procedure of the ICTY the main task of the Appeals Chamber is to correct errors of law made by the Trial Chamber. The Trial Chamber is owed deference with regards to its findings of fact, which are not to be disturbed lightly on appeal, but only if no reasonable trier of fact could have made the relevant finding on the strength of the record. In short, unlike in most continental systems, the appellate process should not amount a retrial, a de novo examination of the entire case. This ensures both procedural economy and the integrity of the exhaustive fact-finding process in the trial court.

While the majority endorses these standards as they are set out in the ICTY’s long-established jurisprudence, it does not actually follow them – to the extent that its approach to standards of review is actually even discernible, as I will now explain. The whole case ultimately turned around the Trial Chamber’s unfortunate finding that in assessing the shelling by the Croatian artillery of the four Serb towns in the separatist Serb entity in Croatia, chief of them Knin, any shell that fell further than 200 meters from a legitimate military target in the towns should be presumptively considered as evidence of an unlawful indiscriminate attack. The Appeals Chamber was actually unanimous that this rigid standard was not supported by the evidence in the trial record and was not given adequate reasons for by the Trial Chamber.

So far so good. But what the majority then does with this finding turns appellate review on its head. The majority does not explain whether the Trial Chamber’s error with regard to the 200 meter standard itself was an error of law or an error of fact. If it was the former, the majority would have had to articulate a new, proper legal standard for testing the facts established in the record, upon whose application we could know whether the shelling of Knin and the other towns was indiscriminate or not. If it was the latter, the majority would have had to pay due deference to the totality of the factual findings made by the Trial Chamber and should only have disturbed them if no reasonable trier of fact could have found that the shelling was indiscriminate on the basis of all of the evidence in the record.

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A Reply to Vahagn Avedian – State Identity, Continuity, and Responsibility: The Ottoman Empire, the Republic of Turkey and the Armenian Genocide

Published on November 13, 2012        Author: 

Pulat Tacar has been Co-Chairperson of the Turkish National Commission for UNESCO (1995–2006), Ambassador of Turkey to UNESCO (1989–1995), Ambassador of Turkey to the European Communities (1984–1987) and to Jakarta (1981–1984). Maxime Gauin is a researcher at the International Strategic Research Organization (USAK, Ankara) and a PhD candidate at the Middle East Technical University. In this post, which summarises their article published in (2012) 23 EJIL 821-835, they respond to the piece by Vahagn Avedian.

The Armenian question is especially sensitive, not least because of the long accumulation of prejudices against Turks, Armenian terrorism in 1973–1991, the Armenian invasion and occupation of western Azerbaijan since 1992, and more recently the virulent anti-Turkish stance of Anders Breivik in his manifesto and the various campaigns or attacks by Armenian nationalists. So, it is better to ease the tensions instead to fuel them.

In this response to Vahagn Avedian’s EJIL article and post, we would like to raise two issues: Is genocide a pertinent concept to define the fate of the Ottoman Armenians during WWI?; and has the Republic of Turkey legal responsibilities for this fate?

The Terms of the Dispute

The term ‘genocide’ is a legal term; it describes a crime specifically defined by the 1948 Genocide Convention and must be addressed accordingly. The existence of the crime of genocide can be legally determined only by the judges of a competent tribunal on the basis of the prescribed legal criteria and after a fair and impartial trial. The Genocide Convention does not allow for convictions on the grounds of genocide by legislatures, scholars, pamphleteers, politicians, or others.

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Filed under: EJIL Analysis, Genocide, State Succession, States and Statehood
 

State Identity, Continuity, and Responsibility: The Ottoman Empire, the Republic of Turkey and the Armenian Genocide

Published on November 12, 2012        Author: 

Vahagn Avedian is a PhD candidate in the Department of History, Lund University and Chief Editor of Armenica.org. This post summarises his article which was published in (2012) 23 EJIL 797-820.

The Republic of Turkey’s denial of the Armenian genocide has evolved, abandoning the simple denial of the ever growing facts. The sophistication includes revisionism, reinterpretation of the UN Genocide Convention, but also pleading the discontinuity between the Ottoman Empire and present-day Turkey. This last argument is quite interesting due to its paradoxical nature: if there is a discontinuity, how come Turkey, unlike Germany, is ardently defending its otherwise flawed predecessor? West Germany chose to reinstate its international prestige by condemning the wrongdoings of Nazi Germany and compensating the victims. While condemning the crimes, East Germany refused to accept responsibility to compensate, referring to the discontinuity between the two states. Turkey has chosen to ardently refute it all together. This article aims to elucidate this aspect of the Turkish denial as a deliberate means to evade the issue of compensation. Furthermore, by failing to stop the WWI era massacres and confiscations (which aimed to create a ‘Turkey for Turks’), but more importantly, by continuing the same internationally wrongful acts committed against the Armenian population and other minorities, Turkey made itself responsible for not only its own actions, but also for those of its predecessor, the Young Turk Government. In my article, I show this by applying the norms of existing international law in regard to state identity, continuity, and responsibility on the historical data at hand.

Before we continue, it must be emphasized that I do not limit my analysis to the definition in the UN Genocide Convention and its legal restraints. Instead, I examine the issues from the perspective of internationally wrongful acts more generally.

Turkey as the Continuation of the Ottoman Empire

A first logical step would be to establish the identity of the two Turkish states and possible continuity. Dividing the determining factors into ‘objective’ and ‘subjective’ categories, K. G. Bühler asserts that it is not merely ‘objective’ factors such as substantial part of territory, population, and armed forces, that bear upon state identity and continuity, but ‘subjective’ factors, such as the successor’s claim to continuity and its self-conception, also do matter [State Succession and Membership in International Organizations: Legal Treaties versus Political Pragmatism (2001), at 14]. Recent changes in Europe, especially the dissolution of Soviet Union and Yugoslavia confirm this vision of state identity and continuity. Turkey’s case is quite similar to that of Russia which regarded as the continuation of the Soviet Union. In fact, there are two arbitral rulings: the Ottoman Debt Arbitration and Roselius & Co v. Karsten and the Turkish Republic, which regard Turkey as the continuation of the Ottoman Empire. Read the rest of this entry…

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Filed under: EJIL Analysis, EJIL: Debate!, Genocide, State Succession, States and Statehood