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A “Hybrid” Tribunal for Daesh?

Published on May 4, 2016        Author: 

On 21 April 2016, Professor Robert Cryer published a concise analysis of the possible consequences of a resolution adopted by the UK House of Commons a day earlier, including of a possible referral of the situation involving crimes – war crimes, crimes against humanity, and, in particular, genocide – committed by members of Daesh to the International Criminal Court (ICC). Although Professor Cryer noted, quite appropriately, that “political realities in the S[ecurity] C[ouncil] mean that there may be a veto on a resolution sending the matter to the ICC”, there are even more limitations to the likelihood of this proposal. This post briefly discusses these other limitations and suggests an alternative way to proceed.

Legal and Practical Limitations of the ICC Jurisdiction

It is unlikely that the ICC would get to deal with Daesh’s crimes in the foreseeable future. The Court does not presently have territorial jurisdiction with respect to the situation in Syria and Iraq, since neither of these States is a Party to the Rome Statute. Theoretically, the Court might exercise personal jurisdiction with respect to crimes committed by foreign members of Daesh who are nationals of States Parties to the Statute – but this is also unlikely, by virtue of the ICC principle of complementarity: if such individuals are found in the territory of a State Party to the Rome Statute, they are likely to be handed over to the States of which they are nationals, or to be tried in the State where they are apprehended (aut dedere aut judicare).

In turn, the likelihood of the situation in Syria being referred to the ICC by the UN Security Council is close to zero, because such a referral would imply the Court’s jurisdiction not only with respect to crimes under international law committed by members of Daesh (for the concept of crimes under international law, see: G. Werle and F. Jessberger, Principles of International Criminal Law, p. 32) but also with respect to those committed by Syrian armed forces, their internal opponents, and – last but not least – by members of foreign armed forces currently present in the country. Yet, there seem to be further good reasons not to refer the situation involving crimes committed by members of Daesh to the ICC at all, but to follow an alternative route. Read the rest of this entry…

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‘Legacy Talk’ at the International Criminal Tribunal for Rwanda

Published on May 2, 2016        Author: 

As mentioned in Marko Milanovic’s recent post, the American Journal of International Law will soon publish a Symposium at the occasion of the closure of the ad hoc tribunals. Marko’s article considers the impact of the International Criminal Tribunal for the former Yugoslavia (ICTY). We were asked to reflect upon the legacy and impact of the International Criminal Tribunal for Rwanda (ICTR). An advance (original and longer) version is available here.

Before turning to the ICTR’s potential legacies, our article explores the ways in which the concept of “legacy” can be understood in the context of an international criminal tribunal. Although rarely defined and even less frequently theorised, the term has recently been much in vogue in international criminal law, so much so that Viviane Dittrich has observed a “legacy turn” within the field.  Even before it closed down, the ICTR dedicated human resources, a website and a video to publicise its legacy.

As the ICTR’s legacy website and video demonstrate, the Tribunal has made claims about its legacy in no uncertain terms. For instance, the video lists the Tribunal’s monumental contributions to international criminal law, but it also describes a much broader impact: “a record of legal reform in Rwanda, and outreach, education, legal training, and healing.” The narrator claims, “today in Rwanda, it’s safe to listen to the radio again: the sound is of a nation rebuilding.” Yet the film’s final words are not about Rwanda, but affirm “a world pushing forward despite great imperfection, each day closer to a time when international law offers justice to all people, everywhere.”

This rhetoric about one’s own legacy exemplifies what we call ‘legacy talk’. Unlike legacy planning, which concerns ensuring that there will be something to leave behind, legacy talk attempts to consolidate a set of interpretations about what is left. Read the rest of this entry…

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Understanding the ICTY’s Impact in the Former Yugoslavia

Published on April 11, 2016        Author: 

As a follow-up to the ICTY extravaganza we’ve had on the blog in the past few weeks, I wanted to post about two companion articles I recently put on SSRN that readers might find of interest. The first is ‘The Impact of the ICTY on the Former Yugoslavia: An Anticipatory Post-Mortem’, and it is forthcoming in the American Journal of International Law; the second is ‘Establishing the Facts About Mass Atrocities: Accounting for the Failure of the ICTY to Persuade Target Audiences,’ and it will be published in the Georgetown Journal of International Law.

The AJIL piece looks at whether the ICTY managed to persuade target populations that the findings in its judgments are true. To answer that question, foundational for transitional justice processes, the article discusses the findings of a series of public opinion surveys in Serbia, Croatia, Bosnia (designed by the Belgrade Centre for Human Rights, sponsored by the OSCE and conducted by Ipsos – detailed charts, mostly in Serbo-Croatian but some in English, are available here) and Kosovo (sponsored by the UNDP and conducted by a local polling agency, here and here).

The detail and amount of data obtained through these surveys provide an unprecedented level of insight into the reception of factual determinations by international criminal tribunals by target audiences. The surveys show that denialism and revisionism are rampant in the former Yugoslavia. For example, twenty years on, barely one-fifth of the Bosnian Serb population believe that any crime (let alone genocide) happened in Srebrenica, while two-fifths say that they never even heard of any such crime. The acceptance levels for many other serious crimes are in the single digits. They also demonstrate a strong relationship between the respondents’ ethnicity, their perception of the ICTY’s bias against members of their own group, and their distrust in the ICTY and in its findings, which increases the more the ICTY challenges the group’s dominant internal narratives.

Survey findings

This is, for example, how divided realities look like in today’s Bosnia (BiH Muslim/Croat Federation results on top; Republika Srpska at the bottom) – note that these are some of the most serious crimes committed in the Bosnian conflict, all of them addressed in major ICTY cases:

image001

Read the rest of this entry…

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The Sorry Acquittal of Vojislav Seselj

Published on April 4, 2016        Author: 

Last week a Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia acquitted Vojislav Seselj, an ultra-nationalist Serb politician, for crimes committed in Croatia, Bosnia and even Serbia itself. It did so by 2 votes to 1. Readers will already be familiar with the disaster that was the Seselj trial, which is now further compounded by the judicial fiasco that is the trial judgment. Fiasco is in fact the word used by the presiding French judge, Jean-Claude Antonetti, to describe the case in the conclusion of his profoundly dilettantish 500-page concurring opinion. This concurrence is a perfect sequel to his equally unreadable 600-page doozy in the Prlic case, and he uses it to blame everybody but himself for everything that went wrong in the case which is, well, everything. The judgment (in French) is here, as is the dissenting opinion of Judge Lattanzi (‘dissenting’ is not a strong enough word, as she herself says); the summaries of the judgment and the dissent in English are here and here.

Corax, Danas 4.4.2016.

There are so many problems with this judgment that it’s hard to know where to start, so let me paint you the big picture. The main issue is not with the acquittal, which may or may not be the appropriate result, but with how that result was reached. The entire judgment is a reductionist dismissal of the case presented by the prosecution, which is always taken as ungenerously as is humanly possible, while at the same time castigating the prosecution (without any hint of self-irony) for presenting a reductionist version of the complex reality of the wars of the dissolution of the former Yugoslavia.

Read the rest of this entry…

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Karadzic’s Genocidal Intent as the “Only Reasonable Inference”?

Published on April 1, 2016        Author: 

As a follow-up to Marko Milanovic’s excellent post, I have some further comments on the recent Karadzic judgment, especially on the Trial Chamber’s bifurcated approach to the two genocide charges (acquittal re the municipalities joint criminal enterprise [JCE] and conviction re the Srebrencia JCE, see paras. 2571 et seq. and 5655 et seq. respectively). Before turning to the concrete points, I must present a caveat and a general commentary on the evidentiary standard.

The caveat refers to the quite delicate position of an academic commentator when analysing a trial judgment. Being myself a trial judge (albeit only in my second profession as the majority of my time is dedicated to my academic work) in a procedural system where the actual trial, governed by the principles of orality and immediacy, is considered the height of the proceedings, I am aware that nothing can substitute the direct impressions taken from the actual trial hearings, especially regarding the oral and immediate presentation of evidence. The academic commentator is more in the position of a judge at the appeal stage, in the sense of the French cassation or the German Revision, where the ensuing legal review of the trial court’s sentence is essentially based on the critical legal analysis of this court’s written judgment. Thus, my comments are the mere product of a critical reading of the respective parts of the Karadzic trial judgment, further limited by the natural margin of deference to be given to any trial court, and the restrictive ‘reasonable trier of fact’ appeal standard of international criminal proceedings.

This brings me to the evidentiary standard with regard to the proof of the subjective element (mens rea) of criminal law offences captured in the old Roman maxim, dolus ex re, i.e. the intent (mental element) (is to be) inferred from the external circumstances of the objective act (actus reus). This is nothing other than the modern indirect or circumstantial evidence which has taken centre stage in international criminal proceedings, especially as regards the proof of the special intent to destroy a protected group in the crime of genocide (paras. 550, 5825). Indeed, the whole genocidal case against Karadzic is based on circumstantial evidence, defined by the Chamber, referring to settled case law, as “evidence of a number of different circumstances surrounding an event from which a fact at issue may be reasonably inferred” (para. 14) and, in addition, requiring a highly demanding ‘only reasonable inference’ standard (paras. 10, 14). In concrete terms, this entails a double evidentiary test as the trial chamber must first be convinced that a certain inference is the only reasonable one and second, that all reasonable inferences taken together – as the totality of (indirect) evidence – prove beyond reasonable doubt the respective mental element and thus, ultimately, the guilt of the accused.

Let us now turn to my concrete queries. Read the rest of this entry…

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An International Court of Justice Advisory Opinion on the ICC Head of State Immunity Issue

Published on March 31, 2016        Author: 

Earlier this week, I wrote about the recent decision of the South African Supreme Court of Appeal holding that the South African government had violated its obligations in failing to arrest Sudanese President Bashir when he attended the African Union Summit in South Africa last June. That decision is just the latest in the ongong saga about whether serving heads of States, particularly heads of states not party to the Rome Statute of the International Criminal Court (ICC), have immunity when they are wanted by the ICC. The issue has been a particularly toxic one in the relations between the African Union (AU) and the ICC. The AU continues to insist that Bashir and all serving heads of states are immune from arrest and prosecution and Bashir has now travelled to numerous African (and other states) including a number of states that are party to the ICC Statute (see the Bashir Watch website – and also here – for information on the states that Bashir has travelled to, as well as those which have denied him access). The AU Assembly (of heads of states and governments) has made a number of proposals in an attempt to put an end to the prosecution of Bashir, including a proposal for deferral of the case under Article 16 of the Rome Statute ( see Assembly/AU/Dec.547(XXIV) (June 2015)). It has also encouraged African states to put forward amendments to the Rome Statute (see Ext/Assembly/AU/Dec.1(Oct.2013). Following that suggestion, Kenya proposed an amendment to Article 27 of the Rome Statute which would provide for immunity of heads of states and their deputies (see p. 16 of this report of the ICC Assembly of States Parties Working Group on Amendments). I am sure that everyone knows that the chances of success on such an amendment is precisely zero. For the amendment to come into force, seven-eights of the parties to the ICC Statute would have to ratify it (under Art. 121(4) of the Statute) and it is inconceivable that this will happen.

However, the AU has made one suggestion which I think ought to be taken up. This is the proposal (see p. 9-10 of this document) that the International Court of Justice be asked to render an advisory opinion on the immunity of heads of states or other senior officials of states not party to the ICC (for earlier discussion of this proposal see my posts here and here). Despite the fact that the ICC has ruled on the question of Bashir’s immunity on several occasions (including in cases regarding non-cooperation by Malawi and Chad, DRC and South Africa), there are, in my view, good reasons to try to have the ICJ address the issue. Some of those reasons are legal and others political. Read the rest of this entry…

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The Bashir Case: Has the South African Supreme Court Abolished Immunity for all Heads of States?

Published on March 29, 2016        Author: 

Earlier this month, the South African Supreme Court of Appeal decided unanimously (see the judgment here) that the South African government had breached its obligations under the South African domestic statute implementing the Rome Statute of the International Criminal Court (ICC), and under the Rome Statute, by failing to arrest and detain for surrender to the ICC Sudanese President Omar Al-Bashir. Bashir visited South African in June 2015 to attend the African Union summit held there. As will be explained below, although the decision was ultimately based on domestic law, it is potentially very far reaching in the effect that it will have in South Africa and possibly internationally. In summary, the Court held that under the South African Implementation of the Rome Statute of the ICC Act 2002, any head of State subject to an ICC arrest warrant may be arrested in South Africa and surrendered to the ICC. However, the Court also held that under the same Act international law immunities, including the immunity of heads of states, do not apply under South African law when a person is sought for domestic prosecution in South Africa for genocide, war crimes and crimes against humanity. This aspect of the decision is particularly remarkable given that the same South African Act provides for universal jurisdiction over those crimes, and the South African Constitutional Court held in 2014 that the South African Police Service may commence an investigation of these crimes even if the person is not present on South African territory. Although the aspect of the Bashir decision relating to domestic prosecution in South Africa, is in my view obiter and not part of the ratio decidendi of the decision, if it stands, it means that South Africa would be a very rare example of a State that claims the authority to prosecute serving heads of state for international crimes.

The lead judgment of the South African Supreme Court of Appeal was given by Wallis JA, with whom two judges concurred. A further two judges concurred in the result but agreed with the lead judgment only in in so far as it was based on South African ICC Implementation Act. Read the rest of this entry…

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ICTY Convicts Radovan Karadzic

Published on March 25, 2016        Author: 

Yesterday the ICTY Trial Chamber convicted Radovan Karadzic, the wartime political leader of the Bosnian Serbs, for numerous crimes committed during the conflict and sentenced him to 40 years imprisonment. The (mammoth) trial judgment is here, standing at 2615 pages that not even Karadzic’s lawyers will read as a whole; the more accessible summary is here.

The end result is basically as I predicted it will be a couple of days ago – Karadzic got acquitted for genocide in Bosnian municipalities other than Srebrenica, and got convicted for everything else, including the Srebrenica genocide. The sentence is effectively life; he could be eligible for provisional release after serving 2/3 of his sentence, which would (counting the 7 years and 8 months he already spent in detention) mean he would have to spend some 19 more years in prison – but if he lives into his nineties he may get provisionally released, assuming of course that the sentence is affirmed on appeal and that he does not eventually get released on compassionate grounds.

On the vast majority of issues the Trial Chamber was unanimous (I’ll come to points of dissent later on), and that is a very good thing. All in all the judgment is basically exactly what it should have been, although the political reactions in the region are also exactly what one might have expected – while many Bosniaks welcomed the conviction they also decried the acquittal for genocide outside Srebrenica, whereas the current Bosnian Serb president has decried the judgment as yet another example of the ICTY’s anti-Serb bias. So far so predictable. That said, I will spend the remainder of this post on looking at some of the more interesting parts of the judgment, based on a very quick skim read.

Read the rest of this entry…

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The Situation Concerning the Mavi Marmara at the ICC: What might the next move of the Prosecutor be?

Published on March 22, 2016        Author: 

In early summer 2010, around fifty people were seriously injured and ten Turkish nationals died on a vessel which was part of the ‘Freedom Flotilla’: the Mavi Marmara ship. The incident saw the establishment of a UN Human Rights Council fact-finding mission, a separate panel of inquiry appointed by the UN Secretary-General, a Turkish Commission and a Israeli Commission of Inquiry (aka “Turkel Commission”). The Israeli Defense Force (IDF)’s storming of the ‘Freedom Flotilla’, have subsequently been subject to judicial proceedings both domestically in Turkey, and internationally at the International Criminal Court (ICC).

In May 2014, four arrest warrants were released by Istanbul’s Seventh High Criminal Court against former IDF Chief of Staff Gabi Ashkenazi, former Navy Chief Eliezer Marom, former Military Intelligence Chief Amos Yadlin and former Naval Intelligence chief Avishai Levy. A year earlier, on 14 May 2013, a referral was received by the ICC Office of the Prosecutor (OTP) from the authorities of the Comoros, a State Party to the Rome Statute of the ICC, in relation to the Humanitarian Aid Flotilla’s incident (registered vessels situation). Six months after Turkey issued its arrest warrants, the OTP announced in its report under Article 53 (1) Rome Statute that it had decided not to investigate the registered vessels situation.

OTP’s decision not to investigate was based on the ‘gravity’ criteria of the Rome Statute. According to the OTP, ‘the potential case(s) likely arising from an investigation into this incident would not be of “sufficient gravity” to justify further action by the ICC.’ In so doing, the OTP did not consider the other two criteria for declining to investigate, namely, complementarity and the interests of justice. As Kevin Jon Heller predicted, the Comoros ‘appealed’ the OTP’s decision and on 16 July 2015, the ICC Pre-Trial Chamber (PTC) requested the Prosecutor to reconsider its decision not to open an investigation. Acting under Article 53 (3) (a), the PTC took issue with several aspects of the OTP’s decision not to investigate (see comments here and here).

In this post, my aim is to analyze the OTP’s decision not to investigate on the basis of gravity and the PTC’s request to the OTP to reconsider its decision. I argue that OTP’s gravity assessment was hasty and came at the expense of assessing the potential complementarity of the Turkish proceedings. Read the rest of this entry…

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ICTY Karadzic and Seselj Trial Judgments Due

Published on March 21, 2016        Author: 

This International Criminal Tribunal for the Former Yugoslavia is due to pronounce its trial judgments in two important cases, against Radovan Karadzic, the former political leader of the Bosnian Serbs, on Thursday 24 March, and against Vojislav Seselj, the ultra-nationalist leader of the Serbian Radical Party, on 31 March. The Karadzic case is of course more important by far than the Seselj one, with (since Milosevic’s passing) Karadzic being the highest-ranked defendant with respect to atrocities committed during the Bosnian war. For our earlier coverage of the two cases, see here and here.

As I’ve recently explained elsewhere, the outcome of the Karadzic case is hardly in doubt – he will be convicted. The only question is what exactly for. He will also get a very long sentence, which will because of his age be tantamount to life imprisonment even if he doesn’t get that formally. Karadzic’s legal advisor, the excellent Peter Robinson (whom we’ve had in Nottingham last week for a seminar), is quite open about getting ready for an appeal (see Guardian report here). There is, in other words, not all that much suspense about what’s going to happen come Thursday, and the political reactions to the conviction in the former Yugoslavia are also equally predictable.

That said, what are the points to watch for in the judgment which may be of some genuine novelty? First, unlike with the crime base, which was already clarified in numerous ICTY judgments, it will be interesting to see what the Trial Chamber finds with respect to Karadzic’s individual guilt – what did he exactly know and when, what did he intend, and what specific joint criminal enterprise (JCE) was he a part of? This will be of particular relevance to the 1995 Srebrenica genocide – Karadzic certainly didn’t do anything to punish the perpetrators after the fact, but it’s important to see (or what the prosecution was able to prove about) what he knew  before the genocide started and while it was underway.

Second, Karadzic is charged with genocide not only in Srebrenica, but also in several other Bosnian municipalities, as is the Bosnian Serb general, Ratko Mladic, whose trial is still underway. In other cases the ICTY could find genocide ‘only’ in Srebrenica, with atrocities elsewhere being qualified as war crimes or crimes against humanity. This Trial Chamber has actually already found that the prosecution wasn’t able to meet the burden of proving genocide outside Srebrenica after a rule 98bis ‘no case to answer’ motion upon the conclusion of the prosecution’s case. This decision was later reversed on appeal, but it seems unlikely that the same Trial Chamber will find genocide to have now been proven to the higher beyond a reasonable doubt standard, except in Srebrenica. The Chamber’s finding will however be of great political relevance in the region, because of the particular corrosive potency of the word genocide and its impact on the competitive victimhood of the various groups, and will also be of relevance for the Mladic case. While I therefore expect acquittal for genocide in non-Srebrenica municipalities, it remains to be seen whether that will survive an appeal before the Mechanism, where the whole thing will be revisited.

Finally, as for Seselj the outcome there is far less certain, but expecting a conviction that would cover the time he already spent in detention would not be unreasonable. That case is more notable for its disastrous mismanagement and the consequent public relations nightmare than for anything else. Seselj is now in Serbia and has refused to go back to the Hague for the pronouncement of the judgment. The Serbian authorities (led by his erstwhile party comrades) similarly refused (if with a bit more diplomatic obfuscation) to arrest him and send him to the ICTY, because of the damage this could cause them in an election year. Three of Seselj’s advisers have been charged with contempt by the ICTY and they too have not been sent to the Hague, for the same basic reason. The Serbian authorities are essentially exploiting the ICTY’s impending closure and betting (probably correctly) that this lack of cooperation will not cause them significant political problems internationally.

An interesting couple of weeks ahead for the Tribunal – we will have more coverage as the events unfold.

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