As reported in Serbian and Croatian media yesterday, and officially confirmed by the Court today (press release). As for what the Court will decide, it will most likely find that no crime in the conflict in Croatia constitutes genocide, that it lacks the jurisdiction to decide on the responsibility of either state for any other crime, and that accordingly it has to reject both Croatia’s claim and Serbia’s counterclaim. By ‘most likely’ read ‘virtually inevitable, so that I would fall of my chair if the Court did anything else’ – see more here. We’ll see whether the Court will say something interesting on various ancillary substantive questions before it reaches its main conclusion.
Leila Nadya Sadat is the Henry H. Oberschelp Professor of Law and Israel Treiman Faculty Fellow at Washington University School of Law and has been the Director of the Whitney R. Harris World Law Institute since 2007.
Douglas J. Pivnichny, JD, is the Whitney R. Harris World Law Institute Fellow at Washington University School of Law in St. Louis, Missouri, and a masters candidate in International Law at the Graduate Institute of International and Development Studies in Geneva.
The Crimes Against Humanity Initiative and Recent Developments at the ILC
On Thursday, July 17, the International Law Commission moved the topic of crimes against humanity from its long-term to its active agenda and appointed Professor Sean D. Murphy as Special Rapporteur. The Rapporteur’s charge is to prepare a First Report, which will begin the process of proposing Draft Articles to the Commission for its approval. The expectation is that, in due course, the Commission will send a complete set of Draft Articles for use as a convention to the United Nations General Assembly. This was a crucial step in filling a normative gap that has persisted despite the development of international criminal law during the past decades: the absence of a comprehensive global treaty on crimes against humanity.
The Commission’s interest in this topic was sparked by the work of the Crimes Against Humanity Initiative, launched by Professor Leila Sadat of Washington University School of Law in 2008. The Initiativeset out to study the current state of the law and sociological reality regarding the commission of crimes against humanity and to address the gap in the current international legal framework by drafting a global, comprehensive model convention on crimes against humanity. Ambitious in scope and conceptual design, the Initiative has been directed by a distinguished Steering Committee and consulted more than 300 experts in the course of elaborating and discussing the Proposed International Convention for the Prevention and Punishment of Crimes Against Humanity (Proposed Convention), published by Cambridge University Press in English, French and Spanish in Forging a Convention for Crimes Against Humanity (1st ed., 2011; 2nd ed., 2013). Arabic, Chinese, German and Russian translations are also available. Read the rest of this entry…
Today the International Court of Justice opens a month of hearings in the pending case between Croatia and Serbia for state responsibility for genocide allegedly committed during the 1990s conflict. In the afternoon the Court will also be delivering its provisional measures order in Timor Leste v. Australia. The latter will at least to my mind be vastly more interesting than the former. Why? Because the outcome of the Croatia/Serbia case is a foregone conclusion, bearing in mind that the Court’s jurisdiction is limited solely to breaches of the Genocide Convention, and that it cannot rule on either party’s responsibility for any other wrongful acts, be it war crimes, crimes against humanity, or aggression.
In its 2007 Bosnian Genocide judgment the Court, relying on the findings of the ICTY, found that the ‘only’ instance of genocide in the otherwise far more brutal Bosnian conflict was Srebrenica, for which Serbia was not responsible, and did so by 13 votes to 2. It seems extremely unlikely that the Court will adopt a different methodological approach in the Croatian case, especially because nobody was even charged, let alone convicted, for genocide in Croatia by the ICTY. The (many) acts of ethnic cleansing committed by both sides in the Croatian conflict simply lack the requisite specific intent to physically or biologically destroy a protected group, and thus cannot reasonably be qualified as genocide. And without genocide, the Court is without jurisdiction.
Tom Dannenbaum is a Visiting Lecturer in Law and Robina Foundation Human Rights Fellow at Yale Law School and a PhD candidate at Princeton University.
In a couple of posts in 2011, I discussed two nearly identical Hague Court of Appeal judgments on the liability of the Netherlands for the actions of Dutchbat at Srebrenica (see here and here). On Friday, the Dutch Supreme Court upheld both of those judgments. In what follows I’ll reference the Nuhanović decision.
The judgments are important on their own terms, but they are also significant in their implications for the Mothers of Srebrenica litigation against the Netherlands, particularly following the judgment of the European Court of Human Rights this summer upholding the Dutch courts’ acceptance of UN immunity in that context. Coincidentally, Dapo and Manuel Ventura posted on the ECtHR’s decision in Mothers of Srebrenica within minutes of the Dutch Supreme Court’s Nuhanović judgment. I connect back to their post below.
The Supreme Court affirmed the Court of Appeal’s strong approach to dual attribution, holding that it was possible that both the Netherlands and the UN had effective control over the same wrongful conduct and that attributing the conduct to the Netherlands did not in any way determine whether the UN also had effective control (such that it, too, could be attributed with the wrongdoing). (para 3.11.2). Relatedly, the Court also affirmed the power-to-prevent standard discussed in the second of my earlier posts (paras 3.11.3, 3.12.2, 3.12.3). I have advocated this standard at greater length elsewhere (here and here).
The aspect of Friday’s judgment that did the most work in going beyond the reasoning of the Court of Appeal was the Supreme Court’s discussion of extraterritoriality. It elaborated on two points in this respect (acknowledging explicitly that its discussion on this amounted to obiter dictum).
Mothers of Srebrenica: The Obligation to Prevent Genocide and Jus Cogens – Implications for Humanitarian Intervention
The June 2013 decision of the European Court of Human Rights (ECtHR) in Stichting Mothers of Srebrenica and Others v. The Netherlands is the latest phase in the attempts by the relatives of those killed in Srebrenica, Bosnia and Herzegovina to hold the UN (and/or The Netherlands) responsible for the inaction of the UN Protection Force (UNPROFOR) – made up of Dutch peacekeepers – who stood aside while Srebrenica was overrun in July 1995. The subsequent events at the Srebrenica ‘safe area’ and the deaths of between 7,000-8,000 persons are by now well known. In the underlying proceedings in the Dutch Courts, the complainants did not seek to hold the UN responsible for the commission of genocide, but rather for the failure, in the applicant’s view, of the UN’s duty to prevent genocide. The Dutch courts held that the UN had immunity from domestic suit, even in the face of violations of jus cogens norms. The ECtHR agreed with the Dutch rulings on the immunity of the UN. It followed the ICJ’s holding in Jurisdictional Immunities of the State (Germany v. Italy; Greece Intervening) that ‘[i]nternational law does not support the position that a civil claim should override immunity from suit for the sole reason that it is based on an allegation of a particularly grave violation of a norm of international law, even a norm of ius cogens’ [para. 158, ECtHR decision]. It also held that the recognition of immunity does not ipso facto constitute a violation of the right of access to a court [para. 164]. As a result, the ECtHR concluded that ‘the grant of immunity to the UN served a legitimate purpose and was not disproportionate.’ [para. 169]
However, the decisions of the Dutch courts and the ECtHR are unsatisfactory in one respect. They all ignore an important issue: the exact status of the obligation to prevent genocide in international law. These courts simply assumed that just as the obligation not to commit genocide is a rule of jus cogens, the obligation to prevent genocide is also a norm of jus cogens. The ECtHR simply stated (at para. 157) that: “The Court has recognised the prohibition of genocide as a rule of ius cogens . . .” However to suggest that a jus cogens norm is involved simply because the prohibition of genocide is a jus cogens norm is a big legal leap that simply cannot be assumed. Otherwise we simply have jus cogens by association! To come to that conclusion, careful analysis was required as it is a proposition that is not at all clear from international law as it presently stands. Read the rest of this entry…
Just a couple of minutes ago the ICTY Appeals Chamber sitting in the Karadzic case reversed the Rule 98 bis judgment of acquittal rendered by the Trial Chamber last year (see my post on that decision for more background; the Appeals Chamber’s decision is not yet available at the time of writing, but a summary can be found here). The Trial Chamber had earlier decided that on the evidence presented by the prosecution, taken at its highest, no reasonable trier of fact could have found Karadzic guilty beyond a reasonable doubt of genocide committed by Bosnian Serb forces against Bosnian Muslims and/or Croats in a number of Bosnian municipalities in 1992, the bloodiest year of the war. In essence, the Trial Chamber had decided that ‘only’ the 1995 Srebrenica massacre could be legally qualified as genocide, and Karadzic’s trial proceeded on that basis.
The Appeals Chamber now ruled that the Trial Chamber erred in fact when it made its findings with regard to the actus reus and mens rea of genocide in the municipalities other than Srebrenica. In particular, the Trial Chamber failed to take at its highest the evidence presented by the prosecution with regard to the existence of genocide intent, which it had to do when deciding on a Rule 98 bis, ‘no case to answer’ motion for acquittal. Accordingly, the Appeals Chamber reinstated the genocide charge for the municipalities and remanded further proceedings to the Trial Chamber, which will now have to try Karadzic for genocide beyond Srebrenica. (Appropriately enough, the judgment was rendered on the 18th anniversary of the start of the Srebrenica genocide; for the avoidance of doubt, I myself see no moral distinction between genocide and ‘mere’ crimes against humanity, and Karadzic would have been no less the villain even if his acquittal was affirmed, but of course politically the G-word is a whole different story.)
The Appeals Chamber’s decision has a number of implications. First, most obviously, there will now need to be some reconfiguring of the Karadzic trial proceedings. Second, one can now foreshadow the fate of a possible Rule 98 bis motion in the ongoing Mladic case, which contains similar charges. Third, more importantly, it remains very unlikely, in my view, that in its final judgment the Trial Chamber will actually convict Karadzic for genocide in the municipalities – the standard for conviction is of course much higher than for rejecting a Rule 98 bis motion, the prosecution’s evidence need not be taken at its highest, and the same trial judges who previously said that no reasonable trier of fact could convict Karadzic are now hardly going to say that he is guilty beyond a reasonable doubt.
Fourth, consequently, despite today’s ruling it is also unlikely that an eventual acquittal will be reversed on the facts by the Appeals Chamber, because of the deference that the Trial Chamber will be due on its own findings of fact. Fifth, today’s judgment will receive a lot of political play in the region, especially in Bosnia. Finally, the whole thing may have repercussions on a possible Bosnian request for revision of the ICJ’s 2007 Bosnian Genocide judgment, which found genocide ‘only’ in Srebrenica. As explained in my previous post, I don’t think such a request would either be wise or likely to succeed, but today’s judgment leaves the doors open, at least for the time being.
A Reply to Vahagn Avedian – State Identity, Continuity, and Responsibility: The Ottoman Empire, the Republic of Turkey and the Armenian Genocide
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.
State Identity, Continuity, and Responsibility: The Ottoman Empire, the Republic of Turkey and the Armenian Genocide
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…
Today the ICTY Trial Chamber trying Radovan Karadzic, the former president of the Bosnian Serbs, delivered an oral order on the defendant’s ‘no case to answer’ motion for acquittal under Rule 98 bis of the ICTY RPE, under which the Trial Chamber shall, by oral decision, and after hearing the oral submissions of the parties, enter a judgement of acquittal on any count if there is no evidence capable of supporting a conviction. The standard for doing so is whether a reasonable trier of fact could be satisfied beyond a reasonable doubt of the accused’s criminal responsibility on a particular count of the indictment.
A press release on the order is available here. A formal written decision will follow. In a nutshell – and this is hardly news – the Chamber upheld 10 counts of the indictment, finding that a reasonable trier of fact could be satisfied beyond a reasonable doubt that Karadzic was criminally responsible through a JCE for the crimes alleged, including the Srebrenica genocide. What is news, however, is that the Chamber granted Karadzic’s motion with respect to the count charging him with genocide outside Srebrenica in July 1995, in selected other municipalities in Bosnia:
Earlier this month, US President Barrack Obama directed the National Security Advisor to create an Atrocities Prevention Board which will be tasked with co-ordinating the US government’s policies on the prevention of mass atrocities and genocide. In addition, the President also launced a US interagency review which will, inter alia, develop the membership, mandate and structure of the Atrocities Prevention Board but which will also identify:
steps toward creating a comprehensive policy framework for preventing mass atrocities, including but not limited to: conducting an inventory of existing tools and authorities across the Government that can be drawn upon to prevent atrocities; identifying new tools or capabilities that may be required; identifying how we can better support and train our foreign and armed services, development professionals, and build the capacity of key regional allies and partners, in order to be better prepared to prevent and respond to mass atrocities or genocide.
In a Presidential Study Directive on Mass Atrocities, issued on 4 August, the President stated that:
Preventing mass atrocities and genocide is a core national security interest and a core moral responsibility of the United States.
Our security is affected when masses of civilians are slaughtered, refugees flow across borders, and murderers wreak havoc on regional stability and livelihoods. America’s reputation suffers, and our ability to bring about change is constrained, when we are perceived as idle in the face of mass atrocities and genocide. Unfortunately, history has taught us that our pursuit of a world where states do not systematically slaughter civilians will not come to fruition without concerted and coordinated effort.
Governmental engagement on atrocities and genocide too often arrives too late, when opportunities for prevention or low-cost, low-risk action have been missed. By the time these issues have commanded the attention of senior policy makers, the menu of options has shrunk considerably and the costs of action have risen.
In the face of a potential mass atrocity, our options are never limited to either sending in the military or standing by and doing nothing. The actions that can be taken are many they range from economic to diplomatic interventions, and from non combat military actions to outright intervention. But ensuring that the full range of options is available requires a level of governmental organization that matches the methodical organization characteristic of mass killings.
Sixty six years since the Holocaust and 17 years after Rwanda, the United States still lacks a comprehensive policy framework and a corresponding interagency mechanism for preventing and responding to mass atrocities and genocide. This has left us ill prepared to engage early, proactively, and decisively to prevent threats from evolving into large scale civilian atrocities.
The work of this Review and Board will be of great interest to those academics working on prevention of genocide and other international crimes. In recent years, there has been renewed focus on the question of prevention of mass atrocity. Indeed, the Oxford Institute for Ethics, Law and Armed Conflict (of which I am Co-Director) is engaged in a project on “Prevention and Responsibility to Protect” which is looking at these very questions. The project is led by my colleague, Prof. Jennifer Welsh.