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Home International Tribunals Archive for category "International Criminal Tribunal for the Former Yugoslavia"

The Shameful Twenty Years of Srebrenica

Published on July 13, 2015        Author: 

In the great catalogue of human misery, the July 1995 Srebrenica genocide merits a special mention. But as horrible as the slaughter of more than 7,000 Bosnian Muslim men and boys was – unquestionably the worst crime of the whole brutal Bosnian conflict – the repeated, ongoing and unrelenting denial of the crime is if not worse, then at least as depressing. Today, twenty years on, that revisionist denial is strongest where it matters – in Republika Srpska and in Serbia – and its strength demonstrates the continued, long-term inability of these communities to come to terms with the past.

The denial is manifold, in forms both hard and soft. It ranges from a complete rejection that any crime took place, to disputing the number of victims or who the victims were, to emphasizing crimes against Serbs around Srebrenica or inflating the numbers of Serbs killed, to disputing the characterization of the crime as genocide as if that makes some actual moral difference. And, it needs to be said, that denial is virtually unaffected by whatever the International Criminal Tribunal for the Former Yugoslavia or the International Court of Justice said on the matter.

To demonstrate the scale of denial in cold, hard numbers, it suffices to take a look at a February 2012 survey of public opinion in Bosnia, sponsored by the Belgrade Centre for Human Rights and the OSCE and conducted by Ipsos Strategic Marketing (detailed results on file with me). The survey found that of the (mostly Serb) population of the Republika Srpska only 59.2% say that they even heard of a massacre in Srebrenica, while only 34.8% of the people who say that they’ve heard of the crime believe that it actually happened. Thus, of the whole RS population 40.8% say they’ve never even heard of any massacre in Srebrenica, 38.6% say that they’ve heard of it but that it never happened, and only 20.6% believe it did. That, dear readers, is what ‘truth and reconciliation’ in today’s Bosnia look like.

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Two Cheers for the ICTY Popovic et al. Appeals Judgement: Some Words on the Interplay Between IHL and ICL

Published on February 4, 2015        Author: 

Two years ago, I criticised the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) seized of the Prosecutor v. Popovic et al. for incorrectly applying international humanitarian law (IHL). In a publication dealing with the challenging interplay between IHL and international criminal law (ICL), I referred to the Popovic et al. Trial Judgement as an example of “problematic rulings” that “qualify acts as crimes against humanity although they would be legitimate under IHL, thereby penalising the behaviour of warring parties in times of armed conflict, if such behaviour formed part of a larger, criminal plan”. Now, I am happy to note that the Appeals Chamber has set the IHL-record straight.

Friday, some 4.5 years after the rendering of the Trial Judgement, the Appeals Chamber rendered its long-awaited judgement in Prosecutor v. Popovic et al. The case concerned the take-over by the Bosnian-Serb army (VRS) of the Bosnian-Muslim enclaves Srebrenica and Zepa and the crimes committed by the VRS in the aftermath, including the (genocidal) murder of several thousand (the actual number was disputed) able-bodied Muslim men. Of the various ICTY cases dealing with these events, this multi-accused case was known as theSrebrenica case”. Since the trial, one of the accused has passed away and another did not appeal his conviction. The remaining five men saw their convictions mostly upheld, bringing to a close this interesting case with accused from different components and various hierarchical levels of the Bosnian-Serb forces. Two life sentences, one 35-year sentence, and one 13-year sentence were affirmed. One sentence was reduced by one year to 18 years.

All in all, this is a good result for the Tribunal, which noted in its press release that this completes the ICTY’s largest case to date. But it is an especially good outcome for the Prosecution, as the convictions at trial were mostly upheld, with a couple of exceptions: Read the rest of this entry…

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Joint Blog Series on International Law and Armed Conflict: Bobby Chesney on “When Does LOAC Cease to Apply”

Published on September 5, 2014        Author: 

As indicated earlier this week, EJIL:Talk! is partnering with Lawfare and Intercross (blog of the International Committee of the Red Cross) to publish a series of posts arising out of the 2nd Transatlantic Dialogue on International Law and Armed Conflict (which took place in Oxford in July of this year). On Wednesday Bobby Chesney, the Charles I. Francis Professor in Law at the University of Texas School of Law, and one of my co-convenors of the transatlantic workshop, kicked off the series with a post exploring the interesting question: “When does LOAC cease to apply?”

Bobby, introduced his post by saying:

“People sometimes speak of peacetime and wartime as sharply demarcated, their factual foundations and legal consequences being clearly distinct from one another. Everyone here will appreciate that it is not always or even often so simple, as Mary Dudziak has documented so richly in her recent book WAR TIME: AN IDEA, ITS HISTORY, ITS CONSEQUENCES. Circumstances of violence can occur across a broad spectrum of intensity, with the nature and intensity of events rising or falling in unexpected ways (and places) over time. Even the parties themselves can undergo sweeping changes. Small wonder, then, that we lawyers spend so much time wrestling with the details of IHL’s field of application.”

He then explained that:

Usually we approach the field-of-application question from the front-end, which is to say we talk about whether a given situation of violence has crossed over into the realm of armed conflict, bringing IHL to bear (and thus also complicating the question of IHRL’s role). It is a particularly vexing issue in the context of potential NIACs”

However, less attention has been paid to the back-end of the armed conflicts, particularly to the question of when a NIAC is to be regarded as having ended. This is the focus of Bobby’s post. He considers various options for assessing when IHL should cease to apply, examining the approach set out in the ICTY Appeals Chamber’s famous Tadic case (that IHL applies until a “peaceful settlement is achievement”), as well as whether the test for determining whether a NIAC exists at the front end of the conflict should be applied for determining whether it has terminated.

You can read Bobby’s post in full over on Lawfare.

For a list of other scheduled posts in this series, see here

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Towards a New Global Treaty on Crimes Against Humanity

Published on August 5, 2014        Author: 

Sadatl4Leila 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 DPivnichny photoLaw 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…

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Use of Grad Rockets in Populated Areas: What Lessons from Gotovina?

Published on July 30, 2014        Author: 

Maya Brehm PhotoMaya Brehm is a researcher in weapons law at the Geneva Academy of International Humanitarian Law and Human Rights (ADH) and a consultant with Article 36 and PAX. Her recent work focuses on the humanitarian impact of explosive weapon use in populated areas and on framing the policy debate on autonomous weapons systems.

In a recently published report, Human Rights Watch (HRW) documents harm to civilians from the use of 122mm Grad rockets apparently fired by Ukrainian government forces and pro-government militias into Donetsk and its suburbs. In four attacks investigated by HRW at least 16 civilians were killed and many more wounded. According to HRW insurgent forces also recently used Grad rockets. The image below from HRW shows attacks in and around Donetsk (click to enlarge). The organization has also posted a video online presenting its findings.

 The problem with Grad rocketsGrad rockets

Grad rockets are unguided rockets fired from a multiple-barrel rocket launcher (MBRL) that can deliver up to 40 rockets within a very short time to a range of 20 kilometers. Like other unguided, indirect fire  weapons, Grad rockets are considered ‘area weapons’, suited for attacks against targets of significant dimensions, because due to ballistic and other factors, the area over which the rockets can spread out is relatively wide.

The dimension of the area affected by a rocket attack (the area of potential impact of the rockets combined with the blast/fragmentation zones of the individual rockets) is a function of many variables, including fuzing, ballistic and firing technique-related factors. As that area can be very wide, the use of Grad rockets in populated areas carries a high risk of harm to civilians. Read the rest of this entry…

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The Self-Fragmentation of the ICTY Appeals Chamber

Published on January 23, 2014        Author: 

Today the ICTY Appeals Chamber (thankfully) affirmed the convictions of high-ranking Serbian leaders for crimes in Kosovo in Sainovic et al, even though it somewhat reduced the sentences. The judg(e)ment is gigantic, especially for an appeals decision, at 800 pages+, and obviously I haven’t read it. But buried in all that is one very important development in the whole ‘specific direction’ saga – by 4 votes to 1, the Chamber decided that the Appeals Chamber in Perisic was wrong in holding that specific direction was an essential element of the actus reus of aiding and abetting liability. The Chamber discussed the issue extensively at more than 20 pages, starting at p. 643, and here are the choice concluding paragraphs:

1649. Based on the foregoing, the Appeals Chamber, Judge Tuzmukhamedov dissenting, comes to the compelling conclusion that “specific direction” is not an element of aiding and abetting liability under customary international law. Rather, as correctly stated in the Furundzija Trial Judgement and confirmed by the Blaskic Appeal Judgement, under customary international law, the actus reus of aiding and abetting “consists of practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime.” The required mens rea is “the knowledge that these acts assist the commission of the offense”. The Appeals Chamber reaffirms the position taken by the Blaskic Appeal Judgement in this regard.

1650. Accordingly, the Appeals Chamber confirms that the Mrksic and Sljivancanin and Lukic and Lukic Appeal Judgements stated the prevailing law in holding that “‘specific direction’ is not an essential ingredient of the actus reus of aiding and abetting”, accurately reflecting customary international law and the legal standard that has been constantly and consistently applied in determining aiding and abetting liability. Consequently, the Appeals Chamber, Judge Tuzmukhamedov dissenting, unequivocally rejects the approach adopted in the Perisic Appeal Judgement as it is in direct and material conflict with the prevailing jurisprudence on the actus reus of aiding and abetting liability and with customary international law in this regard.

In so holding, the Chamber did not rely just on the ICTY’s prior case law, but also on the recent Taylor judgment of the SCSL, which had also rejected specific direction. Note also how the Chamber did not mince words – it came to a ‘compelling conclusion’ to ‘unequivocally reject’ Perisic as wrongly decided. In his dissent, Judge Tuzmukhamedov is of the view that it is unnecessary on the facts of the case to get into the specific direction issue, and that Chamber should not have done so, especially in order to avoid a conflict with a prior decision of the Appeals Chamber. He however takes no position on the specific direction issue itself.

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Judgment or Judgement: What Has the ICTY Wrought?

Published on October 29, 2013        Author: 

With the ICTY turning 20 this year, perhaps the time has come to pass judgment on it. Or is it judgement? (Preemptive note to readers – this post discusses trivia, and does not claim to engage in any legal analysis, let alone any serious analysis.) As an avid consumer of the ICTY’s case law, one thing has really been bugging me over the years, and the time has come to raise it openly (and no, it’s not the dubious acquittals of a number of bad guys who should have spent the remainder of their days in prison). What’s this, you ask? It’s how the ICTY persists in spelling ‘judgment’ as ‘judgement’ in all of its official documents, including, well, their judgments – so it’s the Blaskic judgement, the Perisic judgement, the Gotovina judgement.  Oh, how I hate that, I really do.

Now you may ask yourself, come on, isn’t Marko overreacting (as usual)? Isn’t ‘judgment’ without an ‘e’ the American spelling, and ‘judgement’ with the ‘e’ the British spelling, and isn’t the ICTY just using the British variant? Wrong! Wrong, wrong, wrong. It’s true that in common usage in the US ‘judgment’ is used almost exclusively, while both ‘judgement’ and ‘judgment’ are used in the UK, with the former being more prevalent. However, in the British legal context the spelling ‘judgment’ is the conventional one and is used almost exclusively; thus the UK Supreme Court delivers judgments, not judgements. In other words, a proper, ‘public’ school and Oxbridge educated British lawyer would modestly write of himself as being indeed possessed of a fine and discerning judgement, but that today he read a jolly good judgment by Lady Hale or Lord Bingham or whoever. (For sources and discussions of the whole judgment/judgement thing, see here, here, here, and here).

I can thus only say that the ICTY’s use of ‘judgement’ to denote its own decisions is a complete and utter travesty (although I wouldn’t go so far, as I’m sure my friend Kevin Heller would, to label it as hypocrisy), since even British lawyers wouldn’t use that particular spelling in this particular context. More Catholic than the Pope, more English than the Queen, as it were. So how did this travesty get going?

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SCSL Appeals Chamber Affirms Charles Taylor’s Conviction

Published on September 26, 2013        Author: 

Today the Appeals Chamber of the Special Court for Sierra Leone unanimously upheld the conviction of Charles Taylor, the former President of Liberia, and affirmed the Trial Chamber’s sentence of 50 years imprisonment. The judgment is available here; a short press release here. The judgment is very long and will take some time to digest. Symbolically and politically it is of course of immense importance.

Legally, however, the most interesting aspect of the judgment is the SCSL’s refusal to follow the ICTY Appeals Chamber’s holding in Perisic that the actus reus of aiding and abetting liability requires the assistance to be ‘specifically directed’ towards the commission of crimes. Readers will recall that Perisic was acquitted despite knowing that the aid he was providing to the Bosnian Serbs will help them in the commission of crimes against international law, since the ICTY Appeals Chamber found that the aid was given to the war effort as a whole, rather than to the commission of the crimes as such. For more background, see my previous post on Perisic and James Stewart’s very important post on specific direction.

In my view, this is a very welcome development, and the specific direction standard was rightly discarded. Note, however, how this creates a direct conflict of jurisprudence between two ad hoc international criminal tribunals. The fragmentation of international criminal law is well and truly upon us. Whether this will induce the ICTY Appeals Chamber to change its mind on the matter, and which side will be taken by other international tribunals dealing with similar factual patterns, remains to be seen.

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“Specific Direction” is Unprecedented: Results from Two Empirical Studies

Published on September 4, 2013        Author: 

Dr James G. Stewart is an Assistant Professor at the University of British Columbia Law School. He has degrees in law from Victoria University of Wellington, the Université de Gèneve and Columbia Law School, in New York. He has previously worked for judges of the ICTY Appeals Chamber, the Office of the Prosecutors at the ICTR in Arusha and later at the ICTY in The Hague.

Over the past months, I have written a range of blogs explaining my normative disagreement with the controversial new standard of aiding and abetting announced by the ICTY in the Perišić Appeals Judgment, which purports to add “specific direction” to the actus reus of aiding and abetting.

In this final blog on the issue, I deal with the question of whether “specific direction” has any foundation in customary international law, but a complete list of my criticisms of this standard from a conceptual perspective, together with a short summary of each, is available online here. Instead of revisiting these conceptual criticisms, I here summarize two multi-year empirical studies into (a) all aiding and abetting incidents in the history of international criminal law; and (b) academic scholarship on complicity at national, international and theoretical levels.

I start by setting out the findings of the first study of aiding and abetting incidents in the case law of international criminal courts and tribunals, before I conclude by addressing the academic literature. In both of these areas, I have presented the material very succinctly for ease of digestion and debate. I have also included links to both datasets. As I hope will become quickly apparent, “specific direction” has no basis in customary international law or scholarly thought.

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Breaking: Judge Harhoff Disqualified from the Seselj Case

Published on August 28, 2013        Author: 

I’ve just been informed by a reliable source that the special ICTY chamber appointed to hear Seselj’s motion to recuse Judge Harhoff from his case for appearance of bias has accepted the motion. (This is of course one more chapter in the continuing Meron/Harhoff saga). That means that the Seselj case is probably going bust, as no stand-by judge was sitting in who could replace Harhoff. More to follow, once the decision is made public.

UPDATE: The decision is now officially available here. The Chamber split 2 to 1, Judges Moloto and Hall in favour, Judge Liu vigorously dissenting, finding that there was an appearance of bias. Money quote:

13. By referring to a “set practice” of convicting accused persons without reference to an evaluation of the evidence in each individual case, the Majority, Judge Liu dissenting, considers that there are grounds for concluding that a reasonable observer, properly informed, would reasonably apprehend bias on the part of Judge Harhoff in favour of conviction. This includes for the purposes of the present case. This appearance of bias is further compounded by Judge Harhoff’s statement that he is confronted by a professional and moral dilemma, which in the view of the Majority, is a clear reference to his difficulty in applying the current jurisprudence of the Tribunal. In the circumstances, the Majority considers that the Letter, when read as a whole, rebuts the presumption of impartiality. … 14. The Majority, Judge Liu dissenting, finds that in the Letter Judge Harhoff has demonstrated a bias in favour of conviction such that a reasonable observer properly informed would reasonably apprehend bias.

We’ll see what this means for the Seselj case and possibly other cases before the ICTY in which Judge Harhoff was involved. Dov Jacobs has more commentary here and here. For my part, the decision does seem to be based on a rather cursory and acontextual assessement of the Harhoff letter, as Judge Liu points out in his dissent, and is moreover not clear as to whether Harhoff is being disqualified for apparent or actual bias. And to the extent that Judge Harhoff had any difficulties in applying the current jurisprudence of the Tribunal (assuming that the jurisprudence he takes issue with would actually be central to the Seselj case), one assumes that any errors of law he made could be corrected on appeal.

As for Seselj, the trial itself has been badly mismanaged almost from the very start. Seselj himself surrendered to the ICTY some 10 years ago, on the eve of the assassination of the first democratically elected prime minister of Serbia, Zoran Djindjic, by a cabal of secret police, mafia and war criminal types, of which Seselj probably had some advance knowledge. From the very get go he set out to ‘destroy’ the Tribunal, inter alia by representing himself and being disruptive to the absolute maximum. When the Trial Chamber originally assigned to his case decided to appoint counsel and deny him self-representation, Seselj went on a hunger strike. Fearing the potential fallout from Seselj dying in custody after the death of Milosevic, the Appeals Chamber made an essentially political decision to reverse the appointment of counsel and change the Trial Chamber that would hear the case, adopting an absolutist position on self-representation that is certainly not warranted by human rights considerations (note that had Seselj been tried in Serbia itself, he would have to have been represented by counsel, as is the case in many other European jurisdictions in serious cases).

The presiding judge of the newly assigned Trial Chamber went on to demonstrate little evidence of competence, with Seselj more or less doing as he pleased in the courtroom, despite several prosecutions and convictions for contempt of Tribunal. The trial closed in March 2012, and the issuance of the judgment was scheduled for 30 October 2013. In other words, it took a year and a half to draft the trial judgment in what is on any objective account a mid-range, not particularly demanding case. And now that trial judgment might never be issued because of the whole Harhoff affair – I at least see no way of salvaging the trial that would not be unfair towards Seselj. Even if Seselj had been convicted, it is likely that the sentence he would get would be absorbed by the 10 years he spent in detention on remand. In any event Seselj will soon be returning to Belgrade in triumph. He may not have ‘destroyed’ the Tribunal, but he was certainly happy to watch it destroy itself.

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