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

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:


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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.

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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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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.

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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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ICTY Appeals Chamber Reverses Stanisic and Simatovic Acquittal, Orders Retrial, Kills Off Specific Direction (Again!)

Published on December 15, 2015        Author: 

Today the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia quashed the acquittal at trial of Jovica Stanisic and Franko Simatovic, the former head and deputy head of the Serbian secret police during the Milosevic regime, for crimes committed in Bosnia and Croatia. This is a big deal – S&S is the only remaining case tying the leadership of Serbia with crimes committed by Bosnian and Croatian Serbs. The trial judgment (itself delivered by a majority) was quashed on two grounds: that the Trial Chamber failed to properly reason its decision regarding the participation of the accused in a joint criminal enterprise, in particular because it could not analyse their mens rea without determining the actus reus of the JCE, and because it committed an error of law regarding the actus reus of aiding and abetting liability. (Appeals judgment here, press release and summary here.)

This latter point is one that will be familiar to our readers, as it is the (final?) nail in the coffin for the whole specific direction saga that we extensively covered on the blog (see here and here). As I explained in my earlier post, the ICTY Appeals Chamber went through an episode of self-fragmentation, with the Sainovic AC overruling the Perisic AC’s finding that specific direction was an element of the actus reus of aiding and abetting. As I also explained in that post, the outcome of S&S with respect to the specific direction point would essentially be determined by the composition of the Appeals Chamber in that case. That’s exactly what happened, with the S&S AC upholding the Sainovic rejection of specific direction by 3 votes to 2. The three votes in the majority were all judges who formed the Sainovic AC majority (Pocar, Liu, Ramaroson), while of the two judges in dissent one (Agius) was in the Perisic majority and the other (Afande) was not involved in the prior cases, and was hence the only unknown quantity.

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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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