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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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Prlić et al.: The Destruction of the Old Bridge of Mostar and Proportionality

Published on July 31, 2013        Author: 

Picture RogierRogier Bartels is a legal officer in Chambers at the International Criminal Court. The views expressed in this post (and in the article referred to, which was written before he joined the Court) are his own and do not necessarily represent the views of the ICC. He blogs at the Armed Groups and International Law Blog.

 

These last months, most of the blog posts on the ICTY have focused on debatable Appeals Chamber judgements and the associated letter by Judge Harhoff. A significant Trial Judgement (in French) that would normally perhaps have received attention was therefore largely ignored – although the international courts and tribunals’ judgements and decisions in French are often overlooked. The recent judgement in the multi-accused trial Prlić et al. is significant not just because of its length (six volumes totaling almost 2600 pages, including a 576 page dissent) and the time it took to draft (it was rendered more than three years after the end of the Defence case, and well over two years after the closing arguments were held). Most striking perhaps is the Trial Chamber’s determination that the Croatian leadership, including president Tudjman, formed part of a joint criminal enterprise that pursued the establishment of a Croat-only part of Bosnia-Herzegovina (for it to be joined with Croatia); this is especially interesting after the Appeals Chamber’s ruling that the Gotovina Trial Chamber was wrong in its finding in this regard. However, when listening to the delivery of the Prlić Judgement, what really caught my ear was the following “finding” on the destruction of the Old Bridge of Mostar:

On 8 November 1993, as part of the offensive, an HVO tank fired throughout the day at the Old Bridge until it was unusable and on the verge of collapse. The Bridge then collapsed on the morning of 9 November 1993. The Chamber finds, by a majority, with the Presiding Judge dissenting, that although the Bridge was used by the ABiH and thus constituted a legitimate military target for the HVO, its destruction caused disproportionate damage to the Muslim civilian population of Mostar (Judgement Summary, p. 3).

I have recently published an article in the Israel Law Review (open access until half August) on the use of the principle of proportionality in international criminal law, which discusses extensively the ICTY practice with respect to the principle. When listening to (the English translation of) Judge Antonetti reading out the summary of the judgement, I feared that my article was outdated already, as it appeared that theDestruction Mostar Bridge - BBC Majority had applied the proportionality principle in coming to this finding. And not just any finding: one that appeared to include a dual use object and a novel determination on the weighing of the long-term expected incidental damage. I say “appeared” twice because, as will be explained below, the summary was actually quite deceiving in this respect and no such finding was in fact made. (Old Mostar Bridge pictured right, credit)

In the article referred to above, I show that the Tribunal’s practice can be divided into three categories of cases where the different chambers: i) state and clarify the principle, but do not apply it to the facts of the case; ii) make findings on disproportionate or excessive use of force that cannot actually have resulted from an application of the principle; iii) the Gotovina case, in which the Trial Chamber did apply the principle to the evidence, but was then quashed by the Appeals Chamber. In this post, I will briefly discuss the ways in which the principle has been addressed in the ICTY’s case law in order to see where the Prlić case fits in. Read the rest of this entry…

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ICTY Appeals Chamber Reinstates Genocide Charges in the Karadzic Case

Published on July 11, 2013        Author: 

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.

 

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