Readers might be interested in James Stewart’s analysis on OJ (here and here) of the ICTY Appeals Chamber’s Perisic judgment – James is rightly highly critical of the Chamber’s analysis with regard to aiding and abetting liability and specific direction. For my own take on the judgment and an outline of the issues see my earlier post here.
On 28 February by 4 votes to 1 the ICTY Appeals Chamber acquitted Momcilo Perisic (judgment; summary), the former chief of staff of the FRY army and one of Slobodan Milosevic’s pet generals. With the recent acquittal of Croatian generals Gotovina and Markac, the Appeals Chamber seems to be in something of a forgiving mood. Perisic was previously convicted by a divided Trial Chamber (voting 2 to 1) for aiding and abetting crimes in Sarajevo and Srebrenica committed by Bosnian Serbs, and on the basis of superior responsibility for crimes in Croatia committed by Croatian Serbs, and was sentenced to 27 years in prison. The Appeals Chamber’s decision is in my view unfortunate for a number of reasons, even though it is not as utterly shambolic as was the Gotovina acquittal.
Some differences between Perisic and Gotovina are readily apparent. While Gotovina and Markac were convicted by a unanimous Trial Chamber and then had their convictions set aside by the Appeals Chamber on the facts (and at that by 3 votes to 2), with regard to Perisic there was already one dissenting opinion in the Trial Chamber on which an appeal could naturally latch itself on, and the Appeals Chamber reversed (mainly, but not exclusively) on points of law rather than fact, as I will now briefly explain.
The Bosnian part of the case indeed turned on a point of law: whether the actus reus of aiding and abetting as a form of liability requires assistance given by the accused to the perpetrators of the crime to have been specifically directed to aiding the commission of the crime. The jurisprudence of the ICTY on this point has not been clear; the majority of the Trial Chamber considered that specific direction should not be a requirement for aiding and abetting, whereas Judge Moloto in dissent did. In essence the majority’s argument was this – the aid given by the FRY as a state and Perisic as an individual to the Bosnian Serbs was instrumental for their war effort, and was given in full knowledge that their forces were committing crimes, with knowledge that the aid given will assist the commission of the crimes satisfying the needed level of mens rea. Therefore, Perisic was an aidor and abettor. For Judge Moloto, on the other hand, the majority’s approach failed to distinguish between aid to the commission of specific crimes and aid to the war effort generally, which was not intrinsically criminal for the purposes of the ICTY’s Statute (even though, as a matter of general international law, the FRY’s intervention in Bosnia amounted to aggression). In Judge Moloto’s view, there was no evidence that the aid provided by Perisic was specifically directed to the commission of the crimes for which he was indicted.
The Appeals Chamber, Judge Liu dissenting, basically followed Judge Moloto’s approach, finding that specific direction was an essential element of the actus reus of aiding and abetting liability, and that it could not be proven beyond a reasonable doubt that the aid given by Perisic was specifically directed to the commission of crimes in Sarajevo and Srebrenica, particularly bearing in mind the general nature of the aid given in terms of logistics and personnel and Perisic’s lack of proximity to the crimes themselves.
Jens David Ohlin is Associate Professor of Law at Cornell Law School. He is the co-editor of Targeted Killings: Law and Morality in an Asymmetrical World (OUP 2012). Cross-posted at LieberCode.
When the ICTY Appeals Chamber issued its ruling exonerating Gen. Gotovina, and ordering him released, the decision sent shock waves throughout the region. In Serbia, the decision was met with consternation, anger and resentment. In Croatia, the decision was met with jubilation and relief, and Gotovina was given a hero’s welcome upon his return to the country.
As Marko Milanovic has ably articulated, this dualistic popular sentiment is cause for concern among those who care about the tribunal’s long-term legitimacy and success. The decision fueled resentment among Serbs who view the tribunal as victors’ justice. And more concerning, according to Marko, it reinforces a Croatian narrative that the Croats were pure victims of Serbian aggression who fought back with only legitimate and lawful methods of warfare. For Marko, this constructed narrative whitewashes a much more complicated reality on the ground.
From a legal perspective, the Appeals decision is also a worrisome development. The two most important principles of the Law of Armed Conflict are the principles of distinction and proportionality. The principle of distinction outlaws the direct targeting of civilians, while the principle of proportionality outlaws the launching of attacks against legitimate military targets that will cause civilian deaths that are disproportionate to the military value of the legitimate target. These are simple principles, but they are difficult for courts to apply in practice. Although one might have predicted otherwise, there have been virtually no guilty verdicts for launching disproportionate attacks at the ICTY. The Gotovina Trial Chamber Judgment was one of the few. And now that verdict has been overturned.
I am not saying that the Appeals Chamber was wrong in making this decision, but I am saying that the jurisprudence as a whole has taken a wrong turn when proportionality is almost entirely absent from the ICTY’s case law.
Friday’s judgment in Gotovina and Markac by the ICTY Appeals Chamber (summary; judgment), in which it by 3 votes to 2 reversed a unanimous Trial Chamber and acquitted the defendants, is a disaster at almost every level. I say this not as an aggrieved Serb lamenting the selectiveness of international justice and its failure to punish crimes against his own people – I have long since developed antibodies to all forms of nationalism, including the very virulent type thriving on self-victimization, and I have no personal axe to grind here. I say this rather as an international (human rights) lawyer who has always thought of the ICTY as an indispensable, if imperfect, instrument of justice for the atrocities of the Yugoslav conflicts. That said, how and why then is the Gotovina appeals judgment so bad? To my mind, the problem is not with the acquittal as such – even though as far as public opinion in the former Yugoslavia is concerned the bottom line is all that mattered. Rather, the problem is with the process, the reasoning, the appearances, and the broader repercussions that all these will have.
First, with regard to process: as the dissents by Judges Agius and Pocar correctly point out, the majority make a complete mess of the appellate standards for review. Readers will recall that in the common law-inspired procedure of the ICTY the main task of the Appeals Chamber is to correct errors of law made by the Trial Chamber. The Trial Chamber is owed deference with regards to its findings of fact, which are not to be disturbed lightly on appeal, but only if no reasonable trier of fact could have made the relevant finding on the strength of the record. In short, unlike in most continental systems, the appellate process should not amount a retrial, a de novo examination of the entire case. This ensures both procedural economy and the integrity of the exhaustive fact-finding process in the trial court.
While the majority endorses these standards as they are set out in the ICTY’s long-established jurisprudence, it does not actually follow them – to the extent that its approach to standards of review is actually even discernible, as I will now explain. The whole case ultimately turned around the Trial Chamber’s unfortunate finding that in assessing the shelling by the Croatian artillery of the four Serb towns in the separatist Serb entity in Croatia, chief of them Knin, any shell that fell further than 200 meters from a legitimate military target in the towns should be presumptively considered as evidence of an unlawful indiscriminate attack. The Appeals Chamber was actually unanimous that this rigid standard was not supported by the evidence in the trial record and was not given adequate reasons for by the Trial Chamber.
So far so good. But what the majority then does with this finding turns appellate review on its head. The majority does not explain whether the Trial Chamber’s error with regard to the 200 meter standard itself was an error of law or an error of fact. If it was the former, the majority would have had to articulate a new, proper legal standard for testing the facts established in the record, upon whose application we could know whether the shelling of Knin and the other towns was indiscriminate or not. If it was the latter, the majority would have had to pay due deference to the totality of the factual findings made by the Trial Chamber and should only have disturbed them if no reasonable trier of fact could have found that the shelling was indiscriminate on the basis of all of the evidence in the record.
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:
Aldo Zammit Borda is a PhD candidate at Trinity College, University of Dublin and a Fellow of the Honourable Society of the Middle Temple. Previously, he served as First Secretary, Ministry of Foreign Affairs of Malta, and as Legal Editor, Commonwealth Secretariat, London.
This post seeks to engage with Jaye Ellis’ article on ‘General Principles and Comparative Law’ (22 EJIL (2011) 4, 949–971). While it agrees with Ellis’ general proposition that comparative law provides a valuable resource for the identification of general principles of law, it argues that there are important distinctions to be drawn between the comparative law method and the review of evidence for the purpose of clarifying customary international law and general principles of law. In particular, the argument is made that the identification of general principles is not, as Ellis suggests, the mechanical extraction of the essence of rules. Rather, it is the juridical identification of a common underlying sense of what is just in the circumstances. In her article, Ellis was critical of the late Judge Cassese’s position in Erdemovic, for insisting that an approach which relied primarily on common law systems for guidance on the guilty plea was “unacceptable.” This post however agrees with Judge Cassese’s position and underscores the dangers in accepting narrow inquiries, which at best attach special weight and at worst restrict the scope of inquiry to a single, specific legal system.
2. Comparative Law And The Ad Hoc Tribunals
In ‘The Science of Comparative Law’ (7 Cambridge LJ (1939-1941) 94), Schmitthoff observes that “The first phase consists in examining the reaction of a number of legal systems to an individual legal problem. The second stage is concerned with the utilization of the results obtained in the first phase, and this utilization can be effected for a great variety of reasons.”
This post will mainly be concerned with the first phase of comparative law (the “collation of facts” phase), which assumes, as a prerequisite, that the topics under examination must be comparable. Schmitthoff states that comparative law has to confine itself to legal systems which have reached the same (comparable) level of evolution. Establishing a basis of comparability for the relevant topics is therefore a prerequisite of comparative law. For Barak, this basis of comparability is a common ideology. He states that, with respect to democratic legal systems, a meaningful comparison could only be had with other democratic legal systems.
A. The Application Of Comparative Law By The Ad Hoc Tribunals
Delmas-Marty observed that the attraction of comparative law stems from the sources of international criminal law, at least to the extent that custom and general principles of law are partly based on national law. (‘The Contribution of Comparative Law to a Pluralist Conception of International Criminal Law’, 1 J International Criminal Justice (2003) 13)
1. Comparative Law And Customary International Law
The process of clarifying customary international law requires reviewing evidence from, inter alia, national jurisdictions in order to make out its material sources, namely State practice and opinio juris. The process of reviewing evidence in this context resembles Schmitthoff’s first phase of comparative law, namely, the “collation of facts” phase. Read the rest of this entry…
My article explores the source ‘general principles of international law’ from the point of view of comparative law scholarship. As international law’s agenda becomes wider and more ambitious, areas of overlap between international and municipal law become ever larger, and interactions between the two levels more numerous. It might seem reasonable to assume that general principles of law, a source which establishes an important point of contact between international and municipal law, would come into its own in such an environment. This has not been the case, however. One possible explanation is hesitation on the part of international judges to identify rules whose formal validity as rules of international law is rather tenuous. Another possible explanation is the highly unsatisfactory nature, both in theory and in practice, of the methodology currently applied to identify general principles of law. The debates at the international level regarding general principles map onto those at the municipal level concerning the ‘borrowing’ of rules from one legal system by another. It makes sense, therefore, to look into the controversies over ‘borrowing’ that play out in scholarship on comparative law, in order to gain some insights into the difficulties generated by the source general principles of law, as well as ways of alleviating these difficulties. I argue that particular attention ought to be paid to strands of comparative law scholarship which take issue with a functional approach – to put it starkly, an approach that treats legal rules as pieces that can be extracted from one machine and inserted into another – and which place emphasis on the processes through which legal systems can learn from one another.
Over the next few days, we will be hosting a discussion of one of the articles published in the last issue of the 2011 volume of European Journal of International Law. That issue included a paper by Jaye Ellis on “General Principles and Comparative Law”. Jaye is Associate Professor of Law and Associate Dean at McGill University’s Faculty of Law. Jaye posts a short overview of her article later today. Tomorrow, Aldo Zammit Borda who is currently a PhD candidate at Trinity College, Dublin but formerly First Secretary at the Ministry of Foreign Affairs of Malta, and Legal Editor, Commonwealth Secretariat, London will comment on Prof. Ellis’ article. Readers are invited to join in the conversation.
Dr. Gentian Zyberi was co-ordinator of the Albanian legal team in the ICJ’s Advisory proceedings on the Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo. He worked for the Defence in the Haradinaj case discussed below.
In its judgment dated 19 July 2010 the Appeals Chamber of International Criminal Tribunal for the former Yugoslavia (ICTY) partially quashed the acquittals of Ramush Haradinaj (Kosovo’s ex-Prime Minister and former commander of the Kosovo Liberation Army (KLA) for the Dukagjin zone), Idriz Balaj (former KLA member, commander of the Black Eagles unit), and Lahi Brahimaj (former deputy commander of the KLA Dukagjin Operative Staff, member of the KLA General Staff). Mr. Haradinaj and Balaj had been acquitted of all charges, while Mr. Brahimaj was found guilty of torture and sentenced to a term of six years’ imprisonment by the Trial Chamber on 3 April 2008. The Appeals Chamber ordered a partial retrial of the case, President Robinson partially dissenting. The President then proceeded to appoint a trial bench composed of Judge Moloto, Judge Hall and Judge Delvoie for this retrial.
Since this is the first retrial ordered by the ICTY in its 15 years of activity – it is surprising that so far this judgment has escaped the careful scrutiny it deserves regarding the legal standard applied and the conclusions drawn by the Appeals Chamber. The Appeals Chamber found that the Trial Chamber had committed a mistake of law by refusing the Prosecutor’s requests for additional time to exhaust all reasonable steps to secure the testimony of two witnesses, while the Trial Chamber had ordered an extension three times, and ordering the close of the prosecution case before such reasonable steps could be taken. It stated that the Trial Chamber ‘failed to appreciate the gravity of the threat that witness intimidation posed to the trial’s integrity’ which ‘undermined the fairness of the proceedings as guaranteed by the Statute and Rules and resulted in a miscarriage of justice.’ (Appeals Judgment, p. 22, par. 49).
Problems with the Appeals Chamber reasoning
This Appeals Chamber Judgment is problematic for a number of reasons, few of which are briefly dealt with below. As the partial dissent pointedly chastises, on the issue of retrial the Haradinaj Appeal Judgment leaves open many more questions than it closes, giving the impression that a policy driven decision-making process disregarded the rule of law, the rights of the accused, and the legal and factual diligence due in handing down a decision of such importance (Partially dissenting opinion of Judge Patrick Robinson, pp. 129-130, par. 32). It is a pity, because witnesses’ protection in international criminal proceedings and the role of discretion in securing a fair opportunity for the Prosecutor to be heard are unquestionably two extremely important matters for international criminal justice in general.
a) Substitution of the discretion of the Trial Chamber for its own
As the partial dissent of President Robinson points out (Partially dissenting opinion of Judge Patrick Robinson, pp. 116-120, paras. 1-9), the Appeals Chamber did not abide by its own rule that it will not lightly overturn decisions based on the Trial Chamber’s discretion. This is the first of a number of significant flaws and mistakes which weaken the Appeals Chamber’s reasoning. Read the rest of this entry…
The trial of Radovan Karadzic at the ICTY was supposed to begin this morning, but, true to his word, Karadzic decided to boycott the trial because he was allegedly not given enough time for preparation. In reality, however, it has been more than a year and three months since his transfer to the Hague – time that he spent wastefully, mainly by bombarding the Tribunal, states, and the public with his theories regarding an alleged immunity deal with Richard Holbrooke, that he claimed was somehow supposedly binding on the Tribunal (for our earlier coverage, see here, and for some discussion see here). The proceedings will resume Tuesday afternoon, and we shall see what the judges make of it.
That the trial is off to a rather bumpy start is of course entirely the Tribunal’s own fault – not because it denied Karadzic adequate time for preparation, but because it allowed him to represent himself in the first place. The ICTY’s overly generous (to put it mildly) approach to self-representation, first in the Milosevic and then in the Seselj cases (see more here), quite simply allowed determined defendants to turn the courtroom into a circus. It is not just deeply flawed legally, practically, and symbolically – it also in my view rests on a mistaken psychological assumption: that the defendants in question actually wish to persuade the judges of their innocence.
But high-ranking defendants want no such thing. It is not the judges who are their intended audience – they perform for the history books, and for those same besotted masses whom they once led and whose fate they still want to control. They wish to validate their own heroic self-image; the courtroom is only their final stage, and the judges a part of the decor. They do so not just because of the narcissistic, prima donna personality that is almost invariably a part of the pathological mental make-up of a successful politician/war criminal. Rather, they are in a sense perfectly rational in their irrationality. That they have nothing to gain by having counsel defend them to the best of their ability is plain – either they already know that they are guilty, or they believe that there’s a conspiracy out to get them, of which the judges naturally form part.