Rogier 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 the 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…