Comments on: ICTY Trial Chamber decides Milutinovic et al http://www.ejiltalk.org/icty-trial-chamber-decides-milutinovic-et-al/ Blog of the European Journal of International Law Thu, 09 Feb 2012 00:55:12 +0000 hourly 1 http://wordpress.org/?v=3.3 By: Andreas Paulus http://www.ejiltalk.org/icty-trial-chamber-decides-milutinovic-et-al/comment-page-1/#comment-108 Andreas Paulus Fri, 06 Mar 2009 10:43:43 +0000 http://www.ejiltalk.org/?p=677#comment-108 Dapo, 1) You cannot draw any negative inferences from a lack of criminal conviction to the effect that crimes not charged were not committed. A criminal trial is no truth commission, and should not become one (that was one of the mistakes in the Milosevic trial). 2) It is not important whether or not crimes were committed. It is important who comitted them. Otherwise, the ICC is responsible for the Sudanese expelling of aid agencies (it is another question whether it was wise to list information from agencies among the evidence). Best, Andreas Dapo,
1) You cannot draw any negative inferences from a lack of criminal conviction to the effect that crimes not charged were not committed. A criminal trial is no truth commission, and should not become one (that was one of the mistakes in the Milosevic trial).
2) It is not important whether or not crimes were committed. It is important who comitted them. Otherwise, the ICC is responsible for the Sudanese expelling of aid agencies (it is another question whether it was wise to list information from agencies among the evidence).
Best, Andreas

]]> By: Dapo Akande http://www.ejiltalk.org/icty-trial-chamber-decides-milutinovic-et-al/comment-page-1/#comment-106 Dapo Akande Thu, 05 Mar 2009 19:24:52 +0000 http://www.ejiltalk.org/?p=677#comment-106 Andreas, Actually I wasn't intending to say anything about whether NATO's intervention was legal. My point was rather that it is hard to say the intervention was successful in achieving its aims. This ICTY case demonstrates a number of things: (i) although the Serbian authorities were doing some pretty bad things, there no evidence of acts rising to the level of crimes against humanity before NATO's intervention. The exception would be the atrocities in Racak but even those were ultimately left out of the judgment. You say that it was not the task of the ICTY to comprehensively assess the situation in Kosovo before the intervention. I disagree. The temporal jurisdiction of the tribunal extends well before 1999 so if there were crimes within the jurisdiction of the tribunal in the period before the intervention, Serb leaders should have (and would have) been indicted for them. ii) crimes against humanity were committed AFTER NATO's intervention started. All the convictions in this case relate to crimes committed after the intervention (though the joint criminal enterprise started before). So my point simply put is that NATO's intervention appears, at the very least, to have provided the opportunity for, and was the catalyst, for the very atrocities that NATO said it was acting to stop. Andreas,

Actually I wasn’t intending to say anything about whether NATO’s intervention was legal. My point was rather that it is hard to say the intervention was successful in achieving its aims. This ICTY case demonstrates a number of things:
(i) although the Serbian authorities were doing some pretty bad things, there no evidence of acts rising to the level of crimes against humanity before NATO’s intervention. The exception would be the atrocities in Racak but even those were ultimately left out of the judgment. You say that it was not the task of the ICTY to comprehensively assess the situation in Kosovo before the intervention. I disagree. The temporal jurisdiction of the tribunal extends well before 1999 so if there were crimes within the jurisdiction of the tribunal in the period before the intervention, Serb leaders should have (and would have) been indicted for them.

ii) crimes against humanity were committed AFTER NATO’s intervention started. All the convictions in this case relate to crimes committed after the intervention (though the joint criminal enterprise started before).

So my point simply put is that NATO’s intervention appears, at the very least, to have provided the opportunity for, and was the catalyst, for the very atrocities that NATO said it was acting to stop.

]]> By: Andreas Paulus http://www.ejiltalk.org/icty-trial-chamber-decides-milutinovic-et-al/comment-page-1/#comment-103 Andreas Paulus Thu, 05 Mar 2009 18:04:14 +0000 http://www.ejiltalk.org/?p=677#comment-103 Dapo, while I basically share your apparent view that NATO's Kosovo intervention was illegal under international law, your precise argument does not appear to be persuasive to me. First, it was not the task of the ICTY to comprehensively assess the situation in Kosovo before the intervention. Second, the responsibility for the ethnic cleansing did not lie with NATO, but with the Serb leadership. Causality is not equal to responsibility. As always, we should be very careful not to use jus in bello assessments for jus ad bellum conclusions. Best, Andreas Dapo, while I basically share your apparent view that NATO’s Kosovo intervention was illegal under international law, your precise argument does not appear to be persuasive to me. First, it was not the task of the ICTY to comprehensively assess the situation in Kosovo before the intervention. Second, the responsibility for the ethnic cleansing did not lie with NATO, but with the Serb leadership. Causality is not equal to responsibility. As always, we should be very careful not to use jus in bello assessments for jus ad bellum conclusions.
Best, Andreas

]]> By: Dapo Akande http://www.ejiltalk.org/icty-trial-chamber-decides-milutinovic-et-al/comment-page-1/#comment-99 Dapo Akande Wed, 04 Mar 2009 15:55:51 +0000 http://www.ejiltalk.org/?p=677#comment-99 One of the things that strikes me about this case is the implications it has for NATO's justification for its intervention in Kosovo in 1999. NATO countries alleged that they took action, starting on March 24, to prevent a humanitarian catastrophe. However, the facts as alleged in the indictment and as found by trial chamber suggest that NATO action instead of averting humanitarian castrosphe was a catalyst for crimes against humanity. It is particularly striking that of the events included in the indictment, only ONE (the murder of 45 Kosova Albanians at Racak in January 99) preceded NATO action. All the others took place after that action began. To judge whether NATO's actions were successful in achieving their aim, one would have to compare what actually happened in the days weeks, months, years after the intervention with what would have happened had the intervention not taken place. The ICTY judgment provides us to a formal record of the former (what actually happened) and its quite a bad picture. Of course, we don't know precisely what would have happened had the intervention not occured. However, given what we do know about what happened following the intervention, it seems difficult to see how NATO's actions can be considered successful! One of the things that strikes me about this case is the implications it has for NATO’s justification for its intervention in Kosovo in 1999. NATO countries alleged that they took action, starting on March 24, to prevent a humanitarian catastrophe. However, the facts as alleged in the indictment and as found by trial chamber suggest that NATO action instead of averting humanitarian castrosphe was a catalyst for crimes against humanity. It is particularly striking that of the events included in the indictment, only ONE (the murder of 45 Kosova Albanians at Racak in January 99) preceded NATO action. All the others took place after that action began.

To judge whether NATO’s actions were successful in achieving their aim, one would have to compare what actually happened in the days weeks, months, years after the intervention with what would have happened had the intervention not taken place. The ICTY judgment provides us to a formal record of the former (what actually happened) and its quite a bad picture. Of course, we don’t know precisely what would have happened had the intervention not occured. However, given what we do know about what happened following the intervention, it seems difficult to see how NATO’s actions can be considered successful!

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