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.
Turning to the principle of distinction, the Appeals Chamber concentrated its analysis on a 200-meter standard used by the Trial Chamber. Under this standard, the Trial Chamber determined that artillery shells falling more than 200 meters from a legitimate military target constituted evidence of indiscriminate shelling of a residential area. Although this standard was based on expert testimony heard during the trial, the Appeals Chamber noted that the standard is not one that can be found anywhere in international law. The Trial Chamber appears to have basically made it up (or at the very least conferred upon it a significance it did not deserve).
There are two points here. First, the majority and dissent in the Appeals Chamber agreed that the 200-meter standard was ill advised, though they disagreed about the consequence of this observation. For the majority, the ill-advised 200-meter standard was the legal foundation for the entire Trial Chamber decision, without which the conviction crumbled. For the dissent, the unfortunate 200-meter standard was just one aspect of the case against Gotovina, for which there was still a substantial foundation even without the 200-meter standard.
Second, was the 200 meter standard even necessary? This might have been a situation where the Trial Chamber said too much, making themselves subject to reversal because they are articulated a legal standard (if it even was a legal standard) that was not defensible. But what if they had articulated no legal standard at all? What then?
How is this possible, you ask? It is very possible. The Trial Chamber could have examined the entire spectrum of facts, including the known location of military targets, the known location of civilian deaths, the number of civilian deaths, and then stated that these facts amounted to a legal conclusion of an indiscriminate attack against civilians or even a disproportionate attack against civilians. Period. Had the Trial Chamber done this, their decision would have been subject to less scrutiny, and might even have withstood the appeal.
There’s an irony here, of course, and one that I often point out to my students in other contexts. When a court applies the law to the facts, they are obligated to state reasons for their decisions (although juries do not). In announcing that decision, they justifiably feel compelled to articulate standards that explain the basis for that decision. But when they do so, they often get reversed if the standard or legal theory is ill advised.
This creates a law of perverse incentives. Trial Chambers (and courts generally) should be as terse as possible with their explanations if they want to be successful. Although this renders their decision-making process comparatively opaque, it might immunize them from eventual reversal on appeal. But that’s not the type of judicial decision-making we want to encourage.