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Home International Criminal Law Crimes Against Humanity An Eventful Day in The Hague: Channeling Socrates and Goering

An Eventful Day in The Hague: Channeling Socrates and Goering

Published on November 30, 2017        Author: 

Yesterday the ICTY delivered its very final appeals judgment, in the case of Prlic et al, finding all of the defendants – political and military leaders of Bosnian Croats – guilty of crimes against Bosnian Muslims, and affirming the sentences passed on them by the trial chamber (summary; judgment). Yesterday, also, one of the defendants in the case, Slobodan Praljak, a general during the Bosnian conflict but by formal training a rather eclectic individual with degrees in philosophy, sociology, and theatre from the University of Zagreb, committed suicide in the courtroom. He did so by standing up in the dock, loudly declaiming to the judges that: “Slobodan Praljak is not a war criminal and I reject your judgment with contempt” [yes he did that very nice thing of referring to himself in the third person], and then drinking a vial of poison in full view of the (visibly shocked) judges, and the cameras. The video of this dramatic one-upmanship of Socrates and Hermann Goering, the first (and hopefully last) for an international courtroom, is here.

Like in the Mladic case, the reaction to the judgment was predictably nationalist and predictably depressing. The prime minister of Croatia – a member state of the EU – completely rejected the judgment, saying that it constituted a grave moral injustice against the defendants and the Croatian people as a whole. So did the Croat member (and current chairman) of the Presidency of Bosnia and Herzegovina, who stated that Praljak was prepared to sacrifice his very life to show to the world and to a political court that he was in fact innocent. This martyrdom narrative is now bound to feed Croat nationalism for a long, long time. The principal reason for all this ire is not so much the conviction as such, but the Appeals Chamber’s confirmation of the finding at trial that the defendants participated in a joint criminal enterprise together with leaders from Croatia, including President Tudjman, whose purpose was to consolidate a Croat entity in Bosnia through the ethnic cleansing of Bosnian Muslims. This is also coupled with the findings about Croatia’s control over Bosnian Croat forces and the characterization of the armed conflict as international, i.e. inter-state, in nature.

What of the judgment more generally? It is very long (more than 1400 pages), longer than most ICTY appeals judgments. This is largely the product of numerous problems, errors in law and reasoning in the trial judgment – itself caused to no small degree by the peculiarities of the presiding trial judge (remember the Seselj acquittal? Yes, that guy.). Yet despite the many problems, and reversals on numerous points, the Appeals Chamber essentially endorsed the basic factual and culpability account of the trial judgment, saying that the totality of the crimes for which the defendants have been convicted suffices for the sentences they have been given. Throughout its judgment the Appeals Chamber is in a constructive, repair mode in relation to the trial judgment, especially when compared to the hypercritical deconstructivism in the Gotovina judgment.

There are many legally interesting issues in the case of broader import. First, the Chamber’s approach to the classification of the armed conflict in Bosnia and the scope of application of the Geneva Conventions. Second, similarly, the Chamber’s application of the law of occupation, and its finding that Croatia was occupying parts of Bosnia through its proxies. Third, and most controversially, its reversal of the majority trial chamber finding that the destruction of the Old Bridge (Stari Most) in Mostar constituted a war crime of wanton destruction of property not justified by military necessity. Judge Pocar dissented on this point very energetically. Essentially the Chamber found that (1) the bridge was a military objective, as it was being used by Bosnian Muslim forces; (2) therefore the destruction of the bridge could not be ‘wanton’, even if it was disproportionate in its impact on the civilian population under IHL; (3) the Trial Chamber found no other property destroyed in this event; (4) therefore an element of the crime was missing or unproved. The judgment thus does not directly engage with the ‘pure’ IHL proportionality question, as the majority and dissent did at trial. Finally, the analysis of JCE is very dense and fact-specific; one particularly interesting set of issues dealt with the inconsistent terminology used in the French original of the trial judgment and its impact on the relevant mens rea standard.

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18 Responses

  1. Miro

    Personally, I always struggled to take this so-called tribunal seriously for a number of reasons. To appease the reader, maybe I should start with suggesting laziness as the first one! Maybe, I don’t know. What I do know is that I could not use its jurisprudence to teach my students. I would get stuck after talking about general (usually grandiose) principle, such as “no peace without justice”; “reconciliation”‘; “end of impunity” etc. But then when particular cases and the Tribunal’s strategies I had to explain I struggled; students laughed; rightly so I think. In one of my international criminal justice session I asked my students this: “imagine you are a member of a burglaries gang and one day your lads from the gang broke into a house and encountered the owner. Although unintended, a fight ensued and the owner got killed. Now, you were not there; what do you think if the court finds you guilty of murder!? No way! They replied. Yes, I said, that’s what this Tribunal said! And then the pearls continued unabated! Joint criminal enterprise, an invention by the Tribunal, not even envisaged by its Statute to help itself find a defendant guilty, was subsequently used to quit a defendant from a different ethnic group! And then the 200m standard, rejected by the Appeals Chamber when it wanted to declare a defendant not guilty, but without providing an alternative standard or at least reasons for the rejection of the standard created by the Trial Chamber…
    What to say about a Tribunal whose main witnesses in Mladic case were people from NATO, an organisation that got militarily involved against one of the parties to the conflict on more occasions? A member of the United States National Security Agency, seconded to the ICTY as a staffer who was therefore the prosecution staff. Or another witness, a Belgian Army intelligence officer; NATO was clearly in charge! Experts in criminal trials are supposed to be completely neutral? Am I doing hair splitting exercise here?
    So, this tragic conclusion of the Tribunal is actually quite fitting; its involvement, practices and contribution to the “development of international criminal law” should be forgotten or simply ignored – for the sake of the law!

  2. Lasse

    Dear Marko,

    I have a question regarding the judgment that you, or perhaps others, maybe have some thoughts on:

    Apparently the Defense argued that the effective control test should have been used, rather than the overall control test, to determine the classification of the conflict. As I recall, this argument has been used over and over again by appellants in previous cases at the ICTY and has been consistently rejected by the ICTY Appeals Chamber. Why do you think defense lawyers at the ICTY continue to employ this obviously failed and non-effective strategy?

    Best,
    Lasse.

  3. Rosco T

    Miro –

    If that’s your understanding of JCE, I have no doubt that you do not understand the ICTY’s jurisprudence. I also find it peculiar that you say the main Mladic cases witnesses were people from NATO and NATO ‘was clearly in charge’. Sorry to say, but this sounds like Mladic himself in one of his outbursts. I agree there are a number of disgraceful things from the ICTY (Seselj TJ, Gotovina AJ, Stanisic & Simatovic AJ, Haradinaj AJ, etc) but overall its been an incredible success

  4. Miro

    Rosco,
    “The International Criminal Tribunal for the former Yugoslavia…has invented a doctrine of criminal liability known as ‘joint criminal enterprise.’ It uses this concept, which is so contentious that it is unconstitutional in many jurisdictions, in order to convict people of crimes when even the Tribunal accepts that they did not, in fact, commit them or that the proof is lacking to show that they did.” John Laughland and numerous others.
    Are you aware that the invention has not been accepted by the ICC Statute?
    Are you familiar with the difference between evidence and statement. The ICTY relied on statements too often.
    And your position that the Tribunal has been an “incredible success” is even a stronger political opinion of this creation than the one expressed by Mladic himself.

  5. Miro

    Rosco
    Maybe you can help me understand the jurisprudence and provide a better example of the concept of responsibility that does not require even awareness of the crimes committed as the category III of JCE posits? According to the Appeals Chamber in Krstic case it was not necessary to show that the defendant had any responsibility for or even knowledge of actual crimes committed. You describe these kinds of feats “an incredible success”?

  6. […] MARKO MILANOVIC sheds some light on the confusing matter of the judgment of the Yugoslavia Tribunal against a number of Croatian war criminals, including with the disturbing reactions from Zagreb and the repugnant spectacle offered by one of the convicted who committed public suicide in the courtroom. […]

  7. Marko Milanovic Marko Milanovic

    Lasse,

    I’m not sure myself why defence lawyers have engaged in this strategy, because as you say it was bound to fail. This is not to say that there’s no argument to be made, especially if the whole thing is cast in terms of rules of attribution, but that structurally it would be impossible for the AC to reverse itself after two decades of constant jurisprudence.

    Miro,

    I’m not sure that I’ll be able to persuade you, but I can tell you that many of the arguments you made are just factually incorrect. (1) The ICTY did not invent the idea of JCE in ICL. (2) JCE3 has clearly been controversial, but again this is not to say that it has been entirely without precedent. (3) Analogues to JCE exist in many domestic jurisdictions, including England. While no domestic jurisdiction has had to deal with the problem of (a) crimes on a massive scale (b) committed by groups of many people (c) in which the morally most responsible individuals are the farthest removed from the scene of the crime, to the extent that such system criminality has had to be dealt with by ICL, they have all had to deal with similar problems on a smaller scale (e.g. with organized crime, or with gangs). Different systems have come up with different solutions, but again this is not to say that there are no domestic analogues to JCE. For example, the law of the former Yugoslavia, but also the current laws of Croatia and Serbia, make it a CRIME (not a form of liability, but a substantive offense) to be a MEMBER of a group whose PURPOSE is to commit a serious crime. (see e.g. art 346 of the Serbian Criminal Code.) The law of England, where you teach, has in fact had joint enterprise liability for a long, long time, and has used a foresight test, recently overturned by the Supreme Court: http://www.bbc.co.uk/news/uk-35598896
    Then there’s also the felony murder rule in some jurisdictions, etc. (4) The ICC statute does in fact have JCE in Art 25(3)(d), but they have not relied on this provision or on JCE3 specifically, preferring instead to use the concept of indirect co-perpetratorship.

    Again, this is not to say that there are no arguments that JCE3 is misguided. But the contrary is also not self-evident. If persons A and B agree to rob a bank, and in the course of the robbery A shoots and kills a security guard, it does not seem contrary to basic precepts of justice to say that B also bears some responsibility for the murder, which was foreseeable to him. We can of course disagree on the parameters of that responsibility. But again my feeling is that your criticism of the ICTY is not grounded in the facts as much as you think it is.

  8. Miro

    Many thanks Marko for your reply. My apologies if the comment is sent twice; I had a funny message from the system and had to type it again. You are making all correct and fair points I have to say.
    The problem lies in misreading what I said; I didn’t say that the ICTY invented JCE (OMG, you couldn’t possibly think I would say something like that!?). I said that the ICTY invented it in relation to its jurisdiction because it was not envisaged and included in the Statute, especially not Category 3 of JCE.
    Secondly, of course I know that many systems have this concept in their criminal law; as a solicitor in my native country I defended many individuals accused of membership of a JCE (zlocinacko udruzenje). I am referring however to situations where, according to the ICTY for responsibility to be established there is no need even for knowledge of a crime being committed!
    You also correctly state R v Jogee (Appellant) Ruddock (Appellant) v The Queen (Respondent) (Jamaica), where the court ruled that the concept had been wrongly interpreted for 30 years (where the accused acts in conjunction with the killer but does not strike the blow that causes death. Can you see my point? Domestically, it was deemed unsafe to convict individuals even if they knew and were present at the crime scene!
    Best wishes

  9. Miro

    Also, referring to my “incorrect” interpretations of facts and your statement that JCE was in fact included in the statute may I draw you attention to the Appeals Chamber’s determination in Tadic that although criminal responsibility exists for “actions perpetrated by a collectivity of persons in furtherance of a common criminal design, it acknowledged that the ICTY Statute
    does not explicitly, or implicitly, provide the substantive elements of this mode of liability (Tadić Appeal Judgement, para. 194). I am not really sure why you say that it was included?
    Secondly, if persons A and B agree to rob a bank and a guard gets killed of course both persons should be responsible for murder; where in what I said you drew opposite conclusion? But what do you think should happen if B is not present at all and subsequently not even aware of the killing? Should he also be responsible for murder? That would mean being responsible for an excess that there was no evidence he wanted or agreed should happen.
    Finally, you don’t have to persuade me; just maybe to read what I said a bit more carefully.
    Best wishes

  10. Miro

    You were referring to the ICC Statute; I see. But look what is says please:
    Article 25 (3) (d): “in any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:
    (i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or
    (ii) Be made in the knowledge of the intention of the group to commit the crime. No way I think it may involve Category 3. Imagine African states reaction to it!
    Whether a criticism is based on fact or not really depends on our views, if all criticisms are based purely on facts that would be a science not legitimate debate in which I believe.

  11. Marko Milanovic Marko Milanovic

    Miro,

    You did in fact say that the ICTY invented JCE. And you said so twice, first in your own words (“Joint criminal enterprise, an invention by the Tribunal, not even envisaged by its Statute to help itself find a defendant guilty…”) and then by quoting somebody else approvingly (““The International Criminal Tribunal for the former Yugoslavia…has invented a doctrine of criminal liability known as ‘joint criminal enterprise.’”). This here blog, unlike much (most?) of the Internet (world?), is a reality-based community. I have no way of knowing what you INTENDED to say, but I know what you wrote. And you wrote that the ICTY invented JCE, which is factually simply untrue. So you don’t get to backtrack by saying I didn’t read what you wrote carefully enough. I DID read it carefully, and you DID write what I said you did, and you DID make a mistake. Maybe you didn’t know, maybe you were not careful in how you expressed yourself, but you did make a mistake. And you should own up and just say so. The reason why I’m insisting on this is that the whole ‘ICTY invented JCE’ trope is a classic criticism of the Tribunal among lawyers in the former Yugoslavia, made there for the purpose of discrediting it.

    Second, you confuse knowledge of specific events/crimes committed by a group, and the purpose/foreseeability issue in JCE3. Even in JCE1 – all crimes committed by group members are within the common purpose – not all members will KNOW about ALL of the crimes. Take Don Corleone as an example; he shares the purpose of his criminal organization to engage in extortion, racketeering, etc. But will he KNOW of every given instance of one of his little minions extorting some shop-owner? Of course not. Is that a bar to convicting him? Or to move to our kind of crimes – if there’s a group of people who share the common purpose to ethnically cleanse an area, i.e. forcibly displace people, not every member of the group will KNOW about every single act of displacement. Or to put this even more starkly, Hitler had no idea how many Jews exactly were killed by his forces, in the camps or otherwise. He certainly did not KNOW about the specific circumstances of 6 million acts of murder – the who, where or when. But that is not a bar for holding him criminally responsible. Your insistence on KNOWING about specific crimes would make it practically impossible to convict any high-ranking perpetrator sufficiently removed from the scene of the crime.

    The real issue with JCE3 is not with convicting people who did not KNOW about specific crimes (because, again, you could make that same criticism for other types of JCE). Rather, the issue is about crimes that exceed the COMMON PURPOSE – the purpose was to rob the bank, but not to kill; JCE3 would capture those to whom killing a guard would have been foreseeable, even if they did not intend it. This would include not only one of the robbers in my hypo, but also the driver of the getaway car, the guy who provided the blueprints to the bank, etc. None of them have to KNOW that the murder is occurring at the moment it is occurring. Thus, in the same way, under JCE3 where the common purpose was to displace a population, members of the JCE would also be liable for acts of murder, rape, or torture that would have been foreseeable to them as something that happened during ethnic cleansing. Again, I accept that this form of liability has been criticized as too flexible, but good or bad it is hardly some kind of manifest injustice that delegitimizes the Tribunal in the way you seem to think it does. And again the problem with it is NOT in prosecuting people who do not KNOW the circumstances of specific crimes, but in prosecuting them for crimes which they have FORESEEN, but did not INTEND to happen (or at least that intention could not be proved beyond a reasonable doubt).

  12. Miro

    Not a problem Marko; if you will feel better I will admit that I made a mistake! I said the ICTY invented JCE.
    But the whole point is, and we almost agree on that The whole point is about the flexibility and extension of criminal responsibility that allows for huge amount of discretion.
    I have though a serious problem with your implication that this is “a classic criticism of the Tribunal among lawyers in the former Yugoslavia, made there for the purpose of discrediting it”. You are an expert in this field and you know very well that criticism of this body does not originate only in the former Yugoslavia; the author I stated (approvingly as you put it; like I should not be allowed to do that!) is a western state’s academic.
    Secondly, your comparison with Hitler and reference to Don Corleone are completely out of order and reserve the right to pursue this issue further.
    Finally, as a professor and a highly intelligent individual your frequent use of capitals is very much incongruous to the qualities listed above.

  13. Rosco T

    I think Marko described it well. Knowledge is not an issue for JCE3 (or even JCE1) – its about foreseeability.

    as for your question ‘Are you familiar with the difference between evidence and statement. The ICTY relied on statements too often.’, I am not sure I entirely understand your point. Statements just like testimony or documents are evidence. So there is no difference between statements and evidence. Its like saying are you familiar with the difference between apples and fruit.

    I suppose when you say the ICTY relied on statements too often (which is btw also a recurring theme among the usual suspects of ICTY-critics) you mean Rule 92 bis or quater statements, those where there was no cross-examination. The vast amount of statements admitted into evidence in ICTY cases are 92 ter statements where cross-examination is required. In addition Rule 92 bis statements are pretty much negligible in this context as they cannot relate to the responsibility of accused. This leaves 92 quater statements. I agree this can be tricky but there are significant safeguards in the rules in relation to admission as well as in the case law with regard to reliance on such statements.

  14. Miro

    Rosco
    You don’t understand the difference between evidence and statement? Is that my problem as well?
    The difference is (I will probably be exposed to new vile attempts to discredit me for saying this):
    1. Actual testimony requires that a witness testified in person; there are numerous references to documents of various kinds and “witness statements” instead.
    2. The relevance of this strategy is that those “statements” were given by alleged witnesses to investigators and lawyers working for the prosecution; those “statements” were usually drafted by prosecution lawyers and presented to “witnesses”.
    3. There is no cross-examination involved because a statement is not testimony; it’s just a statement; that is why it cannot be used as evidence. No questions as to their reliability; credibility; about their bias etc.
    4. A statement should notify the lawyers what is a witness likely to say during the trial, and to disclose the prosecution case to the defense to enable them to prepare their case and then use the statement in the trial to cross examine the witness by comparing the prior statement with the their testimony under oath.
    So much for your “there is no difference between statements and evidence” and Rule 92 does not provide significant safeguards.
    There is an ominous tone that permeates these kinds of debates and that is an attempt to intimidate, denigrate and humiliate anyone who dares to criticise the Tribunal. I will not be silenced and it is my right to express my view on this. I am reiterating here that JCE3 would not be accepted in any legal system in the world because it allows for a huge margin of discretion on the part of prosecution. Why do you think the UK Supreme Court changed the rule after 30 years in the case I referred to? There was a despicable attempt to impute in my argument that it would never allow for conviction of leaders and commanders (“Hitler had no idea how many Jews exactly were killed by his forces, in the camps or otherwise. He certainly did not KNOW about the specific circumstances of 6 million acts of murder…”). This is absolutely outrageous and it will not go quietly with this one in particular. Tadic and others convicted under JCE3 were not Hitler but rather low ranking officials. Their foreseeability of crimes may be equated with two bank robbers and an unplanned murder. Jogee would require the actual strike of the blow; not even presence would suffice for establishing responsibility.
    Finally, this is all just too upsetting and I deeply regret for taking any part in this conservative and out of touch with reality blog I have to say; but I will not allow any attempts to silence me, especially in the nasty ways employed against me.

  15. Marko Milanovic Marko Milanovic

    Miro,

    I am not sure what exactly is going on here. Nobody made any attempts to silence you, let alone any despicable or nasty ones (and I, unlike you, did not accuse anyone of being illiterate – see in that regard my very final point below). My references to Hitler and Don Corleone were as comparison points to high-ranking defendants – your Milosevic’s, Mladic’s, etc, to whom JCE3 was applied. And it is correct to say that if you argue that a person can only be convicted of a crime under JCE if you can show that he knew about the specific events in the crime base, then no high-ranking defendant could ever be convicted. Throughout this discussion I have conceded that reasonable criticisms have been levied against JCE3, but as I have repeatedly explained these have not required (as you do) proof of knowledge about specific circumstances; rather, they have said that only crimes within the common purpose could be punishable. What you have demonstrated throughout this discussion is a lack of sufficient substantive knowledge to engage in a proper, informed, and rational debate – which you have again done in your last comment in which you fail to appreciate the different kinds of witness statements under rule 92, even though Rosco explained them to you.

    So – to cut this short – it is perfectly fine to criticize the ICTY on this blog. It is however not fine to do this without proper substantiation, let alone by repeating nationalist tropes from the former Yugoslavia. Opinion is welcome on the blog, but not when it is uninformed and has no basis in fact. And this is a warning from me as an editor: if you fail to respect the standards of civil discourse that are required of anyone commenting on the blog, your future comments will be moderated. https://www.ejiltalk.org/rules-for-contribution-to-the-blog/

  16. Miro

    Marko
    I think the best indication of the relevance of this Tribunal; its functioning and “contribution” to the development of the law is the fact that only Rosco and myself (lacking knowledge of the subject in your view) are taking part in discussing those aspects! Doesn’t that worry you? Secondly, you will really have to explain and justify “repeating nationalist tropes from the former Yugoslavia” accusation in more detail in a different setting than this. In what ways am I repeating nationalist tropes please? By questioning the prudence of the concept developed by the ICTY Appeals Chamber?
    I explained to Rosco the difference between statements and evidence because he said he didn’t know the difference. He didn’t explain anything to me as you state. If you choose to treat my contribution as “lacking sufficient substantive knowledge” that is your view. What do I say about your reference to Hitler and the comparison in relation to Tadic? But I will keep my view of your knowledge to myself; so much for “civil discourse” you are referring to.

  17. Rosco T

    My problem is just that there are things thrown out there that are simply incorrect. Your further explanation leads me to think that you were referring to the difference between ‘statements’ and ‘testimony’ (not ‘statements’ and ‘evidence’).

    Fine, yet your view of how statements should be used is very much at odds with Rule 92 ter. The system of using statements at the ICTY is not just more or less like proofing notes to put someone on notice. What is more, through the attestation of Rule 92 ter, a statement becomes testimony. A witness attests under oath that if he were asked the same questions, he would give the same answers in court. And then of course there is cross-examination on the statement.

    Let me be clear, the system of Rule 92 ter can be criticised, but if we are having a serious discussion on it we should all know the ins and outs of the system

  18. I loathe JCE III — because it is retributively unjust — and wrote a long brief in the Karadzic case arguing that it does not exist under customary international law. But Miro’s point that “JCE3 would not be accepted in any legal system in the world because it allows for a huge margin of discretion on the part of prosecution” is simply incorrect. To begin with, the UK accepted it for nearly 30 years — as Miro acknowledges — and the Supreme Court has made clear that it will not reconsider all convictions obtained pursuant to it even in light of Jogee. More importantly, though, JCE III is *literally* based on Pinkerton liability, which has been accepted by federal courts in the US for more than 70 years. Indeed, Tadic specifically cites Pinkerton in its discussion of JCE III.

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