Over the past few days, there has been discussion of whether the attempt to murder Sergei Skripal and his daughter, in the UK, by the use of a nerve agent amounts to an unlawful use force by Russia in breach of Art. 2(4) of the United Nations Charter and customary international law (see posts by Marc Weller, Tom Ruys, and Ashley Deeks). There is agreement that if the action was attributable to Russia, it would amount to a breach of at least some obligation under international law. Marc Weller, points out that the act would amount to an unlawful intervention and a violation of the territorial sovereignty of the UK. Marko argues that these acts would also be a violation of the human rights of the individuals concerned. However, the British Prime Minister characterised the act as an unlawful use of force. What I wish to do in this post is to ask why this categorisation might matter in international law. What exactly are the implications, as a matter of law, of characterising the act as a use of force? This was an issue that was raised in the comments to Marc Weller’s post and some of the points I make below have already been made in that discussion though I expand on them. As discussed below, this characterisation might have far reaching implications in a number of areas of international law, extending beyond the possibility of self-defence, to the possibility of countermeasures, the law relating to state responsibility, the qualification of a situation in the law of armed conflict, and international criminal law. I accept that many of the points discussed below are not clear cut, and some are even contentious. However, I think that having a catalogue of the possible consequences of the arguments relating to the use of force helps us to see more clearly what is at stake when we make these arguments.
The trial at the International Criminal Court (ICC) of Dominic Ongwen, commander of the Lord’s Resistance Army (LRA), has attracted widespread legal and political debate. Much of the commentary has focused on the former child soldier’s status as a victim-perpetrator. Missing from mainstream legal discourse is consideration of another status Ongwen holds as a result of his alleged crimes: fatherhood. Relatedly, and more importantly, also overlooked is a group of victims of his crimes: children born as a result of rape. Within the LRA “forced marriage” system, thousands of children were born from the rape of girls held in captivity.
Drawing primarily upon the Ongwen case and the crime of forced pregnancy, this post considers the ICC’s role in recognising the rights of children born of rape and repairing harms against them, consistent with their right to reparation under international law. Stigmatisation within “post-conflict” communities is a key harm suffered by children born of rape, often driven by their perceived association with perpetrator fathers. The ICC’s capacity to redress or, inadvertently, exacerbate stigma against this group of victims requires attention. Read the rest of this entry…
In addition to the activation of the International Criminal Court’s jurisdiction over the crime of aggression (see previous post), the recently concluded Assembly of States Parties (ASP) to the Statute of the ICC, also adopted three amendments adding to the list of war crimes within the jurisdiction of the Court. These new war crimes relate to the use of prohibited weapons in international as well as non-international armed conflicts. However, in the lead-up to the ASP there was controversy regarding the wisdom and even the legality of adding to the list of war crimes. One of the concerns was that there would be fragmentation of the Rome Statute system with different crimes applicable in differing situations to different individuals. This is because under the amendment procedure to the Rome Statute (Art. 121(5)) these new crimes would not apply to nationals of, or conduct on the territory of, non-ratifying states parties. Another concern was that the new crimes (or at least some of them) are, in the view of some states, not criminalised under customary international law and thus not suitable for addition for inclusion in the ICC Statute. It is this latter issue that I focus on this post, though as I will explain later, the issue overlaps with the question of fragmentation of the Rome Statute regime. In this post, I discuss the implications of criminalising conduct under the ICC Statute which do not amount to customary international law crimes. I take no position on whether the crimes that have been added are, or are not, crimes under customary international law (though I think few would doubt that the use of biological weapons is such a customary international crime), but explain why this is an important question that states are right to pay attention to.
The new war crimes to be inserted into the Rome Statute are as follows (see Resolution ICC-ASP/16/Res.4):
- Employing weapons, which use microbial or other biological agents, or toxins, whatever their origin or method of production [to be inserted as Art. 8(2)(b)xxvii) and Art. 8(2)(e)(xvi)]
- Employing weapons the primary effect of which is to injure by fragments which in the human body escape detection by X-rays [to be inserted as Art. 8(2)(b)(xxviii) and Art. 8(2((e)(xvii)];
- Employing laser weapons specifically designed, as their sole combat function or as one of their combat functions, to cause permanent blindness to unenhanced vision, that is to the naked eye or to the eye with corrective eyesight devices [to be inserted as article 8(2)(b)(xxix) and Art. 8(2)(e)(xviii)].
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.
Last week the ICTY rendered its trial judgment against Ratko Mladic, the wartime military commander of the Bosnian Serbs (summary; the judgment itself is available here, in four volumes at some 2500 pages). The outcome was basically as I predicted in my previous post: Mladic was convicted on all counts except for count 1, genocide in Bosnian municipalities other than Srebrenica. He was sentenced to life imprisonment. Justice was done, and that is a very good thing; the nationalist reactions to the judgment in the Balkans were unfortunately also as predicted, and that is not. In this post I will briefly give a few thoughts on the two issues I raised in my previous post – the count 1 genocide acquittal and the shelling of the Markale marketplace in Sarajevo.
As for the former, the basic outcome here was the same as in the Karadzic case – the Trial Chamber unanimously found that no genocide was committed in Bosnian municipalities other than Srebrenica. The road taken to get to that outcome was, however, different. In the Mladic case the majority of the Trial Chamber (Judge Orie dissenting) found that the physical perpetrators of the killings in (some, but not all of) the municipalities DID have an intention to destroy a part of the Bosnian Muslim group as such (para. 3456 / p. 1764 et seq of the judgment, conclusion in para. 3526); however, they then found that this intention was not to destroy a SUBSTANTIAL part, as required by the jurisprudence of the ad hoc tribunals (para. 3527 et seq, conclusion in para. 3536).
This substantiality criterion has admittedly never been conceptually clear, or easy to apply in practice. Even so, the majority was probably in error here – essentially they inferred the intent to destroy from the massive scale of the crimes and the fact that individual victims were targeted on a discriminatory basis, i.e. they were killed because of their ethnicity. But that confuses killings on the basis of a discriminatory motive with an intention to destroy (a part, however defined) of a group, as such. The majority’s approach also invites problematic line-drawing with regard to how Srebrenica was in fact genocide, which essentially boils down to the number of people killed, or available to be killed, belonging to a certain ethnic group. (That said, I have personally never been comfortable with this arithmetic of genocide or with essentially morally arbitrary distinctions between genocide and crimes against humanity, which we are legally compelled to get into.)
By contrast, Judge Orie in his very brief dissenting opinion (the Chamber was otherwise unanimous on all counts, which is again a good thing), finds that the only reasonable inference that could be drawn from the evidence is that the physical perpetrators had the intention to displace Bosnian Muslims (killing many in the process) from certain areas, but not destroy them as a group. The Trial Chamber was unanimous that a genocidal intent could not be attributed by inference to the high-ranking leadership or members of the overarching joint criminal enterprise, whose purpose was ethnic cleansing rather than genocide (paras. 4234-4237).
As things stand, with unanimous trial chambers in both the Mladic and Karadzic cases finding on the facts that genocide was not committed in the Bosnian municipalities, I think it is unlikely in the extreme that this conclusion will be disturbed by the MICT Appeals Chamber on appeal, especially because the trial chambers are due some deference on their factual findings. (Not, again, that this will stop Bosniak nationalists from saying that the totality of the conflict was a genocide.)
On the Markale shelling, unlike in Karadzic, the Mladic Trial Chamber was unanimous that the shelling was perpetrated by Bosnian Serb forces. Reading through the judgment, it is clear that the defence strategy was to raise reasonable doubt as to the identity of the perpetrators by any means necessary. For that purpose it called a host of different factual and expert witnesses, virtually each of which had a different (conspiracy) theory as to what had actually happened. The Trial Chamber essentially demolished each of these witnesses in turn; perhaps the most amusing example (if a macabre one) was the testimony of defence expert Zorica Subotic who claimed that the shell that had hit the marketplace was planted on the scene rather than fired from Serb positions. Her basis for claiming so is that a particular piece of the shell could never be detached from it, but was found detached on the scene. This is what happened then (paras 2091-2092):
Subotić testified that the mortar shell that exploded at Markale Market was planted there. In this respect, the Trial Chamber observes with concern the lengths to which the witness was prepared to go to ‘prove’ that the evidence regarding the Markale market incident had been staged. One of the most disconcerting theories offered by the witness was her evidence that bodies at the scene of the explosion had been ‘staged’ or planted there for the occasion. This theory, besides falling squarely outside her area of expertise, rested on rampant speculation. … The witness’s basic claims were that (i) the mortar shell which hit Markale Market could not have fallen at the angle which other experts concluded it had, and (ii) that the tail fin of the mortar shell – also called the stabilizer – was planted at the Markale Market site after the explosion. The witness testified that she examined whether there were two stabilizers. The witness’s research on the Markale incident was based on examining photographs of the tail fin that was found at Markale Market and using a similar tail fin she had brought into court. On this basis, the witness drew her conclusions. The claim that the stabilizer was planted at the site was, in the witness’s opinion, supported by the fact that the mortar shell’s base charge could not by any kind of force before, during, or after the mortar shell exploded, be disconnected from the body of the stabilizer. To prove this point, the witness brought a stabilizer attached to base charge to court and stated that they could not be unscrewed from each other which, the witness claimed, was a technical matter not in dispute. When the charge was handed to the bench, the judges managed to unscrew the charge within a matter of seconds using a plastic ballpoint pen. For her research on the Markale incident, the witness used firing tables from 2001 and testified that she did not have firing tables from before that time. At the same time, the witness acknowledged that precise firing tables are essential to calculate matters such as a mortar’s velocity or its angle of descent.
And so forth. The judges found none of the evidence presented by the defence in this regard to be persuasive. Thus, 5 of the 6 ICTY trial judges who last looked at the matter thought that the shell was fired from Bosnian Serb positions. That should be good enough for anyone, but unfortunately it will not be so in the Balkans, where the conspiracy theories dispelled in the courtroom will continue to persist.
The International Criminal Tribunal for the Former Yugoslavia will tomorrow render its very final trial judgment, in one of its most important cases, that of Ratko Mladic, the commander of the army of the Bosnian Serbs during the conflict in Bosnia. As with the case of Radovan Karadzic, the wartime president of the Bosnian Serb republic, there are few unknowns in Mladic’s case – he will be convicted, and he will spend the remainder of his life in prison, whether his sentence is formally that of life imprisonment or not (for our coverage of the Karadzic judgment see here, here and here). Let me nonetheless address two of the remaining uncertainties, and one clear certainty.
The first count of the indictment charges Mladic with genocide in several Bosnian municipalities in 1992; the second charges him with genocide in Srebrenica in 1995. And it is on the former that Mladic actually has a realistic chance – even a likelihood – of being acquitted. This is exactly what happened with Karadzic, and the ICTY has ‘only’ been able to find genocide in Srebrenica, not in any of the other municipalities. This whole issue was also of great relevance to the botched attempt to revise the 2007 Bosnian Genocide judgment of the ICJ earlier this year. That said, while in the Karadzic case the Trial Chamber deciding on a rule 98 bis motion originally found that Karadzic could not be convicted of genocide in the municipalities by a reasonable trier of fact – a finding later reversed by the Appeals Chamber – in Mladic the Trial Chamber’s rule 98 bis decision found that the prosecution did, in fact, make it out its initial evidentiary burden (see here, at p. 24). The possibility thus remains that the Mladic and Karadzic trial chambers will disagree on the existence of genocide outside Srebrenica; that possibility is relatively low, but it is not zero. The whole thing will in any event receive its judicial epilogue before the Appeals Chamber of the MICT.
Secondly, one difficulty with the Karadzic judgment was the factual 2:1 divide among the judges regarding the first shelling of the Markale marketplace during the siege of Sarajevo. As I explained in my Karadzic post:
[W]hen it comes to the siege of Sarajevo the Trial Chamber confirmed the overall picture of the terrorization of the civilian population as established in the ICTY’s previous cases, such as Galic. There is however one politically very big issue here – the two shellings of the Markale marketplace in Sarajevo, on 5 February 1994 and 28 August 1995, in which dozens of people were killed and injured. The standard Bosniak narrative is that the marketplace was deliberately shelled by the Bosnian Serb army to terrorize the civilian population; the standard Serb narrative is that the shellings were done by the Bosniaks themselves in order to demonize the Serbs and provoke an international military response (which the latter one did). The Trial Chamber found (starting at p. 1662) that both incidents were perpetrated by Bosnian Serbs. However, Judge Baird dissented (p. 2542 et seq.) with respect to the 5 February 1994 incident, finding that there was reasonable doubt that the Bosnian Serbs did not commit the attack. Clearly this opens the door for Karadzic to appeal (rightly or wrongly), but even more importantly the division in the Trial Chamber reinforces the divided realities lived by the different communities in Bosnia as well.
It will be interesting to see what the Mladic Trial Chamber decides on these two attacks.
Finally, one thing that is absolutely certain is how the trial judgment will be received in the former Yugoslavia. Again, absent massive judicial aneurysms Mladic is going to be convicted; there is no conceivable reality in which he walks from the courtroom tomorrow morning as a free man. That conviction will not, however, persuade any ethnic Serbs in Bosnia or Serbia who previously believed in his innocence that he is in fact guilty; rather, they will treat the judgment as yet another example of a Western conspiracy against the Serbs. For example, a 2011 public survey of the Serbian population commissioned by the Belgrade Centre for Human Rights found that 55% of ethnic Serbs thought that Mladic was not guilty of the crimes he was charged with by the ICTY, only 17% felt that he was guilty, and 28% did not know or did not want to give their opinion. I have no reason to believe that these results would be any different if the poll was conducted today (if anything they are probably worse), or that the trial judgment convicting Mladic would change anyone’s views. Similarly, if Mladic is – like Karadzic – acquitted on count 1, genocide in the municipalities, the negative reaction among Bosniak nationalists and victim groups is similarly going to be quite predictable. (For more on this, see the series of articles I did on the impact of the ICTY and other criminal tribunals on local audiences – here, here and here).
That said, while the bottom line of the Mladic case is clear, there are bound to be various different legal and factual issues in the judgment that are worth exploring in more detail. We will have more coverage on the blog in the days to follow.
The ICC Prosecutor recently announced her decision to request an authorization to open a formal investigation into possible international crimes committed in connection with the conflict in Afghanistan. The outcome of her preliminary examination was long-awaited and expected to be significant because an investigation into the Afghanistan situation would cover all parties involved – that is, not only local actors but also the international coalition, including the US (US nationals would come under the jurisdiction of the Court if they committed crimes in Afghanistan or in any other State party to the Rome Statute).
The Prosecutor’s choice to subject some aspects of the Afghan conflict to judicial scrutiny despite the pressures deserves to be praised as an “act of bravery.” If the Pre-Trial Chamber authorizes this investigation, the road to justice will be long – many have already commented on possible issues of jurisdiction (e.g. here and here), admissibility (e.g. here and here), evidence-gathering and cooperation (e.g. here), etc. In this post, I want to focus on a potential effect of this announcement: the situation in Afghanistan may give the ICC an opportunity to weigh in on the debate over the global applicability of IHL. Fatou Bensouda intends to prosecute acts of torture committed in CIA detention facilities located in Europe, in connection with the armed conflict in Afghanistan, as war crimes. If she does, ICC judges will have to rule on whether IHL applied to those acts and hence more generally on whether IHL applies beyond the territory of a State where a non-international armed conflict (NIAC) is primarily taking place. The geographical scope of IHL remains one of the most vexing debates in international law (as was clear from a heated discussion on this blog and others, just a month ago) but the Afghanistan investigation may help highlight an overlooked aspect of it. Here is why. Read the rest of this entry…
On October 3, 2015, at 2:08a.m., a U.S. Special Operations AC-130 gunship attacked a Doctors Without Borders [Médecins Sans Frontières, MSF] hospital in Kunduz, Afghanistan, with heavy fire. Forty-two people were killed, mostly patients and hospital staff members. Dozens of others were injured, and the hospital building was severely damaged and subsequently closed. When the dust finally settled, the question that pre-occupied the press and most pundits was whether this was a war crime.
Attempts to answer this question prompted discussions about the relevant laws and their proper interpretation, which, in turn, fueled disputes about specific facts relevant to these laws. Recent news stories about the Trump administration’s plan to relax some of the battlefield rules further intensified the legal controversies. Unfortunately this focus on questions of law, guilt, and blame divert attention from the more basic questions of what actually happened, why it happened, and what might be done to prevent similar incidents in the future.
The attack on the Kunduz hospital and the controversy that followed it exemplify a broader phenomenon. Legal fact-finding reports set to resolve factual disputes often trigger more controversies, and are poorly equipped to mobilize domestic sanctioning and condemnation of war criminals by their societies. People are motivated to believe what they already know, and to reject facts that are inconsistent with their prior beliefs and political ideology. Legal fact-finding reports are susceptible to social biases just as any other source of information. Therefore, they often fail to create a shared understanding of ‘what happened’ or to combat denialism of crimes. They also lack the emotional appeal, participatory value, and social cues that moral expressions or other types of social truth-telling entail. Read the rest of this entry…