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Home International Tribunals Archive for category "International Criminal Tribunal for the Former Yugoslavia"

ICTY Due to Render Mladic Trial Judgment

Published on November 21, 2017        Author: 

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.

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The ‘Command Responsibility’ Controversy in Colombia

Published on March 15, 2017        Author: 

The peace agreement between the Colombian government and the Revolutionary Armed Forces of Colombia (FARC) guerrillas has led to complex legal debates. One key controversy has stood out as legislation to carry out the agreement moved forward: the “command responsibility” definition the Special Jurisdiction for Peace —the judicial system created as part of the peace talks— will apply to try army and FARC commanders.

This is not just a technical issue. Applying a definition consistent with international law will play a key role in ensuring meaningful accountability for army and FARC commanders’ war crimes during their 52-year conflict. The issue has been part of a key debate in Colombia about how to hold officers accountable for so-called “false positive” killings.

Government forces are reported to have committed over 3,000 such killings between 2002 and 2008. In these situations, soldiers lured civilians, killed them, placed weapons on their bodies, and reported them as enemy combatants killed in action. At least 14 generals remain under investigation for these crimes.

Unfortunately, for now, this debate has been resolved in the wrong direction: on March 13, the Colombian Congress passed a constitutional reform containing a “command responsibility” definition for army officers that is inconsistent with international law. This post reviews the background and lead-up to this development.

Command Responsibility in the Original Peace Accord

The parties first announced an “agreement on the victims of the conflict” in December 2015. The agreement included “command responsibility” as a mode of liability for the Special Jurisdiction for Peace in two identical provisions, one applicable to army commanders and the other to the FARC:

Commanders’ responsibility for acts committed by their subordinates must be based on the effective control over the respective conduct, on the knowledge based on the information at their disposal before, during and after the commission of the respective conduct, as well as on the means at his reach to prevent it and, if it has already occurred, promote the relevant investigations (my translation).

Human Rights Watch, the organization where I work, expressed concern that the definition could be interpreted in a manner inconsistent with international law.

Mens rea. As Kai Ambos has recently noted, the mens rea requirement in the definition was unclear. Under international law, including article 28 of the Rome Statute, a commander’s knowledge of crimes committed by their subordinates may be either actual or constructive —that is the commander knew or had reason to know. The definition in the 2015 agreement did not explicitly include a reference to constructive knowledge. This raised questions as to whether it was meant to be included or not.

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The Strangest ICJ Case Got Even Stranger, Or the Revision That Wasn’t

Published on March 13, 2017        Author: 

As Dapo explains in his post from this morning, the President of the International Court of Justice last week sent what was probably one of the weirdest letters to a government (and one of the weirdest related press releases) in its history, and it is only appropriate that it pertains to one of the Court’s strangest cases. The Court essentially dismissed in limine an attempt to make an application to institute proceedings for the revision of the 2007 Bosnian Genocide judgment, finding that the application was not made by an authorized state representative.

In a 2008 article, the late Vojin Dimtrijevic and I wrote about the strange story of the Bosnian Genocide case, a case which was more than any other, from its very beginning, subservient to its political context. It was a case pursued by a changing applicant against a changing respondent before a changing Court. It was a case which one part of the applicant state actively tried to subvert, which all segments of the political elite constantly miscast and misinterpreted, which witnessed some truly unprecedented procedural manoeuvres, and which was indeed from the Bosnian side not even funded from the state budget. So many hopes were pinned on it, that when the ultimately completely predictable and underwhelming, jurisdictionally severely constrained judgment was handed down, it was perceived by most Bosniaks as a massive disappointment and by most Serbs as a kind of exoneration, despite the finding of a violation of Article 1 of the Genocide Convention by Serbia. Today, after the Court’s swift termination of the revision application and the lapse of the time-limits for any further application, the case has gone away with finality, if only with a whimper.

Over on Just Security, David Scheffer, the ranking international expert in the revision team appointed by the Bosniak leader, Mr Izetbegovic, purports to explain to an equally expert audience ‘some realities’ behind the revision request. In so doing, he calls the President’s letter and a previous letter by the Registrar ‘shallow exercises that fail to explain the legal reasoning of their conclusions,’ and concludes that ‘History will not look kindly on the ICJ’s decision to reject the Application for Revision.’

Oh, please; history, humbug. History really won’t care one whit about this whole episode, which after a few days even the Bosnian and Serbian media won’t be writing about. And while I myself normally wouldn’t write critical comments about cases which I litigated and lost, or engage in debates with people who conversely think that it is sensible to do so, this kind of self-righteous, pontificating pooh-poohing of the ICJ is something I feel compelled to respond to. Here are, to quote Mr Scheffer, some (very hard) realities about this whole episode.

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Post-Truth and International Criminal Tribunals

Published on February 20, 2017        Author: 

With all the daily going-ons of our new era of resurgent populist nationalism, it’s no wonder that concepts such as ‘post-truth’ and ‘alternative facts’ are so very much en vogue, or that Orwell’s 1984 and other dystopian classics are once more hitting the best-seller lists. But the sad truth is that there’s nothing really new about ‘post-truth’, except that it is today afflicting developed, democratic societies that until now did not experience the phenomenon, or at least did not experience it in full force.

Trump photographed at Mar a Lago with Japanese Prime Minister Shinzo Abe during the news of North Korean missile launch. Photograph: Erika Bain. Source: https://www.theguardian.com/us-news/2017/feb/13/mar-a-lago-north-korea-missile-crisis-trump-national-security#img-2

Nor did post-truth start in these societies just out of the blue – it was preceded by decades of democratic de-norming, institutional erosion, increasing polarization and identity politics (think, for example, of how climate change became a point of polarized partisan politics in the US, or of the distorting power and influence of the (mainly right-wing) tabloid press in the UK).

Even in democracies politicians are not a species generally known for its love of the truth. It is no wonder then that in a favourable climate a sub-species of particularly cynical manipulators who are either ready to routinely lie outright or are just simply indifferent to the truth will emerge. Coupled with the natural inclination of the human mind to evaluate evidence in a biased way and to reason about it in a way that confirms pre-existing beliefs and protects one’s sense of identity, in much (most?) of the world post-truth politics are the rule, rather than the exception. Trump may be the most important exponent of the current wave of mendacious populism, but he is hardly avant-garde. For decades now, for example, many of the Balkan states have experienced their own ego-maniacal, soft-authoritarian mini-Trumps, and let’s not even mention all of the Putins, Dutertes and Erdogans out there.

Which brings me to my point. Post-truth and alternative facts have historically been perfectly standard when it comes to inter-group conflicts, especially in societies which are not genuinely pluralist. Pick any random group conflict in the world, and you are likely to find that each group lives and breaths its own particular truth. In our international legal community, many have thought that it is the role of international criminal courts and tribunals to generate the ‘real’ truths that will eventually garner acceptance in societies riven by conflict. Unfortunately, however, there is little evidence that such truth-generating potential is anything but theoretical.

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Understanding the ICTY’s Impact in the Former Yugoslavia

Published on April 11, 2016        Author: 

As a follow-up to the ICTY extravaganza we’ve had on the blog in the past few weeks, I wanted to post about two companion articles I recently put on SSRN that readers might find of interest. The first is ‘The Impact of the ICTY on the Former Yugoslavia: An Anticipatory Post-Mortem’, and it is forthcoming in the American Journal of International Law; the second is ‘Establishing the Facts About Mass Atrocities: Accounting for the Failure of the ICTY to Persuade Target Audiences,’ and it will be published in the Georgetown Journal of International Law.

The AJIL piece looks at whether the ICTY managed to persuade target populations that the findings in its judgments are true. To answer that question, foundational for transitional justice processes, the article discusses the findings of a series of public opinion surveys in Serbia, Croatia, Bosnia (designed by the Belgrade Centre for Human Rights, sponsored by the OSCE and conducted by Ipsos – detailed charts, mostly in Serbo-Croatian but some in English, are available here) and Kosovo (sponsored by the UNDP and conducted by a local polling agency, here and here).

The detail and amount of data obtained through these surveys provide an unprecedented level of insight into the reception of factual determinations by international criminal tribunals by target audiences. The surveys show that denialism and revisionism are rampant in the former Yugoslavia. For example, twenty years on, barely one-fifth of the Bosnian Serb population believe that any crime (let alone genocide) happened in Srebrenica, while two-fifths say that they never even heard of any such crime. The acceptance levels for many other serious crimes are in the single digits. They also demonstrate a strong relationship between the respondents’ ethnicity, their perception of the ICTY’s bias against members of their own group, and their distrust in the ICTY and in its findings, which increases the more the ICTY challenges the group’s dominant internal narratives.

Survey findings

This is, for example, how divided realities look like in today’s Bosnia (BiH Muslim/Croat Federation results on top; Republika Srpska at the bottom) – note that these are some of the most serious crimes committed in the Bosnian conflict, all of them addressed in major ICTY cases:

image001

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The Sorry Acquittal of Vojislav Seselj

Published on April 4, 2016        Author: 

Last week a Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia acquitted Vojislav Seselj, an ultra-nationalist Serb politician, for crimes committed in Croatia, Bosnia and even Serbia itself. It did so by 2 votes to 1. Readers will already be familiar with the disaster that was the Seselj trial, which is now further compounded by the judicial fiasco that is the trial judgment. Fiasco is in fact the word used by the presiding French judge, Jean-Claude Antonetti, to describe the case in the conclusion of his profoundly dilettantish 500-page concurring opinion. This concurrence is a perfect sequel to his equally unreadable 600-page doozy in the Prlic case, and he uses it to blame everybody but himself for everything that went wrong in the case which is, well, everything. The judgment (in French) is here, as is the dissenting opinion of Judge Lattanzi (‘dissenting’ is not a strong enough word, as she herself says); the summaries of the judgment and the dissent in English are here and here.

Corax, Danas 4.4.2016.

There are so many problems with this judgment that it’s hard to know where to start, so let me paint you the big picture. The main issue is not with the acquittal, which may or may not be the appropriate result, but with how that result was reached. The entire judgment is a reductionist dismissal of the case presented by the prosecution, which is always taken as ungenerously as is humanly possible, while at the same time castigating the prosecution (without any hint of self-irony) for presenting a reductionist version of the complex reality of the wars of the dissolution of the former Yugoslavia.

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Karadzic’s Genocidal Intent as the “Only Reasonable Inference”?

Published on April 1, 2016        Author: 

As a follow-up to Marko Milanovic’s excellent post, I have some further comments on the recent Karadzic judgment, especially on the Trial Chamber’s bifurcated approach to the two genocide charges (acquittal re the municipalities joint criminal enterprise [JCE] and conviction re the Srebrencia JCE, see paras. 2571 et seq. and 5655 et seq. respectively). Before turning to the concrete points, I must present a caveat and a general commentary on the evidentiary standard.

The caveat refers to the quite delicate position of an academic commentator when analysing a trial judgment. Being myself a trial judge (albeit only in my second profession as the majority of my time is dedicated to my academic work) in a procedural system where the actual trial, governed by the principles of orality and immediacy, is considered the height of the proceedings, I am aware that nothing can substitute the direct impressions taken from the actual trial hearings, especially regarding the oral and immediate presentation of evidence. The academic commentator is more in the position of a judge at the appeal stage, in the sense of the French cassation or the German Revision, where the ensuing legal review of the trial court’s sentence is essentially based on the critical legal analysis of this court’s written judgment. Thus, my comments are the mere product of a critical reading of the respective parts of the Karadzic trial judgment, further limited by the natural margin of deference to be given to any trial court, and the restrictive ‘reasonable trier of fact’ appeal standard of international criminal proceedings.

This brings me to the evidentiary standard with regard to the proof of the subjective element (mens rea) of criminal law offences captured in the old Roman maxim, dolus ex re, i.e. the intent (mental element) (is to be) inferred from the external circumstances of the objective act (actus reus). This is nothing other than the modern indirect or circumstantial evidence which has taken centre stage in international criminal proceedings, especially as regards the proof of the special intent to destroy a protected group in the crime of genocide (paras. 550, 5825). Indeed, the whole genocidal case against Karadzic is based on circumstantial evidence, defined by the Chamber, referring to settled case law, as “evidence of a number of different circumstances surrounding an event from which a fact at issue may be reasonably inferred” (para. 14) and, in addition, requiring a highly demanding ‘only reasonable inference’ standard (paras. 10, 14). In concrete terms, this entails a double evidentiary test as the trial chamber must first be convinced that a certain inference is the only reasonable one and second, that all reasonable inferences taken together – as the totality of (indirect) evidence – prove beyond reasonable doubt the respective mental element and thus, ultimately, the guilt of the accused.

Let us now turn to my concrete queries. Read the rest of this entry…

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ICTY Convicts Radovan Karadzic

Published on March 25, 2016        Author: 

Yesterday the ICTY Trial Chamber convicted Radovan Karadzic, the wartime political leader of the Bosnian Serbs, for numerous crimes committed during the conflict and sentenced him to 40 years imprisonment. The (mammoth) trial judgment is here, standing at 2615 pages that not even Karadzic’s lawyers will read as a whole; the more accessible summary is here.

The end result is basically as I predicted it will be a couple of days ago – Karadzic got acquitted for genocide in Bosnian municipalities other than Srebrenica, and got convicted for everything else, including the Srebrenica genocide. The sentence is effectively life; he could be eligible for provisional release after serving 2/3 of his sentence, which would (counting the 7 years and 8 months he already spent in detention) mean he would have to spend some 19 more years in prison – but if he lives into his nineties he may get provisionally released, assuming of course that the sentence is affirmed on appeal and that he does not eventually get released on compassionate grounds.

On the vast majority of issues the Trial Chamber was unanimous (I’ll come to points of dissent later on), and that is a very good thing. All in all the judgment is basically exactly what it should have been, although the political reactions in the region are also exactly what one might have expected – while many Bosniaks welcomed the conviction they also decried the acquittal for genocide outside Srebrenica, whereas the current Bosnian Serb president has decried the judgment as yet another example of the ICTY’s anti-Serb bias. So far so predictable. That said, I will spend the remainder of this post on looking at some of the more interesting parts of the judgment, based on a very quick skim read.

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ICTY Karadzic and Seselj Trial Judgments Due

Published on March 21, 2016        Author: 

This International Criminal Tribunal for the Former Yugoslavia is due to pronounce its trial judgments in two important cases, against Radovan Karadzic, the former political leader of the Bosnian Serbs, on Thursday 24 March, and against Vojislav Seselj, the ultra-nationalist leader of the Serbian Radical Party, on 31 March. The Karadzic case is of course more important by far than the Seselj one, with (since Milosevic’s passing) Karadzic being the highest-ranked defendant with respect to atrocities committed during the Bosnian war. For our earlier coverage of the two cases, see here and here.

As I’ve recently explained elsewhere, the outcome of the Karadzic case is hardly in doubt – he will be convicted. The only question is what exactly for. He will also get a very long sentence, which will because of his age be tantamount to life imprisonment even if he doesn’t get that formally. Karadzic’s legal advisor, the excellent Peter Robinson (whom we’ve had in Nottingham last week for a seminar), is quite open about getting ready for an appeal (see Guardian report here). There is, in other words, not all that much suspense about what’s going to happen come Thursday, and the political reactions to the conviction in the former Yugoslavia are also equally predictable.

That said, what are the points to watch for in the judgment which may be of some genuine novelty? First, unlike with the crime base, which was already clarified in numerous ICTY judgments, it will be interesting to see what the Trial Chamber finds with respect to Karadzic’s individual guilt – what did he exactly know and when, what did he intend, and what specific joint criminal enterprise (JCE) was he a part of? This will be of particular relevance to the 1995 Srebrenica genocide – Karadzic certainly didn’t do anything to punish the perpetrators after the fact, but it’s important to see (or what the prosecution was able to prove about) what he knew  before the genocide started and while it was underway.

Second, Karadzic is charged with genocide not only in Srebrenica, but also in several other Bosnian municipalities, as is the Bosnian Serb general, Ratko Mladic, whose trial is still underway. In other cases the ICTY could find genocide ‘only’ in Srebrenica, with atrocities elsewhere being qualified as war crimes or crimes against humanity. This Trial Chamber has actually already found that the prosecution wasn’t able to meet the burden of proving genocide outside Srebrenica after a rule 98bis ‘no case to answer’ motion upon the conclusion of the prosecution’s case. This decision was later reversed on appeal, but it seems unlikely that the same Trial Chamber will find genocide to have now been proven to the higher beyond a reasonable doubt standard, except in Srebrenica. The Chamber’s finding will however be of great political relevance in the region, because of the particular corrosive potency of the word genocide and its impact on the competitive victimhood of the various groups, and will also be of relevance for the Mladic case. While I therefore expect acquittal for genocide in non-Srebrenica municipalities, it remains to be seen whether that will survive an appeal before the Mechanism, where the whole thing will be revisited.

Finally, as for Seselj the outcome there is far less certain, but expecting a conviction that would cover the time he already spent in detention would not be unreasonable. That case is more notable for its disastrous mismanagement and the consequent public relations nightmare than for anything else. Seselj is now in Serbia and has refused to go back to the Hague for the pronouncement of the judgment. The Serbian authorities (led by his erstwhile party comrades) similarly refused (if with a bit more diplomatic obfuscation) to arrest him and send him to the ICTY, because of the damage this could cause them in an election year. Three of Seselj’s advisers have been charged with contempt by the ICTY and they too have not been sent to the Hague, for the same basic reason. The Serbian authorities are essentially exploiting the ICTY’s impending closure and betting (probably correctly) that this lack of cooperation will not cause them significant political problems internationally.

An interesting couple of weeks ahead for the Tribunal – we will have more coverage as the events unfold.

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ICTY Appeals Chamber Reverses Stanisic and Simatovic Acquittal, Orders Retrial, Kills Off Specific Direction (Again!)

Published on December 15, 2015        Author: 

Today the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia quashed the acquittal at trial of Jovica Stanisic and Franko Simatovic, the former head and deputy head of the Serbian secret police during the Milosevic regime, for crimes committed in Bosnia and Croatia. This is a big deal – S&S is the only remaining case tying the leadership of Serbia with crimes committed by Bosnian and Croatian Serbs. The trial judgment (itself delivered by a majority) was quashed on two grounds: that the Trial Chamber failed to properly reason its decision regarding the participation of the accused in a joint criminal enterprise, in particular because it could not analyse their mens rea without determining the actus reus of the JCE, and because it committed an error of law regarding the actus reus of aiding and abetting liability. (Appeals judgment here, press release and summary here.)

This latter point is one that will be familiar to our readers, as it is the (final?) nail in the coffin for the whole specific direction saga that we extensively covered on the blog (see here and here). As I explained in my earlier post, the ICTY Appeals Chamber went through an episode of self-fragmentation, with the Sainovic AC overruling the Perisic AC’s finding that specific direction was an element of the actus reus of aiding and abetting. As I also explained in that post, the outcome of S&S with respect to the specific direction point would essentially be determined by the composition of the Appeals Chamber in that case. That’s exactly what happened, with the S&S AC upholding the Sainovic rejection of specific direction by 3 votes to 2. The three votes in the majority were all judges who formed the Sainovic AC majority (Pocar, Liu, Ramaroson), while of the two judges in dissent one (Agius) was in the Perisic majority and the other (Afande) was not involved in the prior cases, and was hence the only unknown quantity.

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