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Public Opinion Survey in Serbia Sheds Light on ICTY Legacy

Published on January 22, 2018        Author: 
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In anticipation of the closing of the ICTY, there has been plenty of discussion, including at EJIL: Talk! (see here), on the court’s impact in the former Yugoslavia, particularly relating to the public’s acceptance of ICTY findings and reconciliation. I’d like to contribute to this discussion with findings from the most recent public opinion survey conducted in Serbia – published in December 2017 (“Awareness of citizens of Serbia about the wars of the ‘90s, war crimes and war crimes trials” designed by the Humanitarian Law Center, commissioned by the Serbian daily Danas and conducted by Demostat – available only in Serbian here).

The latest survey mostly confirms what we already know from those previously conducted – revisionism and denialism are prevalent, and ethnic bias is entrenched – but it also provides additional information about these phenomena.

Revisionism and denialism

The latest survey confirms that there is overwhelming public distrust in the ICTY and its findings. For example, 56% of the respondents find the ICTY to be partial and biased, while only 6% believe the opposite. Almost half of the respondents consider that the ICTY didn’t contribute in any way to establishing the truth about the wars (p. 17). In line with the findings from earlier surveys, only 12% believe that what happened in Srebrenica is as established in ICTY judgments, while the ignorance pertaining to other ICTY-adjudicated crimes is even greater (e.g. regarding Ovčara 64% don’t know what happened, for the siege of Sarajevo it is 71%, for mass graves in Serbia 83%).

Serbia, through its highest officials, has a long record of refusing to accept findings made by the ICTY, particularly relating to the Srebrenica genocide. In 2015, upon Serbia’s request, Russia vetoed a Security Council resolution intending to mark the 20th anniversary of the genocide. Most recently, the Serbian Parliament amended its Criminal Code, supposedly in order to align it with the EU acquis, and criminalized the public denial of genocide but – and here’s the twist – did so only if the crime has been established by Serbian courts or the ICC. The amendment does not include the ICTY or ICJ – the only two courts which have adjudicated on the Srebrenica genocide. Read the rest of this entry…

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The Possibility of Disclosing Findings After a Detainee Dies in International Criminal Proceedings

Published on December 21, 2017        Author: 
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International criminal courts and tribunals have no jurisdiction over the dead. Such courts make factual findings that have reputational implications for those who have died, but the dead are not parties to a case. They cannot be bound by the power of a court. A trial chamber or appeals chamber that attempts to exercise jurisdiction over the dead is acting ultra vires.

The possibility of death before the issuing of the final appeal judgment is a particular problem in leadership trials. The accused are more likely to be older. Such trials are expected to take longer. They are inevitably stressful. These are structural problems that can be managed, but not eliminated.

In a trial where all the evidence has been submitted, a great deal of effort and expense has already gone into the trial even before the trial judgment is issued. In a single-accused trial, should the accused die before the trial judgment is issued, there is a sense in which this effort is wasted. No trial judgment can be issued. Bench memoranda and internal drafts are left unpublished. The machinery simply stops. Given the low level of proof required, any confirmation of charges or (at the ICTY) Article 98 bis decision does little to settle the disputes of fact and law that may have been at least partially resolved by a trial judgment. A similar situation might apply in a appeals process halted by the death of a detainee. The issues certified for appeal cannot be resolved by the appeals chamber if the appeals chamber lacks jurisdiction to do so. Similarly, proceedings may be stopped at a any stage if the accused is no longer competent to stand trial (e.g. Ieng Thirith).

What should be done? Trials should be quicker, which could be facilitated by limiting sprawling indictments and allowing more evidence to be submitted on paper rather than via viva voce testimony. The health and security of the detainees should be guarded and protected to the greatest degree possible, a point to which I will return. The general concerns for a speedy trial and the well-being of detainees are obvious, uncontroversial, and even banal, but should be addressed with more urgency than in the past. Read the rest of this entry…

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An Eventful Day in The Hague: Channeling Socrates and Goering

Published on November 30, 2017        Author: 
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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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Some Thoughts on the Mladic Judgment

Published on November 27, 2017        Author: 
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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.

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ICTY Due to Render Mladic Trial Judgment

Published on November 21, 2017        Author: 
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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: 
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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: 
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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: 
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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: 
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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: 
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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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