Two Cheers for the ICTY Popovic et al. Appeals Judgement: Some Words on the Interplay Between IHL and ICL

Two years ago, I criticised the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) seized of the Prosecutor v. Popovic et al. for incorrectly applying international humanitarian law (IHL). In a publication dealing with the challenging interplay between IHL and international criminal law (ICL), I referred to the Popovic et al. Trial Judgement as an example of “problematic rulings” that “qualify acts as crimes against humanity although they would be legitimate under IHL, thereby penalising the behaviour of warring parties in times of armed conflict, if such behaviour formed part of a larger, criminal plan”. Now, I am happy to note that the Appeals Chamber has set the IHL-record straight.

Friday, some 4.5 years after the rendering of the Trial Judgement, the Appeals Chamber rendered its long-awaited judgement in Prosecutor v. Popovic et al. The case concerned the take-over by the Bosnian-Serb army (VRS) of the Bosnian-Muslim enclaves Srebrenica and Zepa and the crimes committed by the VRS in the aftermath, including the (genocidal) murder of several thousand (the actual number was disputed) able-bodied Muslim men. Of the various ICTY cases dealing with these events, this multi-accused case was known as the “Srebrenica case”. Since the trial, one of the accused has passed away and another did not appeal his conviction. The remaining five men saw their convictions mostly upheld, bringing to a close this interesting case with accused from different components and various hierarchical levels of the Bosnian-Serb forces. Two life sentences, one 35-year sentence, and one 13-year sentence were affirmed. One sentence was reduced by one year to 18 years.

All in all, this is a good result for the Tribunal, which noted in its press release that this completes the ICTY’s largest case to date. But it is an especially good outcome for the Prosecution, as the convictions at trial were mostly upheld, with a couple of exceptions: First, two of Miletic’s appeals grounds were granted, leading to the one-year reduction of his sentence. (One of those two grounds will be discussed below.) Second, the Appeals Chamber overturned convictions for the notorious killing of six young men near Trnovo by the Scorpions Unit, well-known because of the shocking video portraying these killings. Like Judge Kwon at trial (dissent, paras 36-39), the Appeals Chamber found that, on the basis on the available information, no link could be established between the Scorpions Unit, and the joint criminal enterprise (JCE) of which the accused formed part (AJ, para. 1069). However, most of the Defence’s grounds of appeal were dismissed.

Moreover, the Prosecution saw several of its own grounds granted, and it will probably be most satisfied with the consolidation of the Appeals Chamber’s latest approach to specific direction. The Appeals Chamber “recalled” its finding in Sainovic et al. that “‘specific direction’ is not an element of aiding and abetting liability under customary international law” (AJ, para. 1758), which will make most of us happy (though not all: here). In his partial dissent, Judge Niang noted that this mere recalling is ambiguous, as “the recent Tribunal case law is not conclusive as to any exclusive epithet when defining ‘aiding and abetting’” (para. 23). The current judgment nonetheless helps by clearly stepping away from the standard espoused by the (differently composed) Appeals Chamber in its infamous ruling in Perisic (discussed here and here). It also offers the Prosecution a promising perspective for the appeal in Stanisic and Simatovic, a case against the former head and deputy of the Serbian secret service, who were acquitted in in 2013, amongst other things of their responsibility for the Trnovo killings. Their acquittal was in part a result of the application of the Perisic standard on specific direction.

Those who have previously been engaged in intense debates on the specific direction question (such as here and here) will no doubt address this aspect of the judgement. I want to focus on another positive aspect of it (which is not to say that there are only positive aspects).

The Popovic et al. Trial Judgement had much going for it, not least the Trial Chamber’s accomplishment of comprehensively dealing with a case involving seven accused, 315 witnesses, and charges for all three crimes within the Tribunal’s jurisdiction (i.e. genocide, crimes against humanity (CAH) and war crimes) in only 838 pages (including sentencing!) – a truly unique achievement in international criminal law (ICL). Be that as it may, the Trial Judgment did include a rather concerning finding with respect to international humanitarian law (IHL). In a publication dealing with the challenging interplay between IHL and ICL, I criticised the Trial Chamber for incorrectly applying international humanitarian law (IHL), referring to it as an example of “problematic rulings” that “qualify acts as crimes against humanity although they would be legitimate under IHL”, because the acts formed part of an alleged larger, criminal plan. It is satisfying to see that the Appeals Chamber has now set the IHL-record straight.

The Trial Chamber had found the accused guilty of the crime against humanity of forcible transfer as an inhumane act with respect to the retreat of Bosnian-Muslim ABiH soldiers, who after defending Zepa, swam across the Drina River (into Serbia) upon the advance of the VRS. It held:

“As for the military and those participating in hostilities, […] [t]he Trial Chamber is satisfied that, by 24 July 1995, these men would have been well aware of the reports of mass killing after the fall of Srebrenica. Their decision to flee cannot be categorised as a strategic one taken in military terms. Simply, they fled the enclave in fear for their lives. That the majority chose to escape to Serbia to face surrender and detention as POWs evidences their desperation. […] (TJ, para. 956)”

 In my critique, I wrote at the time that:

“during wartime, forcing the enemy to retreat across frontlines or state borders is perfectly legal, and is in fact one of the goals of waging war. [A goal that has also been recognised in IHL given the fact that the forced movement of civilians across state borders is a violation of IHL (e.g. Article 49 of the Fourth Geneva Convention of 1949), whilst the forced movement of combatants during active hostilities, as well as when combatants are made POWs, is in conformity with IHL and, at times, even an obligation under these rules (e.g. Articles 19 and 111 of the Third Geneva Convention of 1949. It has also been recognised by the ICTY that POWs cannot be forcibly transferred or deported: Stakic Appeal Judgement, para. 284 and Mrksic and Sljivancanin Appeals Judgement, para. 458)]. That retreating was exactly what the Bosnian-Muslims planned to do is demonstrated by the evidence presented before the Chamber in the form of a report by the ABiH general army staff, according to which ‘there were about 1260 soldiers and 250 able-bodied civilians in Zepa, as well as 650 soldiers from Srebrenica. Up to date, 163 soldiers have arrived in the free territory of Kladanj, whereas 14 soldiers have arrived in the area of responsibility of the 81st Army Division [in] Gorazde. Around 1000 soldiers are still in the mountains around Zepa and are waiting for favourable conditions for retreating.’ (TJ, para. 736)

[Fleeing combatants remain legitimate military targets as long as they have not surrendered or otherwise fallen hors de combat]. If the VRS would have been allowed under IHL to attack and kill any member of the ABiH whilst the latter were defending Zepa, and moreover, when they were fleeing across the Drina, how, then, can a crime have been committed if these persons were not shot and survived their retreat? This discrepancy between what appears to be a legitimate military action under IHL and criminal liability under ICL lies in the fact that the forcible transfer, for which the accused were found guilty, was charged and found to have constituted a crime against humanity.” (Bartels, pp 367-368; relevant footnotes included in brackets)

The indictment had alleged a JCE, the purpose of which, inter alia, was ‘to force the Muslim populations of Srebrenica and Zepa to leave the area’ (Rev.Sec.Am. Indictment, para. 72), in the course of which war crimes, CAH and genocide were alleged to have been committed. Charges for these different types of crimes do not always sit easy besides each other. The Prosecution had submitted that the accused carried out several actions in pursuit of this JCE, one of which was ‘defeating the Muslim forces militarily’. However, IHL does not prohibit the military defeat of the enemy by parties to a conflict. Some of the allegations seem to be in line with this legitimate goal under IHL: Miletic, for example, was charged with having contributed to the military defeat of the Muslim forces by having “monitored the state of the Muslim forces before, during and after the attacks on Srebrenica and Zepa and communicated this information to his superiors […] and subordinate units”. (Rev.Sec.Am. Indictment, para. 75) The Prosecution’s approach becomes nonetheless understandable, considering that “one of the main objectives of the attack was to force the Muslim population to leave the Srebrenica and Zepa enclaves”. (ibid, para. 77)

Miletic appealed his conviction for forcible transfer of ABiH soldiers, submitting that “the acts against these men were not a part of the attack on the civilian population and cannot constitute a crime against humanity” (AJ, para. 768). To its credit, the Prosecution had not opposed this ground of appeal, agreeing that he should be acquitted on this point. Moreover, it had put forward that “the Trial Chamber failed to consider that forcing the combatants from the Zepa enclave was lawful under international humanitarian law” (AJ, para. 769).

The Appeals Chamber agreed with both and used the opportunity to set the IHL record straight. Although it recalled “that there is no requirement nor is it an element of a crime against humanity that the victims of the underlying crime be civilians or predominantly civilians, provided the acts form part of a widespread or systematic attack directed against a civilian population” (AJ, para. 773), it noted that “[i]n the case of the men who crossed the Drina River, it is unclear from the Trial Chamber’s findings whether these men included any civilians at all” (ibid). In that light, and because there was a week between the departure of the civilian population from Zepa and the moment that the alleged victims of forcible transfer swam across the Drina River, the Appeals Chamber found that the nexus requirement for crimes against humanity that “the commission of an act which, by its nature or consequences, is objectively part of the attack” was not met (AJ, para. 774). Consequently, it found that the Trial Chamber erred. Although it could have left it there, importantly for the purposes of the present post, the Appeals Chamber added:

“While remaining cognisant of the fact that Miletić was convicted for forcible transfer as a crime against humanity, not as a war crime, the Appeals Chamber further notes that forcible displacement of enemy soldiers is not prohibited under international humanitarian law.” (ibid, in the fn referring to commentary on Rule 129 of the ICRC’s Customary IHL Study)

The Appeals Chamber thus corrected the Tribunal’s case law on this issue.  However, whilst it explicitly noted the difference between CAH and war crimes, it left somewhat open the question what happens in case of conduct that would be lawful under IHL, but potentially qualifies as a CAH.

Given the nature of the cases on the international level, IHL inevitably is used for trials dealing with situations this body of law was not originally meant to cover. Prosecution for CAH may need to address conduct that due to gaps in war crimes law would otherwise go unpunished (on the international level). However, a focus limited to the alleged criminality of certain acts, combined with the (honest) desire to counter impunity, risks creating case law that can be interpreted as demanding stricter battlefield behaviour than current IHL treaty and customary rules do. Even a line of reasoning that may be understandable in the factual circumstances of a given case may, when abstracted, upset the balance between military necessity and humanitarian considerations on which IHL is based. International judges therefore need to be aware of the impact their findings can have on IHL, and thus the reality that soldiers, whose conduct in times of armed conflict is guided by this law, have to work in. Just as important is to always read such findings in their proper ICL context (ie, as part of criminal trials against a specific accused in a specific situation), so as to leave the protection afforded by IHL intact. It is undesirable to create (an interpretation of the) law that is too strict, causing it to become ‘unworkable’ and unable to serve its very purpose: the regulation of warfare.