Yesterday, I published my thoughts on the 3 February ICJ Judgment in the Croatia v. Serbia Genocide case. I had initially planned to propose a few short concluding views on Judge Cancado Trindade dissenting opinion, but this proved unrealistic, given its length, and it certainly “deserves” its own post.
The dissent, which was to be expected, did not dissapoint. In a marginally shorter opinion than the actual judgment, the Brazilian judge expands his now predictable own view of international law as based on the principle of Humanity.
I doubt, as many before me (see notably Marko Milanovic here), the efficiency of these long rambling dissents, frankly badly written in parts, sometimes repetitive, where legal points are laced with philosophical musings and extensive literary quotes. In fact, I don’t how it didn’t strike me before, but reading the dissent here, I had the impression of reading some of Seselj’s motions at the ICTY (and for those unfamiliar with those, this is definitely not a compliment…).
Beyond my own predictable general disagreement with the Judge’s views, approach to law and methodology, I want to focus here on how he addresses the question of specific intent and how one proves it.
- The “object” of the Genocide Convention as a justification for a lower evidentiary threshold
Cancado Trindade of course disagrees with what he considers to be too high a threshold put forward by the majority on the proof of the mental element of genocide (he does this in two different parts of the dissent (125-148 and 460-471), which is one example of how the document could have been shortened…).
He relies on the case law of the ad hoc tribunals where intent was inferred from a number of circumstantial factors to make his point, and unoriginally refers to the object of fighting impunity of the Genocide Convention to justify a lower threshold (§143).
I’m not sure I agree with Judge Cancado Trindade. I’ve always found that the “object and purpose” approach to interpretation in human rights and ICL has been shorthand for judges to make texts say something that they do not actually say, based on “superior” moral considerations and I find that disturbing (see below). Moreover, from a deontological perspective, you could also argue that the moral stigma attached to a finding of genocide means that we should be very cautious in making such a finding, rather than the reverse.
On the other hand, I can see how civil proceedings such as those before the ICJ could warrant a somewhat lower standard of evidence than in a criminal court, which would justify perhaps the Judge’s approach to inference.
So I think that on that level, there is somewhat of an argument to be made both ways. Where I part ways completely is on the other justification that he gives for disagreeing with the majority.
- Standards of proof as an unacceptable “diktat”
This is what Judge Cancado Trindade has to say about this, and it is worth quoting more or less in full (§468-470):
The Court cannot simply say […] that there has been no intent to destroy, in the atrocities perpetrated, just because it says so. This is a Diktat, not a proper handling of evidence. This Diktat goes against the voluminous evidence of the material element of actus reus under the Convention against Genocide (Article II), wherefrom the intent to destroy can be inferred. This Diktat is unsustainable, it is nothing but a petitio principii militating against the proper exercise of the international judicial function. Summum jus, summa injuria. Mens rea, the dolus specialis, can only be inferred, from a number of factors.
In my understanding, evidential assessments cannot prescind from axiological concerns. Human values are always present, as acknowledged by the historical emergence of the principle, in process, of the conviction intime (livre convencimento / libre convencimiento / libero convincimento) of the judge. Facts and values come together, in evidential assessments. The inference of mens rea / dolus specialis, for the determination of responsibility for genocide, is undertaken as from the conviction intime of each judge, as from human conscience.
Ultimately, conscience stands above, and speaks higher than, any wilful Diktat.
I don’t want to misinterpret a Judge’s words, but the bottom line of what he is saying seems to be that a judge ultimately decides a case based on his own morality. Now some of you will say: “what’s the big deal, we all know that to be what happens!”, and in some sense, you would be right. But, it is very well for us to say that, as commentators, I find it somewhat scandalous that a sitting judge says it in a judicial opinion. INdeed, Judge Trindade is essentially negating the whole idea of standards of proof, burdens of proof, or even procedure, with everything, including the assessment of facts being dependent on the conscience of the judge. In other words, it is natural justice at its most extreme… and its most worrying. L’ “intime conviction” of the judge is not a license for him to do what he wants with a case, it operates within a particular legal and procedural framework which cannot simply be ignored on the basis of “human conscience”.
What annoys me most about this kind of discourse is that it seems to oppose the “axiological” “diktats” of procedure and substantive justice. But this is so narrow minded. Procedure is a moral choice as well! What distinguishes democracies from dictatorship is not the prohibition of such and such conduct, it is the guarantees (procedures!) put in place to determine responsibility. It is exactly to protect people from the “conscience of judges” and their arbitrary (or religious, which is the same) moral judgements that societies fought to get safeguards that are at the heart of our procedure. Standards of proof are one of those: it is unfair to make someone pay (or send him to jail) if you have not proven what he has done. Of course, we can discuss the correct standard to adopt, but we cannot just negate all of them as “diktats”! Indeed, the Spanish Inquisition was also natural justice at its best, where a deep sense of “doing the right thing” trumps any other consideration. The French Terreur was done in the name of Universal Rights.Those experiences turned out just peachy for everyone involved.
In fact, what is ironic here is that the whole dissenting opinion laments the genocidal past of human societies prone to destruction, without noting that most of those experiences were done by people who believed they were doing what their conscience (or religion, or god(s)) dictated, just as Judge Cancado Trindade does. What he is advocating is not the rule of law, it is the contrary of the rule of law. This is illustrated by his quote of the latin maxim: “summum jus, summum injuria”, which more or less translates as “an excessive application of law leads to injustice”. So, in a nutshell Cancado Trindade always seems to want more law… except when it does not go his way, not seeing that the quote could also apply to him! All in all, it is somewhat worrying to note how the most fervent (and well-intentioned) natural law human rights advocates are simply blind in seeing the intellectual connection they in fact share which those they oppose the most.
And apparently, the “principle of humanity” does not need to be applied consistently. Judge Cancado Trindade only deals with Croatia’s claim and not Serbia’s counter-claim. Indeed, he only dissented on the rejection of the former, not the latter. However, I would have expected his “principle of humanity” to apply equally to Serb victims, in light of the ICJ’s findings that acts that might constitute the actus reus of genocide were committed by Croatia. Maybe I missed something in the dissent and welcome any clarification from more careful readers and interpreters of the Cancado Trindade prose.
- Conclusion: two clarifications and a musing on the future
First of all, just to be clear, because I already hear the argument of some, the preceding rant is not one of a positivist with a stiff upper lip who refuses progress because the “law is the law”. I am one of those as well, but in this case I am making a moral argument in defense of procedure to counterbalance the moral argument being made to attack it.
Second of all, my previous comments should not be seen as a attack on Judge Cancado Trindade as an individual, an intellectual and a person dedicated to noble values. I have the utmost respect for his intellectual integrity and his sincere desire to make the world a better place. What I am challenging is the judge and what I am expressing is a profound disagreement on what I consider to be the limits of the judicial function, which I think he systematically oversteps.
Of course, on a broader level, nobody really cares what I have to say about this. Maybe in 20 years, my blog posts will have been relegated to the dustbin of internet archiving (if even that) and Judge Cancado Trindade’s dissents will probably be lauded by a new generation of lawyers who will be attributing to him the revolutionary shifts in international law that will undoubtedly have taken place, under his influence, during that time, just as we applaud the impact of Grotius or Cassese. By that time, I’ll be even more of a dinosaur than I seem to some people now, but I will not care, because having witnessed the death of (international) law, I will be mumbling vague positivist mantras in some mental institution somewhere, where I will have been interned against my will for my seditious views about human rights and human nature…
Spreading the Jam 
Dov,
Interesting musings, but I truly do not understand – “procedure” is an empty concept just like “law” and “natural law”….the Nazis were following procedure, and perfectly legal (and legitimate?) defences under German law for killing sub-humans…after all, Jews had been procedurally stripped of their rights as human beings, so what was all the fuss? and what if a perfectly constitutional procedure were passed in France tomorrow to deny Charlie Hebdo the right to publish cartoons against the Catholic Church? Or if a law were passed in a procedurally flawless way to deny access to barbers’ shops to Muslims and red-haired people? Procedure does not tell us anything, and attention to procedures is also typical of (some) authoritarian regimes, of the Catholic Inquisition etc etc. Are you really saying that the Nazis should not have been tried and punished because it was procedurally flawed?
There must be a balance between concept of justice beyond the law (that you simple cannot kill homosexuals or sterilise Russians or discriminate on religious grounds, whatever the positive law actually says) and the protection of all rights, including the procedural rights of people accused of those terrible things. It is simply a balance that cannot be defined once and for all, and it will change with time. This is why the Cassettes of this world are great, in so far as they push the boundaries and make people think “is it really possible to go there?” – whether they succeed or not in specific instances is really beside the point.
Guy,
Thank you for sharing your thoughts. I actually do not disagree with you and do believe that procedure are not necessarily good or bad. My point was actually slightly different in fact, and maybe I should have been clearer: that procedures can also reflect moral choices of “substantive justice”, in the same way that other more “noble” norms do. That these can be the object of debate and discussion, I acknowledge in my post, but I don’t think they can just be discarded as “diktats”, with the judge just deciding based on his conscience.
Another small point: I was talking about procedures set up specifically in the context of judicial proceedings, but I suppose we could discuss procedure in a broader legislative context, as you suggest…
…So, as the French Judge at Nuremberg, you would not have based yourself at all on notions of substantive justice? You would have adhered to the proper positive law and just acquitted all defendants for crimes against humanity? Only war crimes, if you could find a clever way to say that they were criminalised under international/German law and that the accused had no defence? No conviction for the killing of German and Austrian citizens?
At times, in my view, procedures must be discarded – but with a careful appreciation of the consequences and ensuring no injustice comes to the accused.
Again, I take your point. Ultimately, it boils down in my view not to “what should be done” but “who can do it”. In this sense, as I point out in my post, I approach things from the perspective of the judge and put forward my own view of the judicial function, which does not include discarding recognised procedural safeguards for the purposes of advancing substantive justice… to be continued!