Today, the ICTY issued its long awaited Judgment in the Karadzic case. Given its length, over 2500 pages, this post can obviously not provide any comprehensive analysis of the Judgment. I do however want to share 6 quick initial and general thoughts :
- As noted, the Judgment is very long. This might seem a little shocking at first, but given the length of the trial, the huge body of evidence adduced from the trial and the crimes covered, its length can be understandable. Which does not mean that this is not problematic. There has to be something wrong with a system, from the OTP charging strategy, to the case management by the Judges, for such a Judgment to be rendered. Nobody is going to read 2500 pages and questions can certainly be asked about the pedagogic effect of international judgments.
- Which brings me to my second point: the fundamental question of the usefulness of international judgments generally. Indeed, following the build-up to the delivery of the Judgment in the general media, it was obvious that Karadzic was already considered to be guilty. All that everybody expected was a formal confirmation of their view that this was indeed the case and nobody would have accepted an acquittal (as shown by initial reactions to the acquittal of Karadzic on one count of genocide, or the “inadequate” 40 year prison sentence). This means that in fact, there is an expectation of conviction and the idea that an acquittal is not an option. This shows in fact very little respect for the criminal law process, based on the presumption of innocence.
- Rather unsurprisingly, the Chamber acquitted Karadzic for the Count of Genocide in relation to the Municipalities. This is unsurprising because the Chamber had already dismissed this Count under Rule 98(bis), before being overturned by the Appeals Chamber. There is now consistent case-law that there was no genocidal intent in the rest of Bosnia and I remain surprised at the criticism leveled at the ICTY on this point: clearly, ICTY Judges, who in the past have stretched the definitions of crimes, modes of liability and acceptable evidence beyond recognition to cast as wide a net as possible in the “fight against impunity”, can hardly be considered as genocide apologists and if they have not found evidence of genocidal intent in so many cases, it must mean something.
- I look forward to the Appeals process. Given the fact that Appeals Chamber has already decided that there is sufficient evidence of genocidal intent for the Municipalities Count when overturning the 98bis decision, it is easy to guess that the OTP will appeal that acquittal. Also, there seem to have been countless disclosure violations by the Prosecution (108 (!)motions were filed by Karadzic to that effect, a lot of them successful). Peter Robinson, Karadzic’s legal advisor, has been documenting them on his twitter feed. One tweet, posted on the eve of the Judgment, if true, certainly raises question about the fairness of the process:
Just rec’d 208 pages of exculpatory material in #Karadzic case from #ICTY prosecution this afternoon. Seriously, prosecutors?
— Peter Robinson (@PeterRobinICTY) 23 mars 2016
- As an aside to the delivery of the Judgment, the ICTY sealed a solid victory in its fight against impunity, by getting the Dutch authorities to arrest Florence Hartmann (images of her arrest here), a French journalist who was fined 7000 euro for publishing information in a book on the content of confidential decisions of the ICTY (images of her arrest here). The fine was later commuted to a 7-day prison sentence. This is rather ridiculous, and I’m sure that the ICTY has better things to do that this… or maybe not.
- And a final fun fact: a search for “Mladic” in the Judgment comes up with 1883 hits… Anybody care to take bets on the outcome of that trial?
….a bit provocative, and very puzzling, comments.
No judgment per se has pedagogic effect: no normal citizen reads domestic judgments, and we should not expect 99.9% to actually read the entire judgment in this case, either. no more than 10,000 people probably read the Nuremberg Judgment as a whole since 1946 – but this does not detract from that verdict’s pedagogic effect. Nothing new here. Only more difficult for you and the few interested academics to actually say that you have read the whole lot…but not such a big deal for most people.
The presumption of innocence does not mean that 99% of the people out there interested in this topic cannot have an opinion as to guilt or innocence. See Prlic, Haradinaj, Halilovic etc…most people thought that they were guilty, but they got an acquittal nonetheless. How can you mix up what “everybody expected” and the presumption of innocence? This is not jury trial. Ockham’s razor would tell us that if everybody expects a guilty verdict, it is probably because everybody thinks that there is sufficient compelling evidence to convict; it tells us nothing about whether this is true or not, or whether the judges would be swayed by this expectation.
Peter Robinson (and you) should know very well that what the OTP discloses under the rules for exculpatory evidence is 99% of the times not exculpatory at all, and most of the 1% it will not be used by the accused anyway because it would undermine some other part of his/her defence strategy or because it is inadmissible, or because it is too weak a piece of evidence to be useful. The violations of the duty to disclose where dealt with by the TC throughout the trial, as you say, so nothing unfair there.
Finally, as for Hartmann, why is this so exceptional? There was an arrest warrant against her; France refused to comply with it; Hartmann travelled to the NL; the NL complied with it, as they were bound to do. To be honest, it just shows how little Hartmann thinks about the consequences of her actions, rather than how much the ICTY cared about this.
Personally, I honestly think that the material in question should not have been made confidential, but once it is confidential and you have gained access to it because of your work (for which, btw, you earn a hefty salary in exchange also for the fact that you will not disclose confidential information), you have to take your own responsibilities. You think this piece of information should be public and your moral requires you to make it public? Fine, but accept your own responsibilities, admit it and accept your sentence, going to jail for 7 days (on which you will write another book anyway….).
Thank you for your more than reasonable and accurate comments, with which I agree with.
A couple of follow-up remarks:
In my short post, I obviously did not go into the subtleties of my thoughts on either the pedagogic effect or the usefulness of international judgments. My thoughts are a reaction to commonly put forward arguments about the virtues of international judgments, which I do not share. And while I agree with you on both counts, I do think it does raise the question of the actual purpose of institutions that are only expected to confirm pre-conceived ideas of most (including some of the staff of those institutions, but that’s another problem) on the guilt of the Accused, and who are strongly criticised for any acquittal.
On the disclosure issue, 1) I just found it funny that the OTP would disclose stuff the day before the judgment. I’m sure you’ll agree on that 2) it’s illustrative of a general conduct of the OTP at this tribunal which I do think is problematic.
Finally, I agree with you on Hartmann on a legal point of view, even if I do disagree with the actual contempt judgment, but I do think the whole situation is a little ridiculous.
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