Category Archives: ICJ

A Commentary on The ICJ Croatia v. Serbia Genocide Case (part II): Judge Cancado Trindade’s dissent and thoughts on natural justice

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…

A Commentary on The ICJ Croatia v. Serbia Genocide Case (part I): Some thoughts on an Anti-Climatic Result

On 3 February 2015, the ICJ issued its Judgment in the Genocide claim and counter-claim between Serbia and Croatia and rejected both. Essentially, while finding evidence of the actus reus of genocide (murder, bolidy harm, etc.), directed at croats or serbs, the ICJ could not find evidence of genocidal intent, i.e, the specific intent to destroy in whole or in part a particular group.

As said by Marko Milanovic (here and here) there was no real doubt as to what the final conclusion of the court would be. I think that overall, this case was a complete waste of time and energy and, as astutely noted by Janet Anderson, “Maybe, in the end, only the lawyers win cases like this.”

This being said, reading through the judgment, I noted a number of points I found of interest. I will also devote a separate post to Judge Cancado Trindade’s dissenting opinion which will be posted later.

  • The use of ICTY Practice and case law

Hearing the summary of the Judgment and reading it afterwards, it is striking to note how much it is essentially a digest of ICTY case law, as was the 2007 genocide Judgment in the Bosnia case. This is of course not surprising, as the ICTY has just spent 20+ years documenting this conflict and the commission of crimes during it and making findings on these in lengthy judgments. It would be weird if the ICJ did not take notice of this. Beyond this, two specific points struck me in the Judgment.

First of all, it interesting to note how the ICJ took into account the ICTY Prosecutor’s charging policy, more particularly the fact that he has not charged genocide for a number of senior officials (such as Milosevic) in relation to events in Croatia. Following the logic of the 2007 Genocide judgment, the Court said that this could be taken into consideration, while acknowledging that his was not not necessarily decisive proof that there had not been genocide (Judgment, §187).

This makes sense to me on the face of it. Indeed, the higher up the officials the more link there is between claims of individual responsibility and considerations of state policy that are relevant for the determination of state responsibility. To the extent that one takes the view that charging policy is first and foremost a logical decision guided by available evidence, one can therefore see the logic of the claim that no genocide charge equals no evidence of genocide.

However, Croatia does have a point when it said that charging policy is guided by many other factors than availability of evidence (judgment, §185), for example expediency, the existence of a plea bargain from the accused, or simple preference. The Lubanga case at the ICC comes to mind in that respect, where the decision not to charge anything else than the use of child soldiers says nothing about the availability of evidence in relation to other crimes (such as sexual violence), as the trial process painfully showed. I therefore think that before attributing any weight to a decision not to charge, there needs to be a broader evaluation of the charging practice of the Prosecutor of a given tribunal. In this sense, I think that the ICJ was far more justified in attributing weight to the ICTY Prosecutor’s decision, given the often “everything but the kitchen sink” approach adopted there, than it would have been if it had done the same with the ICC, given the sometimes apparently random or inomplete choices made in relation to charging.

Second of all, there is a discussion on the weight to be given to decisions of different chambers of the ICTY. More particularly, are Trial Chamber decisions more persuasive than Appeal Chamber decisions? This question was important for Serbia’s counter-claim because it obviously wished to rely on the Gotovina et al. Trial Judgment rather that the contested Appeals Judgment which acquitted everyone. Serbia’s reasoning in that respect was the following:

Serbia argued that the findings of an ICTY Appeals Chamber should not necessarily be accorded more weight than those of a Trial Chamber. Indeed, according to Serbia, the members of the Appeals Chamber are appointed at random and vary from one case to another, so that they have no greater experience or authority than those of the Trial Chamber having ruled on the same case. Serbia argues that the main difference between the two benches appears to be that the former consists of five judges, whilst the latter is composed of three judges. Moreover, the decision of the Trial Chamber was unanimous when it convicted Gotovina and Markač, whereas the Appeals Chamber reached its decision to acquit them by a majority of three against two. Serbia points out that, overall, the majority of the judges having sat in the Gotovina case were of the view that the Croatian forces did engage in indiscriminate shelling of the four above-mentioned Krajina towns.

This reasoning was not accepted by the ICJ, the judges considering that:

Irrespective of the manner in which the members of the Appeals Chamber are chosen— a matter on which it is not for the Court to pronounce — the latter’s decisions represent the last word of the ICTY on the cases before it when one of the parties has chosen to appeal from the Trial Chamber’s Judgment. Accordingly, the Court cannot treat the findings and determinations of the Trial Chamber as being on an equal footing with those of the Appeals Chamber. In cases of disagreement, it is bound to accord greater weight to what the Appeals Chamber Judgment says, while ultimately retaining the power to decide the issues before it on the facts and the law.

I must admit that I am of two minds here. From an institutional point of view, the ICJ is right to say that the final word on an issue for the ICTY (taken as a whole) has to logically be the Appeal Judgment. However, the ICJ is not following what the ICTY, as an institution, has to say about something, but rather reading individual decisions produced by the institution in order to help assess the facts. As a result, what should be relevant is whether a particular decision is convincing or not, irrespective of whether it was overturned on appeal, based on standard of proof and evidence which are anyway not relevant for the ICJ’s purposes. In this sense, Serbia’s point on the fact that a majority of equally professional ICTY judges who dealt with the Gotovina case agreed that there was a violation of IHL somewhat more useful than the ICJ thinks it is, because it could, from a probative point of view, tip the balance towards the facts being sufficiently established for the purposes of ICJ litigation.

  • The link between IHL and the Genocide Convention

One question which arose during the proceedings is the link between International Humanitarian Law and the Genocide Convention. More particularly, both Serbia and Croatia seem to have argued that acts which would be legal under IHL could not be considered as acts that would constitute the actus reus of genocide (Judgment, §152). In response to this, the ICJ refused to “rule, in general or in abstract terms, on the relationship between the Convention and international humanitarian law” (§153).

However, later in the Judgment, the ICJ notes that the legality of the shelling of certain Serbian villages by Croatian forces during Operation Storm meant that there was not the required mental element to establish killing as one of the actus reus of genocide (Judgment, §474-475). In this particular case, I think this makes sense: if the willful targetting of civilians is not established under IHL, this means that there is no intent to kill necessary for a particular killing to be considered n actus reus of genocide.

More generally however, I’ve always felt unease at claims that all bodies of law can apply in all contexts (Human Rights Law, IHL, ICL, etc…) and within ICL, that particular acts can be charges as several crimes at the same time (genocide, Crimes against humanity and war crimes) and that individuals can even be convicted cumulatively in that respect. Of course, I can see how technically this would work: if you have a “checklist approach”, you can easily see how one act could in theory tick all the boxes of the elements of different crimes. The problem is that for me, a crime (and probably even more an international crime) is a particular story or narrative, and more importantly in a particular context. The contextual element of the crime tells us the story that conditions our view of the particular acts. If there is a situation of armed conflict and a particular act is linked to that conflict, I think that analysis should prevail over the other legal qualifications.  This does not mean that other crimes (CaH and genocide) could not be committed in an armed conflict. It just means that different particular acts could not fall under the different categories.

  • Enforced disappearances as genocide?

A third area where the ICJ seems to have made some interesting statements is in relation to the link between enforced dissapearances and genocide. Indeed, Croatia claimed that “causing serious mental harm to members of the groups” includes (judgment, §159):

the psychological suffering caused to their surviving relatives by the disappearance of members of the group. [Croatia] thus argues that Article II (b) has been  the subject of a continuing breach in the present case, since insufficient action has been initiated by Serbia to ascertain the fate of individuals having disappeared during the events cited in support of the principal claim.

In response to this, the ICJ said that:

In the Court’s view, the persistent refusal of the competent authorities to provide relatives of individuals who disappeared in the context of an alleged genocide with information in their possession, which would enable the relatives to establish with certainty whether those individuals are dead, and if so, how they died, is capable of causing psychological suffering. The Court concludes, however, that, to fall within Article II (b) of the Convention, the harm resulting from that suffering must be such as to contribute to the physical or biological destruction of the group, in whole or in part.

The Court therefore seems to accept, on principle, Croatia’s argument, even if later on in the Judgment it rejects the application to the present case because Croatia failed to provide any evidence of psychological suffering sufficient to constitute serious mental harm within the meaning of the Genocide Convention (§356). For a more lengthy discussion on the idea, see Judge Cancado Trindade’s dissent (§§296-320). To my knowledge, this is the first time I see this argument mentioned and it is an intriguing one.

To be honest, I find this finding somewhat disturbing, because it not only opens the door to a broadened view of the actus reus of genocide, but more importantly, it imports the notion of “continuing crime” in the genocide question. Indeed, accepting enforced dissapearance as a material element of genocide, even indirectly through the “mental harm” category, means that as long as individuals are not told of the fate of their relatives, the crime (here genocide) could be considered to be ongoing. This would as a result trump any temporal considerations in the application of the genocide convention. Last year, in an article on the Armenian Genocide and the ICC, I rejected the idea of genocide as a continuing crime simply based on the fact that the later generations would still be suffering the consequences of the genocide. By that standard, all crimes could be deemed to be continuing crimes, which makes no sense. The enforced dissapearance approach is a somewhat more subtle version of that which I have my doubts about for exactly the same reasons.

  • Applying Monetary Gold to extinct States?

Finally, moving away from ICL, I was intrigued by Serbia’s claim that the Monetary Gold principle would preclude the Court from making any findind in relation to the now extinct SFRY. Indeed, the Monetary Gold principle, in a nutshell, means that the ICJ cannot make findings in a judgment that might have an impact on the responsibility of another state not present in the proceedings.

I’ve always had my doubts on the exact scope of this principle, but in any case, it certainly does not apply for states which no longer exists because, as put by the ICJ, such state “no longer possesses any rights and is incapable of giving or withholding consent to the jurisdiction of the Court” (§116). If such a an argument were to be accepted, it would mean that no successor state would ever be able to be held responsible for conduct of the preceding State, which is not, as far as I know, the current state of international law today.

  • A concluding thought on the content of the judgment

While the judgment is arguably of reasonable length, one can wonder whether it could not have been much shorter. Indeed, given the finding that the mental element of genocide (specific intent) was absent, what was the legal relevance of spending such a large chunk of the judgment on listing the crimes that were committed? I can see why the ICJ did it of course, it gives the symboblic impression of addressing some of the concerns of the victims, by documenting their suffering, even when rejecting all the claims. But one can wonder whether this is the role of the ICJ from a judicial point of view.

Which brings me to my next post, a critique of some aspects of Judge Cancado Trindade’s dissent, which will follow shortly…

new Article on Kosovo Advisory Opinion: searching for the responsibility of the UN and Kosovo

Regular readers of this blog will know that I was critical of the ICJ’s advisory opinion as soon as it was released last July. I criticized it in a live blogging session from the ICJ on the day it was issued, and in subsequent posts, both here and on the Hague Justice Portal.

In an article just published in the Leiden Journal of International Law by myself and Yannick Radi, we explore more systematically and systemically the flaws of the opinion, considering that most of the difficulties that arise stem from the fact that the ICJ accepted to answer a question relating to non-State entities, i.e, the authors of the declaration of independence, rather than its core ratione personae jurisdiction, that are States and the UN.

You can follow the full extent of our reasoning in the article, and, for those who have a little less patience, the summary that we published on EJIL Talk!.

For those who have even less patience, one of the core arguments we make is that the acts of the Kosovo assembly, as established under the authority of the UNSC, can be attributed under international law to the UN, thus raising the rather interesting question of whether the UN can unilaterally declare the independence of a State. Pushing the logic even further, we argue that the ICJ implicitly recognises a new legal entity, Kosovo, to which the declaration could be alternatively attributed. I won’t elaborate here, and let you read the article to see how we pulled this one off!

Self Promotion: the ICJ, Kosovo and the Twilight Zone Effect

The Hague Justice Portal has just published my new commentary on the ICJ Kosovo advisory opinion. It’s part of an online series discussing the issue, with Jean d’Aspremont, Eric de Brabandere, Jure Vidmar and Tarcissio Gazzini.

I basically argue that the difficulties arising from the decision come from the fact that the Court accepted to answer a question about the legality of the conduct of individuals under international law, which is outside its natural jurisdiction. It should have refused to answer the question asked, or, alternatively, tried to attribute the conduct to the ultimate entity in charge, in this case, the UN.  

Some Additional Thoughts on the ICJ Advisory Opinion

I’ve read through the main opinion and the other opinions and it confirms my initial impressions during the issuance of the Opinion yesterday afternoon.

On jurisdiction, I was a little puzzled by the length of the discussion on the question of whether the Court should exercise its discretion in relation to the question. It all seemed quite basic stuff, given past case-law of the Court which has generally said that 1) the fact that the Security Council is dealing with something doesn’t mean another organ can’t discuss it and 2) the political dimensions of a question do not prevent a legal analysis. However, some dissenting opinions (Bennouna, Skotnikov, Keith, Tomka) actually thought that the Court should have declined to answer the question.

On the scope of the question, I’m generally not in disagreement with the opinion. Some separate opinions consider that it was too narrow. Judge Simma said it applied too strictly a “tired” version of the Lotus logic that what is not proscribed is allowed. For him, there is a more public law aspect to international law today, and the Court should have done a more thorough search of the relevant law on independence before answering the specific question. Judge Trindade, in a separate opinion 1,5 times the size of the majority opinion, launched himself in a emotional, but in my opinion ultimately irrelevant plea for taking into account “human suffering” as a criteria for independence. Equally, Judge Yussuf thought the Court could have taken the opportunity to define the scope of self-determination in a post-colonial world. Others (Koroma) thought that it was still too broad and that the Court went beyond its powers in considering that when the GA explicitly mentioned the authors of the UDI as the “Provisional Institutions of Self-Government of Kosovo”, they actually didn’t mean that, and wanted to know who the authors are. I would tend to agree with that actually. The fact, as the Court points out, that this was not discussed in the GA debates, doesn’t necessarily mean that it was an open issue, it might just mean that it was a settled issue. By second guessing the GA like it does, the Court is opening itself to the criticism of why it is re-interpreting the question in this instance, and not in another (for example, by saying that the GA really wanted to know if Kosovo was an independent State).

Which brings me to my main point of contention with the decision: that the authors of the UDI were not acting in their official capacity as Members of the Assembly. The reasoning is just as unconvincing as I thought. The authors of the declaration met in the Assembly, called a special session of that Assembly, and met as the democratically elected representatives of the people in elections set up under the control of the Constitutional Framework, which is the only basis for their right to be present in the assembly to make the UDI in the first place. But they are still considered as private citizens by the Court, based on their intent to be so considered. How can you evaluate whether someone is bound by a legal framework based on the subjective desire not to be bound?
In this sense, I can only agree with Koroma:

5. It is also question-begging to identify the authors of the unilateral declaration of independence on the basis of their perceived intent, for it predetermines the very answer the Court is trying to develop: there can be no question that the authors wish to be perceived as the legitimate, democratically elected leaders of the newly-independent Kosovo, but their subjective intent does not make it so. Relying on such intent leads to absurd results, as any given group ⎯ secessionists, insurgents could circumvent international norms specifically targeting them by claiming to have reorganized themselves under another name. Under an intent-oriented approach, such groups merely have to show that they intended to be someone else when carrying out a given act, and that act would no longer be subject to international law specifically developed to prevent it.

 And Bennouna:

44. The facts that the authors of the Declaration, members of the Assembly of the Provisional Institutions of Self-Government of Kosovo, cited the breakdown of negotiations and that they did not intend to act within the framework of the interim régime of self-government (Advisory Opinion, paragraph 105) do not by themselves change the legal nature of an act adopted by the Assembly of the Provisional Institutions of Self-Government of Kosovo. In law, it is not merely because an institution has adopted an act exceeding its powers (ultra vires) that the legal bond between the institution and the act is broken. In such a case, the institution must be considered to be in breach of the legal framework that justifies and legitimizes it.

45. Similarly, it is not because the Assembly trespassed on the powers of the Special Representative (Advisory Opinion, paragraph 106) by involving itself in matters of Kosovo’s external relations that it must be considered as acting in a different capacity or as an entity no longer related to the Provisional Institutions of Self-Government of Kosovo. Here as well, the Assembly simply committed an act which is illegal under international law.

Although I’m the first one to defend the ICJ against those who claim that it says what it didn’t say, in this part of the decision, i’m struggling to see how the reliance of the ICJ on the intent of the authors of the UDI, and is not an implicit endorsement of the declaration itself.

One final comment on the applicable law. I’ve read in some comments already that the Constitutional Framework and UNMIK resolutions should not necessarily be considered as applicable international law because after all they are intended to take effect only within a particular domestic system of law”. I would actually side with the ICJ on that one. The question is not the setting (all law is meant to be applied in a specific setting), it’s the nature of the norm and the applicable legal order. For me, a territory under UN administration cannot be seen as a national legal order. There’s no “national” at this point, or “domestic”. Moreover, the source of legal, judicial and even constitutional authority in Kosovo clearly derived from a Security Council Resolution. I don’t find it therefore scandalous to conclude that the norms adopted in this context are at least international enough, and sufficiently integrated in the international legal order, to be considered as relevant international law for the ICJ. But I’ll have to consider this “hybrid” issue further in my PhD (forthcoming…).

And to conclude on a little poetic note, showing that law needn’t necessarily be dry, I love the final line of Bennouna’s opinion:

Such declarations are no more than foam on the tide of time; they cannot allow the past to be forgotten nor a future to be built on fragments of the present.