Category Archives: icty

Guest Post: Specific direction à la Perišić, the Taylor Appeal Judgment and what it could mean for the ICTY Appeals Chamber in Šainović et al. – Part I

Posted on January 8, 2014 | 1 comment

By Manuel J. Ventura, Director, The Peace and Justice Initiative

Back in March, I blogged here about the effect that the Perišić Appeal Judgment of the ICTY could have had on the SCSL Appeals Chamber in Taylor, particularly its holding that the actus reus of aiding and abetting required specific direction to the charged crime(s). I pointed out that the factual circumstances of both cases were, from a legal perspective, identical. I then predicted that the SCSL Appeals Chamber would have two options: (1) agree with the ICTY Appeals Chamber on specific direction and then try to salvage the Taylor Trial Judgment or be forced to find Taylor not guilty for aiding and abetting, or (2) pick a fight with the ICTY Appeals Chamber, reject its specific rejection holding and consequently affirm Taylor’s convictions. The SCSL Appeals Chamber handed down its judgment in September 2013, prompting the blogosphere to light up with commentary from Kevin Jon Heller here, here and here, Marko Milanovic, Beth van Schaack here and here , Dov Jacobs here and here, James Stewart here, here and here , and Alex Fielding. In a series of two posts, I aim to take a step back and bring to light some issues that have not yet been part of the discussion and highlight the problematic nature of specific direction in practice. In this first post, I will look at the factual situation of the relationship between the Bosnian Serb Army (VRS) and the Yugoslav Army (VJ), how this relates to the upcoming ICTY Šainović et al. appeal and the practical issue of remoteness/proximity for aiding and abetting as per Perišić. In a second post, I will look at the discussion of precedent in Perišić and the question of customary law vis-à-vis specific direction and the Taylor Appeal Judgment, together with the practical difficulties with Perišić on the nature of the organisation and its application by the SCSL Appeals Chamber in Taylor.

As is well known by now, the SCSL Appeals Chamber’s judgment in Taylor delivered a stunning rebuke to the ICTY. Opting for option (2) above, it held that ‘specific direction’ was not an actus reus (or mens rea) requirement under customary international law. Such a rejection of substantive ICTY jurisprudence – especially in such a high profile case – does not happen often, if at all. Of course disagreements on the law in an international criminal law context have arisen every now and again, the most well-known of which all seem to revolve around Tadić: JCE III and its rejection by the ECCC, overall control and its rejection by the ICJ (on the ICC’s adoption of overall control see my book chapter here), compétence de la compétence/legality of creation and its rejection by the STL (see my article with Mariya Nikolova here). But all of these disagreements have been academic without too much of a visible effect on the accused. Not so in Taylor and Perišić. Never before had the stakes been so high, where the imprisonment or freedom of an individual been so directly at stake. Never had so much rested on so little.

Yet despite all the attention and analysis, commentators have not noticed inconsistent ICTY holdings on the relationship between the Yugoslav Army (VJ) and the Bosnian Serb Army (VRS) in the war in Bosnia and Herzegovina and the effect this could have had on Perišić. This was, after all, what the Perišić case was about, namely the criminal responsibility of the highest ranking military officer in the VJ for having provided the VRS with the tools that the Prosecution alleged facilitated the execution of crimes by its members. The Perišić Trial Chamber, after analysing the evidence before it, concluded that the VJ and the VRS were two independent and separate armies:

[The evidence] suggest[s] cooperation between the VRS [Bosnian Serb Army] and the VJ [Yugoslav Army] as separate and independent military entities, rather than the subordination of the VRS to the VJ within a single military structure. (Perišić Trial Judgement, para. 1772 (emphasis added))

The Perišić Appeals Chamber upheld this finding:

[T]he Trial Chamber did not find the VRS de jure or de facto subordinated to the VJ. In particular, the Trial Chamber found that the VRS had a separate command structure[.] […] The Appeals Chamber, having considered this evidence in its totality, agrees with the Trial Chamber’s determination that the evidence on the record suggests that “the VRS and the VJ [were] separate and independent military entities”. (Perišić Appeal Judgement, para. 46 (emphasis added))

Continue reading →

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Posted in icty, perisic, sainovic

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What ever happened to the Seselj Case at the ICTY?

Posted on October 31, 2013 | 7 comments

[UPDATE: This post was written a few hours prior to the order by Judge Agius actually appointing a new judge. more on the order here…]

As regular commentators of international law, we usually rush to comment on what the tribunals say and do. But we rarely comment on what they don’t do. I think it’s fitting, around the date that the Judgment (or Jugdgement) in the Seselj case was meant to be delivered to ask a simple question: what is happening ?

Readers might recall that following a private email circulated to friends earlier this year, Judge Harhoff from Danemark was disqualified from the Seselj case at the end of August, with the motion for reconsideration rejected at the beginning of October. You can read about most episodes of how this started here and here, and on the consequences of the disqualification here, here and here.

Since then, nothing has happened. Now that the disqualification has been confirmed, I suppose that the order issued at the beginning of September by ICTY VP Agius applies. According to that order, we should have consultations between the judges and Seselj on whether to rehear the case or continue the proceedings, before a possible assignment of a new judge, irrespective of Seselj’s consent. I already commented on the fact that this order is scandalous because it takes putting an end to the proceedings off the table and makes a complete joke of Seselj’s opinion on the issue.

This being said, I’m wondering what is taking so long. Already, I don’t understand how it took so long to issue the rejection of the reconsideration request. Moreover, I can’t see imagine that it would be so time consuming to consult with Seselj and decide to proceed (or not) in order for a new judge to be appointed. Especially as, from the tone of his communications at the time, it appears that Judge Antonetti is quite keen on moving forward. And it can’t be that there would be disagreement between him and Judge Lattanzi, the other remaining judge on the Chamber, because their request for clarification seemed to indicate that they were on the same page.

Given this state of affairs, there are 3 possible explanations for this delay :

1) Things are really this slow at the ICTY, so I really shouldn’t be making a fuss. Could be depressingly true.

2) There is a policy discussion going on at the higher levels of governance at the tribunal with a possible dissagreement between the Chamber and the Presidency for example on whether to continue the trial. Given the current acrimony between judges at the Court, this would not necessarily be surprising.

3) Everybody agrees to go ahead with the proceedings, but they cannot find a judge to replace Harhoff. If this is the case, I would perfectly understand that no judge would want to get entangled in this nightmare situation, 10 years down the road, with arguably very little time to get familiarized with the file.

Of course, you could tell me that I should be happy that there is such a delay which might mean that things are not running smoothly in the aftermath of the disqualification. Indeed, “if not running smoothly” means that there will be bumps on the road to the scandalous result of continuing the proceedings and issuing the Judgment, then that is a good thing I suppose…

If readers have any thoughts (or knowledge) of what is actually going on inside the black box of the ICTY, please don’t hesitate to share them in the comments section.

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Posted in harhoff, icty

Saving Private Harhoff: Report by Judge Antonetti made public and more conspiracy theories

Posted on September 4, 2013 | 7 comments
There doesn’t seem to be a day that something new does not arise in the Harhoff saga. Today, the Presiding Judge of the Chamber, Judge Antonetti, has decided to make public the report that he wrote in the context of the disqualification procedure. The decision, in French, explains the recent behind this, and annexes the report itself.I’ll start with the only thing I agree with in the decision: Rule 15bis does not apply to the current situation, as I explained in my previous post.

More importantly, this decision in my view confirms what I mentioned yesterday in relation to there clearly being a problem at the tribunal between the judges, as Judge Antonetti obviously comes out in favor of Judge Harhoff. I also don’t know what Judge Antonetti is suggesting when he says in his decision that both Judges Moloto and Hall had sat on benches with Harhoff. Why is that relevant? Is Judge Antonetti suggesting that they were biased against Judge Harhoff? if so, then he should be more explicit. If not, then he should not have made this comment at all.
Both the decision and the report are interesting in showing the state of mind of Judge Antonetti, which echoes what was in the requests for clarification: Judge Harhoff did nothing wrong. Both documents explicitly refuse to discuss the content of the letter, claiming that it is private correspondence that is protected under international human rights. I find that a little unconvincing. The content of the letter and what it might illustrate is one thing, its public or private nature is another. Can Judge Antonetti really claim that he would ignore the content of a private email by which a Judge would be telling friends that he had received a bribe to convict someone? it doesn’t make sense.
In any case, Judge Antonetti puts forward a conspiracy theory of his own by focusing on the source of the leak of the letter. The decision says:

Il n’est pas à exclure qu’une entreprise de déstabilisation ait été ourdie par un tiers ou une entité disposant de moyens importants pour aboutir à cet effet. Seule une enquête sérieuse pourra permettre l’identification de !’auteur de la transmission des réflexions personnelles du Juge Harhoff au journal danois et de connaître les motivations réelles de cette transmission.

The Report goes into more detail:

En l’état des hypothèses à envisager, soit il s’agit d’un des destinataires de la correspondance, soit d’une autre personne ou entité qui aurait pénétré l’ordinateur ou le réseau de communications du Juge Harhoff pour transmettre à ce journal ledit document. Le résultat a été évident : il y a eu la volonté manifeste de déstabiliser à titre principal notre Tribunal et de porter atteinte à la réputation du Juge Meron et à titre secondaire d’attenter à l’honneur du Juge Harhoff sur le terrain de l’impartialité et à titre accessoire, de porter atteinte le cas échéant à l’ Accusé Vojislav Seselj lui-même pour le cas où il y aurait in fine un changement de Juge

In a nutshell, for those who don’t read French, according to Judge Antonetti, the person who leaked the letter was trying to destablize the tribunal, affect the reputation of Judges Meron and Harhoff and cause prejudice to Seselj. I find the reasoning quite extraordinary. For one, as I said before, the content of the letter is what is relevant, not how it was made public. Continue reading →

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Posted in harhoff, icty

Movement on the Harhoff Saga at the ICTY: an institution grasping at straws and a delusional judge

Posted on September 3, 2013 | 1 comment
Today has seen a sudden flurry of activity in response to the disqualification of Judge Harhoff last week (see here and here). The Vice President has issued an order on the follow up to the decision, Judge Harhoff has filed a request for clarification and so have the two remaining judges on the trial chamber (Judges Lattanzi and Antonetti) and the Prosecutor has filed a motion for reconsideration.

This is a lot of information to digest, but just a couple of preliminary thoughts. I don’t have much to say on the motion for reconsideration by the Prosecution. It essentially considers that the Panel made a misapplication of the standard for disqualification and erred in fact by making findings without evidence. I’m not sure this will go anywhere, but we will have to see.
  • The Order from Judge Agius (acting President of the Tribunal)
The order considers that Rule 15, while providing for the nomination of a new judge, does not address the impact on a case. The decision is therefore taken to apply Rule 15bis which relates to the procedure to be followed in the absence of a judge for a long period of time. The choice is made because “in the interests of fairness and transparency, the procedures applicable under Rules 15bis(C) and 15bis(D) of the Rules ought to be applied to it mutatis mutandis”, without much further explanation.
The relevant parts of this rule are the following:

(C) If a Judge is, for any reason, unable to continue sitting in a part-heard case for  a period which is likely to be longer than of a short duration, the remaining  Judges of the Chamber shall report to the President who may assign another  Judge to the case and order either a rehearing or continuation of the  proceedings from that point. However, after the opening statements provided  for in Rule 84, or the beginning of the presentation of evidence pursuant to  Rule 85, the continuation of the proceedings can only be ordered with the  consent of all the accused, except as provided for in paragraphs (D) and (G). 

(D) If, in the circumstances mentioned in the last sentence of paragraph (C), an  accused withholds his consent, the remaining Judges may nonetheless decide  whether or not to continue the proceedings before a Trial Chamber with a  substitute Judge if, taking all the circumstances into account, they determine  unanimously that doing so would serve the interests of justice. This decision  is subject to appeal directly to a full bench of the Appeals Chamber by either  party. If no appeal is taken from the decision to continue proceedings with a  substitute Judge or the Appeals Chamber affirms that decision, the President  shall assign to the existing bench a Judge, who, however, can join the bench  only after he or she has certified that he or she has familiarised himself or  herself with the record of the proceedings. Only one substitution under this paragraph may be made.

I’m not entirely convinced by the application of this rule to the current situation. For one, it’s obviously not applicable. As Judge Agius acknowledges, this cannot be “strictly speaking be described as part-heard”. This is an understatement, as the closing arguments concluded 18 months ago! Second of all, the situation here is very different because it is the result of a finding of partiality, so it cannot be business as usual. One has to consider whether the whole process is not viciated from the outset and whether an end of the proceedings is not the fairest solution for the accused. In this sense, I think it could have been perfectly possible for Rule 15 to apply, and for the newly constituted bench to decide proprio motu to put an end to the proceedings, or declare a mistrial, without needing 15bis.

This is in fact the most scandalous effect of the use of Rule 15bis: it takes off the table the possibility of just ending the proceedings as an abuse of process!

Also, I’m not sure that the combination of Rule 15 and Rule 15bis was really thought through by the Vice-President. Indeed, the result of the order, is that, based on the fact that Rule 15 does not say how to proceed in the case, leads the Judge to ignore the one clear thing that Rule 15 does provide for: the assignment of a new judge! This is clear and unambiguous language of the Rule, and comes with no conditions, such as consent of the accused or report of the other judges. This is additional support for the idea that Rule 15bis is not meant to apply “mutatis mutandis” to disqualification situations. This is the kind of “creative” reading of the Rules that has plagued the practice of the tribunals since the outset. This is all the more disturbing given that the Judges themselves wrote the RPE. It is not acceptable that they then ignore them!

Finally, should 15bis indeed be applied, it put forward a strange concept of consent. Basically, Seselj should consent to the proceedings continuing with a new judge… except if his consent is ignored! I’m not entirely sure how that amounts to consent…

So now, we have to wait for the opinion of the remaining judges on the bench and Seselj’s own decision. I’m not sure there will be more suspense on the latter…

  • The requests for clarification from Judges Antonetti, Lattanzi and Harhoff
Both requests for clarification rely on the same basis: the fact that the disqualification decision not does mention, or seem to take into account, the Report done by the Presiding Judge of the Chamber (Antonetti) and the memorandum submitted by Judge Harhoff in his own defense. It is true that the panel decision does not mention them, so it is not necessarily an unreasonable request for clarification.

It does denote, at least incidentally, a rift between the judges at the Court, which might be indicative that the low morale among the staff actually reaches up to the judges… Indeed, I don’t really see the point of Judge Antonetti and Lattanzi involvement, other than to make a gesture of support for Judge Harhoff. It could be that they just want to “save” their case, but in that case, it would show a level of short-sightedness because there is no way that a Judgment issued in the Seselj case now with Judge Harhoff’s name on it could be seen as legitimate.

It is also interesting to note that Judge Harhoff seems to want to defend himself on the substance of his allegations! He therefore claims that

My private letter of 6 June 2013 was sparked by my dilemma in the discovery of being a Judge in a international Court which – possibly – had been influenced by external sources. My letter does not suggest that generals and high ranking military officers must be convicted irrespective of the evidence and my personal comments in the letter are not in any way related to the Accused who is not a military commander and has not been charged with having directed or commanded combatants during the armed conflict

First, I would disagree as to what the letter “suggests”. It’s been amply discussed since June what kind of errors, approximations and shortcuts that it contains in describing the applicable law of the ICTY. A little provocatively, one could say that this would warrant his removal from the bench, not for partiality, but for mere incompetence. What is more, Judge Harhoff is clearly trying to minimize that now.  His letter, while initially speaking of military leaders, concludes with general thoughts on any leader.

But what I mostly find incredible is that Judge Harhoff would now reiterate his allegation of external influence. As Kevin John Heller suggested recently, this is probably the more egregious and unprofessional comment in the letter, and I don’t understand why he would restate it here… in his own defense…

Judge Harhoff concludes his request by saying that “The decision to disqualify me from the Seselj case has a direct impact on my personal and professional commitments ot the Tribunal as a Judge”. While I have some sympathy for what Judge Harhoff must be going through right now, it is his unprofessional letter that had an impact on his career, not the disqualification decision. Irrespective of what one thinks of the disqualification decision (see some expressions of doubts from Marko Milanovic here and Jens Ohlin here), the end result of removing Judge Harhoff from office is certainly the correct one. That he thinks that he could continue working at the ICTY is beyond me.

Whatever happens now, one can be sure that this saga is not over and that the nightmare scenario I predicted will continue to unfold at the ICTY.

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Posted in harhoff, icty, Seselj

Low Morale at the ICTY

Posted on August 23, 2013 | 2 comments
I just came across this article on the sensewebsite about the morale of the staff at the ICTY, based on a survey taken among the Associate Legal Officers (ALOs) in June.
This is how the results are summarized :

“The morale of the staff in the Tribunal’s Chambers is at an all-time low. Many of the lawyers feel angry, sad, demoralized, betrayed, frustrated, powerless, undervalued and unappreciated, and also very distrustful of decisions coming from the President’s office. The general feeling seems to be that President and his Office do not care about the Chamber’s staff or the legacy of this institution but only about the completion strategy, the MICT (Mechanism for International Criminal Tribunals, which will carry out the residual tasks of the tribunals for the former Yugoslavia and Rwanda), and their own personal interests.”

This certainly does not draw a happy picture of the atmosphere at the ICTY right now. If true, this is certainly interesting, but ultimately, highlights a number of features of the internal dynamics of the ICTY, and probably other international tribunals, which are not that surprising.
The charges levelled at the Presidency are particularly disturbing and if true, would warrant action far more than the unsubstantiated allegations put forward by Judge Harhoff some months ago, on which I commented on at the time (hereand here).
Of course, one could adopt a demagogic position and minimize the results of this survey. Who cares about well-paid UN staffers in The Hague complaining about their work conditions, when thousands of victims in Yugoslavia are waiting for justice for the uncountable list of crimes committed against them? This would not be an entirely unfair statement to make but would ultimately be missing the point. Indeed, if one is attached to the process of international justice and efficient prosecutions for international crimes, then the institutions set up to meet that goal need to abide by certain minimum standards.
First of all, in this case the first rule of management seems to be ignored by the people at the top: keep your staff happy. There is no way that performance is not affected if the morale is so low. To put it bluntly, why would you bust your ass for an institution that shows so little disregard for you?
More importantly, the survey, beyond illustrating the personal difficulties of the staff, highlights some broader systemic difficulties at the ICTY, which ultimately also affects its performance and output.
For example, it illustrates the difficulties with the fact that there is no formal institutional link between the MICT and the ICTY. Indeed, beyond the fact that this is unfair to the current ICTY staff, I don’t see how hiring totally new people from the outside is a good idea, because this is the best way of losing the institutional memory that would lead to improved practices over the years.
In fact, this question goes well beyond the MICT. As anybody working in this field or The Hague for long enough can see, the turnover at the ICTY is incredibly high, with the result that it is likely that a number of people involved in the drafting of judgments probably never attended a single trial session. How course, one could tell me that as long as the Judges attended, then it is fine, because they are ultimately the ones deciding on the facts and the law. That is theoretically true, but so far removed from the reality of judgment drafting that it makes hardly any sense to approach things in this way. Indeed, there is no way that thousands of pages of judgments are prepared without the staff having some input in the way the evidence is understood and presented. As a result, this turnover means that there is no “case memory”, let alone institutional memory.
Finally, these allegations, beyond affecting the well-being of the ALOs, can, if true, only affect the legitimacy and credibility of the institution. Why, when all institutions in the world are increasingly being made accountable for practices of corruption, nepotism and lack of transparency as conditions for the legitimate exercise of authority, should the UN, and the ICTY in particular be exempt from these minimum principles?
On a final note, one issue raised in the article caught my attention:

Finally, as one of the respondents said, the ‘low morale is not helped by the recent appeal judgments, which are sending the message that no matter how voluminous, detailed or reasoned trial judgments are, they can be overturned in their entirety in a matter of few months, without much regard for the standard of review and in a 50 or so pages which contain very sparse reasoning’.

This is obviously a reference to the Gotovina Appeals Judgment and more generally to the recent acquittals, notably in the Perisic case. I will not restart the debate on the substance or merits of these acquitals, but I find it somewhat disconcerting that standards have been so warped at the ICTY, and in international justice generally, that a short judgment issued in a few months be considered as promoting « low morale ». For me, it is the thousand page judgment which it took years to draft that affect my morale…

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Posted in icty, meron, perisic