Category Archives: mladic

3 Judges removed from Mladic Appeal at the MICT for appearance of bias

On 3 September 2018, Judge Antonetti (acting as senior Judge at the MICT) issued a decision granting the Mladic defense request to disqualify Judges Meron, Liu and Agius from the Appeals Chamber in light of their involvement in other cases at the ICTY were the criminal responsibility of Mladic was discussed.

I imagine this decision will be criticised by some, but I entirely agree with it. How can one seriously claim that a Judge who issued a judgment where it is clearly indicated that Mladic had genocidal intent or that crimes could not have been committed without his approval, can be deemed to not have already formed an opinion on such a central question at the heart of the Mladic appeal? It seems to be basic common sense to me.

One of the issues was the fact that  Judge Meron sat on a couple of appeals where Mladic came up. The disqualification decision makes a distinction between passages in a Appeal Judgment that only refer to and provide an assesment of the reasonableness of the conclusions of the Trial Chamber and passages that seem to express an opinion of the Appeals Chamber directly.

I can see the relevance of the distinction on principle, because, in theory, the fact that an Appeals Chamber finds that a conclusion of an Trial Chamber was not unreasonable, does not mean it agrees with it. However, I think that this ignores the reality of what the Appeals process entails on a psychological level. One is more likely to find as “reasonable” a conclusion that one agrees with and vice versa. Under the guise of an objective standard of review at the appeals level, Appeals Chambers have repeatedly substituted their own determination of the facts under the pretense that the Trial Chamber’s factual finding was not “reasonable”. This need not always be the case, but it is a sufficiently “reasonable” possibility to create a perception of bias in a “reasonable” observer. In those circumstances, I would apply a stricter test than the one Judge Antonetti applied.

The decision concludes with this thought (par. 82, my translation): “By allowing certain Judges to participate in two distinct trials resulting from the same factual pattern when there existed between the case common elements of facts and law, international criminal tribunals have taken certain risks when it comes to impartiality”.

I would have liked to hear more about this. “Certain risks” does not mean anything. Either the Tribunal adopted an unfair practice or it did not. In this sense I would be interested (if anybody out there has done this research already, please share!) to see a mapping of the cases Judges sat on and the factual relationship between such cases. Especially, how does this decision apply to the Karadzic appeal?

I would go even further. I believe that, beyond individual Judges, for some defendants, for example Mladic and Karadzic, their fate was sealed on an institutional level, before their trial even started, given the ample discussion of their role in numerous other Judgments. I suppose this was unavoidable given the nature of the tribunal, and the factual situation it was dealing with, but it does not mean it is not problematic. It raises, beyond fair trial issues, the age-old question of how individual criminal responsibility is approached (and diluted) in system criminality and, ultimately, the question of the capacity of international criminal tribunals to deal with such criminality.

Chutzpah at the ICTY: OTP motion to severe Mladic Indictment

I have been offline for a while now, too busy in the “real world” to blog on some of the issues that came up in recent months.

However, I couldn’t really resist commenting on this piece of news: the ICTY Prosecutor filed a motion yesterday requesting a severance of the Mladic indictment to do two separate trials. This is the OTP’s overview of its own motion:

1. The Prosecution seeks leave to: (a) sever the Second Amended Indictment (“Indictment”) against Ratko Mladic into two indictments (“Srebrenica” and “Sarajevo, Municipalities and Hostages”); (b) have the Srebrenica indictment tried first, followed by the Sarajevo, Municipalities and Hostages indictment […]

2. The Prosecution has considered several options for proceeding against Mladic. Factors which have been taken into account include Mladic’s arrest at this late stage of the Tribunal’s mandate, the need to ensure justice for the victims, the desirability of commencing a trial as soon as possible, and the need to plan for the contingency that Mladic’s health could deteriorate. In the circumstances, severance of the Indictment and conducting two focused trials will best serve the interests of justice. 

3. Such an approach will maximise the prospect of justice for the victims, enable more effective management of the two separate trials and best allow the proceedings to be adapted in case of unforeseen contingencies. It is also consistent with the Rules of Procedure and Evidence (“Rules”) and will not unfairly prejudice the Accused’s rights.

Several brief thoughts :

1) On the substance of the indictments, the Prosecutor justifies the possibility of a severance by basically saying that there was no overarching Joint Criminal Entreprise (JCE) in Bosnia, contrary to what he had argued in the amended indictment of last June (§5):

Radovan KARADZIC and,  as of  12  May  1992,  Ratko  MLADIC,  were  key  members  of  an  overarching joint criminal  enterprise  which  lasted  from  at  least  October  1991  until  30 November  1995.  Their  objective  was  the  permanent  removal  of  Bosnian Muslims  and  Bosnian  Croats  from  Bosnian  Serb-claimed territory  in  BiH through crimes charged in this indictment.

The story now is that the JCE to eliminate the Bosnian Muslims in Srebrenica is unrelated (or in the words of the Prosecutor “not part of” and “not a foreseeable consequence of”) to the JCE to permanently remove all Bosnian Muslims and Bosnian Croats from Bosnian Serb-claimed territory. This basically looks like confirmation from the prosecutor that Srebrenica was a one-off genocidal event… or is it? because there are also counts of genocide under the proposed Municipalities indictment. So if I understand correctly, there is genocidal intent in both cases, but they are unrelated… I find that a little confusing. As Professor Schabas was quoted saying in a recent Economist article: “either there was a general bid to exterminate or there was not” and severing the two seems extremely artificial.

2) I won’t really comment on the practical justifications given by the prosecutor to hold two trials instead of one (interests of justice, interests of victims, manageability…). One can only wonder why, if these issues are so important, this has not been the practice in the past? I was under the impression that the ICTY was always acting in the interests of justice and of the victims, and that the efficient administration of justice was a permanent key consideration for the Court. But I must have been mistaken.

3) What puzzles me the most is the Procedure and timing of the motion. As the Prosecutor’s immediate recourse to “inherent powers doctrine” shows (§21 of the motion), there is no actual textual basis for the severance in the founding documents. I generally don’t like the use of this shaky doctrine by international criminal tribunals, but let’s play along for the sake of argument.
The real issue is timing. I find that this motion shows the  chutzpah of the Prosecutor, and ultimately of the ICTY, should the severance be accepted. Indeed, let’s look at the timeline for a second. The first indictment against Mladic was filed some 15 years ago.The Prosecutor, filed an revised indictment in May 2010, which was only approved nearly a year on in May 2011, so that gave him time to reconsider his approach. More importantly, Mladic was rushed through the initial appearance (with the playing-to-the-media-i’m-reading-ALL-the-charges show from Judge Orie)  and the ridiculously hasty pleading proceedings (with the removal of Mladic from the courtroom at his own request), his request for additional time to read and understand the charges having been denied. Everything was rushed along, probably in the “interests of justice”. And now, the Prosecutor suddenly decides to change his mind and hold 2 trials, because of these same “interests of justice”? Whatever the practical merits of that solution, I find the Prosecutor’s conduct quite careless, especially in light of the ICTY’s attitude towards Mladic, which seems to indicate that a Court having conducted dozens of trials is suddenly having first date jitters when it comes to this defendant.

4) On a final and related note, I’m still in favour, at least in theory, of joining the Karadzic and Mladic trials, especially if Srebrenica is tried separately. On top, from what I understood, the Karadzic Chamber has not even started hearing evidence on Srebrenica (someone correct me if I’m wrong). As I’ve said elsewhere, these this is essentially the same case, from a narrative point of view. If the “interests of justice” are so important, then I believe both cases should indeed be joined.

The ICTY prepares for Mladic

As the procedure for Mladic’s extradition continues in Serbia and questions of his fitness for trial arise, the ICTY awaits his arrival eagerly.

First of all, the judges for the Trial Chamber have been assigned. Among them is Dutch Judge Alphonse Orie, which is interesting, given the Netherlands’ ambiguous role in Srebrenica. It is also ironic that a Dutch judge will be a part of accountability for what happened there, given that the a Dutch court decided in 2008 that the Netherlands were not responsible for what happened because they were under UN command, and that the UN itself could not be sued before a national court because of its immunity, thus removing all means of reparations for victims.

Second of all, the Court granted the Prosecutor’s request to amend the Mladic indictment, which he had filed… over a year ago! One could of course cynically think that the imminent arrival of Mladic explains the sudden interest for a request which has likely been buried in the “to do” box for a year… But the professionalism that defines the work of the ICTY should guard us from such cynicism and the delay probably only means that the judge has been extremely thorough in reviewing the request and its accompanying documents.

Third of all, as predicted in my previous post, Karadzic’s counsel has raised the issue of the effect of Mladic’s arrest on the Karadzic trial, and the question of whether a suspension and joinder might be an option.

BREAKING NEWS: Mladic apparently arrested!

The press is announcing that war crimes suspect Radko Mladic has been arrested in Serbia. The president of Serbia has confirmed this information in a press conference. He claims that this “closes a chapter” in the history of Serbia and its cooperation with the ICTY (although he did mention that Hadzic is still out there). I think this is wishful thinking. Because 1) the turbulent history of the Balkans and Serbia’s role in it will not just disappear with Mladic’s rendition to the ICTY. There will be a long trial which will delay any closure for many years. and 2) is sending Mladic for trial in The Hague really the way to deal with the past? I know that the ICTY has primacy over the case, but if I were Serbia, I would actually fight that and request to try him, under international supervision, in Serbia. The trial would definitely have more meaning in my opinion.

It will also interesting to hear the world leaders praise the arrest and the fact that Maldic will be brought to justice… just weeks after they praised the killing of Bin Laden as “justice being done”…

Finally, it will of course be important to see the effect of the arrest on ongoing cases at the ICTY. Let’s see Mladic, for example, prove that he is not the author of the diaries that were entered into evidence in a number of cases. Also, if I were Karadzic’s counsel, I would request a suspension of his trial and a joinder of cases, given the JCE that is claimed against both of them. That would create quite a procedural mess…

Mladic to be declared dead by Serb authorities?

The family of Ratko Mladic, world famous fugitive from the ICTY, has asked a Serbian court to declare him dead because he’s been unheard of for seven years. According to the news story:

Under Serbian law, a person can be declared if they are over 70 years old and there has been no information about them for five years. However, Mladic is only 68, so the family will have to prove that “he disappeared under such circumstances that make it probable that he is no longer alive.”

This is not an exceptional law, which exists in many countries, such as France. Technically, a Serbian court’s decision is unlikely to have any direct impact on ICTY proceedings, but it would be kind of weird Kafkaian situation that an international court pursue the arrest and prosecution of an individual declared legally dead by another court…
This is the second time this month that the ICTY might have to deal with a dead defendant, with Delic’s heart attack with his appeal pending. In relation to that, we are still waiting for a decision by the ICTY on the fate of the proceedings. I suppose there’s no rush, no that he’s dead…