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Immunities and the ICC: my two-cents on three points

Today and the next few days, the Appeals Chamber is hearing oral submissions on the question of whether Bashir, from Sudan, has immunity from arrest and surrender to the ICC, as the sitting head of State of a non-State party. This promises to be a interesting debate, with contributions from Jordan, the AU and a handful of international law professors who are for the most part recognised experts on this question. To move the debate along, the Appeals Chamber has issued a list of questions to be addressed by the participants.

I will obviously not take the time to give my take on all the questions. My views are well know on this issue, as I’ve developed many times in the past (see here and here for example).

I just wanted to react quickly on three particular aspects of the question.

  • Is the “international” character of the ICC relevant ?

A number of the questions put to the participants relate to the question of whether the fact that the ICC is an “international court” can affect the rules that apply in relation to immunities. This argument was put forward explicitly at the Special Court for Sierra Leone to justify the absence of immunities for Taylor and is regularly considered in the litterature, relying on an obiter from the ICJ Immunities where it was said that: “Fourthly, an incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction” (par. 61).

I’ve never been convinced by this argument. Ascribing an “international court” label to an institutional does not magically displace all rules of international law, allowing such an institution to suddenly do things that the individual States that created it could not do.

Moreover, the ICJ was simply acknowledging the fact that certain international institutions did not provide for head of State immunity. It certainly did not provide a normative view on the matter. interestingly, in its lists of questions, the Appeals Chamber claims that “The International Court of Justice in the Arrest Warrant case refers to a potential exception to Head of State immunity under customary international law”. However, the ICJ does no such thing, and does not even use the word “exception” in the relevant paragraph.

  • What role for the “fight against impunity” in the interpretation of the Rome Statute?

One of the Appeals Chamber’s questions reads as follows:

According to  article  31  of  the Vienna  Convention  on  the Law of Treaties,  the  provisions  of  a  treaty  must  be  interpreted  in  the  light  of  its  context,  including  the  preamble,  and  its  object  and  purpose. What  is  the  significance  of  such  a  contextual interpretation of the Statute, in the light of its object and purpose as set out in its preamble,  namely  ‘to put  an  end  to  impunity  for  the perpetrators  of  [the  most  serious  crimes  of  concern  to  the  international community  as  a  whole]  and  thus  contribute  to  the  prevention  of  such crimes’, in the determination of the appeal?

My short answer is: none. I’ve always objected to the use of the vague notion of the “end of impunity” to justify any particular interpretation of the Rome Statute. Not only is it more often than not justified to adopt interpretations of the Statute which are against the Accused, but, more importantly, I do not think the “fight against impunity” is technically an object and purpose of the Statute to be taken into account for the purposes of Article 31 of the Vienna Convention (a minority view on this topic, I know). Saying this confuses the specific object and purpose of the Rome Statute as a legal instrument (conducting criminal trials) and the more general moral/political goal (ending impunity).

Confusing the two is like claiming that the object and purpose of a hammer is to build a house, rather than specifically to put nails in a wall. Focusing on the “build a house” aspect tells you absolutely nothing on what a hammer is actually meant to do concretely, because what is actually important to understand the hammer is the “put nails in the wall” aspect. The same is true of the ICC: relying on the “fight against impunity” gives you no indication on how the ICC is actually meant to work, and therefore is simply an excuse for Judges to put their own moral agenda in the mix. This should of course not be allowed.

  • Interpreting UNSC Resolutions

The immunities debate has involved a great deal of discussion on what the UNSC actually intended to do when it adopted UNSC Resolution 1593. Irrespective of my own interpretation of the Resolution, I’ve always found it puzzling that we need to fill pages and pages of cabbalistic linguistic intepretations of the Resolution, when all we need to do is ask the UNSC what it actually meant to say. The UNSC is just there! Just put the question to it, or at least to some of its member States. It shouldn’t have to be that complicated: “Did you intend to displace international rules of immunity, or not?”. Whether the UNSC has the power to do so is an entirely different question (I would argue that it doesn’t), but maybe is there no issue to discuss in the first place. In this sense, it would have been interesting for the Appeals Chamber to specifically invite the UNSC and /or its member States at the time of the adoption of the Resolution to provide the Judges with some clarity on the matter.

In that respect, Benjamin Durr recently reported that:

With Patryk Labuda rightly commenting that:

Indeed, the Foreign Ministry statement, although couched in diplomatic terms, could suggest that the Chinese do no agree with the removal of Bashir’s immunity. This is not definitive proof of what the Resolution actually means, especially because China does not speak for the other members of the UNSC, but it could definitely be taken into account in the decision making process.

[UPDATE: Alex Galand has kindly pointed out to me on twitter that in fact both China and Russia have recently clearly stated that Head of State immunity remains, irrespective of a UNSC Resolution:

More food for thought for the Appeals Chamber which should absolutely be taken into account!]

ICC PTC issues advisory opinion (yes, yes) on ICC jurisdiction over Rohingya deportation

Today, 6 september 2018, PTC I issued a decision finding that the ICC can have jurisdiction over the deportation of Rohingya from Myanmar to Bangladesh, despite the fact that Myanmar is not a State party, because at least one element of the crime of deportation (the crossing of a border) took place on the territory of a State party (Bangladesh).

While I would tend to disagree with the “you put a toe on a border” theory of territorial jurisdiction, I will leave my more knowledgeable colleagues on the definition of the crime of deportation to debate whether the PTC is really convincing on this point. I wanted to briefly address a few other issues that arise from the decision and which I find interesting.

  • The procedural framework

I have been skeptical from the start on the use of Article 19(3) to allow the OTP to address a Chamber at such an early stage with a question of jurisdiction and the decision just issued does not convince me.

Article 19(3) is situated in Article 19 entitled “Challenges to the jurisdiction of the Court or the admissibility of a case” and it should be read in this context. This clearly suggests that there needs to be a “case” (or at least a “situation”, if we accept the expansive definition of “case” in the practice of the Court). Moreover, we find similar language in the second sentence of Article 19(3) itself, which refers to a State which has refered the situation.

We have neither here. If the drafters had wanted to create a possibility for the OTP to obtain a ruling on jurisdiction as early as the PE phase, it would have more likely created a distinct provision on this. As things stand, I find it unlikely that Article 19(3) can be interpreted in this way.

I am equally unconvinced by the Compétence de la Compétence argument, which seems entirely beside the point. The question here was not whether the Court can determine its own competence (which does not seem an issue) but when. In that respect, I don’t see how invoking the principle helps in any way in determining at what stage of the proceedings the Judges come into play (see the very interesting dissent of Judge Brichambaut on this point).

As for Article 119, it should not be able to create a new procedure out of thin air…

[UPDATE: I hadn’t taken the time to analyse in detail the dissent of Judge Perrin de Brichambaut earlier, but I must say that I fully agree with him on these issues.

The contextual interpretation of Article 19(3) is clearly contrary to what the Prosecutor has argued and this is clearly demonstrated by the dissenting Judge.

As for Article 119(1), the Judge is equally convincing. The Majority’s definition of a “dispute”, based on a press release by a Myanmar governement official is laughable. By that token, the Prosecutor could use Article 119(1) whenever anyone (why just a State?) expresses disagreement with a position held by the OTP. I am regularly in “dispute” with the OTP when I comment on this blog. Let’s merrily go before the Chambers to resolve it !

Moreover, Article 119(3) is in a totally different part of the Statute, the “final clauses”, which in no way relate to the powers of the Prosecutor or create a specific procedure. In this sense, while the dissenting Judge is cautious in saying that “uncertainty remains as to knowing whether the “dispute” must arise between States or from a disagreement among the parties to judicial proceedings or even third parties”, I would not show such restraint: I think it is pretty obvious Article 119(3) relates to inter-State disputes only]

I believe that the decision is merely an advisory opinion at this stage. It is only when a PTC considers jurisdiction as part of a formal request to open an investigation will the Judges truly be in a position to issue a binding decision on such matters. As an aside, if such request where filed, I would suggest that the two Judges who ruled on the issue be disqualified from sitting on a PTC constituted to deal with the matter.

From a policy perspective, I’m not entirely sure the OTP made a smart move here. I’ve often argued that there is an underlying power struggle between Judges and the OTP to take control of the procedure at the Court. The OTP has essentially let the Judges in to what was arguably the last remaining bastion of discretion it has under the Statute, allowing them to dictate the OTP’s conduct during PEs. This is apparent from the decision itself, where the Judges take the opportunity to lecture the OTP on the way it defines a PE and warn her on the fact that she should proceed swiftly (based on the Comoros decision). You would have expected the OTP to learn the lessons of the Comoros litigation, but they took the shortsighted view here in my opinion, and I believe that Judges will continue to eat into the OTP’s discretion at the PE phase…

  • The objective legal personality of the Court

In the decision, the PTC engages in a lengthy discussion on whether the ICC has an objective legal personality (while admitting that such finding is irrelevant to determine the question of jurisdiction, which begs the question of why they delved into this issue as well).

I will not bore the readers with a detailed explanation of why every example the PTC gives to justify their position is unconvincing. Ultimately, the PTC relies on the ICJ Reparations case (where the ICJ proclaimed that the UN had an objective personality solely on the fact that it had a lot of member states…) and, paraphrasing unashamedly the ICJ Judgment, declares (par. 48):

In the light of the foregoing, it is the view of the Chamber that more than 120 States, representing the vast majority of the members of the international community, had the power, in conformity with international law, to bring into being an entity called the “International Criminal Court”, possessing objective international personality, and not merely personality recognized by them alone, together with the capacity to act against impunity for the most serious crimes of concern to the international community as a whole and which is complementary to national criminal jurisdictions. Thus, the existence of the ICC is an objective fact. In other words, it is a legal-judicial-institutional entity which has engaged and cooperated not only with States Parties, but with a large number of States not Party to the Statute as well, whether signatories or not.

This could be called the “Bully theory” of the objective personality international organizations: “there’s a lot of us, and we think we’re Morally Superior, so you have to objectively recognise us. Sorry? the Relative effect of what? treaties? No, not important. Haven’t you been listening? we’re morally superior, and that trumps everything else” (This, for some, applies mutadis mutandis to immunities, but that will be for another time). Needless to say this is far removed from serious legal argumentation.

  • Concluding thought

Whether the PTC is correct in finding that the ICC might have jurisdiction over the deportation of Rohingya or not, I’m not sure how helpful this whole procedure is, either for the OTP (see above) or even “victims”. Even if the Judges go out of the way to try and argue that such jurisdiction over deportation would open the door for the ICC to have jurisdiction over other related crimes (persecution for example), the decision is bound to create unreasonable expectations on the part of victims in relation to the relief that the ICC can effectively bring as regards what is going on more generally in Myanmar, and over which, for the most part, the ICC will not have jurisdiction. Here, as often,  the ICC and its defenders will be quick to challenge those who criticise them, without realising that they are setting themselves up to fail…




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.

ICC OTP closes preliminary examination in the Marvi Marmara incidents: some thoughts

On 29 november 2017, the Prosecutor of the ICC issued its decision announcing that it is closing the Preliminary Examination in the Comoros situation, more commonly known as the situation relating to incidents aboard the Mavi Marmara. It annexes a 145 page report explaining its position in detail.

Followers of this blog will recall that this issue has been ongoing for some time now. The Prosecutor received a referral in May 2013 (see my comments at the time here) and issued a decision to proceed in November 2014 (see my comments here). In July 2015, following a request from Comoros, a Pre-Trial Chamber requested the Prosecutor to reconsider her decision (see my comments here). Now, a few years down the road, the Prosecutor has decided to confirm her initial assessment of the situation and declines to open a formal investigation.

I have commented in the past on various aspects of the issues: why I think the referred incidents stretch the definition of a “situation” beyond recognition, why I’m not convinced that legally speaking, the relevant armed conflict is the conflict between Israel and Palestine or why I think that the whole procedure shows that the gravity test of admissibility is today inapplicable at the ICC.

I also generally agree with the OTP’s basic position that it has the discretion whether to open an investigation or not, based on its own policy considerations. In that context, gravity is for me simply one of those policy considerations, rather than a criteria to be taken into account in the context of a formal determination of admissibility of cases, which in any case I don’t believe should be part of a PE at all, but that is a different debate.

[UPDATE: Kevin Jon Heller has posted his own take on the decision, focusing on the way that the OTP assesses gravity from the perspective of a “case”, rather than doing a situational assessment of gravity. This is a problem we had both identified in the first report, and I find Kevin’s critique quite powerful: by considering that the situation is admissible if at least one case within it would be admissible, then the OTP has likely created a situation that “will almost certainly come back to haunt the OTP in future preliminary examinations”, as put by Kevin, because there will always at least one case that will be of sufficient gravity within a broader situation being considered during a PE.

While I fully agree with Kevin on principle, I think that the problem lies elsewhere: in the fact of assessing admissibility, and gravity as one of its components, at all during a PE. Assessing admissibility during the PE requires looking at “potential cases” and whether they would be admissible. That is what the case law says. This also applies to gravity. Therefore, assessing gravity as a component of the admissibility test necessarily requires looking not at the situation as a whole in my view, but merely at “potential cases”. There is in my view no room for Kevin’s situational gravity in that context.

Another thing entirely is to consider gravity as a policy element that the OTP would look at in order to determine whether to initiate a formal investigation or not. Within that framework, situational gravity is a perfectly acceptable standard which I fully agree with.

In sum, the OTP’s approach, while possibly unworkable and misguided, is the natural consequence of the combination of a possibly misguided drafting of Article 53 and a less than convincing interpretation given by the Pre-Trial Chamber in the Kenya decision to open an investigation of Article 17 to make it apply in the context of Article 15(4) decision authorising the Prosecutor to open an investigation]

I will not express an opinion on the substance of the outcome and I’m sure that there will be a lot of commentary on the factual findings of the OTP on the events that allegedly took place that day and undoubtedly a lot of criticism too given the international attention received and more generally the passion that surrounds anything related to Israel and Palestine.

I just want to share a few thoughts on the approach taken by the OTP in what is a remarkable document in many respects.

  • A strange “judicial” dialogue

It is interesting to note that a large portion of the report is devoted to criticising the Pre-Trial Chamber decision of 2015 and explaining why the Pre-Trial Chamber erred in its reasoning. Three thoughts come to mind in relation to this.

First, I’m not sure it is an entirely appropriate place to do this. It seems like someone at the OTP, who had worked very hard to write the OTP’s appeal that was deemed inadmissible by the Appeals Chamber, did not want it to go to waste.

Second, on the substance, I find that it is a well argued position on why the Pre-Trial Chamber erred by essentially substituting its own understanding of the facts, rather than demonstrating that the Prosecutor had erred in its own factual findings.

The OTP points out that the Pre-Trial Chamber embarked in a de novo determination of the facts… without ever requesting to consult the information underlying the report, as envisioned by Rule 107(2) of the RPE. As a consequence, “Disagreements concerning the evaluation of the available information can only be given very limited weight by the Prosecution when the reviewing body has not had opportunity to examine the available information itself” (report, par. 68).

The OTP also points out that the Chamber imposed a standard by which the Prosecutor should exclude all factual scenarios which would warrant an investigation before deciding not to proceed further, which is, according to the OTP, an unreasonable standard. In the convincing words of the Prosecutor (par. 158):

The majority thus simply disagrees with the Prosecution’s conclusion, positing that an alternative ‘reasonably possible’ interpretation may exist—even though it is not directly grounded in the facts as they have reasonably been understood by the Prosecution. In other words, the majority’s approach appears to impose a burden upon the Prosecution to conduct an investigation unless it can eliminate all reasonably possible speculations about the apparent facts which might satisfy the article 53(1) test, rather than a more orthodox approach in which the Prosecution positively has to identify information supporting its conclusions at the appropriate standard of proof. Such an approach leads to potentially untenable consequences—if investigation is only precluded when the circumstances are such that the available information excludes even speculation that the gravity threshold might be met, then in effect all preliminary examinations will result in investigation. This is inconsistent  with the object and purpose of the Statute, and the particular scheme laid out in article 53, and cannot be correct.

Third, this “dialogue” between the Pre-Trial Chamber and the OTP shows how absurd this all review procedure is. The Pre-Trial Chamber is given a power to review that has absolutely no legal authority over the OTP, with the ultimate result that the OTP can simply disagree with the Judges without any consequences. I don’t know what the drafters had in mind exactly, but they should have either given a clear power to the Chamber to review an OTP decision not to proceed and the corresponding power to force it to do so (which is the whole point of judicial review after all) or not bothered at all. What we have in the Statute currently is probably another one of these lame Rome compromises along the lines of “we need to respect the independence of the Prosecutor, but cannot let her entirely do what shes wants” which probably made some diplomatic delegations happy, but sets up a procedure that in its current state is a waste of time for everybody.

  • The methodology for evaluating evidence

As I said, I will not risk myself to give an opinion on the substance of the evaluation of evidence. I do find it interesting to note how the Prosecutor approached available information in a critical way.

Indeed, I find the analysis of the information, particularly eye-witness statements uncharacteristically detailed and thorough, especially compared to other documents relating to PEs in other situations.

For example, regarding the allegation that there was live-fire before the boarding of the ship, the Prosecutor provides a detailed analysis of the credibility of the 10 eye-witnesses put forward by the Comoros and their lawyers, noting for example that one of them was on another ship, that another claimed to be below deck when the boarding occurred so could not possibly see if the IDF had started shooting before boarding the ship, or that some have made obvious material mistakes in their recollection of the order of events. The OTP also notes that 4 eye-witnesses “were actively participating in the resistance aboard the Mavi Marmara at the material times” and that therefore “There is also a heightened risk of bias, both to justify their own actions and potentially to impugn the conduct of the IDF” (par. 122).

Another example is the OTP’s evaluation of the form of the statements received from the Comoros. The OTP notes (par. 182)

that many of the personal accounts appear to reflect some form of contact or link between their authors. In particular, the information available may lead to the conclusion that some persons who have sought to participate in these proceedings as victims have not only received some organised assistance in the practical arrangements to submit their applications, but also some forms of assistance related to the content or presentation of the accounts that they provide.

and then goes on to list striking similarities in the statements, despite the fact that there is no indication in them that they got help in drafting them, concluding that this was not “good practice” and could taint the evaluation of the evidence (par. 184-186).

My initial reaction is to welcome the OTP’s attitude in taking its independent capacity to review information seriously and not just take everything it receives at face value. But you have to wonder why this level of scrutiny does not always appear to be applied in all PEs.

Of course, the “situation” that was referred to the OTP which is essentially one incident, lends itself better to this kind of analysis than a PE relating to crimes committed in a whole country over a long period of time. In a mavi marmara scenario, the OTP has the luxury of devolving 150 analysing the evidence relating to one incident. If such a process had been followed, say in the Afghanistan request, it would have been several volumes long. But, from a legal perspective, this practical difference should not in principle have an impact on the level of scrutiny over the available information during a PE because the OTP should be applying the same standard of review in a consistent and uniform way. It cannot be that some investigations are opened essentially on the basis of untested NGO reports, while other investigations are not opened based on a more thorough analysis of the information.

There is one possible explanation for this level of scrutiny  in this particular situation.  When reading the report, there is this lingering feeling at some places that the OTP feels it is being manipulated by the lawyers for the Comoros and that as a consequence the file they received might not be entirely trustworthy… Of course this is never said explicitly in the report, but, if true, it might explain the OTP’s particular approach here.

  • What next?

Is this the end of the matter? It seems so, at least procedurally. Rule 108(3) provides that:

Once the Prosecutor has taken a final decision, he or she shall notify the Pre-Trial Chamber in writing. This notification shall contain the conclusion of the Prosecutor and the reasons for the conclusion. It shall be communicated to all those who participated in the review.

This seems to suggest that this is a “final decision”, i.e, not subject to a new review under Article 53(3)(a). And this is what the OTP thinks. I agree. Any other interpretation would transform the procedure into a never-ending kafka-like process, where the referring State could indefinitely approach a Pre-Trial Chamber to obtain a review, when the Pre-Trial Chamber would indefinitely request the Prosecutor to reconsider and where the Prosecutor would indefinitely have to decline.

In practice, I would imagine that lawyers for Comoros will still try to keep this issue alive one way or another and given the sympathetic ear they received the first time around, one cannot exclude that the PTC would allow itself to be seized of the matter once again, so we might be up for more excitement in coming months…

Also, one must not forget that there is currently a preliminary examination in the situation in Palestine. Right now, the 12(3) declaration made by Palestine only goes back to 2014, so does not cover the Mavi Marmara incident. However, according to some commentators, Palestine can always do another 12(3) declaration in the future to go back further in time (I disagree), and include the Mavi Marmara situation. In that case, the OTP would have to consider the incident in the broader context of the armed conflict, which it refused to do in the current situation given the limited scope of the referral. Would that lead to a different outcome? maybe technically yes, but from a policy perspective, I would imagine the OTP would have bigger fish to fry in such a broader situation and would still  possibly not proceed further, drowning the incident in a broader discussion of the context.



Mladic Judgment: yet another new finding on genocide in the municipalities?

Today, the ICTY issued its long awaited Judgment in the Mladic trial. Few commentators expected any surprises, especially, as I pointed out at the time, because Mladic was mentioned 1883 times in the Karadzic Judgment.

One issue that was being followed carefully, is whether the Chamber would make a finding of genocide in the Municipalities. This has been one of the most controversial question in the case law of the ICTY, because so far, no Trial Chamber has made a finding of genocide in Bosnia outside of Srebrenica. As noted by Marko Milanovic, “The possibility thus remains that the Mladic and Karadzic trial chambers will disagree on the existence of genocide outside Srebrenica; that possibility is relatively low, but it is not zero.”

Here is how the Chamber dealt with the issue (this is from the summary of the Judgment, the Judgment not being available yet at the time of writing):

The Chamber then examined the specific intent of the physical perpetrators. The Chamber found by majority, Judge Orie, dissenting, that the physical perpetrators in Sanski Most, Vlasenica, and Foča, and certain perpetrators in Kotor Varoš and Prijedor Municipalities intended to destroy the Bosnian Muslims in those Municipalities as a part of the protected group. The Chamber then considered whether the targeted part constituted a substantial part of the protected group, and concluded that the Bosnian Muslims targeted in each municipality formed a relatively small part of the protected group and were also in other ways not a substantial part. Consequently, the Chamber was not satisfied that the only reasonable inference was that the physical perpetrators possessed the required intent to destroy a substantial part of the protected group of Bosnian Muslims.

3 comments can be made on this:

First of all, the outcome of the Chamber that there was no genocide in the Municipalities is consistent with the case law of the ICTY to date. This will of course continue to receive criticism from certain quarters. As I noted after the Karadzic Judgment: “There is now consistent case-law that there was no genocidal intent in the rest of Bosnia and I remain surprised at the criticism levelled 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”.

Second of all, it seems that the reasoning of the majority of the Chamber actually departs from the Karadzic Judgment. There, the Chamber found that ” The Chamber is not satisfied, however, that there is evidence establishing, beyond reasonable doubt, that the perpetrators of these crimes possessed intent to destroy the Bosnian Muslim and/or Bosnian Croat groups in the Count 1 Municipalities as such” (Karadzic judgement, par. 2613). We now therefore have two different legal findings in the case law in relation to the intent of the direct perpetrators of the crimes committed in the Municipalities, a discrepancy that will need to be resolved on appeal, both in the Karadzic and Mladic cases.

Third of all, having found, by Majority, that the direct perpetrators did in fact have genocidal intent, the Chamber moved on to find that the intent did not relate to the destruction of a substantial part of the group. This finding re-opens the can of worms that was the definition of “substantial part of the group” in the Srebrenica cases and the ICTR. Indeed, how “substantial” must the part of the group destroyed be, and in relation to what overall group?  Is the calculation of what is substantial based on the Muslims in these municipalities? The summary of the Judgment is not very clear on that, but it seems indeed to suggest that the protected group is “the Bosnian Muslims in those Municipalities”. In that case, it will have to be made clear in the Judgment how the facts differ from the Srebrenica scenario. Is the calculation based on the wider group of muslims in Bosnia? In this case, this would be at odds with the approach in relation to Srebrenica.

Whatever the approach, still remains open the question of how intent to commit genocide can be “split”, when it comes to the actions of a group over a given territory, that it controls, depending on the specific town or village involved. For me, there is either genocidal intent, or there isn’t…

As an aside, I’m curious to know how the Chamber came to the conclusion that life imprisonment was warranted, especially compared to the 40 years that Karadzic received. I’m not particularly impressed with the finding that “the crimes committed rank among the most heinous known to mankind”. Isn’t that the case for all crimes within the jurisdiction of the tribunal? More generally, I would expect the Judgment to be as imprecise and as unuseful as all other international judgments which provide dozens of pages of discussion on the criteria to be used in sentencing… before dishing out a lump sentence which usually comes out of nowhere… (see my thoughts on this in relation to the Taylor Judgment here)

On a concluding note, and because I like to be consistent, I remain irritated by claims that the Judgment is a “victory for justice“. As I’ve said in the past, if you have trust in the legitimacy of the legal system, any outcome should be considered a “victory for justice”, even if it is an acquittal…