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Breaking: Katanga found guilty in third ICC Judgment

Posted on March 7, 2014 | 4 comments

The ICC has just delivered its third judgment and convicted Katanga for war crimes and crimes against humanity under Article 25(3)(d) of the Rome Statute. He was acquitted for the use of child soldiers, for rape and for sexual slavery.

Those who followed me on twitter, will know my first impressions of the judgment, but a few quick thoughts here, before possibly some more thorough developments when the judgment actually comes out:

1) There is no real surprise in this judgment. Regular followers of international criminal law will recall that over a year ago, during the deliberations stage, the Trial Chamber severed the case of Chui and Katanga, announced to the defense that the charges against Katanga might be requalified as accomplice liability under 25(3)(d) (with a strong dissent from Judge van den Wyngaert) and promptly acquitted Chui. Essentially, we already knew then what we heard today: a) Katanga acquitted under article 25(3)(a) for perpetration b) Katanga found guilty under 25(3)(d) as an accomplice and c) a strong dissent from van de Wyngaert.

2) Strangely, Judge Cotte read van Den Wyngaert’s dissent before reading the majority opinion on the requalification. This is the first I see this (if readers have seen this before, please direct me to the relevant case) and find this extremely bizarre, as if he didn’t want to end on the bad note that is the scathing critique of the majority judgement that seems to be the dissent.

3) This is the first judgment under article 25(3)(d) and it is  interesting to see what level of knowledge and contribution are required. My first impression is that the majority was very vague and broad on both counts (apparently, it seems to be a crime to provide weapons to a group that might give it a military advantage over its opponents…), but I’ll wait for the judgment to comment further.

4) There are some disturbing pronouncements on the rights of the defense and the right to be tried without undue delay. As Clair Duffy from the IBA summarized here, the use of Regulation 55 raised a number of due process concerns which were essentially brushed aside by the majority. More on this with the judgment.

5) As noted already by a number of people:

This obviously raises a number of questions on whether ICL culture has really changed on this and were the problem lies (investigation strategy, evidence gathering, judges, education, etc.).

6) I’m disappointed that Judge Cotte, having taken the time to explain in the Chui acquittal Judgment that the fact that he was not found guilty does not mean that Chui was innocent, did not do the same here, by clarifying that the fact that Katanga was convicted did not mean that he was in fact guilty…

Stay tuned for more comments later tonight.

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The Return of the Sequel to the Specific Direction Saga: Prosecutor files for reconsideration of Perisic Appeals Judgment

Posted on February 3, 2014 | 8 comments

The year started with a bang a couple of weeks ago when a differently composed Appeals Chamber bench in Sainovic claimed that the Appeals Chamber in Perisic had erred in considering that specific direction was part of the elements of aiding and abetting liability. There is no need in coming back at this point on the substance of the discussion which has been debated to death in the past year.

In any case, in light of Sainovic, the ICTY OTP has now filed for reconsideration in the Perisic case itself. As noted by Kevin Jon Heller, there is absolutely no legal basis for such a motion, as it would really be a stretch to consider that the Sainovic judgment would constitute a “new fact” allowing for reconsideration. Sainovic is only evidence that Judges at the ICTY have decided to fight their personal battles in their judgments, which is most certainly something to be concerned about, but not a reason for reconsideration.

The motion is however perfect for teaching purposes, because it summarizes in a few lines the confusion about the object and purpose of ICL and how it has been used to trump defense rights.

Using a decision relating to the possibility of reconsideration in the exceptional case of a “miscarriage of justice”, the Prosecutor reasons in the following way:

Reconsideration is the only option for the Appeals Chamber to rectify the manifest miscarriage of justice to the tens of thousands of men, women and children killed or injured in Sarajevo and Srebrenica and their families resulting from the erroneous Perisic decision.

This reasoning is disturbing in a number of ways. Not only does it reflect the general victim-centred reasoning of some people in ICL, as pointed out by Kevin, it illustrates more specifically how there is an increased confusion between the actual rights of the actual parties to the proceedings and the metaphorical “rights” of those having an interest in the trial. The concept of miscarriage of justice is not a moral metaphysical concept meant to cater to the disappointment of court observers, be they the direct victims of crimes. It is a specific concept meant to protect the rights of the accused against possible abuses in the judicial process.

It is therefore particularly disgraceful that one of the organs of the Court would try and use a concept created to protect the accused, against the accused. This is of course not a new practice of international tribunals. Examples abound of decisions where a right of the defense was opposed to the accused to defeat the exercise of another right ( for eg, right against self-incrimination raised against Norman at the SCSL when he himself wanted to testify before the TRC, and more generally the right to be tried without undue delay sometimes raised by judges when defendants ask for more time to prepare for their defense).

This is an unfortunate new episode in this Perisic saga (and its Harhoff spinoff). With most movies, the sequels tend to drop in quality compared to the first one in the series, and this is no different. Some might say that recent decisions, such as in Seselj, where the case is plowing on despite the disqualification of Harhoff, or motions such as the one discussed here, tarnish the legacy of the ICTY, I don’t share this somewhat implicit optimistic account of the legacy in the first place.

Unfortunately, recent media-gathering examples such Perisic, Seselj or Taylor (or Kenya at the ICC), are merely symptomatic of the normal workings of international tribunals. A more accurate way to put it would be that the courts are now just polishing the coffin that is the legacy of international justice, at least in relation to the protection of the rights of the defense.

More on this most certainly in the Katanga Judgment to be released on Friday…

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Posted in icty, perisic, principle of legality, rights of the defence, sainovic, Seselj, Uncategorized

New Judge Assigned to Seselj Case and confirmed tensions at the ICTY

Posted on November 1, 2013 | 12 comments

First a short anecdote. Yesterday, I posted a comment regretting that nothing was going on in the Seselj case… apparently a few hours after an order from ICTY VP Agius appointing a new judges! This is because I had planned the post in advance and programmed it to go online while I was on a trans-atlantic plane (and therefore not in position to see the order). The joys of technology and the luck of the draw…

This being said, despite the (deserved) irony of some of my readers on me being irrelevant, I’m quite happy this happened, because I can now say: “I told you so”. Indeed, as I said in my post yesterday, there were two main possible explanations for the delay: 1) lack of agreement between the remaining judges of the Trial Chamber and 2) difficulty in finding a new judge.

When reading the order, it is obvious that both are true. Indeed, Judge Agius clearly refers to Judge Antonetti and Lattanzi’s opposition to the use of Rule 15bis (B)-(D) to deal with the Seselj situation, indicating the tension that seems to exist within the Court. Moreover, the appointed Judge, Judge Niang, is not a current ICTY judge, clearly showing that no judge wanted to be on the case. As an aside, I’m wondering what the procedure is exactly to get Judge Niang on an ICTY Bench, given that he was recently appointed to the ICTR, not the ICTY!

Beyond that, the real issue here is the confirmation that the process going on is in scandalous disregard to legal reasoning and the rights of the defense. It is not necessary to rehash my views on the unconvincing use of Rule 15bis(B) by Judge Agius and its inadmissible result of not leaving open the option of just putting an end to the proceedings. I discussed these issues here, here and here. Kevin Jon Heller also discusses this issue in light of yesterday’s order (here and here) pointing out that, not happy to erroneously apply Rule 15bis(B) to (D), Judge Agius then ignores its conditions of application! For example, it appears from the order that Seselj has still not be consulted on the issue, which is quite extraordinary.

I am the first to acknowledge that the current situation is not easy for the ICTY. Judge Harhoff put his institution in quite a messy place and there are probably no real satisfactory way to get out of it. However, it seems that everybody involved, whether Harhoff who still thinks he did nothing wrong,  Antonetti and Agius, is doing his best to make sure that the worst possible legal solution is reached. It’s quite a shame.

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Some Thoughts on Social Media and Academics: will all academics need to do it in the future?

Posted on October 8, 2013 | Leave a comment

It’s fitting, I think, that my first post on my the new site should be about the question of social media and academics. I was on a panel discussion organized by the School of Human Rights Research at the university of Utrecht on the issue today, along with Antoine Buyse from the prestigious ECHR Blog and Laura van Waas from the Statelessness Programme Blog of Tilburg University.

A number of issues were addressed, such as how to choose and use particular types of social media platforms (such as twitter, facebook and blogging) and how to valorize your work and reach out to different audiences. All this was addressed by a very good presentation by Jessica Dorsey, from the Asser Institute, who has truckloads of experience in this field already, particularly for her excellent work over at Opinio Juris.

More generally, the discussion brought to mind some thoughts, which I had already partly discussed here, and which are all linked to the basic idea that these new online forms of academic expression are here to stay. This has a number of consequences.

1) This phenomenon cannot be ignored by traditional actors in the field, who must acknowledge that there is no going back from the age of blogs and authors wanting their drafts on SSRN very quickly. Of course, this has consequences for the whole market structure and dynamics and it is a problem, in terms of copyright for example, but the issue must be tackled head on, if not everybody will lose from the situation.

2) One particular way in which I think blogs will have an impact on traditional publishing is on certain types of articles. For me, the casenote will be less and less valuable in a print edition of a journal that comes out every 3 months. By that time, dozens of blogs have produced extensive commentary on particular judgements or cases. Only more in-depth pieces which include the judgment in broader discussions will make sense on such a long publishing timescale.

3) Funnily enough, I see a lot of publications in a number of (even prestigious journals) which originated as blogpost and frankly don’t seem to have been changed much from their online publication to print, other than some footnotes being added. I don’t know if it is a good thing or not, but it is a point rarely made.

4) New forms of collaborations must be developed, even more than they have been in recent years. In that spirit, a number of journals, including the Leiden Journal of International Law, organize regular online symposiums on Opinio Juris on some of its articles which bring in some element of dynamic debate to the more in-depth process that goes into writing and understanding an article. Other forms of collaboration could include the possibility for allowing online responses to published articles, and rejoinders, as is done on EJIL Talk!.

And now for a wild prediction. I’m wondering if within a few years, this kind of skill will not become an essential part of the basic package that might be expected from academics, maybe not on the same level, but along with research skills, capacity to publish traditional articles and teaching. And I mean this both from a technical point of view and one the substance. From a technical point of view, there will come a point where not knowing how to use twitter or promote your work on internet might be just as much a handicap as not knowing how to use a computer. On the substance, writing for the internet requires certain skills which are not the same as traditional academic writing. In this sense, I think that the idea that some people have expressed in the past that any schmuck with a keyboard can write something online without the safeguards of peer-review or traditional codes of academic writing is somewhat misplaced. Indeed, ultimately, for all forms of expression, the litmus test of quality is always the same one: is your audience happy or not? On this, there is no difference between traditional academia and online blogging in answering the age-old question: are you good at what you do or not?

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Nightmare scenario at the ICTY: Judge Harhoff disqualified

Posted on August 28, 2013 | 7 comments
The news broke an hour ago: Seselj’s long-winded motion to disqualify Judge Harhoff from his case has been successful. His motion was based on the letter that Judge Harhoff sent  in the spring to a number of his friends, and that I commented on extensively on this blog (here and here). Basically, the panel found in its decision that 

In the Letter Judge Harhoff has demonstrated a bias in favour of conviction such that a reasonable observer properly informed would reasonably apprehend bias

This is quite big news and the first public sign, to put it mildly, that someone at the ICTY is unhappy with Harhoff’s conduct. The question now is of course what the consequences of this decision, given that the decision considers that Judge Harhoff’s bias is general, not specific to the Seselj case. 
In the Seselj case, first of all, does this now mean that the trial has to start over from scratch? Given the tortured history of this trial, it’s difficult to imagine that the ICTY wants this, and Seselj would have a good claim to being released because a new trial would constitute an abuse of process. 
In the Stanisic case on appeal, there is a pending motion to admit Harhoff letter as new evidence. I don’t see how the Appeals Chamber can decently refuse that motion now. And more, I think this could be a strong basis for a new motion in review of the Trial Judgement. 
Finally, in the Delic case, his lawyer filed a motion for revision, with the added difficulty of the defendant being deceased (i commented on that point here). Again, this new decision strenghtens the motion. 
More generally, does it mean that every case that Judge Harhoff was on is now subject to revision? I haven’t done a list of those cases yet, but given that he has been at the ICTY for some years now, this could have serious consequences. UPDATE: there is only the Dragomir Milosevic case, but there hasn’t been any movement from there yet, that I know of.

Judge Harhoff was also Senior Legal Officer in Chambers for 10 years, so, to stretch things a bit, the cases he worked on could theoretically be affected. 

What is clear is that this most certainly puts an end to Judge Harhoff career at the ICTY. It was already surprising that he had not resigned before and this decision means that he cannot decently work there anymore. He probably should have resigned before being fired. 
A final thought: there is of course a certain level of hypocrisy here. I, like many, have always thought that the ICTY, and international criminal justice in general, is biased in favour of convictions, and has developed tools to make these easier, in terms of rules of evidence or modes of liability, such as JCE. It seems slightly unfair that Judge Harhoff should pay for saying publicly what a lot of people at the ICTY think, including among the judges. Therefore, this decision should not be taken as a reason to continue to reflect on the biases of the system that go well beyond the fate of just Judge Harhoff. 

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