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))

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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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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

Guest Post: Response to Julian Ku on the ‘boycott’ of UNCLOS arbitration by Russia and China

Posted on October 30, 2013 | Leave a comment

Wim Muller is an Associate Fellow with the International Law Programme at Chatham House. All views expressed in this post are personal.

I am pleased that Julian Ku has taken the time to respond in depth to my earlier guest post in which I, among other things, cited the U.S. withdrawal from Nicaragua as a precedent for China’s and Russia’s recent behaviour in UNCLOS arbitration proceedings initiated against them by the Philippines and the Netherlands, respectively. I am grateful to Professor Ku for clarifying his position by explaining that he was limiting his observations to UNCLOS dispute settlement and not binding international dispute settlement in general. In addition, Ku states that he “didn’t mean to argue that the U.S. was a better actor than China or Russia with respect to international dispute settlement” and his “general take is that China is likely to follow the U.S. in sharply limiting its involvement with the more ambitious forms of international adjudication like the ICJ and the ICC.” On this, we are mostly in agreement. To clarify my point: China has had a longstanding policy of not accepting compulsory jurisdiction of the ICJ and other international dispute settlement mechanisms including ITLOS (see Ma Xinmin, ‘China’s Mechanism and Practice of Treaty Dispute Settlement’, 11 Chinese J Intl L 11 (2012) 387), but some observers have also noted that it has used U.S. policy as an example, in particular with regard to the ICC.

Ku also writes that I seem “to be arguing that walking away from binding dispute settlement in the China/Russia manner is actually a more respectful approach than walking out halfway, as the U.S. did in Nicaragua.” I would not say it is more respectful; neither approach is respectful. What I argued instead, is that walking away after not getting the judgment that one wants does more damage than not participating in the proceedings at all. Neither course of action is indeed a “vote of confidence” in the dispute settlement procedure in question.

In my original post, I referred to a legacy of distrust of “the West” which partially explains why Russia and China are reluctant to participate, but not the U.S. Another partial explanation valid for all three states is that they can get away with not participating because of their relative power. Maybe this means that the UNCLOS dispute settlement procedure, like other similar procedures, will be helpful more often in settling disputes between more or less equal powers, as the multitude of such cases in various fora attests. A third factor which influences the behaviour of these powers cited by Ku is domestic pressure, when he argues that China and Russia are less susceptible to NGOs and international lawyers. I agree to this point to an extent, but Ku may be underestimating the significance of public opinion in particular in China, and maybe also in Russia. Domestic actors cannot exert as much pressure on the government as in the U.S. and face more constraints, but they are already relevant and their relevance will continue to grow. I do not believe that this would make much difference in the China v. Philippines case, where nationalist sentiment will probably put most of the Chinese population (to the extent that it cares) squarely behind the government. The Arctic Sunrise case may become more interesting in this respect, as it is more likely that Greenpeace will find some support within Russia, at the very least for its aims.

Finally, I would like to correct a factual mistake in my original post. The oil platform Prirazlomnaya on which the Arctic Sunrise cases occurred is not located in the Kara Sea, which is further to the east, but in the Pechora Sea, a fact agreed on by all parties in the case which carries some legal significance. I had taken this piece of information from a news article but not verified it myself, and extend my gratitude to Sergey Golubok, one of the defence attorneys for Greenpeace in the case, for pointing this out to me.

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A response to Dersso on Chapter VII, the ICC, Kenya and healthy tensions in International Law

Posted on October 29, 2013 | 2 comments

In a recent post, on Ejil Talk!, Solomon Dersso provides his take on the recent AU summit outcome in relation to the ICC. While I shared my own views on the issue here a few days ago, his post raised a couple of interesting issues which I think deserve further attention: on the scope of the use of Article 16 in the Kenya cases and on the general question of the “sour” relationship between the ICC and the AU.

1) On the use of Article 16 in the Kenya cases

As recalled by Dersso, a deferral of the cases would require that the UNSC act under Chapter VII of the UN Charter. Article 16 of the Rome Statute specifically provides that:

No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.

Dersso deals with this Article in the following way:

Second, the UNSC can exercise its authority under Article 16 only after determining that continuing with the prosecution constitutes a threat to international peace and security within the framework of Chapter VII of the UN Charter. Looking at the cases against Kenyatta and Ruto, there is little evidence to suggest that their trial would lead to such a threat – unless UNSC members determine politically that the threat of terrorism facing Kenya (following the Westgate attacks) is reason enough to warrant the deferral.

This reasoning raises some new questions. Indeed, Article 16 does not require that the prosecution itself constitute a threat to international peace and security. As long as there is a resolution adopted under Chapter VII, then the case is deferred. Moreover, I don’t understand the emphasis on the word “politically” in the second part of the sentence. As opposed to what? I understand that there are political considerations in Chapter VII decisions, but it would not be more political to decide that Kenya is facing a threat of terrorism than to decide that prosecutions would constitute a threat to peace and security. Determinations under Chapter VII are always political.

In any case, as I said before, if the ICC Prosecutor herself considers Westgate to possibly be an international crime, then it’s not a far cry to think that allowing Ruto and Kenyatta to deal with it is necessary for international peace and security. Another argument, if a little twisted, could be that deferral is necessary to avoid the continued acrimony between the AU and the ICC, which is a setback for international justice, and therefore a possible threat to international peace and security.

A related question that is not dealt with by Dersso is what the ICC could do if it disagreed with the UNSC evaluation of the situation under Chapter VII. The issue of the judicial control of the use of Chapter VII is a long standing debate in international law. More particularly, it has come up a number of times in relation to international criminal tribunals. In the famous Tadic interlocutory appeal, the ICTY Appeals Chamber had engaged in a cursory discussion of whether the UNSC had validly used Chapter VII to create the tribunal. More recently, however, the Trial Chamber of the Special Tribunal for Lebanon, confirmed by the Appeals Chamber, refused to engage in such discussion. I personally agree with the STL case law and believe that a Chapter VII resolution would automatically trigger Article 16 of the Rome Statute with no discretion for the judges to exercise any judicial control over it.

2) The general question of the relationship between the AU and the ICC

The tone of Dersso’s post seems to suggest that the current tension between the ICC and the AU is necessarily a bad thing. However, beyond appearances, I am not sure that this is the case. Indeed, it highlights the real tensions in international law today between competing cosmogonies that are not easily reconcilable: criminal justice vs. political realism, human rights vs. sovereignty, universalism vs. regionalism…

Nobody is actually to blame for this situation. The ICC has a mandate that it is perfectly legitimate in trying to accomplish, but African states are also legitimate in voicing their concerns. As far as I know, the opinion of states is still an important aspect of international law and if these states decide to withdraw from the Rome Statute, it is not a defeat for international law, but a consequence of how international law works.

It is ultimately healthy for the system that these tensions come out in the open, rather than be swept under the carpet to create an illusion that everything is running smoothly. Whatever one’s own view of how international law should be, ignorance of reality is a recipe for irrelevance. In the current situation, blind defense of the ICC and dismissal of AU concerns might just end up being an example of that.

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Posted in ICC, Kenya