Tag Archives: icty

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

Posted on September 5, 2018 | 11 comments

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.

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6 Quick Thoughts on the Karadzic Judgment

Posted on March 25, 2016 | 4 comments

Today, the ICTY issued its long awaited Judgment in the Karadzic case. Given its length, over 2500 pages, this post can obviously not provide any comprehensive analysis of the Judgment. I do however want to share 6 quick initial and general thoughts :

  • As noted, the Judgment is very long. This might seem a little shocking at first, but given the length of the trial, the huge body of evidence adduced from the trial and the crimes covered, its length can be understandable. Which does not mean that this is not problematic. There has to be something wrong with a system, from the OTP charging strategy, to the case management by the Judges, for such a Judgment to be rendered. Nobody is going to read 2500 pages and questions can certainly be asked about the pedagogic effect of international judgments.
  • Which brings me to my second point: the fundamental question of the usefulness of international judgments generally. Indeed, following the build-up to the delivery of the Judgment in the general media, it was obvious that Karadzic was already considered to be guilty. All that everybody expected was a formal confirmation of their view that this was indeed the case and nobody would have accepted an acquittal (as shown by initial reactions to the acquittal of Karadzic on one count of genocide, or the “inadequate” 40 year prison sentence). This means that in fact, there is an expectation of conviction and the idea that an acquittal is not an option. This shows in fact very little respect for the criminal law process, based on the presumption of innocence.
  • Rather unsurprisingly, the Chamber acquitted Karadzic for the Count of Genocide in relation to the Municipalities. This is unsurprising because the Chamber had already dismissed this Count under Rule 98(bis), before being overturned by the Appeals Chamber. There is now consistent case-law that there was no genocidal intent in the rest of Bosnia and I remain surprised at the criticism leveled 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.
  • I look forward to the Appeals process. Given the fact that Appeals Chamber has already decided that there is sufficient evidence of genocidal intent for the Municipalities Count when overturning the 98bis decision, it is easy to guess that the OTP will appeal that acquittal. Also, there seem to have been countless disclosure violations by the Prosecution (108 (!)motions were filed by Karadzic to that effect, a lot of them successful). Peter Robinson, Karadzic’s legal advisor, has been documenting them on his twitter feed. One tweet, posted on the eve of the Judgment, if true, certainly raises question about the fairness of the process:
  • As an aside to the delivery of the Judgment, the ICTY sealed a solid victory in its fight against impunity, by getting the Dutch authorities to arrest Florence Hartmann (images of her arrest here), a French journalist who was fined 7000 euro for publishing information in a book on the content of confidential decisions of the ICTY (images of her arrest here). The fine was later commuted to a 7-day prison sentence. This is rather ridiculous, and I’m sure that the ICTY has better things to do that this… or maybe not.
  • And a final fun fact: a search for “Mladic” in the Judgment comes up with 1883 hits… Anybody care to take bets on the outcome of that trial?

 

 

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ICTY orders retrial of acquitted defendants in unconvincing Judgment

Posted on December 16, 2015 | 4 comments

Yesterday, the ICTY Appeals Chamber rendered its Judgment in the Stanisic and Simatovic case. Both defendants had been acquitted of all charges in the Trial Judgment (part 1 and part 2). They were acquitted under JCE liability because their mens rea to contribute to The JCE was not established beyond reasonable doubt. They were also acquitted for aiding and abetting liability because their acts were not specifically directed at the commission of crimes. This is explained by the fact that the Trial judgment came out in the period of time between the Perisic appeal Judgment which got the ball roling on the need for the “specific direction” requirement in aiding and abetting liability and the Sainovic Appeal Judgment which promptly batted the requirement out of the park.

The Appeals Judgment quashes both acquittals and orders a retrial. While I can imagine that attention will naturally focus on the aiding and abetting part of the Judgment, given all the heated debates on the “specific direction” requirement (see Marko Milanovic here and Kevin Jon Heller here), the Judgment actually delivers some other interesting gems.

  • The flawed reasoning on JCE

The reason for quashing the JCE acquittal is somewhat puzzling to me. Indeed, the Appeals Chamber doesn’t seem to have any quarrel with the factual assessment done by the Trial Chamber in determining the absence of the required mens rea of the accused. For the AC, the problem lies with the fact that the TC should not have entered findings on the mens rea of the accused on the basis of the « alleged JCE » as argued by the Prosecutor, but first entered findings on the actual elements of the JCE. Here is the relevant passage (par. 82):

The Trial Chamber was therefore required to examine whether Stanisic’s and Simatovic’s shared intent to further that common criminal purpose could be inferred from their knowledge combined with their acts as well as from their words and interactions with other individuals, after having established the existence and scope of the common criminal purpose shared by a plurality of persons. In other words, without making findings on the existence and scope of the common criminal purpose shared by a plurality of persons, the Trial Chamber could not assess Stanisic’s and Simatovic’s words in the context of “that purpose and whether their acts contributed to that purpose and, consequently, it could not properly adjudicate whether Stanisic’s and Simatovic’s mens rea for JCE liability could be inferred from the circumstances.

There is both a legal and a logical problem with this reasoning.

Legally speaking, there is not one footnote in support of this affirmation. This beats even Perisic and its reliance on a single sentence from the Tadic Judgment to justify the specific direction requirement. In fact, in his dissenting opinion, Judge Afande provides several examples of TCs proceeding in this manner.

Logically speaking, I have a problem with the underlying idea. Indeed, what the AC is essentially saying is that a TC must make findings about all elements on a mode of liability before pronouncing itself on one of them. I’m not sure this makes sense. Imagine the following scenario. A man is accused of selling a car to a group of people allegedly sharing a criminal intent to rob a bank. However, his lawyer proves that this man had no knowledge of or intent to contribute to any criminal activity when he sold the car. This should be case closed, right? who cares whether the group of people exist, or if they actually did share a criminal purpose. Not according to the AC which would still require that the judge establish whether there is a group of people and whether that group of people is acting with a criminal purpose. That is not really efficient practice in my view. If we push the logic, and take an even simpler example, it means that if a man is accused of killing his wife in Paris with a gun and he has an alibi that puts him in New York at the time of the alleged crime, a Judge would still have to determine that the wife has indeed been killed by gunshot, even though there is no chance that the accused was involved in the crime, alleged or actual.

More importantly perhaps, there is an underlying implicit view of the role of the Judge in the criminal proceedings. What the majority of the AC are saying is that the Judge is expected to determine the existence of a common criminal purpose (including its scope and its members) based on the evidence adduced by the Prosecutor. This finds support in the OTP appeal arguments (par. 62) : «In the view of the Prosecution, without making findings on the existence of a common criminal purpose, its scope, members who shared it, and the conduct which contributed to it, and without a reasoned opinion on these essential elements, the Trial Chamber could not correctly decide on Stanisic’s and Simatovic’ s shared intent to further the common criminal purpose».

However, technically, there isn’t « a » common criminal purpose, there is « the » common criminal purpose alleged by the Prosecutor. He has the burden of proof, and he constructs the indictment. The only role of the Judge is to determined whether the allegations are proven beyond reasonable doubt, not whether the evidence brought by the prosecutor proves something, whatever it is. From this point of view, the TC was not incorrect in taking as a starting point the common criminal purpose that the Prosecutor alleged, with an alleged scope and composition. In other words, the Judges already knew the scope and composition of the common criminal purpose : the one put forward by the Prosecutor. That is the one that was relevant for the charges brought against the Accused. Maybe the evidence shows several other common criminal purposes, with different scopes and compositions, but that is in my view not in the least bit relevant if the Prosecutor did not plead them. I insist : he has the burden of proof and the judges are not there to subsitute their own legal understanding of the facts and evidence to fit their own personal common criminal purpose.

  • The order for retrial

Concerning the order of a retrial, it is quite a massive decision to decide to start from scratch such a long process. It also conveniently gives work to the MICT for a few years.

Essentially, the AC considers that it would be too difficult and too much work to go through the whole case record to make the necessary missing findings that it considered were not made by the TC. In that respect, I note an interesting argument raised by Judge Agius in his separate and partly dissenting opinion.  He considers that the Majority should have done a review of the evidence in order to assess whether the error of law that they identified in fact had an impact on the outcome of the trial judgment in order to invalidate it (par. 10): « I respectfully believe that it is most unfortunate that the Majority neither attempts to conduct a review, nor offers any explanation as to how the Trial Chamber’s error invalidated its findings with respect to Stanisic’s and Simatovic’s mens rea ». This is for me a convincing argument. The Appeals process is not complete until it is determined that, but for the error of law, the Judgment would have been different. However, rather surprisingly, Judge Agius then goes on the actually follow the Majority in ordering the retrial for the following reasons : «At this stage of the Tribunal’s mandate, and with one member of this Bench only mandated to serve until the end of the year, I am fully aware that there is no time for the Appeals Chamber to conduct the exercise of review itself even if I were to convince my Colleagues that such an exercise was a preferable and appropriate exercise of the Appeals Chamber’s powers. I also find myself in the absolute minority on this issue- It is for these reasons, after having given due consideration to matters such as fairness to the accused, the interest of justice, the circumstances of the case in hand, and considerations of public interest, that I join the Majority in ordering a retrial in this case».

This reasoning is particularly unconvincing. Once it is established that doing the review was a legal obligation on the part of the AC in order to invalidate the decision, then the failure to do so is illegal (and not « unfortunate » as noted by Judge Agius). End of discussion. If Judge Agius truly believes that, then the fact that the mandate of one judge is ending is irrelevant. That is a human ressources argument that has no place in a legal argument. Even less convincing is that fact that he is in the minority. Following that logic, there would never be any dissenting opinions!

  • The new death of “specific direction”?

Finally, in relation to «specific direction», there isn’t in fact much to say. Given the composition of the bench, there was little doubt that there would be majority to follow Sainovic rather than Perisic (see Marko and Kevin on the process that led to the composition of this bench). And unsurprisingly, Judge Agius dissented. I won’t go into the debate on the requirement here, but two points can be made in relation to the Judgment.

First of all, it is interesting to note the very pragmatic approach of Judge Afande in his dissent. He essentially does not take sides on the debate on whether « specific direction » is a legal requirement of aiding and abetting liability (whether as part of the actus reus or the mens rea). Rather, he puts forward a pragmatic and practical argument, similar to the one found in Perisic : there are factual situations where, in the absence of a discussion of « specific direction », it is impossible for a Judge to determine that the only reasonable inference of the facts is that the accused had the requisite mens rea or actus reus to aid and abet the commission of the crimes charges. It is a case-specific evaluation that depends on the facts. While this reasoning does not « solve » the legal question that plagued the Perisic and Sainovic Judgments, it does explain why I believe that the discussion on «specific direction» is not as dead as some would like it to be. As ICL has a tendency to cast the net of responsibility in always a wider range, there will always factual scenarios which create unease with finding criminal responsibility among some Judges and these Judges will always need to resort to arguments (call it «specific direction» or something else) to keep ICL in check.

Second of all, in the particular circumstances of this case one can note that the AC casually discards the lex mitior argument presented by Simatovic who considered that if there was going to be a retrial on aiding and abetting liability, the most favorable law should apply, i.e the version with «specific direction». The Appeals Chamber answers that because «specific direction» was never a part of aiding and abetting liability, there was no more favorable law to apply. On a basic level I understand the position of the AC, once you accept the legal analysis on specific direction. However, the problem I have is on the finding of the error of law in the first place. When the TC issued its Judgment, it was applying the law as it was bound to apply it, that is the one stated by Appeals Chamber of ICTY, the highest Chamber of the tribunal. For all intents and purposes, «specific direction» was part of aiding and abetting liability in the period of time between Perisic and Sainovic so there was no error of law at the time of the Judgment. In the same way that the OTP could not obtain the reconsideration of the Perisic Judgment after Sainovic came out, I think that Stanisic and Simatovic should have remained acquitted on that count.

In conclusion, this AC Judgment is not extraordinarily convincing, especially on JCE. I hope the international community of commentators and general media reacts as strongly as it did on the Perisic Judgment. Sadly, I doubt it, because the bad guys are back in jail, so everything is back to normal…

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A Commentary on The ICJ Croatia v. Serbia Genocide Case (part I): Some thoughts on an Anti-Climatic Result

Posted on February 16, 2015 | Leave a comment

On 3 February 2015, the ICJ issued its Judgment in the Genocide claim and counter-claim between Serbia and Croatia and rejected both. Essentially, while finding evidence of the actus reus of genocide (murder, bolidy harm, etc.), directed at croats or serbs, the ICJ could not find evidence of genocidal intent, i.e, the specific intent to destroy in whole or in part a particular group.

As said by Marko Milanovic (here and here) there was no real doubt as to what the final conclusion of the court would be. I think that overall, this case was a complete waste of time and energy and, as astutely noted by Janet Anderson, “Maybe, in the end, only the lawyers win cases like this.”

This being said, reading through the judgment, I noted a number of points I found of interest. I will also devote a separate post to Judge Cancado Trindade’s dissenting opinion which will be posted later.

  • The use of ICTY Practice and case law

Hearing the summary of the Judgment and reading it afterwards, it is striking to note how much it is essentially a digest of ICTY case law, as was the 2007 genocide Judgment in the Bosnia case. This is of course not surprising, as the ICTY has just spent 20+ years documenting this conflict and the commission of crimes during it and making findings on these in lengthy judgments. It would be weird if the ICJ did not take notice of this. Beyond this, two specific points struck me in the Judgment.

First of all, it interesting to note how the ICJ took into account the ICTY Prosecutor’s charging policy, more particularly the fact that he has not charged genocide for a number of senior officials (such as Milosevic) in relation to events in Croatia. Following the logic of the 2007 Genocide judgment, the Court said that this could be taken into consideration, while acknowledging that his was not not necessarily decisive proof that there had not been genocide (Judgment, §187).

This makes sense to me on the face of it. Indeed, the higher up the officials the more link there is between claims of individual responsibility and considerations of state policy that are relevant for the determination of state responsibility. To the extent that one takes the view that charging policy is first and foremost a logical decision guided by available evidence, one can therefore see the logic of the claim that no genocide charge equals no evidence of genocide.

However, Croatia does have a point when it said that charging policy is guided by many other factors than availability of evidence (judgment, §185), for example expediency, the existence of a plea bargain from the accused, or simple preference. The Lubanga case at the ICC comes to mind in that respect, where the decision not to charge anything else than the use of child soldiers says nothing about the availability of evidence in relation to other crimes (such as sexual violence), as the trial process painfully showed. I therefore think that before attributing any weight to a decision not to charge, there needs to be a broader evaluation of the charging practice of the Prosecutor of a given tribunal. In this sense, I think that the ICJ was far more justified in attributing weight to the ICTY Prosecutor’s decision, given the often “everything but the kitchen sink” approach adopted there, than it would have been if it had done the same with the ICC, given the sometimes apparently random or inomplete choices made in relation to charging.

Second of all, there is a discussion on the weight to be given to decisions of different chambers of the ICTY. More particularly, are Trial Chamber decisions more persuasive than Appeal Chamber decisions? This question was important for Serbia’s counter-claim because it obviously wished to rely on the Gotovina et al. Trial Judgment rather that the contested Appeals Judgment which acquitted everyone. Serbia’s reasoning in that respect was the following:

Serbia argued that the findings of an ICTY Appeals Chamber should not necessarily be accorded more weight than those of a Trial Chamber. Indeed, according to Serbia, the members of the Appeals Chamber are appointed at random and vary from one case to another, so that they have no greater experience or authority than those of the Trial Chamber having ruled on the same case. Serbia argues that the main difference between the two benches appears to be that the former consists of five judges, whilst the latter is composed of three judges. Moreover, the decision of the Trial Chamber was unanimous when it convicted Gotovina and Markač, whereas the Appeals Chamber reached its decision to acquit them by a majority of three against two. Serbia points out that, overall, the majority of the judges having sat in the Gotovina case were of the view that the Croatian forces did engage in indiscriminate shelling of the four above-mentioned Krajina towns.

This reasoning was not accepted by the ICJ, the judges considering that:

Irrespective of the manner in which the members of the Appeals Chamber are chosen— a matter on which it is not for the Court to pronounce — the latter’s decisions represent the last word of the ICTY on the cases before it when one of the parties has chosen to appeal from the Trial Chamber’s Judgment. Accordingly, the Court cannot treat the findings and determinations of the Trial Chamber as being on an equal footing with those of the Appeals Chamber. In cases of disagreement, it is bound to accord greater weight to what the Appeals Chamber Judgment says, while ultimately retaining the power to decide the issues before it on the facts and the law.

I must admit that I am of two minds here. From an institutional point of view, the ICJ is right to say that the final word on an issue for the ICTY (taken as a whole) has to logically be the Appeal Judgment. However, the ICJ is not following what the ICTY, as an institution, has to say about something, but rather reading individual decisions produced by the institution in order to help assess the facts. As a result, what should be relevant is whether a particular decision is convincing or not, irrespective of whether it was overturned on appeal, based on standard of proof and evidence which are anyway not relevant for the ICJ’s purposes. In this sense, Serbia’s point on the fact that a majority of equally professional ICTY judges who dealt with the Gotovina case agreed that there was a violation of IHL somewhat more useful than the ICJ thinks it is, because it could, from a probative point of view, tip the balance towards the facts being sufficiently established for the purposes of ICJ litigation.

  • The link between IHL and the Genocide Convention

One question which arose during the proceedings is the link between International Humanitarian Law and the Genocide Convention. More particularly, both Serbia and Croatia seem to have argued that acts which would be legal under IHL could not be considered as acts that would constitute the actus reus of genocide (Judgment, §152). In response to this, the ICJ refused to “rule, in general or in abstract terms, on the relationship between the Convention and international humanitarian law” (§153).

However, later in the Judgment, the ICJ notes that the legality of the shelling of certain Serbian villages by Croatian forces during Operation Storm meant that there was not the required mental element to establish killing as one of the actus reus of genocide (Judgment, §474-475). In this particular case, I think this makes sense: if the willful targetting of civilians is not established under IHL, this means that there is no intent to kill necessary for a particular killing to be considered n actus reus of genocide.

More generally however, I’ve always felt unease at claims that all bodies of law can apply in all contexts (Human Rights Law, IHL, ICL, etc…) and within ICL, that particular acts can be charges as several crimes at the same time (genocide, Crimes against humanity and war crimes) and that individuals can even be convicted cumulatively in that respect. Of course, I can see how technically this would work: if you have a “checklist approach”, you can easily see how one act could in theory tick all the boxes of the elements of different crimes. The problem is that for me, a crime (and probably even more an international crime) is a particular story or narrative, and more importantly in a particular context. The contextual element of the crime tells us the story that conditions our view of the particular acts. If there is a situation of armed conflict and a particular act is linked to that conflict, I think that analysis should prevail over the other legal qualifications.  This does not mean that other crimes (CaH and genocide) could not be committed in an armed conflict. It just means that different particular acts could not fall under the different categories.

  • Enforced disappearances as genocide?

A third area where the ICJ seems to have made some interesting statements is in relation to the link between enforced dissapearances and genocide. Indeed, Croatia claimed that “causing serious mental harm to members of the groups” includes (judgment, §159):

the psychological suffering caused to their surviving relatives by the disappearance of members of the group. [Croatia] thus argues that Article II (b) has been  the subject of a continuing breach in the present case, since insufficient action has been initiated by Serbia to ascertain the fate of individuals having disappeared during the events cited in support of the principal claim.

In response to this, the ICJ said that:

In the Court’s view, the persistent refusal of the competent authorities to provide relatives of individuals who disappeared in the context of an alleged genocide with information in their possession, which would enable the relatives to establish with certainty whether those individuals are dead, and if so, how they died, is capable of causing psychological suffering. The Court concludes, however, that, to fall within Article II (b) of the Convention, the harm resulting from that suffering must be such as to contribute to the physical or biological destruction of the group, in whole or in part.

The Court therefore seems to accept, on principle, Croatia’s argument, even if later on in the Judgment it rejects the application to the present case because Croatia failed to provide any evidence of psychological suffering sufficient to constitute serious mental harm within the meaning of the Genocide Convention (§356). For a more lengthy discussion on the idea, see Judge Cancado Trindade’s dissent (§§296-320). To my knowledge, this is the first time I see this argument mentioned and it is an intriguing one.

To be honest, I find this finding somewhat disturbing, because it not only opens the door to a broadened view of the actus reus of genocide, but more importantly, it imports the notion of “continuing crime” in the genocide question. Indeed, accepting enforced dissapearance as a material element of genocide, even indirectly through the “mental harm” category, means that as long as individuals are not told of the fate of their relatives, the crime (here genocide) could be considered to be ongoing. This would as a result trump any temporal considerations in the application of the genocide convention. Last year, in an article on the Armenian Genocide and the ICC, I rejected the idea of genocide as a continuing crime simply based on the fact that the later generations would still be suffering the consequences of the genocide. By that standard, all crimes could be deemed to be continuing crimes, which makes no sense. The enforced dissapearance approach is a somewhat more subtle version of that which I have my doubts about for exactly the same reasons.

  • Applying Monetary Gold to extinct States?

Finally, moving away from ICL, I was intrigued by Serbia’s claim that the Monetary Gold principle would preclude the Court from making any findind in relation to the now extinct SFRY. Indeed, the Monetary Gold principle, in a nutshell, means that the ICJ cannot make findings in a judgment that might have an impact on the responsibility of another state not present in the proceedings.

I’ve always had my doubts on the exact scope of this principle, but in any case, it certainly does not apply for states which no longer exists because, as put by the ICJ, such state “no longer possesses any rights and is incapable of giving or withholding consent to the jurisdiction of the Court” (§116). If such a an argument were to be accepted, it would mean that no successor state would ever be able to be held responsible for conduct of the preceding State, which is not, as far as I know, the current state of international law today.

  • A concluding thought on the content of the judgment

While the judgment is arguably of reasonable length, one can wonder whether it could not have been much shorter. Indeed, given the finding that the mental element of genocide (specific intent) was absent, what was the legal relevance of spending such a large chunk of the judgment on listing the crimes that were committed? I can see why the ICJ did it of course, it gives the symboblic impression of addressing some of the concerns of the victims, by documenting their suffering, even when rejecting all the claims. But one can wonder whether this is the role of the ICJ from a judicial point of view.

Which brings me to my next post, a critique of some aspects of Judge Cancado Trindade’s dissent, which will follow shortly…

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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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