Opinion 11 Jun 13

Falling Out of Love With the Hague Tribunal

The region’s best and brightest are giving up on the International Criminal Tribunal for the Former Yugoslavia after a recent series of controversial acquittals, but their condemnation could be misplaced.

Bogdan Ivanisevic

The recent acquittals of three people who in the early 1990s held key positions in the Serbian military and secret police have been criticised by prominent human rights activists (Natasa Kandic, Vesna Tercelic, Mirsad Tokaca, Refik Hodzic, Sonja Biserko), journalists (Boris Dezulovic, Dejan Anastasijevic, Dzenana Karup-Drusko), historians (Dubravka Stojanovic), and others who had supported the court. Now they deplore the perceived professional and moral collapse of the institution.

In reality, the International Criminal Tribunal for the Former Yugoslavia, ICTY is the same court it was five or ten years ago, when it enjoyed support of its present-day critics. What changed is the nature of the factual issues the court confronts. By coincidence, the thorniest issue came to the forefront in the course of the past four months.

The issue concerns the criminal responsibility, if any, of military and security officials of one country (Serbia) for crimes committed in other countries (Bosnia and Herzegovina and Croatia). 

The appeals chamber, in a 4-1 judgment rendered on February, 28, 2013, acquitted former chief of staff of the Yugoslav Army, Momcilo Perisic, finding no evidence that his assistance to the Serb forces in Bosnia and Herzegovina and Croatia had been specifically directed towards commission of the crimes listed in the indictment. Then, on May 30, 2013, a trial chamber acquitted Jovica Stanisic, former head of the Serbian State Security Service, and Franko Simatovic, the key operative of the service.

The supporters-turned-critics consider unfathomable any reading of the two judgments that would find them legitimate. To suggest to the critics that the judgments reflect the judges’ understanding of the law, and nothing else, is to expose oneself to a charge of naivety.

The critics are nearly unanimous that insidious forces are behind the (perceived) demise of the court. What happened, in this interpretation, is that the world’s big powers, having become aware of the restraints the ICTY jurisprudence has imposed on the methods of warfare and the scope of permissible support, decided to temper the court’s tendency to tie the hands of the military and the government.

The key individual who promotes the agenda on behalf of the great powers, or the United States at least, is – allegedly – Theodor Meron, President of the tribunal and a US citizen. Other judges follow his lead.

In this article, I will first try to show that the above explanation is difficult to square with facts and common sense. I will then peruse relevant ICTY jurisprudence in order to show that the recent decisions represent an honest attempt by the judges to maintain jurisprudential consistency and, importantly, respect the right to a fair trial. Finally, I will explore possible reasons for the collision between the Tribunal and its former supporters, and assess prospects for reconciliation.

Theodor Meron, the ‘villain’

The NGOs, journalists and academics in the region which had supported the work of the ICTY, portray Theodor Meron as the bête noire of the Tribunal. They are helped in this by like-minded commentators in the West.

Examples are too numerous to list. By means of an illustration: “By granting to the leaders a definitive amnesty from responsibility for war crimes and other crimes, Meron has legitimised crimes in the function of a war,” wrote Dzenana Karup-Drusko, editor-in-chief of BH Dani in Sarajevo, in an editorial published  after the Perisic acquittal.

To an extent, the critics’ focus on Meron as the president of the ICTY is natural. But the focus is so excessive and exclusive, as if Meron was the only judge sitting at the court, that it cannot be explained by his position only. Meron serves as the provider of a meaning to the recent acquittals.

Meron is an American citizen. Hence, as Eric Gordy writes in a New York Times op-ed, “[the] ‘specific direction’ standard [was] introduced this year by the presiding judge, Theodor Meron, an American” and “no conspiracy is needed to explain that judges represent the states that nominated them to the Tribunal”. 

Dzenana Karup-Drusko emphasises in her editorial that Theodor Meron, is “an American of Jewish origin”, and concludes that, thanks to Meron, it is now “almost impossible to indict any commander from a NATO, Russian, or Israeli army, for example”.

In reality, pace NYT’s op-ed contributor, it was not Meron who introduced the concept of ‘specific direction’. All the way back in 1999, the ICTY appeals chamber, of which Meron was not a member, formulated the standard in the Tadic case.

The court said: “The aider and abettor carries out acts specifically directed to assist, encourage or lend moral support to the perpetration of a certain specific crime (murder, extermination, rape, torture, wanton destruction of civilian property, etc.), and this support has a substantial effect upon the perpetration of the crime.”

A number of subsequent ICTY judgments – including Kupreskic (2001), Vasiljević (2004), and Blagojević & Jokc (2007) – used the standard. The Sierra Leone Special Court has also used it, in the judgments Fofana & Kondewa (2007) and Sesay & others (2009). The sppeals chamber of the International Criminal Tribunal for Rwanda used ‘specific direction‘ in a number of judgments, including Kalimanzira and Rukundo (both dated October 20, 2010).

So the claim that Theodor Meron introduced the ‘specific direction‘ standard into the ICTY jurisprudence, in order to save Perisic and, in the future, the United States (and Israeli) officials, is a fantasy.

Admittedly, Meron has been in favour of retaining the standard, but respecting precedents is what judges, especially those coming from the common law system, do. No need for a political motivation there.

In any event, it is improbable that the alleged transformation of the court would be imposed and orchestrated by one man. The critics conveniently gloss over the fact that there are other judges on the court, in addition to Meron. Why would they be willing to compromise their integrity and distort the law? A meaningful response from the critics is lacking.

In a short exchange, I received the following response from a critic: some judges in the appeals chamber pay scarce attention to the cases that come to their desks. Presumably, then, Meron has tricked them into accepting a standard they did not even think about.

In the Perisic case, however, two of the remaining three judges who voted for the acquittal wrote or co-wrote separate opinions about ‘specific direction’; that makes it at least three appeals chamber judges who evidently have thought the issue through, and yet voted for the acquittal.

So an alternative explanation of the judges’ agreement with Meron is in order. I have been able to come across one such explanation. In the same New York Times op-ed already referred to, Eric Gordy writes:

“It does not take a large stretch to see the implications that precedents in cases like this would have for the activity of powerful states in countries like Syria and Afghanistan. Some of this reasoning might look like an invitation to conspiracy theorists to look for sinister influences on the Tribunal’s decision-making. But no conspiracy is needed to explain that judges represent the states that nominated them to the tribunal…”

However, the voting pattern among the judges suggests, if anything, the opposite of what Gordy suggests. With the exception of Meron, citizens of powerful states voted against the acquittal of Perisic (Judge Liu Daquin, from China) and Stanisic and Simatovic (Judge Michele Picard, from France).

The judges who voted for the acquittals come, apart from the United States, from Malta, Madagascar, Senegal, Zimbabwe and the Netherlands. The conspiracy theory should thus be modified: it is the judges from small countries who virtually invite the generals from powerful states to turn a blind eye to commission of crimes, while a majority of judges from the powerful states oppose that.

So, if the recent jurisprudence of the ICTY cannot be reasonably explained bya theory of an American judge imposing unjust legal standards on indolent or politicised ICTY judges, how can it be explained?

I believe that judges – Meron included – were driven by legal considerations. Such trivial explanation surely lacks the drama the conspiracy theory offers, but it has the advantage of not sounding silly.

In dubio pro reo (When in doubt, for the accused)

Contrary to what the critics allege, in the recent ICTY decisions, the law was applied consistently with the court’s precedents. The conclusion the court ultimately reached, that the evidence did not support a finding of guilty, reflects the peculiar nature of the two cases, rather than a change in the court’s approach.

The ICTY has always held that a conclusion against the accused can be inferred only if it is the only reasonable conclusion on the evidence. A conviction may be entered only if there is “no reasonable doubt” as to the responsibility of the accused.

Most of the critics disregard the basic tenets of criminal law, as evidenced by their record of condemning an acquittal before reading the judgment. An appraiser who takes the beyond-the-reasonable-doubt seriously would surely wait to see whether there are arguments in the judgment that may shake his or her pre-existing belief that the accused is guilty.

If those who now fiercely criticise the ICTY bracketed for a moment their belief that there is an extra-legal agenda behind the recent acquittals, the fact that four of the judges in the appeals chamber and one in the trial chamber found Momcilo Perisic not guilty should make them think: if so many judges do have a doubt, the doubt is likely to be reasonable, is it not?

Even some of the critics of the Stanisic & Simatovic judgment are on record saying that the Perisic judgment seemed defensible to them. Luka Misetic, the Croatian lawyer who defended Ante Gotovina, did not see anything contestable in the acquittal of Perisic: “Would anyone really say that all countries that send weaponry to the rebels in Syria should be held criminally responsible if the Syrian rebels commit crimes with that weaponry?” he said by way of analogy.

Likewise, the British historian Attila Marko Hoare, known for his relentless debunking of denials of the crimes committed by Bosnian Serb forces, wrote that “the conclusions of either chamber [in the Perisic case] could legitimately be drawn from the facts”.

Perisic: ‘specific direction’ not unreasonable, not new

The crack between the Tribunal and its former supporters opened dramatically in the aftermath of the Perisic judgment. The appeals chamber could not conclude that the sole reasonable inference from the evidence was that the assistance provided by Perisic to the Bosnian Serb and Croatian Serb forces was specifically directed to the commission of crimes.

Former supporters of the ICTY apparently hold the Bosnian Serb army a criminal organisation, in the sense that virtually everything the army did was criminal in nature. Therefore, providing assistance to that army was by necessity “specifically directed” to the commission of crimes.

However, as the scrupulous research by the Sarajevo Research and Documentation Center has shown, four-fifths of the Serb casualties of war in Bosnia and Herzegovina were combatants; on the Bosniak side, nearly one half were combatants. These figures indicate that the Bosnian Serb army was often engaged in a combat against the military on the opposite side. Such military operations are not criminal in nature.

It is also important to keep in mind that Perisic was charged with aiding and abetting crimes that were committed from August 1993 to November 1995. Although during that period the Bosnian Serb forces did commit crimes, culminating in the genocide in Srebrenica, the period during which crimes against non-combatants were the main modus operandi of the Bosnian Serb army had passed. The bulk of the ‘ethnic cleansing‘ of the non-Serbs occurred in 1992. From 1993 to 1995 the assistance from Belgrade to the Bosnian Serb army is likely to have been used for military purposes first and foremost.

The way in which the ICTY has dealt in its jurisprudence with the ‘specific direction’ of the aiding and abetting is not a model of clarity. During the 14 years of using the concept, the Tribunal should have given us a clearer elaboration of the concept’s meaning and boundaries.

Even so, the policy rationale behind the standard, succinctly expressed by Luka Misetic in the quote above, seems valid. Also, it cannot be denied that the standard had been used long before the Perisic judgment, both by the ICTY and by other ad hoc tribunals.

The remaining criticism of the ‘specific direction’ can be briefly dispensed with. Eric Gordy, whose frequent presence in the media in the aftermath of the recent decisions secured him the frequent mentioning in this article, claims that, had the “new standard” of specific direction been used in the past, “it is unclear how anybody would have been convicted by the Tribunal”. Gordy also claims that ‘specific direction’ requires that prosecutors must prove direct instructions with written evidence.

None of that is correct. The standard of ‘specific direction’ is not new and its application by the ICTY has resulted in convictions. No documentary evidence was necessary to obtain the convictions.

In the Vasiljevic case, the appeals chamber wrote in the judgment of February 25, 2004 (paragraph 135):  “The appeals chamber finds that the acts of the appellant were specifically directed to assist the perpetration of the murders and the inhumane acts and his support had a substantial effect upon the perpetration of the crimes. The appeals chamber therefore finds the appellant guilty for aiding and abetting murder…”

In a recent example in which the Tribunal explicitly referred to ‘specific direction’, the appeals chamber affirmed in May 2007 the conviction of Dragan Jokic for aiding and abetting murder as a violation of the laws and customs of war and murder, extermination and persecutions as crimes against humanity, in relation to the crime in Srebrenica.

It is true that in a case like Perisic, or Stanisic & Simatovic, where there is less or no proximity between the accused and the crime scene, it is more difficult to prove ‘specific direction’ than in Vasiljevic or Blagojevic & Jokic. That is, after all, why Perisic, Stanisic, and Simatovic have been acquitted.

But the issue then is not the Tribunal's departure from allegedly different standards it used in its ‘good’ days, but the peculiar circumstances of the two most recent cases, ie. the fact that the accused were officials in one country, while the armed conflict was unfolding, and the crimes were committed, in another.

How to prove intent for a joint criminal enterprise?

In the judgment Stanisic & Simatovic, the central issue was whether Stanisic and Simatovic participated in a joint criminal enterprise (JCE), the purpose of which was to forcibly and permanently remove non-Serbs from parts of Croatia and Bosnia and Herzegovina. The other controversial issue concerned application of the concept of aiding and abetting. In the interest of conciseness, I will not dwell on the latter. (The analysis of Perisic for the most part applies to Stanisic & Simatovic).

The method implicitly employed by the majority in Stanisis & Simatovic was to assume that a JCE in Croatia and Bosnia and Herzegovinahad existed and then to proceed with examining whether Stanisic and Simatovic participated in it. They concluded that, on the evidence presented at trial, the two accused had not been members of any such enterprise.

As in other similar cases, the inquiry into the alleged participation of the defendants in a JCE critically depended on their mental stance vis-à-vis the crimes – their mens rea, in the lawyerly jargon. In order to be a participant in a JCE, the defendant must intend to commit the crime which constitutes the JCE’s common objective (usually, the forcible removal of civilians).

It is not sufficient for a finding of participation in a JCE that the defendant accepted likelihood that the crime would be committed. What is required is proof beyond reasonable doubt that defendant intended the commission of a crime. This is an uncontroversial point in the law of joint criminal enterprise.

In those cases in which the ICTY has established the intent to participate in a JCE, it was on the basis of defendant’s acts and utterances. The latter were proved especially relevant when the defendant was positioned highly in the military, police, or civilian hierarchy. The trial chamber undertook the same type of an analysis in Stanisic & Simatovic.

Proof of intent through a defendant’s utterances

Wartime statements by the accused may serve as direct evidence of the criminal intent. Milan Martic, the political and military leader of the Croatian Serbs in the early 1990s, manifested his intent to forcibly and permanently remove ethnic Croats when he publicly stated that further co-existence of the Serbian and Croatian populations “in our Serbian territories of the Krajina is impossible”. In speeches on the radio, Martic stated that he could not guarantee the safety of the Croats in the area. Moreover, Martic repeatedly and publicly opposed the return of refugees.

Similarly, Milomir Stakic, the then-president of the Defence Council and the Crisis Staff in Prijedor (Republika Srpska), publicly promoted the departure of non-Serbs from Prijedor. In his speeches in public, Stakic justified the displacement by boasting the efforts of his Crisis Staff to facilitate the departure of those who “wish to leave” Prijedor – as if the non-Serbs had a genuine choice between staying and leaving.

Another example: In the case of Momcilo Krajisnik, the wartime president of the Assembly of Republika Srpska (Bosnia and Herzegovina), the ICTY trial chamber relied on evidence that, at the Geneva peace negotiations from 1992 to 1994, Krajisnik insisted on having ethnically pure Serb areas in Bosnia and Herzegovina as a precondition for a peaceful settlement. He called for ethnic cleansing of Sarajevo, by publicly announcing in August 1994 that the whole of Sarajevo would belong to Republika Srpska and that Sarajevo “will be a unified town but a Serb one completely. The Muslims will have to look for a capital outside of Sarajevo.”

A day before the ICTY announced the Stanisic & Simatovic judgement, a different trial chamber convicted six Bosnian Croats for participation in a JCE against Bosnian Muslims. The most prominent among the six, Jadranko Prlic, had manifested the intent to participate in the JCE mainly through acts, but his wartime statements also supported the prosecutor’s case.

For example, at a session of the Croatian Council of Defense, Prlic expressed his support to imprisonment of Bosniak civilians in the Heliodrom camp. On another occasion, Prlic requested support from the international community for creation of transit centers for those among the Muslims imprisoned at Heliodrom who “wish to leave” Bosnia and Herzegovina. 

The case of Stanisic and Simatovic differs because the two did not make remarks from which an intent to forcibly and permanently remove non-Serbs, or to persecute them, could be discerned. The closest one of the accused came in private to making a statement revealing criminal intent was a line from Stanisic’s telephone conversation on January 22, 1992 with Radovan Karadzic, the Bosnian Serb leader, about the situation in Croatia.

During the conversation, which occurred at the time when the major military operations in Croatia had been concluded, Karadzic stated that “with elasticity and goodwill [the Croats and Serbs in Croatia] could settle their disagreement. Otherwise, they are in for thirty years of torture. With the Blue Helmets, with disagreements, with all sorts of things …” Stanisic then said: “With killings.” He continued: “No. We’ll then have to push them to go to Belgrade, you know! … There is nothing else left for us to do… Or we’ll exterminate them completely so let’s see where we’ll end up.” Karadzic agreed. Stanisic added: “No, if they want it, they’ll have it. Then they’ll have an all-out war… Better do it like decent people.” (paragraph 2307 of the judgment).

The majority in the chamber attached critical significance to the end of the exchange (“Better do it like decent people”).  By accepting that a speaker who says “Better do it like decent people” might indeed not intend to exterminate, the majority reasoned similarly to other Tribunal chambers that confronted ambivalent statements.

In the trial of Ante Gotovina and the others, the trial chamber was unwilling to consider that the statement of the late Croatian President Franjo Tudjman that Croatia must “inflict such blows that the Serbs will [for] all practical purposes disappear” referred to Serb civilians as opposed to Serb military forces (judgment of 15 April 2011).

Likewise, the appeals chamber in the case of Radislav Krstic (genocide in Srebrenica) considered that the meaning of the words “there are still 3,500 parcels that I have to distribute and I have no solution” was insufficiently clear to conclude that the only reasonable interpretation was that “distribute” meant “to kill” (judgment of April, 19 2004).

Proof of intent directly from the acts of the accused

Apart from the words uttered by the accused, the intent to share the common criminal purpose might be directly inferred from his actions. This is the case where the act of the accused is in itself criminal. The Tribunal has been able to make direct inference in some other cases, but not in Stanisic & Simatovic.

Jadranko Prlic, the Bosnian Croat leader found guilty on May 29, 2013, was involved in blocking water supply and humanitarian aid to Bosniaks in East Mostar. Prlic also signed a document establishing the detention camp Gabela, specifically designed to receive Bosniak men, including minors and other categories of civilians.

Similarly, the establishment of detention camps in conformity with a decision by the Crisis Staff in Prijedor was a basis on which the Tribunal found that Milomir Stakic, the head of the Crisis Staff, had the requisite intent to persecute local non-Serbs.

In the Stanisic & Simatovic case, the prosecution did not even argue that Stanisic had carried out an act from which it was possible to directly infer intent. The prosecution did allege that the other defendant, Franko Simatovic, had been involved in three instances in which his acts directly demonstrated intent to forcibly remove non-Serbs. However, the majority in the chamber concluded that for two of these events (Lovinac and Skelani) there was no proof that any war crime had been committed, and with regard to the third – the attack on Vukovar – the chamber offered a number of reasons why no criminal intent could be inferred.

Proof of intent indirectly from acts of the accused

The comparison between other JCE cases and Stanisic & Simatovic shows that in the latter it was singularly difficult to infer the intention of the accused to participate in a JCE. The usual means of proving such intent proved insufficient, so the court also examined whether the intent could be inferred indirectly: from those acts of the accused that, in and of themselves, are not criminal (forming, financing, training, or arming armed forces, or supporting their involvement in particular operations).

The court’s complex analysis extends over dozens of pages. Essentially, the court held that, where there was evidence that the accused had been involved in the financing, training, and other forms of support for the forces which – in addition to waging military operations – committed war crimes, such evidence was not in itself sufficient for a conclusion that the accused intended the expulsion of non-Serbs as the only reasonable conclusion on the evidence.

As Judge Orie reiterated in the separate opinion, the mens rea requirement for a participant of a JCE is intent – the accused must have intended the majority of non-Serbs to be forcibly and permanently removed from large parts of Croatia and Bosnia and Herzegovina. If Stanisić and Simatovic were “just aware of the likelihood that the crimes would be committed in the operations they supported and [t]hey were indifferent to their commission”, that does not suffice for a finding of intent.

Orie’s statement of the law is the correct one. It is also a statement that is so easy to lose from the sight, especially when, like in Stanisic & Simatovic, the accused have been associated with an unparalleled assortment of brutes, from Serbian President Slobodan Milosevic to leading members of the ‘Red Berets’, the special unit formed under the auspices of the State Security Service.

Can the rift with the ICTY be overcome?

Most of the recent entrants to the club of ICTY-bashers are unlikely to regain trust in the Tribunal. The current rift reflects a real difference in the approach to the issues of responsibility by a criminal court on the one hand, and by NGOs and other activists on the other.

In the past, the difference did not cause a major collision because, in most cases, the court did convict the accused. But now, with a series of acquittals, the Tribunal has crossed the Rubicon.

When a reasonable interpretation of facts in favor of the accused is possible, a criminal court refrains from deciding against him. NGOs tend to stick to a different principle: in case of doubt, they opt for interpretation against the government official, especially if he or she is reputed for repulsive demeanour, utterances, or connections.

This approach may often be appropriate in an extrajudicial context, because an excessively cautious approach would paralyse NGOs when it is important to speak out in order to not let the authorities off the hook. A criminal court, however, is allowed to err only on the side of ‘over’-caution – or else an innocent man might end up being convicted.

Another ingredient of the activists’ DNA makes harmony with a non-activist court difficult. In a post-conflict setting, like the one in the former Yugoslavia, NGOs have little choice but to side with victims when those victims and a court disagree. Acquittal is usually a moment when victims feel betrayed, and human rights NGOs are unlikely to side with the court in that kind of a situation.

Another source of recurrent collision concerns the symbolic impact of the acquittals. The critics believe (wrongly) that without a finding of criminal responsibility of the specific accused, the rest of the judgment does not help their argument about the political or moral responsibility for the war on the part of the state on whose behalf the accused acted.

Thus, according to Sonja Biserko, the longtime head of the Serbian Helsinki Committee for Human Rights, the Stanisic & Simatovic judgment supports the thesis that Serbia had not been in the war. Natasa Kandic believes that the tribunal now “absolves Serbia of its responsibility and promotes an account whereby [local] communities, ie. their representatives, caused the war and committed [the crimes]”.  Refik Hodzic, from the International Centre for Transitional Justice, wrote on Facebook that, according to the recent ICTY judgments, “Serbia did not meddle” in the commission of crimes across the border.

In reality, the Perisic and Stanisic & Simatovic judgments, if anything, provide abundant evidence for a thesis that Serbia was heavily involved in the wars and the crimes. But the critics conflate criminal responsibility of specific individuals, on the one hand, and the political or moral responsibility of the state, on the other. Hence the frustration.

The core truths pre-established by the activists about the responsibility of individuals and states in the wars in the former Yugoslavia had long been non-negotiable. Especially if legal niceties are what stand athwart the activists, the latter do not bother to listen and, perhaps, revisit their strongly held views.

Bogdan Ivanisevic is a lawyer from Belgrade.

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