Chutzpah at the ICTY: OTP motion to severe Mladic Indictment

I have been offline for a while now, too busy in the "real world" to blog on some of the issues that came up in recent months.

However, I couldn't really resist commenting on this piece of news: the ICTY Prosecutor filed a motion yesterday requesting a severance of the Mladic indictment to do two separate trials. This is the OTP's overview of its own motion:

1. The Prosecution seeks leave to: (a) sever the Second Amended Indictment (“Indictment”) against Ratko Mladic into two indictments (“Srebrenica” and “Sarajevo, Municipalities and Hostages”); (b) have the Srebrenica indictment tried first, followed by the Sarajevo, Municipalities and Hostages indictment [...]

2. The Prosecution has considered several options for proceeding against Mladic. Factors which have been taken into account include Mladic’s arrest at this late stage of the Tribunal’s mandate, the need to ensure justice for the victims, the desirability of commencing a trial as soon as possible, and the need to plan for the contingency that Mladic’s health could deteriorate. In the circumstances, severance of the Indictment and conducting two focused trials will best serve the interests of justice. 

3. Such an approach will maximise the prospect of justice for the victims, enable more effective management of the two separate trials and best allow the proceedings to be adapted in case of unforeseen contingencies. It is also consistent with the Rules of Procedure and Evidence (“Rules”) and will not unfairly prejudice the Accused’s rights.

Several brief thoughts :

1) On the substance of the indictments, the Prosecutor justifies the possibility of a severance by basically saying that there was no overarching Joint Criminal Entreprise (JCE) in Bosnia, contrary to what he had argued in the amended indictment of last June (§5):

Radovan KARADZIC and,  as of  12  May  1992,  Ratko  MLADIC,  were  key  members  of  an  overarching joint criminal  enterprise  which  lasted  from  at  least  October  1991  until  30 November  1995.  Their  objective  was  the  permanent  removal  of  Bosnian Muslims  and  Bosnian  Croats  from  Bosnian  Serb-claimed territory  in  BiH through crimes charged in this indictment.

The story now is that the JCE to eliminate the Bosnian Muslims in Srebrenica is unrelated (or in the words of the Prosecutor "not part of" and "not a foreseeable consequence of") to the JCE to permanently remove all Bosnian Muslims and Bosnian Croats from Bosnian Serb-claimed territory. This basically looks like confirmation from the prosecutor that Srebrenica was a one-off genocidal event... or is it? because there are also counts of genocide under the proposed Municipalities indictment. So if I understand correctly, there is genocidal intent in both cases, but they are unrelated... I find that a little confusing. As Professor Schabas was quoted saying in a recent Economist article: "either there was a general bid to exterminate or there was not" and severing the two seems extremely artificial.

2) I won't really comment on the practical justifications given by the prosecutor to hold two trials instead of one (interests of justice, interests of victims, manageability...). One can only wonder why, if these issues are so important, this has not been the practice in the past? I was under the impression that the ICTY was always acting in the interests of justice and of the victims, and that the efficient administration of justice was a permanent key consideration for the Court. But I must have been mistaken.

3) What puzzles me the most is the Procedure and timing of the motion. As the Prosecutor's immediate recourse to "inherent powers doctrine" shows (§21 of the motion), there is no actual textual basis for the severance in the founding documents. I generally don't like the use of this shaky doctrine by international criminal tribunals, but let's play along for the sake of argument.
The real issue is timing. I find that this motion shows the  chutzpah of the Prosecutor, and ultimately of the ICTY, should the severance be accepted. Indeed, let's look at the timeline for a second. The first indictment against Mladic was filed some 15 years ago.The Prosecutor, filed an revised indictment in May 2010, which was only approved nearly a year on in May 2011, so that gave him time to reconsider his approach. More importantly, Mladic was rushed through the initial appearance (with the playing-to-the-media-i'm-reading-ALL-the-charges show from Judge Orie)  and the ridiculously hasty pleading proceedings (with the removal of Mladic from the courtroom at his own request), his request for additional time to read and understand the charges having been denied. Everything was rushed along, probably in the "interests of justice". And now, the Prosecutor suddenly decides to change his mind and hold 2 trials, because of these same "interests of justice"? Whatever the practical merits of that solution, I find the Prosecutor's conduct quite careless, especially in light of the ICTY's attitude towards Mladic, which seems to indicate that a Court having conducted dozens of trials is suddenly having first date jitters when it comes to this defendant.

4) On a final and related note, I'm still in favour, at least in theory, of joining the Karadzic and Mladic trials, especially if Srebrenica is tried separately. On top, from what I understood, the Karadzic Chamber has not even started hearing evidence on Srebrenica (someone correct me if I'm wrong). As I've said elsewhere, these this is essentially the same case, from a narrative point of view. If the "interests of justice" are so important, then I believe both cases should indeed be joined.

The ICTY prepares for Mladic

As the procedure for Mladic's extradition continues in Serbia and questions of his fitness for trial arise, the ICTY awaits his arrival eagerly.

First of all, the judges for the Trial Chamber have been assigned. Among them is Dutch Judge Alphonse Orie, which is interesting, given the Netherlands' ambiguous role in Srebrenica. It is also ironic that a Dutch judge will be a part of accountability for what happened there, given that the a Dutch court decided in 2008 that the Netherlands were not responsible for what happened because they were under UN command, and that the UN itself could not be sued before a national court because of its immunity, thus removing all means of reparations for victims.

Second of all, the Court granted the Prosecutor's request to amend the Mladic indictment, which he had filed... over a year ago! One could of course cynically think that the imminent arrival of Mladic explains the sudden interest for a request which has likely been buried in the "to do" box for a year... But the professionalism that defines the work of the ICTY should guard us from such cynicism and the delay probably only means that the judge has been extremely thorough in reviewing the request and its accompanying documents.

Third of all, as predicted in my previous post, Karadzic's counsel has raised the issue of the effect of Mladic's arrest on the Karadzic trial, and the question of whether a suspension and joinder might be an option.

Follow-up on French Karadzic Decision

In support of my argumentation on the role of the interaction between French civil courts and the ICTY, and the suggested idea that French civil courts should suspend their decision under a verdict is achieved, I have come across rule 106 of the ICTY RPE on the compensation for victims:

(A) The Registrar shall transmit to the competent authorities of the States concerned the judgement finding the accused guilty  of a crime which has caused injury to a victim.
(B) Pursuant to the relevant national legislation, a victim or persons claiming through the victim may bring an action in a national court or other competent body to obtain compensation.
(C) For the purposes of a claim made under paragraph (B) the judgement of the Tribunal shall be final and binding as to the criminal responsibility of the convicted person for such injury.

This Rule, particularly paragraph (C) supports the claim that there is a functional link between the ICTY and national courts, not merely a factual one. One could of course wonder whether the judges in the RPE, in the absence of any explicit statutory provision on compensation for victims, or the effect of ICTY judgments in national legal orders, can actually be deemed to have adopted this rule ultra vires. However, the Rule indirectly finds support in the non bis in idem provision of the Statute (article 10), which provides that

No person shall be tried before a national court for acts constituting serious violations of international humanitarian law under the present Statute, for which he or she has already been tried by the International Tribunal. 

One can therefore argue, as I did in my previous post, that, to the extent that ICTY judgments are deemed to have a clear legal effect in national systems, i.e, be just as binding as a national criminal judgment would be, ongoing international criminal proceedings can have the corresponding same effect than national criminal proceedings, i.e. suspend civil proceedings until the conclusion of the trial, especially given the impossibility of concurrent French criminal proceedings.

This certainly raises interesting questions on the interactions between legal orders, the international and the national one, and more importantly the porosity between the two. Any comments are as usual welcome.

[UPDATE: One member of Karadzic's legal team has reacted (unsurprisingly) to reject the French decision. He considers that the decision is "illegal" because, just to cover all angles, 1) there is no guilty verdict by the ICTY, 2) anyway there is no link between what he is tried for and what  the facts considered by the French Court and 3) that the Court has no jurisdiction to decide whether a defendant is guilty of war crimes. I hope he is more efficient in his defense of Karadzic because his reasoning is notably unconvincing. Indeed, if there is no link between what the Paris court ruled upon and the charges at the ICTY, then there is actually no obstacle for the French Court to independently rule on the facts before it. Moreover, there is a double inaccuracy in his third point: a) of course a French Court has material competence over war crimes, from its own criminal code, especially as there is a clear personal link with the nationality of the victims and b) in any case, it is a civil decision, so technically Karadzic was not found guilty of war crimes.
In any case, the question of the link between the two procedures is interesting. Indeed, my reasoning is based in the assumption that there is such a link between the harm the plaintiffs claimed in France and ICTY charges. This assumption is based on the apparently explicit referral to ICTY proceedings by the French tribunal. But if in fact, there is no link, then my argument, of course does not hold. I'm still trying to get hold of the decision to verify this.]

French civil Court orders Karadzic to compensate Bosnian Family

According to an AFP report, the Tribunal de Grande Instance of Paris has ordered Radovan Karadzic and Biljana Plavsic to pay 200 thousand euro in compensation to a Bosnian family living in France since the war. The Court found itself incompetent to consider the case against Krajisnic (the report does not say why) and requested additional information against Mladic.

In relation to Plavsic, the Court apparently relied on her conviction for crimes against humanity by the ICTY to find that she had committed faults in relation to the plaintiffs' damage. One should recall that at the time, that case had created quite a stir because she had plea bargained her way to getting the genocide charges dropped.

As for Karadzic, whose trial is still ongoing, the Court found that (rough translation from the AFP report): "the simple fact that no definitive conviction has been reached cannot justify the status quo, which would necessarily create unjustified additional delays for the victims. The judges referred to the right of a victim of  manifest human rights violations to an adequate, useful and swift recourse".

I'll be careful of drawing too many conclusions from a news report (journalists are not necessarily known for their adequate reporting of legal news), but just a few thoughts.

First of all, I'm not aware of any such decisions before, of a civil claim against a current ICTY indictee (if my readers have any information on this...).

[UPDATE: Apparently Karadzic was also the object of civil proceedings in the United States in 2000, while still a fugitive and ordered by a jury to pay compensation. The article raises the question of whether the Republika Srpska could be held liable to pay the reparations, given that Karadzic himself most likely does not have sufficient funds. Also, French courts are definitely less favourable to plaintiffs: the 200.000 euro awarded in Paris seems like chump change compared to the 4,7 billion dollars awarded in the US...]

Second of all, I'm a little puzzled by the procedure. The Court's affirmation that the absence of a criminal conviction is no reason not to go forward is in that respect interesting. For one, from the point of view of French law, there is, if I recall correctly a principle that "le pénal tient le civil en état", which translates roughly as "criminal proceedings hold civil proceedings still". This basically means that when both criminal proceedings and civil proceedings are ongoing, the civil court must wait for the criminal court to decide. Of course, there are not formal criminal proceedings going on in France, so you could say that the rule does not apply. However, the primacy of the ICTY over national jurisdictions actually bars any criminal proceedings for the same crimes in France, so in a way, Karadzic, being tried under a Chapter VII mandate by the ICTY in tried in the name of France. It seems like a convenient way to skirt around the primacy rule, to initiate civil proceedings when criminal ones are not possible.

Finally, I'm struck by the finding of the Court that "manifest" human rights violations require a particularly swift remedy. I was unaware that "human rights" had a different role in French tort law, or in tort law in general (nor what the qualifier "manifest" means for that matter). Why should human rights victims get better recourse than any other plaintiff before a civil Court? This is once again the sign of the way Human Rights has taken over so many branches of law and where moral considerations take over legal reasoning. But that is, I suppose, a different issue...

I'll try and get hold of the decision and keep you posted if there is anything interesting in it.

Guest Post: in Favour of Trials in Absentia in International Tribunals

I have long had conversations with people about the issue of trials in absentia and have generally encountered scepticism. This question arose again recently (if indirectly) in the Karadzic decision to appoint standby counsel for the defendant should he decide to continue to "obstruct the proceedings" and prompts me to share some views on the matter.

I would like to point out from the start that I'm not defending that trials in abstentia are a perfect solution or even generally preferable to having trials in the presence of the accused. That would be preposterous. Of course the rights of the defence will be better protected (at least in theory) with the accused present. What I'm arguing is that the practice should not be excluded ab initio as a procedural tool in some situations. Most international institutions have excluded it and I think that's a mistake.

for one, I have alway been unconvinced by the Human Rights arguments for their total rejection. For Human Rights lawyers, the practice is considered contrary to fundamental human rights. I don't think so. None of the international Human Rights documents explicitely prevent this practice, to the best of my knoweldge. The European Court of Human Rights has in fact said that "Proceedings held in an accused’s absence are not in principle incompatible with the Convention", but imposed some strict conditions; such as the obligation to inform the accused, the right to appeal and be represented by counsel or the right to fresh assessement of the charges. Other international institutions have considered this issue and, although they show caution about the practice, they don't clearly ban it.
In fact, I think this is another case where the human rights hegemonic discourse is trying to wrap in universality what is a question of legal culture. Common law jurisdictions will generally be more unlikely to suppport this practice, given the importance of the adversarial procedure. On the contrary, the civil law inquisitorial system, where the judge has considerably more power in exercising control over the proceedings, makes the practice less objectionable.

Despite this, most international tribunals don't provide for trials in absentia. There is only a possibility of removing a defendant from the proceedings if there is too much disruption or if he has waived his right to be present. There are however two interesting exceptions to this trend. First of all, the Special Tribunal for Lebanon is the first international tribunal to explicitely allow trials in absentia. This is of course due to the influence of lebanese civil law on the drafting of the Statute and indicates that claims suggesting its total ban are not entirely justified. The second exception, which is not really one, but does relate to the issue, is the possibility in the Rome statute for the confirmation of charges hearings to be held in the absence of the accused, "when the person has: (a) Waived his or her right to be present; or (b) Fled or cannot be found and all reasonable steps have been taken to secure his or her appearance before the Court and to inform the person of the charges and that a hearing to confirm those charges will be held" (Article 61(2)). This allows the proceedings to continue despite the continued flight of the accused and is a symbolic step in holding "someone" accountable, and, from a political perspective, to put pressure on states to arrest the person under indictment.

Which brings us to our final considerations. Once established that trials in absentia are not in fact contrary to international law, under certain procedural conditions, why argue in their favour from a policy point of view? Those who are opposed to them usually put forward the argument that it will decredibilize the international tribunal by giving an impression of unfairness and bias agains the accused. That is certainly true in theory. It is considerably more satisfying for the image of justice in the eyes of the victims and the world community to actually see the defendant in the dock.
However, it is not a totally satisfying argument.Indeed, for one, even when the Defendant is present, the extreme politisation of these international trials anyway creates a manichean debate with supporters and detractors of international tribunals not budging from their position, whatever the reality. The practice itself of the tribunals, as illustrated by the recent Karadzic fiasco, shows that the perception of bias will exist irrespective of the presence of the accused.

Finally, I believe that there comes a tipping point where the interests of justice and efficiency outweigh the desired situation of having the defendant present. Indeed, once everything has been done to secure the presence of the accused and sufficient time given for his arrest, does the institution really lose more of its credibility by just waiting and showing the world how powerless it is, or by starting the trial anyway, with the required guidelines being satisfied? Given the extremely symbolic nature of international prosecutions, I'm not sure it would be more detrimental to the reputation of the ICC, for example, to start the trial of the remaining LRA leaders (provided the complementarity principle has been correctly applied), rather than have to announce one day that they've in fact all be killed by government forces (or, more likely, that they killed each other...) and that there will never be a trial.

There comes a moment where some process is probably preferable to no process at all. I don't provide here an answer to when exactly that might happen, but the option should at least be on the table.

PS: You might be wondering who the "guest", in the "guest post" is... in fact, there isn't any guest, I just thought it looked very professional, like all the other blogs who get some prestigious academic or practictionner to comment on various issues... that might happen in the future (please contact me should you wish to contribute), but given today's topic, I find it quite fitting to have a guest post in abstentia...

More drama at the ICTY: bring on the popcorn for the Karadzic trial!

In the latest episode of the trial, the ICTY Trial Chamber just decided to appoint counsel to Karadzic following a first week of trial where he chose not to attend the proceedings on account of not having had enough time to prepare... and to postpone the commencement of trial until march. Moreover:

In the present circumstances, considering the fundamental nature of the right to selfrepresentation, which cannot be diminished lightly, and in accordance with the principle of proportionality, the Trial Chamber finds it necessary to instruct the Registrar to appoint counsel, who will begin immediately to prepare him or herself to represent the interests of the Accused when the trial resumes, if that should be required. Notwithstanding the appointment of counsel for this specific purpose, the Accused will continue to represent himself, including by dealing with the day-to-day matters that arise, such as the filing of motions and responses to motions filed by the Prosecution, and further preparing himself for the trial.

the defendant will therefore continue to defend himself (even at the recommencement of trial), the counsel only coming in if there is further obstruction...

We won't go into the legal technicalities of the issues, dealt with elsewhere. Just a few comments.
If I'm undestanding this correctly, their refusal to allocate more time to the defendant led him to refusing to attend his trial, therefore crossing the judges who, to punish him, give me an extra four months for his appointed counsel to prepare for trial, while still allowing Karadzic to continue representing himself for the time-being, thus somewhat giving him what he asked for in the first place... makes sense.
Moreover, this does not really solve the issue of his presence at trial. The drafters of the ICTY Statute decided not to have trials in abstentia. One can argue the pros and cons of that (I would actually be in favour of having those... blame my French legal training... more on this some other time...). But that's the situation right now. Given that, contrary to the ICTR, the ICTY did not adopt a rule allowing it to proceed in the absence of the accused, I don't really see on what basis they would continue the trial even with an appointed counsel. The decision seems to suggest that the defendant might forfeit his right to be present by refusing to be present. This is the reasoning behind in abstentia trials and cannot be sustained here (argument in absurdum here, but if this is the case, let's apply it to Mladic and start his trial tomorrow). Karadzic did not say "go ahead guys, i can't be bothered attending". He is making a procedural statement (if a somewhat overdramatic one) on the fair conduct of proceedings. That is not the same as forfeiting his right to attend.
More generally, whatever the position one adopts on this issue, the chamber has put itself between a PR rock and a communications hard place. What kind of mixed message is it sending out, by trying to be tough, and then by threatening the defendant with what he asked for? On the other hand, this is a semantic way of sorts to save face. They couldn't really say "ok, you win this time, but be careful, we're watching you", which is in effect what they have done.

And now, bow your heads and let's have one minute silence for the completion strategy...