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Friday, December 21, 2012

Why the Gotovina Appeals Judgment Matters

When the ICTY Appeals Chamber issued its ruling exonerating Gen. Gotovina, and ordering him released, the decision sent shock waves throughout the region.  In Serbia, the decision was met with consternation, anger and resentment.  In Croatia, the decision was met with jubilation and relief, and Gotovina was given a hero’s welcome upon his return to the country.

As Marko Milanovic has ably articulated, this dualistic popular sentiment is cause for concern among those who care about the tribunal’s long-term legitimacy and success.  The decision fueled resentment among Serbs who view the tribunal as victors’ justice.  And more concerning, according to Marko, it reinforces a Croatian narrative that the Croats were pure victims of Serbian aggression who fought back with only legitimate and lawful methods of warfare.  For Marko, this constructed narrative whitewashes a much more complicated reality on the ground.

From a legal perspective, the Appeals decision is also a worrisome development.  The two most important principles of the Law of Armed Conflict are the principles of distinction and proportionality.  The principle of distinction outlaws the direct targeting of civilians, while the principle of proportionality outlaws the launching of attacks against legitimate military targets that will cause civilian deaths that are disproportionate to the military value of the legitimate target.  These are simple principles, but they are difficult for courts to apply in practice.  Although one might have predicted otherwise, there have been virtually no guilty verdicts for launching disproportionate attacks at the ICTY.  The Gotovina Trial Chamber Judgment was one of the few.  And now that verdict has been overturned. 

I am not saying that the Appeals Chamber was wrong in making this decision, but I am saying that the jurisprudence as a whole has taken a wrong turn when proportionality is almost entirely absent from the ICTY’s case law.

Turning to the principle of distinction, the Appeals Chamber concentrated its analysis on a 200-meter standard used by the Trial Chamber.  Under this standard, the Trial Chamber determined that artillery shells falling more than 200 meters from a legitimate military target constituted evidence of indiscriminate shelling of a residential area.  Although this standard was based on expert testimony heard during the trial, the Appeals Chamber noted that the standard is not one that can be found anywhere in international law.  The Trial Chamber appears to have basically made it up (or at the very least conferred upon it a significance it did not deserve).

There are two points here.  First, the majority and dissent in the Appeals Chamber agreed that the 200-meter standard was ill advised, though they disagreed about the consequence of this observation.  For the majority, the ill-advised 200-meter standard was the legal foundation for the entire Trial Chamber decision, without which the conviction crumbled.  For the dissent, the unfortunate 200-meter standard was just one aspect of the case against Gotovina, for which there was still a substantial foundation even without the 200-meter standard.

Second, was the 200 meter standard even necessary?  This might have been a situation where the Trial Chamber said too much, making themselves subject to reversal because they are articulated a legal standard (if it even was a legal standard) that was not defensible.  But what if they had articulated no legal standard at all?  What then?

How is this possible, you ask?  It is very possible.  The Trial Chamber could have examined the entire spectrum of facts, including the known location of military targets, the known location of civilian deaths, the number of civilian deaths, and then stated that these facts amounted to a legal conclusion of an indiscriminate attack against civilians or even a disproportionate attack against civilians.  Period.  Had the Trial Chamber done this, their decision would have been subject to less scrutiny, and might even have withstood the appeal.

There’s an irony here, of course, and one that I often point out to my students in other contexts.  When a court applies the law to the facts, they are obligated to state reasons for their decisions (although juries do not).  In announcing that decision, they justifiably feel compelled to articulate standards that explain the basis for that decision.  But when they do so, they often get reversed if the standard or legal theory is ill advised. 

This creates a law of perverse incentives.  Trial Chambers (and courts generally) should be as terse as possible with their explanations if they want to be successful.  Although this renders their decision-making process comparatively opaque, it might immunize them from eventual reversal on appeal.  But that’s not the type of judicial decision-making we want to encourage.

Tuesday, December 18, 2012

Bombshell Acquittal at the ICC

The ICC acquitted Mathieu Ngudjolo Chui today -- only the second case at the permanent court to go to a verdict.  For the Office of the Prosecutor, this gives them a 1-1 record (after the Lubanga guilty verdict).

Ngudjolo Chui was originally prosecuted with Katanga, but in a controversial decision last month, the ICC Trial Chamber decided to sever the two cases, announcing that a judgment in the matter of Ngudjolo Chui was forthcoming, while legal proceedings against Katanga would proceed.  Many observers speculated that this meant that the Trial Chamber was preparing to deliver an acquittal for Ngudjolo Chui, and this turned out to be exactly correct.

In today's decision announcing the acquittal, the Trial Chamber was confronted with several important legal issues, though the combined opinion mostly concentrates on the Office of the Prosecutor's inability to demonstrate beyond a reasonable doubt that Ngudjolo Chui was guilty of perpetrating international crimes.

The real action, however, was in a concurring opinion filed by Judge Christine Van den Wyngaert.  In her 34-page separate opinion, she tackled all of the crucial issues raised by the case, many of which were sidestepped by the full Trial Chamber's decision.

First, Van den Wyngaert argued that Article 25(3)(a) of the Rome Statute, which deals with perpetration "through another person," does not directly include Claus Roxin's famous theory of perpetration-through-an-organization, also known as Organisationsherrschaft.  Although Van den Wyngaert conceded that many cases described under this doctrine inevitably include perpetration through another person (since organizations are made up of individuals after all), she insisted that this was a factual element of the analysis, not a legal element of the doctrine.  In other words, Roxin's theory does not belong in Article 25(3)(a) of the Statute, and the correct legal standard is whether the defendant perpetrated the crime through another individual (or individuals), not whether the defendant perpetrated the crime through an organization.

Second, Van den Wyngaert also flat out rejected the new doctrine of indirect co-perpetration, which she described as a "radical expansion" of Article 25(3)(a).  The doctrine was created in previous decisions of the ICC by combining the pre-existing notions of indirect perpetration with co-perpetration, yielding a new hybrid notion of indirect co-perpetration, where multiple individuals cooperate together to direct a horizontal organization that carries out the crime.  There is nothing in the Rome Statute that mentions this doctrine.  I raised many skeptical questions about this new doctrine in my recent essay called "Second-Order Linking Principles", and I suggested that the new doctrine required far more doctrinal and theoretical justification than had previously been offered by either scholars or courts.  Van den Wyngaert has now concluded that such a justification, consistent with the text of the Rome Statute, is not possible.

Third, Van den Wyngaert offered a sophisticated analysis of the minimum standards for mens rea under the Rome Statute, and specifically rejected the application of dolus eventualis -- a civil law doctrine that closely resembles common-law recklessness (but may not be identical).  Indeed, she specifically picked up on the fact that the Lubanga Trial Judgment pretended to reject dolus eventualis but then offered a definition of the phrase "knowledge" that was so expansive (including the risk of future events) that it effectively smuggles in dolus eventualis through the back door.  Not many people have noticed this conceptual error in the Lubanga Trial Judgment, but Van den Wyngaert not only noticed the problem but hit the nail on the head.

At some point, the ICC Appeals Chamber will need to confront not just the fate of indirect co-perpetration, but also the fundamental question of the mens reas standards under the Rome Statute, and whether dolus eventualis qualifies.  When it does, hopefully the Appeals Chamber takes a close look at Van den Wyngaert's concurring opinion.

As for Ngudjolo Chui, the Trial Chamber ordered him released pending the prosecutor's appeal, although the release order (as well as the underlying acquittal) will be appealed to the Appeals Chamber.