Crazy Talk in Norway

The trial of Anders Breivik came to a close in Norway this week.  In a twist on the usual positions, the prosecution argued in its closing statement that Breivik should be declared insane and sent to a psychiatric facility.  The defense argued that Breivik should be declared sane and acquitted, though apparently Breivik even prefers a guilty verdict rather than a declaration of insanity. 

The prosecution did not come out and directly state that Breivik was insane.  Rather, the prosecution said that serious doubts remain about his sanity, and therefore he should be declared insane out of an abundance of caution.  They argued that it was better to mistakenly place a sane individual in psychiatric care rather than place an insane individual in prison.

I find all of this deeply disturbing. 

The first set of psychiatrists who examined Breivik concluded that he was insane and diagnosed him with paranoid schizophrenia.  A second set of psychiatrists was then called in and they declined to find him insane.  The judge in the case will make the final determination on this issue when it renders a verdict, probably not for several months.

Why would anyone conclude that Breivik is insane, and in particular a paranoid schizophrenic?  The first set of psychiatrists, who obviously had a huge influence on the prosecution’s position, concluded that Breivik had a warped sense of reality.  But what was their evidence for this conclusion?   Breivik believes that Norway, and Europe in general, has fallen victim to an ethos of multiculturalism that is destroying the cultural, religious and ethnic identity of the continent and its people.  He sees a particular threat from Islam, immigration, and ethnic tolerance.  He is so worried about this general policy that he believed it appropriate to set off a bomb in Oslo, killing eight people, and then went to a political camp and murdered 69 young Norwegians.  He believed – falsely -- that others across Europe with similar beliefs would follow suit with attacks of their own.

It is not clear to me that Breivik’s worldview is an indication of legal insanity.  This is a common mistake, especially among non-lawyers, and one ought not to accept the judgments of psychiatrists when it comes to making a legal – not a medical – conclusion here.  The first set of psychiatrists claimed that Breivik has a warped sense of reality, but it seems more accurate to describe him as having disturbing and extremist positions.  He also holds values that most of us do not share, which is why he considered (and still considers) it necessary to do what he did.  But that doesn’t make him legally insane.

There are many different legal tests for insanity, but most of them concentrate on whether the defendant has mental disease or defect that either (i) prevents him or her from understanding the nature or wrongfulness of his actions, or (ii) prevents him or her from controlling his actions.  Some legal tests for insanity rely on the first prong and exclude the second prong.

In any event, Breivik’s actions aren’t really an issue of impulse control, so the second prong is moot.  What matters is whether his mental condition prevented him from understanding the wrongfulness of his actions.  He clearly understands the nature of his actions.  The particularity of his situation is that he believes that he was justified in his actions.  And the key reason for his subjective experience of justification is his extremist beliefs regarding multiculturalism and the danger it represents for Europe, not some defect of reason that prompts him to hear, say, whispers in the dark, the voice of God, or covert radio transmissions in his head.  Instead, it seems to me that Breivik’s mental state stands in roughly similar position to a pro-life protestor who murders abortion doctors and believes that his actions are morally necessary.  But a court would not declare such a protestor legally insane simply by virtue of his extremism; they would be classified as a culpable defendant with atypical values.

The key distinction here is that medical and legal tests for insanity are motivated by completely different aims.  The medical profession seeks to classify individuals with specific disorders, consistent with its goal of treating and curing patients with specific mental defects.  In contrast, the legal tests of insanity have no therapeutic rationale and instead seek to sort the culpable from the non-culpable and ensure that the non-culpable are not subject to the judgment of the criminal process.  Consequently, there are individuals who might be morally culpable but could still benefit from the medical tools that psychiatry has to offer. 

Also, underlying the Breivik case is a common mistake with regards to insanity, especially by individuals who aren’t trained in the criminal law.  There is often the temptation to think that individuals who commit disturbing crimes must be mentally disturbed.  This temptation ought to be resisted.

Legitimation Crisis?

Two situations in two different parts of the world are seriously threatening the integrity of international criminal justice right now.  Both are worrisome, though there is hope that both situations might be satisfactorily resolved.  We shall see.

First, as many of you know, four ICC defense counsel were taken into custody in Libya after meeting with Saif Gaddafi.  According to Libyan officials, the four lawyers were accused of carrying coded messages as well as spying and recording devices.  It isn’t clear to me whether any of this material is – or ought to be – prohibited when a lawyer visits a client. 

Libya’s relationship with the ICC has been one of continued and unprecedented surprises.  Libya is holding Saif and wants to prosecute him for crimes against humanity, though the ICC has issued an arrest warrant for him.  Libya is challenging the arrest warrant and is invoking their primary right to prosecute him, instead of the ICC, under the doctrine of complementarity.  As readers know, I engaged in a debate with Kevin Heller at Opinio Juris and Dapo Akande at EJIL Talk over whether Libya was required to send Saif to The Hague until the ICC made a final decision about Libya’s challenge to the court’s jurisdiction.  Dapo and I both argued on our respective blogs that Libya did not, and the ICC Pre-Trial Chamber agreed with Dapo and me.  So Saif stays in Libya for now.

The situation is doubly strange because outgoing ICC Prosecute Luis Moreno-Ocampo publicly expressed his support for a Libyan prosecution, instead of an ICC trial – something that clearly rankled some of the ICC judges.

The situation is triply strange because, unlike most disputes between a country and the ICC, the defendant in this case actually wants to be sent to the Hague.  Quite desperately, in fact.  Saif has no interest in being put on trial in Libya, where he might face the death penalty or unpleasant prison conditions.  In The Hague, he’ll be entitled to comfortable detention in the ICC facility there, which as a comparative matter is quite nice, and the excitement of an ICC trial would probably be intellectually more stimulating than whatever awaits him in Tripoli.  In fact, Saif fancies himself an intellectual, having been awarded a doctorate from LSE until his dissertation was found to have been written by someone else.  Oops.  My guess is he will enjoying sparring with the ICC judges if he ever gets there.

So this was the background when the ICC defense counsel showed up in Libya.  The standard view over at Opinio Juris and EJIL Talk is that the ICC lawyers are entitled to immunity under international law.  Although Libya is not a signatory to the international Privileges and Immunities Agreement that governs the treatment of court personnel, the Security Council long ago passed a resolution requiring Libya to cooperate with the court’s investigation.  Presumably, that includes not arresting court personnel when they try to visit their clients.   This conclusion is consistent with my overall view of the Security Council’s Chapter VII authority.

The one wrinkle here is that Saif, and his lawyers, are actually being held by the Zintan Brigade, which captured Saif and has never let him go.  It is unclear to me how much authority the Libyan central government actually has in this situation.  In the end, I suspect the Brigade will extract maximum leverage before turning any of them over to anyone.

Obviously, the court’s functioning requires that its staff be allowed to conduct its business.  Some time ago, the U.S. Congress passed a law authorizing the President to use military force to rescue any American personnel put before the ICC – a law that was famously dubbed the “Hague Invasion Act.”  The question is how far the UN and the rest of the world community is going to go to do the reverse – rescue ICC personnel.

The second institutional problem facing international criminal justice is the announcement yesterday that the Mladic trial at the ICTY is being put on hold again – this time indefinitely.  Some time ago the Office of the Prosecutor gave an opening statement in the case, but its presentment of the evidence was delayed when the court ruled that it had failed to disclose key documents to the defense.  The case was supposed to restart this week, but unfortunately, the same thing happened again.

The ICTY cannot afford another delay in this trial.  Mladic is 70 and he claims that his health is precarious, and this might not be posturing on his part.  The usual time frame from the commencement of a trial to a written judgment is usually several years.  So Mladic could conceivably die before it finishes. 

If Mladic were acquitted, that would be a major defeat for the Office of the Prosecutor.  But if Mladic dies before a trial is even completed, that will be a defeat for the entire tribunal – and will bring back uncomfortable memories of the Milosevic fiasco.  That being said, part of the blame belongs to the ICTY Trial Chamber, which refused the prosecutor’s request to segment the trial into phases and conduct a first mini-trial on Srebrenica before dealing with the rest of the counts.  The court ruled that this would prejudice the rights of the defendant. 

Let’s hope that the Mladic trial can be restarted soon and that Saif gets a trial –wherever – with some defense counsel at his side.

Organizational Plans

I’m currently in Amsterdam at an academic conference sponsored by the Free University Amsterdam, where I delivered a paper on the role of collective organizations in international criminal law.  The conference was called “Pluralism and Harmonization” and took place under the auspices of a collaborative research project called “Common Civility” – a catchy title.

The issue of collective organizations is of extreme importance for several reasons.  First, the concept of organizations will play a huge rule in the upcoming Kenya cases before the ICC.  In a recent decision handed down by the ICC Appeals Chamber, the court declined to revisit a decision made by the Pre-Trial Chamber regarding the notion of a state or organizational plan or policy, which is one of the requirements for crimes against humanity.  For reasons that I will explain below, I was actually a bit surprised that the Appeals Chamber declined to address the issue.

The Pre-Trial Chamber decided, in confirming the charges in two of the three Kenya cases, that there was sufficient evidence that crimes against humanity were committed in Kenya.  In one case, the court ruled that the Mungiki constituted the relevant organization with the plan or policy to commit the crimes after the election; in the other case, the organization was defined as a “Network” of perpetrators.  The first issue is whether the organization for these purposes must be a sub-state entity that is part of the government, as some scholars have claimed.  Second, even assuming that this interpretation is to be rejected as too narrow, the next question is whether the Mungiki – and especially this ad hoc “Network” – are the right kinds of organizations for establishing criminal liability for crimes against humanity.

The stakes are incredibly high.  At issue is how narrowly or how broadly the court’s jurisdiction for international crimes will be defined.  If one stretches the concept of the organization as far as the notion of a Network, then the court can probably justify judicial intervention in all sorts of conflict zones and define them as crimes against humanity.  If one sticks with a narrow and traditional concept of organization as a governmental entity, then the court’s authority is significantly constrained.

That’s one reason why I thought that the Appeals Chamber would take up the issue.  However, the Appeals Chamber claimed that the issue was a question on the merits, and not jurisdictional, and therefore inappropriate for them to consider at this time.  Instead, the Appeals Chamber will consider the issue on appeal after a full trial is conducted.

From a common law perspective, this isn’t surprising.  American courts frequently leave major issues like this open until the fact-finding process of the trial has been completed.  However, in the past the ICC has been very willing to make many complex pronouncements of law during the Pre-Trial phase, on the theory that such legal issues will structure the contours of the trial and the participants deserve to know where they stand on them before conducting the trial.  In some sense, this is a more civil law approach to the procedural issue.

Given the length of trials at the ICC, we are likely going to have to wait several years – I would guess perhaps as long as four – before we have answers to these questions from an Appeals Judgment.  Check back in 2016 for Part II of this blog, I guess.

Sentencing at the Top

Two recent blockbuster judgments have refocused everyone’s attention on sentencing in international criminal law.  Former Liberian President Charles Taylor was sentenced to 50 years in prison by the Special Court for Sierra Leone, while former President Hosni Mubarak was sentenced to life in prison by an Egyptian Court.  In my view, both decisions share a similar tension.

The issue with the Charles Taylor decision is that the sentencing judgment stands in some tension with the Court’s judgment regarding his guilt.  The Court went out of its way to conclude that Taylor was not guilty as a principal perpetrator, either under Joint Criminal Enterprise or some other mode of liability.  They might also have described him as an indirect co-perpetrator of the crimes committed by forces in Sierra Leone, but the court did not use that mode of liability either. Instead, the Court declared that Taylor was guilty of aiding and abetting for providing assistance to the forces in Sierra Leone that committed the atrocities.

However, when it came time to sentence Taylor, the court de-emphasized their prior determination that he was only an accomplice, and in seeking to justify their 50-year sentence, remarked over and over again that Taylor bore the greatest responsibility because of his position of authority in the civilian chain of command.  He was, after all, the president of Liberia.

But should these facts have mattered?  Isn’t the more relevant factor whether he was convicted as a principal or an accomplice?  In a sense, it is difficult to square the Court’s determination that he was only an accomplice with its sentencing conclusion that he bore such a high level of responsibility by virtue of his position in the chain of command.  The two points do not go together.  (Incidentally, Kevin Heller over at OJ shares my intuition here.)

Let me be clear, though.  I am not suggesting that a 50-year sentence was too long for Taylor.  A few others, including Bill Schabas, have made this point, but I do not share it.  (In fact, Schabas appears to suggest that no one should ever receive a 50-year sentence because everyone can be rehabilitated.  I do not agree with this position, mostly because I’m a retributivist.)

Rather, I am suggesting that the Special Court should have made a different argument if they really believed that Taylor deserved a 50-year sentence.  What they should have said is that the crimes in this case were so horrific that even an accomplice like Taylor should receive a 50-year sentence, because only that level of punishment will fit the crime.  Some crimes are so severe that even the less culpable – the accomplices – deserve lengthy prison terms. The Cambodian Tribunal said something similar when it increased Duch's sentence to life in prison.

Incidentally, it appears that the Mubarak case in Egypt embodies the same tension.  The court convicted him for failing to stop the killings of unarmed protestors – a mode of liability that has been variously described as being an accessory or an accomplice.  I have not seen an English-language version of the Judgment (if it even exists yet), so I am not 100 percent certain if the Egyptian mode of liability used is a direct translation of aiding and abetting or accessorial liability.

In any event, Mubarak was sentenced to life in prison, despite the fact that his conviction was for a lower mode of liability.

Incidentally, the recent Lubanga Trial Chamber Judgment includes a small discussion of this issue, with Judge Fulford arguing in his dissent that the distinction between principal perpetrators and accomplices ought to be irrelevant in international criminal law since their sentencing does not depend on which mode of liability is used.  I don’t agree with Fulford’s larger point here (because in general I think that modes of liability are important to get right, independent of their affect on the sentence), although the recent cases of Taylor and Mubarak do lend support to Fulford’s observation that modes of liability, as an empirical matter, don’t always determine the length of the sentence.