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Saturday, June 1, 2013

Why Did the ICTY Acquit Stanisic and Simatovic?

Yesterday an ICTY Trial Chamber issued acquittals on all charges against Stanisic and Simatovic and ordered their release from the UN detention facility.  Stanisic and Simatovic were government officials in Serbia accused, inter alia, of aiding and abetting crimes committed by Bosnian Serb forces operating in Bosnia.  Amongst other allegations, the prosecution alleged that the officials provided assistance to paramilitary organizations, such as Arkan’s Tigers, that perpetrated war crimes and crimes against humanity against civilian populations.

These acquittals are significant.  To date, no officials of the Serbian government have been convicted for involvement in atrocities committed in Bosnia.  (Milosevic died before a judgment could be rendered in his case.  And Karadzic and Mladic were ethnic Serb officials in Bosnia – not Serbia proper.)

There are several reasons for this result.  But in a sense, the result is not surprising at all because the writing was on the wall after Perisic was acquitted in a very similar case a few months ago.  In Perisic, the ICTY advanced a relatively novel theory regarding defendants accused of aiding and betting organizations that perpetrate international crimes.  The tribunal concluded that in cases where the organization is engaged in a mix of lawful and unlawful activities, the prosecution must prove that the defendant “specifically directed” his assistance to the criminal behavior, as opposed to the lawful activities of the organization. 

Strangely, though, the tribunal concluded that the “specifically directed” requirement was not a mens rea requirement (something that would have been similar to the “purpose” requirement for aiding and abetting that criminal law students know well) but rather an actus reus requirement.  In short, the prosecution had better draw a straight line from the defendant’s conduct to the criminal behavior, rather than rest on a circumstantial case of general assistance to an organization that then engages in criminal behavior, even if the defendant has the intent to facilitate the criminal conduct.

In the case of Serbia, the “specifically directed” requirement is probably designed to resolve the Serbian defense that its officials were merely supporting a war effort among ethnic Serbs in Bosnia, and that the Serbian officials had no involvement in the atrocities committed by ethnic Serbs in Bosnia.

In order to make this common sense argument work, however, you need to add another piece of the puzzle.  Why wasn’t the war effort itself illegal?  For some observers, the Serbian state was engaged in naked aggression, either directly or via proxies in Bosnia that violated basic principles of international law.  Putting aside for a moment whether this claim is factually accurate or not, its substance simply does not fall within the jurisdiction of the ICTY, which has no authority to engage broader issues of jus ad bellum.  Indeed, the result in both Perisic and Stanisic and Simatovic can be traced back to the conscious decision after Nuremberg to turn away from questions of jus ad bellum (aggression, crimes against peace, etc.) and focus exclusively on jus in bello violations and crimes against humanity.  Consequently the ICTY has no jurisdiction over aggression and the ICC’s jurisdiction over aggression (post-Kampala) is best described as hypothetical, not actual.  This has real consequences when a defendant can fall back on the argument that it was assisting a “lawful” war effort and had no intention to provide assistance to the jus in bello violations that were merely the means to achieving that war effort.

There is a second issue here and it is one that the ICTY has not sufficiently addressed.  How does complicity work in the organizational context?  If an organization engages in a mix of illegal and “legal” activities, when does assistance to that organization trigger liability?  Such questions do not often arise in domestic criminal law, since criminal organizations (like the Mafia) are usually understood to be criminal through and through.  Since they do not have a legitimate purpose, the Perisic issue does not arise.  I have been searching for a good comparison in another area of domestic law where the mixed nature of an organization is relevant in this way.  I haven’t found one yet.

As a final point, I take no position on the factual findings reached by the ICTY Trial Chamber.  Could they have found Stanisic and Simatovic guilty even under the new standard of “specifically directed”?  Indeed, isn’t there an argument here that the whole point of funding covert paramilitary units, such as Arkan’s Tigers, whose fighters were paid with per diem dispersements that came directly from Belgrade, is to facilitate ethnic cleansing of the disputed territory by conducting a reign of terror against the civilian population?  If the point was simply to support a lawful military operation, why not just send the regular Serbian Army?  There might be inferences to be drawn here, but apparently the ICTY Trial Chamber was unwilling to make them or felt they were not warranted based on the trial record.  I will leave an assessment of that decision to the Appeals Chamber.


Manuel Ventura said...
This comment has been removed by the author.
Manuel Ventura said...

Great post! I might add that the issue of specific direction for aiding and abetting is also central in the SCSL's Taylor case as I've pointed out over at Dov Jacob's blog:

Incidentally, Kevin Jon Heller and I discussed in the comments the same jus in bello/jus ad bellum issues that you raise in your post. I'd be interested to hear your thoughts on our exchanges on the matter

Manuel Ventura said...

One other note Jens. I think I may have two decent domestic law comparisons that you were looking for. Consider the (very) recent Liberty Reserve case:

There, the service was used to transfer money for lawful as well as unlawful purposes. Indeed, the best the indictment can say is that it was 'overwhelmingly criminal in nature' as opposed to completely criminal like your mob example. Now say a person invested substantial amounts of money into Liberty Reserve - I wonder whether an aiding and abetting case could be made out..?

Another similar example is the Megaupload case, where its online storage was used to store and share content that was entirely lawful as well as material protected by copyright law, the sharing of which was unlawful

David Luban said...

Very dismaying is ¶2309 in the Stanisic/Simatovic Trial Chamber decision:

"The majority, Judge Picard dissenting, considers Stanisic's reference to killings and his remark that "we'll exterminate them completely" to be too vague to be construed as support for the allegation that Stanisic shared the intent to further the alleged common criminal purpose."

One wants to ask which part of "we'll exterminate them completely" didn't the TC majority understand?

Jens David Ohlin said...

Manuel, thank you for your comments. Yes, it will be interesting to see how this issue plays out in the Charles Taylor appeal. That case has similar jurisdictional/jus ad bellum issues. I wonder if the AC in that case will adopt the specifically directed standard but conclude that the defendant's conduct met that standard.

As for mixed organizations, thanks for your excellent ideas. The issue also was discussed in Humanitarian Law Project, so that's a fruitful avenue for comparison.

Jens David Ohlin said...

David, thanks for this citation. I agree with you that the extermination quote is damning and should have served as a foundation for an inference of illegal intent. I don't know why the court wasn't willing to make this inference. However, let's also be clear about the nature of the ambiguity here. It stems from the word "them" in the quoted sentence. It can either mean "the enemy forces" or it can mean "the enemy population". So that either he was saying "let's exterminate the enemy forces" or he was saying "let's exterminate the enemy population". The latter is criminal but the former is not (unless one brings in jus ad bellum which is beyond the purview of the court).

A similar ambiguity between exterminating enemy forces vs. enemy population with regard to the Rwandan genocide is extensively discussed in Sluiter and Zahar's book on International Criminal Law (pp. 180-190 I think).

Anonymous said...


Careful about oversimplifying. We have enough of that in the media. Jens already raised an issue of the ambiguity. Another one is that 'exterminate them' rings incredibly relevant in our ICL ears but for people involved in a war it might reasonably just mean 'crush them' or 'defeat them'. Lastly, if you read the entire conversation between Stanisic and Karadzic (I believe) there are some other very vague and confusing statements, such as "better do it like decent people"

Anonymous said...

@David Luban, would you care to provide the original quote in Serbian as well as the context in which this was stated, which would clarify who "them" refers to? This wouldn't be the first time that bad or inaccurate English translations in the Hague give an entirely different spin to the meaning of various statements. The court had ample of transcripts at their disposal, so they would have known the relevance of that and any other quote better you, me or anyone else.

Generally, historical contexts, allegories and native language metaphors have been used and abused in the context of Hague proceedings in such a way that I would not provide any significance to your quote on face value. In fact, I would have been dismayed if any such quote in English without mention of its proper context, would have been used to affirm someone's guilt.

As for this blog post, I would agree in principle that war itself should have been the target of court proceedings. However, that would have necessarily made Slovenian, Croatian and Bosnian Muslim paramilitary forces prime subjects of investigation as well as those who supported them, financed them and armed them from abroad (e.g. Germany and USA).

The concept of planning and waging aggressive war and the concept of "crime against peace" is a concept based on the inviolability of international borders. This would have implied that the highly questionable legality of the breakup of an internationally recognized state, which Yugoslavia was, would have become the prime issue for court proceedings. This is most likely why the example of Nuremberg trials was not followed in this case and why there was a clear limit on the court's jurisdiction so as not to examine wider international context that lead to this conflict.

OTOH, when war as such became a matter of fact, then supporting beleaguered compatriots under direct existential threat became a necessity and hardly something that could be labeled "illegal". 2 million Serbs were under direct existential threat by Croatian and Bosnian Muslim paramilitaries, and it would have been irresponsible not to help them - especially considering that the other sides got plenty of help from various other countries that less imperative to meddle in what to them was a foreign conflict.

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