Judicial fireworks at the ICTY and the impact of the Gotovina and Markač acquittals
On 16 November 2012 the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia reversed the convictions for war crimes and crimes against humanity previously entered by the Trial Chamber against the two most senior Croats accused by the tribunal. General Ante Gotovina and Assistant Minister of the Interior Mladen Markač were subsequently released and returned as free men to Croatia.
The acquittals not only prompted diametrically opposed reactions across the Balkans, they also bitterly divided legal opinion within the tribunal itself.
The acquittals were confirmed by a narrow three to two majority in the Appeals Chamber, with Judges Pocar and Agius issuing dissenting judgments laced with contempt for the reasoning of their three colleagues who overturned the original convictions entered by the Trial Chamber.
Ever since the tribunal began handing down its first judgments on the major belligerent ethnicities (simplistically speaking: Bosnian, Croat, Kosovar Albanian and Serb), reactions to the results have always been polarised along ethnic lines. It is nothing new for an acquittal of Croatian accused to be hailed in Zagreb whilst condemned in Belgrade.
The difference in the case of Gotovina and Markač is that the acquittals mean, as Tim Judah recently wrote, that no Croats from Croatia (as opposed to Croats from Bosnia-Hercegovina) have been convicted by the ICTY throughout its nineteen year existence. Judah neatly summarises that the judgment "vindicates [Croats'] belief that their generals are heroes and not war criminals; and … consolidates [Serbs'] deeply held belief that the tribunal is a kangaroo court, whose main aim was to vilify and convict Serbs."
Within hours, the 'losing' side was delivering its familiar rhetoric: Serbia's President Tomislav Nikolic damned the judgment as 'political', adding that it 'will open old wounds'. Other senior Serbian politicians protested that the ICTY had 'lost all its credibility' and was 'proof of selective justice which is worse than any injustice.' Vladimir Vukčević, Serbia's Chief Prosecutor for War Crimes, called the decision 'scandalous'.
Such comments were very similar in tone to the original reactions from Croatia's leaders following Gotovina and Markač's original convictions by the Trial Chamber in May 2011. This time around, the comments from Zagreb's leaders were a little more measured, although the tens of thousands that welcomed the acquitted pair on their return were jubilant.
The acquittals will obviously not improve Belgrade's opinion of 'The Hague Tribunal' – but that is to be expected. The political legacy of the ICTY within the Balkans was never going to be straightforward; the regional divisions are simply too deep and entrenched for even a lavishly funded judicial exercise to have had much impact alone, although it remains one of my personal bugbears that too much is expected of international tribunals. In the first instance, let the judges get on with the essentially retributive process of adjudicating the guilt or innocence of the accused, rather than burdening them with functions of capacity building, peace and reconciliation or reparations. Rather more important to the political situation is the continued international support for domestic initiatives, including local efforts to prosecute middle and lower ranking accused within the region (for example through initiatives such as the War Crimes Justice Project).
Notwithstanding Serbia's predictable response to the acquittals, the more serious challenge to the legacy of the ICTY comes from the scathing dissent from the minority of the Appeals Chamber itself.
The legal dispute in the Appeals Chamber centred upon three main questions in relation to the Croatian military attacks in 1995 on four towns in the self-proclaimed Serb entity of Krajina within Croatia:
(1) What evidence is required to prove the existence of unlawful artillery attacks (in this case using allegedly imprecise missiles that failed the test of distinguishing civilian from military targets)?
(2) What evidence is required to prove the existence of a joint criminal enterprise (JCE) (which in this case was said to be the permanent removal of the Serb civilian population from Krajina by force or threat of force, including through persecution, murder and inhumane acts, plunder of property, wanton destruction and cruel treatment)?
(3) What power does the Appeals Chamber have to enter convictions under alternate modes of liability where it is overturning the Trial Chamber's convictions under the principal charges?
There is a good deal of jurisprudence on each question, and none of them is especially novel – although I'll leave it to others to expand on the legal principle. Rather, my focus is on the vehemence with which the minority so caustically disagreed with the majority.
It is relatively common for judges to disagree – usually on the interpretation of a point of legal principle. But it is unheard of for judges to so utterly damn their colleagues.
The tone adopted by Judges Pocar and Agius in their dissenting judgments to describe the reasoning of the majority is astonishing: 'artificial and defective', 'confusing and extremely problematic', 'disturbing', 'extraordinary', 'completely unjustified', 'untenable', 'unwarranted and petty', 'wholly erroneous', 'negligent' and 'simply grotesque.' Judge Pocar concluded with the vitriolic comment 'I fundamentally dissent from the entire Appeal Judgment, which contradicts any sense of justice.'
In short, this was some dissent: unparalleled in the tribunal's history, perhaps in modern international criminal jurisprudence.
For Gotovina and Markač their acquittal is final. On one view, a judgment is still a judgment whether carried unanimously or by a majority. In this case, the Pocar/Agius dissent was so vigorous as to strip the majority judgment of virtually all authority. And in such an important and sensitive case, the tenor of the dissent has called into serious question the credibility of the ICTY's judges and their judicial competence.
If the majority's judgment was not based on a correct reading of the law, there will be many critics of the tribunal who will demand to know precisely what it was based on, and will speculate upon all manner of conspiracies. Was it a political decision – something to do with Croatia's membership of the EU, perhaps? Or was it another example of the tribunal's 'anti-Serb' bias? Of course, there is clear jurisprudence establishing that judges presumptively discharge their functions competently and independently, in the absence of evidence to the contrary. Judges Pocar and Agius alleged 'negligence' rather than bad faith. But these distinctions may be too nice for some of the affected people in the Balkans, and it is a great pity that the dissent should come so close to the end of the ICTY's mandate, and in such a high-profile case.
For the international criminal lawyer, it is perhaps more dispiriting to read Judge Pocar's comments that the 'paucity of [the majority's] legal analysis…does not leave a good legacy in terms of respecting IHL [International Humanitarian Law] principles.'
The ICTY has been responsible for hundreds of thousands of pages of jurisprudence, the largest single repository of developing (and developed) judicial opinion on the law of armed conflict since the prosecutions immediately after World War Two. Clarity in the courtroom has at least a chance of resulting in clarity on the battlefield, which when it comes to the principles of targeting and the rules of distinguishing military from civilian targets, have a direct impact on how military campaigns are run – and how non-combatants are protected. Conversely, lack of judicial clarity in interpreting IHL principles may ultimately result in unnecessarily bloody consequences in the theatre of war. If Judge Pocar is correct, the Gotovina and Markač judgment may be a black day for the protection of civilians in future conflicts.
Whilst it may have been interesting (although perhaps not edifying) to hear how the majority might have replied to the trenchant criticisms of the minority, it will be for another Trial or Appeal Chamber, or for a different court altogether, to re-examine the reasoning of the court of the five appeal judges. But the ICTY itself is both running out of time and out of cases to do this in order to ensure its reputation and legacy is repaired.
In a more basic sense, regardless of the controversies of the fractious judgment, the Gotovina and Markač case highlights just how very controversial high-profile acquittals are in international criminal justice. However, the question of whether tribunals are established in the expectation that every accused will be convicted is for another day – and another blog post.