Tag: ICTY

More on Gotovina

Ante Gotovina

Last week I wrote about targeting and mentioned the Gotovina Case. This case has become interesting for those interested in international law and post-conflict justice because of the decision of the court (among other things) effectively states that a 4% error rate in targeting in a complex military operation was tantamount to a war crime.

As I said in the post, the decision prompted several laws of war scholars (many of whom were former JAGs) to have a roundtable at Emory University on the decision and subsequently write up an amicus brief  supported by 12 international law experts from the US, Canada and the UK which was submitted to the appeals chamber at the ICTY. This prompted a response from the prosecution which may be read here.

What I didn’t realize, however, was that the Court was deciding that day to reject the amicus. You can read their decision here.

I must admit that going through the Court’s decision does not inspire confidence. That the decision begins with a discussion about the word length is… like something I might write at the END of my comments on a student essay.

Next, in the brief “Discussion” of the merits of the arguments, the court briefly states that it is “not convinced that the applicants’ submissions would assist in determining the issues on appeal”, and invokes procedural rules for submitting evidence. It further states that the amicus brief is problematic because it does not identify the fact that one of the authors, Geoff Corn, was an expert witness for the defence. Given that this later point should have been pretty obvious and they are already lecturing the authors for going over the word limit, you wonder how this should have been done? Or why this is a matter of substance in deciding the merits of the worth of the amicus?

Either way, the Court uses these points to reject the amicus in a brief dismissal that I find wanting. Disappointingly, the amicus has been dismissed on rather procedural and technical grounds. And this is important: if international courts are going to be making controversial decisions suggesting that a 4% error rate is tantamount to a war crime and if they reject advice on this matter because someone didn’t explicitly attach a CV to an amicus that violated the 10% +/- rule, I am concerned. And you have to wonder what kind of message this send to countries thinking about signing up to war crimes courts/trials?

Regarding my post from last week, Geoff Corn responded in the comments to direct readers to his SSRN paper on the matter. I would definitely recommend interested Duck readers to take a look.

Clearly, Gotovina remains a case that should be closely watched. The man himself remains a controversial figure. Being concerned with his trial is not to say he is not guilty of some crimes. However, it is clear that many experts in this area are concerned about logic employed by the ICTY on several important aspects of the case and the future implications of war crimes trials.

I look forward to more reaction from the amicus authors and other scholars on this matter.

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Targeting…targeting: What are reasonable expectations?

Blue moon, you targeted me standing alone…

Yesterday Charli wrote a post on whether or not those opposed to the use of drones should use the concept of “atrocity law” instead of “war crimes” or human rights violations.

I wonder if others who generally oppose “targeted killings” think the concept of “atrocity law” might be a more useful way of framing this problem publicly than talking about “war crimes” or “human rights” specifically – concepts that by their nature draw the listener’s attention to a legal regime that only partially bears on the activity in question and invites contrasting legal views drawn from contrasting legal regimes.

Charli asks this question given that:

I think there is significant and mounting evidence of normative opposition to the targeted killings campaign (regardless of arguments some may make about its technical legality under different legal traditions), and according to even the most conservative estimates it meets the other criteria of a significant number victims and large-scale damage. No one can doubt it’s highly orchestrated character.

I’m going to go with “no” on these questions. First, unlike Charli, I’m not certain there is “mounting evidence of normative opposition to the targeted killings campaign” in anything other than the protests of a relatively insular group of legal-academics-activists (Phil Alston et al) who tend to be critical of these kinds of things anyway. In previous posts I have raised doubts about whether or not we can determine if targeted killing is effective, and how some activities have challenged and changed legal framework for the War on Terror. However, if anything, I think there is growing consensus within the Obama administration that the program works, it is effective and I think it is popular.

Additionally, I do not see how invoking the term “atrocity” will get us beyond many of the political problems involved in invoking other terms like “human rights law” or “war crimes”. If anything, “atrocity” seems to be an even less precise, more political term.

However, I think this conversation points to a third, larger issue that Charli is mostly concerned with – civilian death in armed conflict. Or, to put it another way – What expectations may we reasonably seek to place on our states when they carry out military actions? Those who write, research and teach on international law typically anchor their discussions in the legal principles of proportionality, necessity and distinction. However, these are notoriously vague terms. And, as such, when it comes to drones, many argue that these legal principles are being undermined.

In thinking about this question, I’ve been reminded of the recent controversy over the decision of the International Criminal Tribunal of the former Yugoslavia in the Gotovina Case. In it, the Court ruled that a 4% error rate in targeting in a complex military operation was tantamount to a war crime. Four percent.

Was this a reasonably conclusion for the ICTY to make? Are militaries (and the military in question here was not a Western military dealing with high-tech military equipment) really expected to do better than a 96% accuracy rate when it comes to targeting? And if so, on what grounds can we (or the Court) say this is the case? And, bringing this back to Charli’s post, would we benefit from thinking about a 4% error rate in terms of “atrocity”?

There are two very good summaries of the case at Lawfare and IntLawGrrls for more background information on the case. Some concerned former military professionals (many of whom are now professors) – admittedly, another insular group of legal-academics-activists of a very different source – have put together an Amicus Brief for the Gotovina Appeal which is well worth reading.

However, immediate questions of legality aside, I think this raises a larger question as to what we can reasonably expect from military campaigns, especially what levels of accuracy. Are all civilian deaths “atrocity”? Historically, the laws of war have said no – that proportionality may sometimes render it permissible (if no less regrettable). And I believe that all but the most ardent activists would agree with this historically rooted position. But it is clear that our perceptions of reasonable death rates have changed since the Second World War. So the question is what governs our ideas about proportionality and civilian deaths in an age of instant satellite imagery, night vision and precision guided weaponry? Unfortunately, I’m not sure the drone debate has given us any useful answers nor the basis to produce them.

I appreciate that there are important differences here – the military is, in theory, a hierarchical chain of command that is obliged to follow the laws of war. The CIA (who carries out the drone program) are civilians who do not meet these expectations and their status in law is questionable. But status here is not the issue (at least for this blog post and how it relates to Charli’s concerns). Instead, it is whether and at what point civilian deaths may be considered “atrocity”, on what basis we can and should make that decision and whether that language would make any useful or practical difference.

There is no doubt that recent move to a “zero-civilian death” or high expectations of few casualties has been rapid. Certainly it is at least part of the increased legal activity by governments, IGOs and NGOs in the realms of international law and the laws of war. However, I think it is also the result of a false promise that better technology can allow us to have “clean” wars. It is a promise that is made by governments to their populations, but one that has also clearly influenced activists in terms of their expectations – whether they are set in terms of laws, rights or atrocity.

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The Balkans after Mladic

With Mladic’s arrest last month, Bosnia and the rest of the Balkans are getting some much needed international attention. The New York Times has a nice run-down of some of the debates about the situation in Bosnia — especially the debate between Kurt Bassuener from the Democratization Policy Council and Gerald Knaus from the European Stabilization Initiative. The piece is a spin-off from a conference that Daniel Serwer from SAIS helped put together in Sarajevo earlier this month. Dan also has some excellent posts about the situation in both Bosnia and Kosovo on his great new blog peacefare.net.

Patrice McMahon and I also have a short piece on the Balkans after Mladic that is now on Foreign Affairs website. We argue that the arrest of Mladic is a notable bright spot in the region and for all the faults of the ICTY, it is striking that Mladic, Karadzic, and Milosevic all ended up in the Hague. But, more than that, the arrest demonstrates the continued ability and importance of international pressure and influence to alter the incentive structures of local elites — especially with the leverage of EU conditionality. I’m sympathetic to the calls of Gerald Knaus and others who argue that the international community has to turn governing to the Bosnians. Yet, as Patrice and I argued two years ago, the institutions created at Dayton continue to privilege ethnically-based politics and nationalist demagogues and it has been international indifference and fatigue over the past five years that has allowed, and in fact, exacerbated the resurgence of nationalist discourse and politics in the country. Mladic’s arrest demonstrates that the international community still has a role to play in the region — it just needs to play it.

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Making me Mlad: Why you can’t compare the Mladic and Osama bin Laden raids

Charli has been writing about international justice, arguing against ‘myths’ – and comparing the efforts to bring Mladic to justice as opposed to the rush to shoot Osama bin Laden in the face. Others, such as John Feffner at Foriegn Policy in Focus have made similar arguments.

I agree and disagree with some of the points being made. However I am concerned that that many of these arguments seem to completely ignore or fail to appreciate the different context of the Mladic and OBL raids. I just don’t think we can pretend these are at all similar situations – even looking beyond “status” issues, (who was/is a combatant/civilian etc). Rather, I think the core issue here is time and context.

For lack of a better term, bin Laden was caught and killed “during” the War on Terror, a period of active hostilities between the US and al-Qaeda. Mladic was captured over a decade and half after the Dayton Accords. The situation in the Balkans is far from perfect, but it’s certainly calmer. People have been able to get on with their lives as they rebuilding their homes, villages – even if scars can never perfectly heal.
The ICTY was established in 1993 (- a great way for the West/UN/European countries to look like they were doing something about the ethnic slaughter when they really weren’t). Mladic was indicted in July 1995 and surely was eligible to be captured and extradited from that point on.


There’s no question that it’s been a painful and horrible wait, but I wonder if it is also one that has allowed cooler heads to prevail? There have been protests in Serbia, of course. But they have not been on a truly significant scale. Mladic has been caught, charged, extradited (despite appeals) in under a week. Would this have actually been possible in 1995? Possible without tearing apart a freshly signed peace treaty? Aggravating a tense situation? And an angry population?

I’m not saying that international justice does not work – but I do not think 1) it always needs to take the form of an international court 2) that it should be done immediately.

Although it’s been nearly a decade since 9/11, the fact that the War on Terror has been ongoing makes the OBL situation different. bin Laden was a leader of a terrorist group actively planning attacks against the United States and other targets. Mladic, clearly a jerk of international proportions, was guilty of crimes but had returned to civilian life – and so have many others. The Hague will not become the centre of terrorist attacks or even protests. I’m not sure the same could have been said for OBL. Does this mean a trial for both was impossible? No. Does this mean the circumstances were very, very different? Yes.

The bottom line – you can’t make a fair comparison between Mladic and bin Laden when it comes to international justice.

The other reason this consideration is important is that the UN has released a report saying that both sides have conducted war crimes in Libya. Is it the best idea to indict individuals now? Or wait until the conflict is over, the country has a chance to catch its breath and then begin to take a good hard look at what has happened on its territory? Time may or may not tell.

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Notorious BIG Fish: Mladic and Munyagishari

The capture of Ratko Mladic and his pending transfer to the International Criminal Tribunal for the Former Yugoslavia (ICTY) has become another boon for international justice in a year where war criminals seem to be dropping like flies. But there’s an interesting debate to be had over whether this arrest signals a stronger commitment to end impunity on principle or its combined success with political and pragmatic imperatives. Of course, it’s both. Kenneth Roth of Human Rights Watch argues that the international community’s “principled pressure for justice” worked with Serbia – and the pressure came from conditioning Serbia’s EU accession on Mladic’s arrest. Similarly, Geert-Jan Knoops argues that Serbia’s action to finally arrest him was based on “political and economic motivations” – irrespective of the international community’s more normative appeals for holding Mladic accountable.

And hidden amongst the media and diplomatic excitement over Mladic was the important news about the arrest of Bernard Munyagishari by Congolese authorities in the DRC. Munyagishari is wanted by the International Criminal Tribunal for Rwanda (ICTR) for genocide and crimes against humanity committed in the 1994 genocide. He is alleged to have been the leader of the Interahamwe (an extremist youth militia) in the Gisenyi region of western Rwanda, responsible for training Interahamwe and ordering mass killings and rapes. There is little controversy over his arrest – it’s a victory for both the ICTR and the Rwandan government. Of course, there’s a pragmatic element at play here too. The presence of many former genocidaires in the Kivus in the DRC (Munyagishari was arrested in North Kivu) has been a significant source of insecurity and been used to justify Rwanda’s military engagement in the region. Impunity and conflict are intricately linked in this region.

That there are pragmatic reasons for and benefits to arresting war criminals, however, does not undermine the apparent trend of a principled commitment to end impunity. They’re often, but not always, mutually reinforcing.

Beyond the Big Fish….
In accordance with their mandates, the ICTR and ICTY have been successful in trying a broad swath of those considered “most responsible” for core crimes (such as Milosevic, Karadzic, etc. for ICTY and Bagosora, recently Bizimungu, etc. for ICTR). The ICTR has completed 46 judgments (including 8 acquittals) and 9 fugitives remain at large. The ICTY has completed 77 judgments (including 13 acquittals) and only one fugitive remains at large (Hadzic).

Apprehending the “big fish” is an important but not sole measure of success for international tribunals. It’s essential to look beyond indictments and arrests to the impact of trials on truth and reconciliation – the murkier and loftier goals of transitional justice that we can’t really measure. The trials of Mladic and Munyagishari will contribute to the already well established historical records of the systematic and systemic nature of atrocities. In both cases, their crimes are already well known and their guilt almost certain (especially for Mladic, as some of those operating under his command have already been tried and convicted). Just as important, their trials may help counter denial and individualize guilt – both necessary to combat Serb ultra-nationalist support for those like Mladic and what remains of political and military Hutu extremism in the DRC.

The impact of trials on reconciliation, however, deserves a healthy dose of skepticism. An EU representative made a statement that the arrest “will bring down barriers to reconciliation in Bosnia-Herzegovina.” This may be possible at a national or regional level – whereby reconciliation between those victimized by the Srebrenica genocide and the Serbian government would be thin without Mladic’s arrest.

In Rwanda, despite the ICTR’s mandate reference to reconciliation, the local population is largely dismissive and indifferent to the ICTR. The elite perpetrators that appear in its courtrooms are less well known to Rwandans and the process is physically and culturally remote to them (as compared to the trials in the local Gacaca courts). While many applaud Munyagishari’s arrest, it’s worth waiting to see whether his victims in Gisenyi consider this a meaningful form of justice.

(cross-posted at Global Transitional Justice)

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