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Instant Analysis

Some Recent Developments at the ICTY and the ICTR
Date: 11/10/2003

Some Recent Developments at the ICTY and the ICTR

Leila Nadya Sadat
Washington University School of Law
Israel Treiman Faculty Fellow
Vice-President, U.S. National Section, AIDP

I. The Decision in Prosecutor v. Dr. Milomir Stakic, Case No. IT-97-24-T (Trial Chamber II, July 31, 2003)

On July 31, 2003, Trial Chamber II of the International Criminal Tribunal for the Former Yugoslavia (ICTY) issued its long-awaited judgment in the case of Milomir Stakic. Stakic was a Serbian physician who had been elected President of the Assembly of the Serbian People of the Municipality of Prijedor. The Assembly had as its stated goal "joining the Serbian territories of the Municipality of Prijedor to the Autonomous Region of Bosnian Krajina," thereby creating a pure Serbian municipality. As President, Stakic played a pivotal role in the ethnic cleansing of Prijedor, and was therefore an important defendant before the ICTY. As the Trial Chamber found in its decision, the Serb takeover in Prijedor was accompanied by and accomplished through the commission of atrocities on a massive scale, including the establishment of internment camps at Omarska, Keraterm and Trnopolje. These atrocities include frequent killings, rapes and sexual assaults. Moreover, thousands of individuals were subjected to inhuman and degrading treatment, including routine beatings and torture. The cleansing of Prijedor also resulted in the expulsion of Bosnian Muslims from their homes as well as their deportation in huge numbers, often in convoys organized and supervised by Serb authorities. According to the Trial Chamber, more than 20,000 civilians were victims of the expulsion campaign and more than 1,500 were killed in massacres carried out by Serbs during the takeover. Others have reported that the death toll from the internment camps was equally high - according to one source, nearly 2000 Bosnian Muslims died at Omarska alone.1

Stakic was arrested in Belgrade in 1997, and charged in an 8-count indictment with genocide and complicity in genocide, crimes against humanity (specifically, murder, extermination, persecution through the commission of murder, deportation, rape, torture and other inhumane acts (forcible transfer)), and war crimes (murder). After a lengthy trial encompassing 150 days of hearings, the submission of a total of 1,448 exhibits, and the calling of nearly 100 live witnesses and experts, the Trial Chamber rendered a 282 page decision (including annexes) convicting Stakic of most of the charges, with the important exceptions of genocide, complicity in genocide and forcible transfer as a crime against humanity.
It is impossible in the short space of this update to adequately comment upon the Trial Chamber's decision, which contains very interesting discussions of the crime of persecution, deportation and forcible transfer and the doctrine of joint criminal enterprise now often used by the ICTY to describe the criminal responsibility of co-participants in mass crimes. This comment will focus mostly on the question of the Chamber's acquittal of Stakic on charges of genocide, and make a few general comments about the opinion, both in terms of style and substance.

First, this is the latest in a series of decisions rendered by the ICTY on the question of genocide. It is bound to be controversial. Key to the resolution of the question is whether the "ethnic cleansing" of Bosnian Muslim areas of the Former Yugoslavia, characterized by the General Assembly as genocide2 (but apparently not by the German courts according to the Trial Chamber),3 can be proven to be "genocide" in a court of law. This, in turn, depends at least in part whether one believes that the crime of genocide should be very restrictively interpreted,4 or whether it should be given a broader reading, a debate that has particular difficulties in the context of the wars in the Former Yugoslavia in which Muslims and Croats were the major, but not the only, victims. Initially, the Office of the Prosecutor was very reluctant to charge defendants with the crime of genocide, and was gently chided by the Tribunal in the Rule 61 proceedings on the Karadzic and Mladic indictments for the same. Subsequently, counts of genocide were included in several indictments, and several judgments have been issued in the Jelisic, Sikirica, and Kristic cases. Only in the Kristic case, however, has genocide been successfully proven - and unlike the Jelisic, Sikirica and Stakic case, which were all detention camp cases, Kristic involved the massacre at Srebrenica.

In its judgment in the Stakic case, the Trial Chamber found that Stakic was the leading political figure in Prijedor,5 and directly participated as a co-perpetrator in the atrocities committed there, even appearing on television to defend the decision to set up the Omarska camp.6 His authority extended not only to civilian political leadership but also encompassed the police and military. Indeed, just after the takeover, military uniforms were ordered by the civilian authorities for the use of civilian leaders, including Dr. Stakic, who wore a military uniform and carried a weapon. Although the Chamber found that he had personal knowledge and even participated in planning many of the events complained of, or was at least indirectly responsible as a co-perpetrator given his position of authority and control over civilian and military officials, the Chamber could not infer the necessary dolus specialis for genocide, and could not come to the conclusion that Dr. Stakic or other actors had the necessary specific intent to characterize his conduct as genocide or complicity in genocide. Nor did the Chamber find that "anyone else on a horizontal level in the municipality" had the dolus specialis, nor did any of his subordinates. In particular, the Chamber noted that there was no evidence of the use of hateful terminology by Dr. Stakic himself. The Chamber found that statements that demonstrated intolerance of Muslims and their removal did not advocate "physical elimination."7

In reaching this holding, several features of the Trial Chamber's decision are of note. First and perhaps surprisingly, given the Tribunal's relative maturity, the judges appear frequently throughout the decision to be anxious regarding their own role and limitations. They even suggest that although they have "endeavoured to come as close as possible to the truth . . . the Chamber is aware that no absolute truth exists."8 As is true of many other ICTY decisions, we find in the opinion a long recitation of history of the region, although interestingly the Chamber begins not with a recitation of how the current war began but with the systematic killing of the Serbs in extermination camps during World War II.9 (One wonders whether every Trial Chamber will be similarly inspired to retell, in its own way, the history of the conflict.) Curiously, the Chamber suggests that even though genocide had not been established in the case of Dr. Stakic, "this does not mean that another Trial Chamber in another case, basing its findings on different evidence, could not come to a different conclusion."10 Consistent with this observation of the Trial Chamber is its suggestion that one of the chief difficulties in the case was the Prosecutor's failure to tender available and crucial evidence in a timely manner.11 Indeed, the Trial Chamber admitted that there are "a number of indicia that could point in the direction of such an intent which the Trial Chamber attempted to explore further by calling additional witnesses proprio motu under Rule 98."12

Perhaps most controversially: rather than limiting its holding to the narrow question whether Dr. Stakic could be said to have committed genocide in Prijedor, the Chamber concludes that it "has not found beyond a reasonable doubt that genocide was committed in Prijedor in 1992."13 While perhaps not intended literally, this statement of the Chamber is likely to provoke substantial reaction: after all, at least some commentators have noted that the expulsions, killings, and internments in the Prijedor region affected tens of thousands and were, as the Chamber itself found, directed only at Bosnian Muslims, therefore evincing the kind of intent to destroy that constitutes the crime of genocide. Indeed, in the Rule 61 proceedings in the Karadzic and Mladic cases, the Trial Chamber noted that the policy of "ethnic cleansing" presided over by Karadzic and Mladic involved detentions, deportations, sexual assault, cultural cleansing through the destruction of mosques and cultural cites, and, according to the ICTY, resulted in the forcible expulsion of 750,000 non-Serbs from northern and eastern Bosnia.14 In its opinion, the Trial Chamber suggested that certain methods used for implementing the project of "ethnic cleansing", such as the massive scale of the destruction, the selection of members of only one group, and the systematic rape of women (which was in some cases intended to transmit a new ethnic identity to the child) suggest an intent to destroy the group.15 In fact, based on its findings, the Trial Chamber invited the Prosecutor to "consider broadening the scope of the characterisation of genocide to include other criminal acts . . . than those committed in the detention camps."16

Perhaps the difficulty of the ICTY's genocide cases is that they have been brought in the wrong order - had the Milosevic case been heard first, and the issue of genocide decided there, it would have facilitated many subsequent cases. (Indeed, the ICTR was more fortunate in obtaining custody over high-level accused much earlier than its sister tribunal). Yet it must nevertheless appear puzzling to victims of the atrocities that different Trial Chambers can come to different conclusions as to whether or not conditions in the Omarska or Keraterm camps amounted to genocide, or whether the destruction of Kozarac and the expulsion of its Muslim population can be labeled genocide as such. Although the Chamber purported to follow earlier ICTY decisions, it suggested that it would be using "caution" in its interpretation of the Statute, as a result of "the unique nature of the crime of genocide," and often expressed a difference of view between itself and earlier decisions.17 Perhaps most telling, the Chamber only cited the Krstic case in passing, the one decision in which a Trial Chamber had convicted an accused of genocide (based largely on circumstantial evidence with regard to General Krstic's intent). It did not refer to the Rule 61 proceedings in the Karadzic or Mladic cases at all.

The result in Stakic engenders speculation as to whether the characterization of a particular set of atrocities as genocide is not a legal term of art, but rather a question of politics. Perhaps, like the original concept of prosecutions for aggression envisaged for the ICC (whereby a Security Council decision that an attack amounted to an act of aggression was a prerequisite to prosecution) successful genocide prosecutions require the formation of a clearer political consensus as to the genocidal nature of a particular conflict before individual courts will feel comfortable wading into the fray and characterizing the individual culpability of particular defendants as "genocidal." In this vein, it is worth noting that it appears somewhat contradictory that the Trial Chamber found sufficient evidence to convict Stakic of extermination, and conclude that he had the discriminatory intent required for culpability for the crime of persecution, but find at the same that he was not guilty of the crime of genocide.18 Ultimately, perhaps this is a question of semantics - for his role in the "wide-scale, complex and brutal persecutory campaign"19 against the Muslims in Prijedor, Stakic was sentenced to life imprisonment, the most severe sentence available to the ICTY.

II. The Removal of Carla Del Ponte as the Prosecutor of the ICTR and the appointment of a separate Prosecutor for the ICTR

On August 28, 2003, the Security Council voted unanimously to split the job of Chief war crimes prosecutor Carla Del Ponte; this decision was taken over the objections of the Chief Prosecutor herself.20 The resolution also set out a time-table for completing the work of the two ad hoc tribunals by 2010. Although many had previously urged a separate prosecutor for the Rwanda tribunal on the grounds that one prosecutor simply could not do the job of taking on the cases for both courts, the decision to remove Del Ponte appears to have been driven, at least in part, by less noble motives.

Certainly, the Rwanda Tribunal has suffered much more than the ICTY from a lack of attention, leading to significant delays in bringing indictees to trial and in completing trials. Moreover, there have been well-documented cases of corruption and inefficiencies in the ICTR. According to The Economist, Del Ponte spent an average of only 35 days a year in Africa and left the two most important posts in her office vacant for a considerable time, drawing the ire not only of Human Rights groups but also of the United Nations.21 Yet, although it may well have been true that Del Ponte was stretched too thin, what appears to have finally brought matters to a head was that Del Ponte had been attempting to indict Tutsis for the massacre of as many as 50,000 Hutus inside Rwanda committed by RPF forces during and immediately after the genocide.22 This earned her the wrath of Rwanda's powerful president, Paul Kagame, who tried to obstruct the ICTR each time it endeavored to investigate the crimes and consistently complained to the Security Council and Secretary-General Kofi Annan about Del Ponte's performance.
Following Del Ponte's removal, the Security Council appointed a Gambian judge, Hassan Bubacar Jallow, as the new Chief Prosecutor for the ICTR. Jallow is a well-respected African lawyer and jurist who headed up a U.N. Commission charged with preparing a report on the functioning of the tribunals and how they could be improved. Obviously he has quite a task in store: not only moving cases through the system much more quickly, but also improving the ICTR's relationship with the Rwandan government, all while preserving his independence.

2General Assembly Resolution 47/121, adopted by a recorded vote with 102 for, 0 against, and 57 abstentions, for example, states that "ethnic cleansing" in the former Yugoslavia is a "form of genocide." G.A. Res. 121. U.n. GAOR, 47th Sess., 91st plen. mtg., U.N. Doc. A/RES/47/121 (1992).
3Stakic, fn. 1097 citing BGH v. 21.2.2001 - 3 StR 244/00, NJW 2001, 2732 (2733).
4See, e.g., WILLIAM SCHABAS, THE CRIME OF GENOCIDE (2000). Cf. Prosecutor v. Jelisic, para. 2 (Appellate Decision) (partial dissenting opinion of Judge Patricia Wald).
5Prosecutor v. Stakic, para. 492.
6Prosecutor v. Stakic, para. 477. The order to set up the camp was issued "in accordance with the Decision of the Crisis Staff" presided over by Stakic. Id.
7Id. para.554. Yet, even in cases in which an accused does use hate speech against the targeted group, the ICTY has failed to convict on genocide charges. See, e.g., Prosecutor v. Jelisic.
8Prosecutor v. Stakic, para. 21.
9Id. para. 23.
10Summary, Trial Chamber II Judgment in Prosecutor v. Dr. Milomir Stakic, para. 46.
11Prosecutor v. Stakic, para. 13.
12Id. para. 551.
13Id. para. 561.
14Prosecutor v. Radovan Karadzic, Ratko Mladic, Review of the Indictments Pursuant to Rule 61 of the rules of Procedure and Evidence, Case No. IT-95-5-R61/IT-95-18-R61, para. 60, (July 11, 1996).
15Id., para. 94.
16Id., para. 95.
17See., e.g., footnote 1069 in which the Trial Chamber quotes Judge Wald's partial dissent in the Jelisic case, but disagrees in part with her assertion.
18Id. para. 907.
19Id. para. 906.
20S.C. Resolution 1503 (Aug. 28, 2003). The resolution amended article 5 of the Statute so that as of September 15, 2003, the ICTR had its own Prosecutor.
21The Rwandan genocide tribunal: Did Carla del Ponte do too little or too much in Rwanda? Both, THE ECONOMIST, Aug. 23, 2003.
22Turning a blind eye to increasingly dictatorial ways of Rwanda's leader, IRISH TIMES, Wed., Aug. 27, 2003.

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