'Just World News' with Helena Cobban

Hague court Appeals Chamber releases Blaskic

The Appeals Chamber of the International Criminal Tribunal for former Yugoslavia (ICTY) has rapped one of the court's main Trial Chambers sharply over the knuckles by overturning 16 of the 19 counts of the Trial Chamber's earlier conviction of Croatian General Tihomir Blaskic.

July 29, the Appeals Chamber rendered these findings, and reduced Blaskic's sentence from 45 years to nine years. Since Blaskic has already served eight years and four months, and has been what the court described as a "model prisoner", he was later in the day released.

The summary that the Appeals Chamber issued of its finding makes clear its view that the Trial Chamber had committed several significant errors of law as well as errors of fact in reaching its earlier judgment. Regarding "fact", in the four years since the Trial Chamber reached its judgment, substantial new evidence has come to light that has tended to exonerate Blaskic. But the Appeals Chamber made clear that on each of the T.C.'s earlier judgments it had considered errors of law before it even started considering errors of fact; and where the errors of law were on their own substantial enough to lead to overturning the T.C.'s judgment, then the A.C. did not even consider the issues of fact.

It is evidently a good thing, from the rule-of-law viewpoint, that defendants at the international criminal tribunals have access to a well-constituted appeals procedure. However, the fact that the Appeals Chamber can overturn so many of the T.C.'s judgments merely on matters of law, rather than on matters of (newly adduced) fact seems to me fairly troubling. It would be great if the judges at the two different levels could get their acts a bit better together regarding what constitutes sound legal argument on all or most of these cases. And then, just consider what this whole process must have cost: the process of trying Blaskic on all these 19 counts, and then the subsequent process of overturning 16 of those convictions....

I tried to count the number of trial days from ICTY's website, but they don't have such a clear case-management information system as ICTR. Anyway, there are transcripts there for Blaskic-related court appearances on 258 different days between April 1996 and October 2003. Say that maybe half of those were for procedural matters; but that's still 129 court-days... at maybe $50,000 per court-day? $6 million? Has that money really been well used?

...Anyway, on the matters of law that the A.C. raised, there were two points that seemed of interest. One was on the issue of "command responsibility". In this regard, the A.C. evidently thought the T.C. had cast far too wide a net for the potential applicability of this doctrine:

In the present case, the Trial Chamber in paragraph 474 of the Trial Judgement articulated the following standard and I quote:

Any person who, in ordering an act, knows that there is a risk of crimes being committed and accepts that risk, shows the degree of intention necessary (recklessness) (le dol éventuel in the original French text) so as to incur responsibility for having ordered, planned or incited the commitment of the crimes.

...

Having examined the approaches of national systems as well as the International Tribunal precedents, the Appeals Chamber considers that the Trial Chamber?s articulations of the mens rea for ordering under Article 7(1) of the Statute are incorrect. The knowledge of any kind of risk, however low, does not suffice for the imposition of criminal responsibility for serious violations of international humanitarian law. The Trial Chamber does not specify what degree of risk must be proven. Indeed, it appears that under the Trial Chamber?s standard, any military commander who issues an order would be criminally responsible, because there is always a possibility that violations could occur.

The Appeals Chamber finds that a person who orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, has the requisite mens rea for establishing liability under Article 7(1) pursuant to ordering. Ordering with such awareness has to be regarded as accepting that crime...

On the question--which is very significant if a finding of a "crime against humanity" is to be reached--of whether and at what point the presence of off-duty soldiers changes the "civilian" nature of a population, the A.C. also made a significant finding:

As to the requirement that the attack be directed against a civilian population, the relevant requirement was set out in the Kunarac Appeal Judgement: both the status of the victim as a civilian, and the scale on which the attack is committed or the level of organization involved, characterize a crime against humanity.

In determining the scope of the term "civilian population," the Appeals Chamber considers that the presence within a population of members of resistance groups, or former combatants, who have laid down their arms, does not alter its civilian characteristic. The Trial Chamber was correct in this regard. However, the Trial Chamber erred in part in its characterization of the civilian population and of civilians under Article 5 when it stated that the specific situation of the victim at the time the crimes were committed must be taken into account in determining his standing as a civilian. The victim?s specific situation at the time the crimes are committed may not determine his civilian or non-civilian status. If he is indeed a member of an armed organization, the fact that he is not armed or in combat at the time of the commission of crimes, does not accord him civilian status.

The Appeals Chamber further considers that, in order to determine whether the presence of soldiers within a civilian population deprives the population of its civilian character, the number of soldiers, as well as whether they are on leave, must be examined, and that the Trial Chamber erred when it stated that the presence of soldiers within an intentionally targeted civilian population does not alter the civilian nature of that population. [HC italics there and above]

In the Israeli-Palestinian context, this finding--if indeed it continues to be upheld in international law-- would have sgnificant impact on the way that both the Israeli government's armed operations against some Palestinians, and the operations of armed (and non-governmental) Palestinian militants against Israelis would be viewed.