War Crimes—International Criminal Tribunal for the Former Yugoslavia (ICTY) Acquits Halilović

On Wednesday, November 16, 2005, the International Criminal Tribunal for the Former Yugoslavia (ICTY) announced its first judgment of acquittal from a Trial Chamber since 2000, and only the third such decision in the 12-year, 161-indictment history of the Tribunal.^[1] Several other detainees have received post-conviction acquittal upon appeal.^[2] The former defendant, Sefer Halilović, was released immediately after the decision was announced and was expected to reach Sarajevo later that evening.^[3]

Sefer Halilović, former General and Chief of the Main Staff of the Army of the Republic of Bosnia and Herzegovina (ABiH), was indicted for murder as a violation of the laws and customs of war on September 12, 2001, and voluntarily surrendered to the Tribunal less than two weeks later.^[4] His indictment was brought under Article 3 of the ICTY Statute, a general clause covering all violations of humanitarian law not covered by the other Articles relating to criminal conduct, specifically Articles 2, 4, and 5.^[5] This clause also invokes the four Geneva Conventions pertaining to acts during war, and other customary rules on non-international conflict such as treaty law.^[6]

Basically, an individual may be held criminally liable for the direct acts of others under a theory of superior or “command” responsibility.^[7] Command responsibility can be proven either by law (de jure) or by a showing of effective control over one’s subordinates (de facto). Effective control is usually proven by circumstantial evidence such as testimony or signed documents. Thus, the element of (murderous) intent is replaced by a finding of knowledge, coupled with a failure to prevent or punish the subordinates. In the case of Halilović, who was never accused of pulling a trigger or even being physically present at many of the acts alleged in the indictment, the Prosecutor argued that Halilović knew of the reputation of his field troops for violence and racial prejudice toward Serbo-Croatians, exercised effective control over his troops, and failed to prevent, or later punish, his subordinates for their actions relating the deaths of Serbo-Croatian civilians.^[8]

The events for which Halilović was indicted took place in 1993 during the so-called “NERETVA‑93” operation designed to counter a Croatian Defense Council (HVO) blockage around the historical town of Moster.^[9] In the course of the operation, over 30 Croatian civilians were killed. Ultimately, the Trial Chamber found beyond a reasonable doubt that some, but not all of the civilians, were killed intentionally while not themselves actively involved in the hostilities raging around them. However, the judges were not convinced beyond a reasonable doubt that Halilović was ever named “commander” of the operation or that he actually exercised the requisite “effective control” over troops at this time and place that would implicate him as a responsible actor. In the Judgement, the Trial Chamber stated that the evidence was, “more consistent in showing that Sefer Halilović was not a commander of an “operation”, but rather was tasked with coordinating combat activities.”[sic]^[10] As a result, they acquitted him on all charges.

There are several interesting aspects to this case. One is the contribution it makes to the ongoing and often confusing dialogue in international criminal law about forms of personal responsibility for acts in violation of humanitarian law on a large scale. Another is its status in the debate about the role that politics is said to play in the work of the UN-created ICTY. The tragic events that unfolded in the Former Yugoslavian states in the 1990s have been characterized alternately as: part of a modern civil war between Bosnian, Croatian, Serbian, and Muslim factions; an age-old cultural conflict flamed by the fall of Communism in Europe, deepening regional economic crises, and some particularly gifted rhetoreticians; an international war between independent countries; a failure of the international peace‑keeping forces to keep the international peace; and, simply, as genocide. Here, it is either ironic or revealing that Halilović is one of only a handful of Bosnian Muslim leaders brought before the Tribunals—and is one of only three out of 161 indictees acquitted at trial.

In the shorthand of collective global memory about Srbenica, Sarajevo, and other Balkan hotspots of the 90s, Mr. Milosević and his followers (typically Croats and Serbs) wear the black hats while the Bosnian Muslims wear the white hats. Even today, how the story is reported depends on who you ask. When the Halilović decision was announced this week, one news source reported that Bosnian Croats and Serbs reacted with “shock and dismay” at the acquittal of the former Muslim army chief.^[11] For instance, Branislav Dukic, the head of the Bosnian Serb organization of war detainees, was quoted as saying that, “the Tribunal has shown once again that it wasn’t ‘a court of justice, but a political court’.”^[12] On the other side of town, Bosnian Muslim leaders applauded the decision, in part because, the “Halilovic verdict proved that there was no civil war in Bosnia, but an aggression in which Muslims were victims and others aggressors.”^[13] And so the conflict continues, in a more peaceful format, before the eyes of the world in The Hague.

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[1] Press release from the ICTY is available here. Some of the early-reporting news sources include the NY Times and News.Scotsman.com.
[2] An overview of the numbers of indictments, convictions, acquittal, appeals, and other fascinating facts about the ICTY are available here.
[3] Release destination published in FENAnews, a news and online publication of the Federal News Agency of Bosnia-Herzogovina.
[4] The ICTY initial indictment for Sefer Halilović is available here. A brief, factual overview of his case from indictment to release is available here.
[5] The ICTY Statute, updated April 2004, is available in English in html or pdf.
[6] Much of the important jurisprudential work on interpreting the reach of the ICTY Statute, and specifically Article 3, can be found in the Tadić decisions, including the often-cited Jurisdictional Decision of 1995.
[7] Command responsibility as a mode of individual responsibility is contained in Article 7(3) of the ICTY Statute.
[8] Prosecutor v. Sefer Halilović, Case No. IT-01-48-T, Judgement, November 16, 2005. For a more complete and sophisticated explanation of the background and complexities of this concept, review the discussion on “The Nature of Command Responsibility in International Law” in Section II(B)(2).
[9] Id. at para. 174 et seq.
[10] Id. at para. 367.
[11] Bosnia: Croats, Serbs Shocked At Halilovic Acquittal, Nov. 17, 2005
[12] Id.
[13] Id.

War Crimes, Crimes Against Humanity—International Criminal Court (ICC) Issues First Arrest Warrants: Uganda

In a recent address to the U.N. General Assembly in New York last week, International Criminal Court (ICC) President Philippe Kirsch discussed last July’s first-ever report of the ICC to its parent organization, the United Nations (U.N.).^[1] In it, he noted that the issuance of the Court’s first arrest warrants signals the end of its organizational startup phase and the beginning of its judicial phase of its operations. The warrants were issued for five high-ranking members of the Ugandan Lord’s Resistance Army (LRA) who are accused of crimes against humanity and war crimes. Additionally, President Kirsch announced that in the intervening three months since the ICC report was submitted, Mexico had deposited its instrument of ratification with the Court Secretary-General, thereby becoming the 100th State to become a Party to the Rome Statute.^[2]

Now that the ICC has issued its first arrest warrants, the first trials could begin as early as next year. Article 13 of the Rome Statute establishes jurisdiction of the ICC over individuals accused of these crimes in one of three ways: By the referral of State Party, referral of the UN Security Council, or referral of the ICC Office of the Prosecutor itself.^[3] In this instance, the matter was brought to the attention of the Prosecutor’s office by way of a Letter of Referral from the Government of Uganda.^[4] Uganda became a State Party to the ICC in June 2003.^[5] This year, it becomes the first State Party to refer an action to the ICC.^[6]

If the manner in which this case is unfolding before the eyes of the world is typical, the Pre-Trial phase in which referral, investigation, indictment, and arrest take place, is likely to take approximately two years; there is nothing to indicate that in this case the Court has been slowed down by budgetary, staffing, or legislative concerns. In his October 14 statement, the Chief Prosecutor, Luis Moreno-Ocampo, stated that his office received Uganda’s Letter of Referral in December 2003 and opened its investigation on July 28, 2004.^[7] By May 6, 2005, the Prosecutor applied for the arrest warrants, and on July 8, 2005 sealed warrants were issued by the Pre-Trial Chamber. Subsequently, after all security measures were in place concerning alleged victims, potential witnesses, and the multinational investigative team, the Pre-Trial Chamber unsealed the warrants on October 13, thus making the alleged acts and the names of the accused (Joseph Kony, Vincent Otti, Okot Odhiambo, Raska Lukwiya, and Dominic Ongwen) open to the public.^[8] These LRA leaders are now considered fugitives; however, Dominic Ongwen is rumored to have been killed during a raid in September of this year.^[9]

What happens next depends on when and how the five Ugandan leaders find themselves in front of the ICC in The Hague. If they choose to surrender, they may make a voluntary appearance before the Pre-Trial Chamber to respond to the charges. The more likely scenario is that they will be the target of a worldwide search, with or without cooperation of their national governments. Without a police force of its own, the ICC must rely on the assistance of national law enforcement and governments of the Party States, as well as “the support of the international community.”^[10] There has already been protest against the arrest warrants in Uganda, including members of the same Acholi tribe alleged to have been victimized by the LRA over the past two decades. Their objection is that an international legal process will impede a more peaceful solution—one based on the Acholi cultural tradition of forgiveness and reintegration of victims and aggressors alike.^[11] Experience gained through proceedings at the ad hoc International Criminal Tribunal for the Former Yugoslavia (ICTY) indicates that, in spite of express cooperation by state governments—and even in cases where the individuals being sought no longer held positions of political power—there have been successful attempts to thwart the reach of international adjudication.^[12] This will be the first opportunity to see how well the Court’s enforcement regimen works at the pre-trial phase.

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[1] Text of Mr. Kirsch’s address is available from the ICC website (http://www.icc-cpi.int/) in English and French. The full ICC report to the UN is available in both English and French. As specified in the 20 August 2004 Relationship Agreement between the ICC and the UN, the Court may submit reports on its activities to the UN. The relationship between the UN and the ICC dates back to the 17 July 1998 "United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court," when UN member states formally adopted the Rome Statute (documented in the Resolution A/RES/53/105, 26 January 1999).
[2] See the ICC press release here. Under Article 125(2) of the Rome Statute, ratification occurs when a signatory state deposits an instrument of ratification with the UN Secretary-General.
[3] Rome Statute of the International Criminal Court (1998), Article 13. Available in English here.
[4] This procedural background is documented in the Statement of the Chief Prosecutor on the Uganda Arrest Warrants, October 4, 2005 and is authorized in the Rome Statute, Art. 13.
[5] The ICC provides a browseable listing of all State Parties here, with dates of signing and ratification. As of 14 November 2005, 100 countries are States Parties to the Rome Statute of the International Criminal Court. The procedure for ratification is authorized in the Rome Statute, Art. 125.
[6] See the Statement of the Chief Prosecutor on the Uganda Arrest Warrants
[7]Id.
[8]Id.
[9] Most news sources have reported the rumored death of Ongwen, although none at this date have confirmed. Representative articles include The Washington Times, Nov. 10, 2005 and International Herald Tribune, October 14, 2005.
[10] See Statement of the Chief Prosecutor, page 7.
[11] For coverage of the Acholi response, see AllAfrica.com Press Release, October 17, 2005 (subscription required).
[12] In spite of increased levels of official commitment by states, ICTY Prosecutor Carla Del Ponte had this to say about pre-trial cooperative enforcement as it related to the ongoing fugitive status of Radovan Karadzic, Ratko Mladic, and Ante Gotovina, among others: “The reasons why these two fugitives are still at large after ten years are not too mysterious. In the first years after Dayton, there was no political will to bring them to The Hague. Over the last few years, the political pressure of the international community has increased. As a result, Belgrade, Podgorica and Banja Luka have seemingly stepped up their efforts. I have no evidence however that, now, the political will is truly there. As long as there will be only nice words but no concrete results, doubts will remain.” In 1993, the ICTY issued a gag order for Slobodan Milosevic after he was discovered to be participating in parliamentary elections in Serbia while on trial and in detention in The Hague.

McNabb in the News

Senior Principal Douglas McNabb is featured in a Voice of America report on Yevgeny Adamov.

Douglas McNabb is a defense attorney with McNabb Associates, an international criminal defense firm with offices in the U.S. and Europe.

"The U.S. wants him because of the outstanding charges. Russia wants him apparently because this gentlemen may have information about the nuclear program that they want to make sure that the U.S. doesn't get hold of. "

…

Mr. McNabb offers a possible explanation. "I don't think that the U.S. government at this point wants it disclosed that there is a possibility that one of the options available to Mr. Adamov is that he may cooperate with the government."

…

Mr. McNabb disagrees. “My view of Mr. Adamov's case is that this isn't a political case; this is a law enforcement case. That he has been charged with criminal activity. Now, as a result of his being charged with criminal activity, he may very well disclose to the U.S. government information that the U.S. government could use politically."^[1]

This story is also accompanied by a video.

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[1] Anya Ardayava and Kathie Scarrah, Former Russian Nuclear Official Fighting Extradition to the United States, Voice of America, Nov. 14, 2005.