War Crimes—ICTY Update

Secret Files Update
Today, in an apparent response to increased pressure in the wake of the recent arrest of Croatian Gen. Ante Gotovina, Serbia handed over a secret file on fugitive Gen. Ratko Mladic to ICTY officials.^[1] The report had been turned over earlier this year, but with key portions missing. The file in the hands of ICTY Chief Prosecutor Carla Del Ponte is now reportedly complete.^[2] The file is thought to contain information about Gen. Mladic’s orders and movements during the 1991‑1995 war in Bosnia.^[3]

Del Ponte is scheduled to submit her final report on Serbian cooperation to the UN Security Council shortly. In the past, perceived non-cooperation with the UN in bringing individuals wanted for war crimes has met with aggressive political and economic sanctions.^[4] Bosnia‑Herzogovina and Serbia have recently embarked on negotiations with the EU for a new aid and trade agreement and are especially susceptible to pressure at this moment.^[5]

Slobodan Milosevic
The Trial Chamber today denied Slobodan Milosevic’s request, through his assigned counsel, for Tribunal assistance in bringing British Prime Minister Tony Blair and German Chancellor Gerhard Schröder to appear as witnesses for the defense.^[6] The judges ruled that no legitimate forensic purpose would be served by calling either leader to present evidence in this case.^[7] The Chamber declined to rule on the Prosecutor’s argument that the proposed witnesses should be accorded immunity from subpoena by the Tribunal because of their status as senior state officials.^[8]

Throughout the trial, Milosevic has maintained a long and ambitious list of witnesses that he wishes to call in support of his case. Last October, Milosevic asked for an extension to call almost 200 witnesses to testify in The Hague, among them Schroeder, Blair, former U.S. President Bill Clinton, and retired U.S. General Wesley Clark.^[9] Blair and Clinton were the main Western leaders associated with NATO's bombing campaign in Kosovo in 1999 and Clark directed the bombing; Schroeder was German chancellor at the time.^[10] General Clark testified for the Prosecution in December 2003 with regard to events contained in the Bosnia and Croatia Indictments.^[11]

Milan Martic
The trial of Milan Martic is scheduled to start next Tuesday, December 13, 2005.^[12] Martic is charged with ten counts of crimes against humanity and nine counts of war crimes under theories of both individual responsibility and superior (command) responsibility.^[13] The Prosecutor alleges that Martic, in his capacity as leader of special police forces in the Krajina region, was the member of a joint criminal enterprise designed to ethnically cleanse regions in Croatia and Bosnia Herzogovina in order to create a Serbian-dominated state.^[14] Many of the acts alleged specifically in the indictment are related to shelling attacks on Zagreb in May 1995. The defense is likely to focus on whether Martic actually had de facto control of his forces and whether the acts in question are more likely ascribed to a triple-fronted civil war than to a plan for ethnic cleansing.

This case will be heard by Trial Chamber I, Judge Alphons Orie presiding. Trial Chamber I is concurrently engaged in hearing the case in defense of Momcilo Krajisnik.^[15]

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[1] Associated Press, Serbia Hands Top Fugitive's File to UN Tribunal, Dec. 9, 2005, available here.
[2] Id.
[3] Id.
[4] Id.
[5] The Independent, Latest Capture Adds Momentum to the Search for Karadzic and Mladic, Dec. 9, 2005, available here.
[6] ICTY Press Release, Dec. 9, 2005, available on the ICTY website here.
[7] ICTY Trial Chamber I, Decision on Assigned Counsel Application for Interview and Testimony of Tony Blair and Gerhard Schröder, Case IT-02-54-T, Dec. 9, 2005, available on the ICTY website here.
[8] Id.
[9] Reuters News Service, Milosevic Denied Blair’s Testimony, Dec. 9, 2005, available here.
[10] Id.
[11] List of Prosecution witnesses is available on the ICTY website here.
[12] ICTY Press Release, Dec. 8, 2005, available on the ICTY website here.
[13] ICTY Amended Indictment, Prosecutor v. Milan Martic, Case IT-95-11, available here.
[14] Id.
[15] The schedule of case assignments at trial and appeal is available on the ICTY website here.

Croatian General Ante Gotovina Arrested

One of the ICTY’s “most wanted” individuals was arrested Wednesday night in Spain’s Canary Islands, and now awaits transport to the Tribunal in The Hague to stand trial.^[1] Gotovina was originally indicted in 2001 for war crimes and crimes against humanity.^[2] In March 2004, the indictment against him was amended and unsealed, and the Tribunal issued a warrant of arrest at the same time.^[3] Since that time, Gotovina has graced the list of ICTY top fugitives along with notables such as Radovan Karadzic and Ratko Mladic.^[4] His arrest leaves six indictees still at large and sought by the ICTY.

International diplomatic leaders have highlighted the political and symbolic significance of the arrest. Croatian Prime Minister Ivo Sanader said today that the arrest was "the final confirmation of Croatia's credibility."^[5] The fugitive status of Gotovina and others has been cited repeatedly as an obstacle to Croatia’s ascension to the European Union (EU) and contributed to a halt in the approval process earlier this year based on the EU’s complaint that Zagreb was not fully cooperating with the Tribunal.^[6] In comments today, EU Enlargement Commissioner Olli Rehn praised the arrest and urged Serbia and Bosnia-Herzegovina to step up their efforts to bring the remaining fugitives to The Hague.^[7]

In Croatia, General Gotovina and others have been hailed as heroes of the 1991-1995 war, most famously by Croatian tennis star Goran Ivanisovic at the time of his 1991 Wimbledon Championship victory.^[8] Some reporters of Gotovina’s role in the 1990s conflict, particularly the 1995 “Operation Storm,” have suggested that he may have been cooperating with an effort headed by the United States to pressure Serbia into participating in negotiations.^[9] We will continue to monitor the evolution of this case at the ICTY.

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[1] CNN, Top Croat War Crime Suspect Held, Dec. 8, 2005, available here.
[2] The original Indictment, June 8, 2001, is available on the ICTY website here.
[3] The Amended Indictment, February 24, 2004 is available on the ICTY website here. The Trial Chamber Order is available from the ICTY website here.
[4] View the ICTY “Most Wanted” poster here.
[5] See CNN, Dec. 8, 2005, here.
[6] Guardian Unlimited, Croatian War Crimes Suspect Arrested in Canaries, Dec. 8, 2005, available here.
[7] EurActive.com, Croat General Gotovina Held in Spain, Dec. 8, 2005, available here.
[8] See Guardian Unlimited, Dec. 8, 2005, here.
[9] Radio Nederland, Gotovina—From Folk Hero to Wanted War Criminal, Dec. 8, 2005, available here.

War Crimes—Bralo Sentenced at ICTY

Last July 19, 2005, at the ICTY in The Hague, Miroslav Bralo pleaded guilty to eight counts of an Amended Indictment that included responsibility for crimes against humanity and war crimes, including acts of murder, rape, torture, imprisonment, persecution, and using civilians as “human shields.”^[1] Yesterday, a three-judge panel at the ICTY handed down a single sentence of 20 years.^[2] Mr. Bralo was a member of the “Jokers,” a rogue platoon from the 4th Military Police Battalion of the Croatian Defence Council (HVO).

The time that Mr. Bralo has already served in detention will be counted toward the total amount of time assessed in his sentence. After assignment to a detention facility in a participating state, he will be transferred there from The Hague to begin serving the remainder of his sentence. Mr. Bralo surrendered to the tribunal a year ago and pleaded not guilty to the original 1995 indictment, which included nine counts of grave breaches of the Geneva Conventions and twelve of violations of the laws and customs of war.^[3]

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[1] The July 19, 2005 Amended Indictment is available from the ICTY website here.
[2] The full sentencing judgment of the Trial Chamber, Prosecutor v. Miroslav Bralo, IT-95-17-S, Dec. 7, 2005, is available from the ICTY website here.
[3] BBC News, Bosnian Croat Killer Goes to Jail, Dec. 7, 2005, available here.

War Crimes—Jankovic To Be Tried in Bosnia

On Wednesday, Gojko Jankovic was transferred from the Tribunal to Sarajevo to be tried by the War Crimes Chamber of the Court of Bosnia and Herzegovina.^[1] To date, the Hague Tribunal has transferred 4 mid– and lower–level indictees to stand trial in the national tribunal.^[2]

Jankovic is charged with crimes of persecution, including imprisonment and rape, committed in the Foca region, located southeast of Sarajevo in Bosnia and Herzegovina, in the period between July and October 1992. Jankovic is alleged to have been a sub‑commander of the military police and one of the main paramilitary leaders in Foca during this time.

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[1] ICTY Press Release, Gojko Jankovic Transferred to Bosnia Herzegovina, Dec. 8, 2005, available from the ICTY website here.
[2] An overview of the historical disposition of each case is available on the ICTY website here.

Genocide, Crimes Agaist Humanity—Saddam Hussein

Saddam Hussein (Iraq): Genocide

In its last full day of testimony before recessing until December 21, after the upcoming national elections, the case against Saddam Hussein continued today in Baghdad—without Hussein in the courtroom.^[1] The former Iraqi president declared that he would not take part in an ''unjust'' court.^[2] Chief Judge Rizgar Mohammed Amin resolved to continue the trial without the defendant present and stated that the court would inform Saddam about or brief him on the proceedings that took place during his absence.^[3]

After yesterday’s hearing in which witnesses testified about brutal treatment at the hands of the former president’s agents, Hussein had threatened to boycott the proceedings, shouting, “I will not come to an unjust court! Go to hell!”^[4] Hussein has also labeled his treatment in detention as “terrorism,” alleging that he has not been allowed to shower, change clothes, exercise, or smoke.^[5]

After hearing additional testimony today, the Court adjourned to discuss security issues with defense attorneys. The court has previously discussed the possibility of moving the trial to northern Kurd‑controlled Iraq.^[6] As we noted last week, two defense attorneys, a judge, and one witness connected with the case against Hussein have been murdered since the beginning of the trial on October 19.

Frans van Anraat (Netherlands): Complicity in Genocide

In the first trial anywhere of an alleged perpetrator of the attacks on Kurdish villages in Iraq and Iran, Dutch national Frans van Anraat has been charged with complicity in genocide for supplying 1,100 tons of raw materials to Saddam Hussein's regime in the 1980s.^[7] This is also one of the few war crimes trials conducted by a national court in the Netherlands.^[8]

In order to convict Van Anraat, the panel of three judges at the Hague district court must first rule that genocide occurred under Saddam's regime. Should the Dutch court render such a judgment, prosecutors in the Hussein case will almost certainly ask the court in that case to take judicial notice.

The charges stem from van Anraat’s alleged shipment of raw materials to Hussein’s regime that prosecutors say were then converted into deadly mustard and nerve gas and used against the Kurdish minority in five villages. Van Anraat has told investigators, “I wasn't told they could be used to make chemical weapons."^[9]

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[1] Associated Press, Saddam Hussein’s Trial Recessed Until Dec. 21, available in the International Herald Tribune, December 7, 2005, here.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Associated Press, Sunni Arabs Jailed in Plot to Kill Judge, available in the International Herald Tribune, Nov. 27, 2005, here.
[7] Ireland Online, Dutchman Accused of Supplying Saddam with Chemicals, Dec. 7, 2005, available here.
[8] Id.
[9] Associated Press, Trial Begins for Dutchman Accused of Supplying Saddam With Lethal Chemicals, available in CNews World, Nov. 21, 2005, here.

McNabb in the News

Matthew R. McNabb has had his letter to the editor concerning universal jurisdiction published in the November / December Legal Affairs.

Radovan Karadzic Still At Large; Older Brother Indicted

Radovan Karadzic, the former Serbian leader who has been the target of a decade-long international manhunt, is said to have published a book of poetry last month and is widely thought to be in hiding in Republika Srpska, the Serb half of Bosnia.^[1]

However, outgoing EUFOR Commander Major-General David Leakey stated today that there was little chance EU forces would arrest Radovan Karadzic and Ratko Mladic any time soon.^[2] "We have completely as it were drained the swamp and these people cannot now move with freedom. . . I don't believe that . . . Karadzic will ever risk moving freely in Bosnia and Hercegovina."^[3] Leakey’s comments were made in the context of the hand-over of command of EUFOR to Major-General Gian Marco Chiarini of the Italian army today in Sarajevo.^[4]

In the meantime, Luka Karadzic, the older brother of former Bosnian Serb leader Radovan Karadzic, was formally charged in Belgrade with dangerous driving in connection with a July 2005 accident in which one person died.^[5] Karadzic is alleged to have been driving under the influence at the time of the head-on collision and could face up to three years under state law if convicted.

The elder Karadzic has been outspoken in his support of his brother, and has been highly vocal in his opposition to international efforts to pressure family members into cooperating with capture efforts.^[6] Last summer, reacting to a tearful and public appeal by his sister-in-law that Karadzic surrender, he charged that forcing his sister-in-law to make such a public statement was "more brutal torture."^[7]

Radovan Karadzic was indicted for genocide, war crimes, and crimes against humanity by the ICTY in 1995.^[8] Before going into hiding in 1995, Karadzic denied the charges against him and refused to recognize the legitimacy of the UN tribunal.^[9]

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[1] Guardian Unlimited, Bosnia Agrees to Remake Divided Government, November 22, 2005, available here.
[2] BBC News World Edition, Bosnia Most Wanted “Out of Reach,” December 6, 2005, available here.
[3] Id.
[4] Id.
[5] Associated Press, War Crimes Suspect Karadzic's Brother Charged, December 6, 2005.
[6] BBC News World Edition, Press Wary of Karadzic Plea, July 29, 2005, available here.
[7] Id.
[8] The 1995 Karadzic indictment was amended in May 31, 2000 and is available from the ICTY website here.
[9] BBC News UK Edition, Profile: Radovan Karadzic, June 6, 2005, available here.

ICC Update—Victims Trust Fund Unfrozen

At the close of last week’s session of the ICC 4th Assembly of States Parties, debate surrounding the implementation of the Victims Trust Fund ended in compromise and preparations for the fund to commence operations.^[1]

The States Parties agreed that the fund's directors will have full and independent discretion in allocating relief to victims and crime affected communities. However, they empowered the Court to review projects to ensure that neither the trial proceedings nor the presumed innocence of defendants are compromised.^[2]

As the debate unfolded last week, several States Parties, including Britain and Canada, argued that the discretion should be placed entirely in the hands of trial judges, who would make allocations only after the crimes have been established and the perpetrators convicted. Members opposed to this plan argued that the funds should be controlled solely by the fund's independent four directors, chaired by former French minister Simone Veil.^[3] We discussed some of the legal ramifications of these arguments here last week.

The international fund—the first created to assist victims of genocide and crimes against humanity— has reached US $1 million (€ 850,000) through donations from member countries and private groups.^[4] The funds may be allocated to victims of war crimes and to communities in a conflict region. Eventually, the fund will also include restitution assessed by the Court as part of post-conviction sentencing.^[5]

Other News
The agreement between the ICC and Austria for Austria to provide detention facilities for individuals convicted and sentenced by the Court has entered into force by operation of time. The original agreement was signed on October 27, 2005.^[6]

A status conference on the Uganda investigation and arrest warrants is scheduled for December 14, 2005.^[7] We will post more information about this conference as it becomes available.

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[1] CBS News International, International Court Resolves Fund Dispute, December 2, 2005, available here.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] A copy of the Agreement Between the ICC and Federal Government of Austria on the Enforcement of Sentences of the International Criminal Court is available in English from the ICC website here. Article 103 of the Rome Statute specifies that a state party’s agreement to assist with enforcement of sentences must be voluntary and Chapter 12 of the ICC Rules of Procedure and Evidence further addresses this aspect of Court’s activity.
[7] The Decision by the ICC is available in English from the ICC website here and the Prosecutor’s October 24, 2005 general status report is available in English and French here.