Genocide—ICJ Bosnia vs. Serbia Update

The civil genocide case that has been on the docket of the International Court of Justice (ICJ) since 1993 concluded its trial phase this week and is now in the hands of the 16 international judges.^[1] The Court will pronounce its judgment at a date yet to be determined.^[2] At stake are ground‑breaking legal precedents and an enormous pile of money.

The key legal issues are jurisdiction of the court in this matter, the possibility of collective legal responsibility of a state for international crimes, and remedies and reparations. In all likelihood, the Court will first make a determination as to the jurisdictional question before ruling on other substantive questions.^[3]

Jurisdiction
Serbia
Serbia‑Montenegro argues that at the time the case was brought in 1993, neither it nor the former Yugoslavia were a member of the United Nations (U.N.), nor was Serbia a party to the Convention on the Prevention and Punishment of Genocide.

The U.N. suspended the membership of Yugoslavia in 1991 and Serbia became a member in 2000. Therefore, the nation was neither under an obligation to abide by the Convention, nor was it entitled to have access to the ICJ as the judicial arbiter of civil disputes between the U.N. member countries.

Bosnia
Bosnia counter‑argues that Serbia, as a political heir to the former Yugoslavia, assumed the obligations of the former nation directly by succession. Therefore, it cannot distinguish by other, artificial means when it did or did not hold international obligations.

Collective Responsibility
We discussed some of the tricky legal issues involved in assigning culpability to a state for acts that are essentially intentional, criminal, and individual in nature in our February 27 post.

Serbia
Attorneys for the Serbia‑Montenegro of today argue that the nation was not associated with, and never promoted the aims or acts perpetrated by, the Milosevic regime in the 1990s.

Bosnia
Bosnia asserts a holistic theory in which the isolated events committed by groups or individuals, seen as a whole, can transform into the über crime of genocide through some sort of meta‑political alchemy. Presumably, the intentional actor is then inferred from the cumulative effect.

U.S. attorney Thomas Franck, as Agent for the Plaintiffs Bosnia, has stated that "[i]t is the accumulation of solitary crimes—the dreadful repetition of evil acts—that emerges finally, clearly, as the super crime of genocide."^[4]

Reparations
Serbia
Serbia argues that, looking to the law itself, the only reparation measure available to redress violations of the Genocide Convention are limited to declaratory judgment.

Bosnia
If Bosnia prevails in its case against Serbia, it is asking the Court to order monetary compensation, “guarantees and assurances” against future damages, and “symbolic compensation” for breach of international obligations. The amount, including nonmaterial damage to individuals, property lost to individuals and the state, and compensation for “expenditures reasonably incurred” could run into billions of dollars, Euros, or markas.

Serbia has also filed a civil case before the ICJ against Bosnia in which it also alleges damages arising from acts of genocide. It will be interesting to see how the parties maintain consistency in their legal arguments when they exchange sides of the table.

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[1] Davor Konjikusic, ICJ Deliberates BiH, Serbia‑Montenegro Genocide Case, Southeast European Times, May 11, 2006 [hereinafter SET].
[2] Application of the Convention on the Prevention and Punishment of the Crime of Genocide(Bosnia and Herzegovina v. Serbia and Montenegro) Conclusion of the Public Hearings on the Merits, ICJ Press Release 2006/18, May 9, 2006.
[3] The ICJ has previously considered jurisdictional issues in it preliminary judgment regarding the competence of the Court to consider the merits of this case. See Judgement on Preliminary Objections, Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Jul. 11, 1996.
[4] SET supra note 1.

Crimes Against Humanity—ICTY Transfers 3 Cases to Bosnia

In keeping with its completion strategy, the International Criminal Tribunal for the Former Yugoslavia (ICTY) has transferred the international crimes cases of three defendants to be heard in national courts.^[1] The cases of Zeljko Mejakic, Momcilo Gruban, Dusan Fustar, and Dusko Knezevic will now be tried in the War Crimes Chamber (WCC) of the Court of Bosnia and Herzegovina. Including four cases transferred last April, the ICTY has relocated a total of six cases to Bosnia, two to Croatia, and eight cases are still pending.^[2]

The motivation for transferring cases out of the ICTY comes from the Tribunal’s limited mandate and its completion strategy. The Tribunal was commissioned in 1993 to try international criminal cases occurring in the former Yugoslavia after 1991. The commission is timed to expire for trials in 2008 and for all final appeals in 2010.

There are primarily two types of cases that are subject to transfer away from the ICTY:

• Cases that are investigated by the ICTY Office of the Prosecutor and that do not result in an indictment; and
• Cases that are investigated by the ICTY Office of the Prosecutor and that do result in an indictment where:
• (a) The defendant is charged with a minor role of responsibility with regard to the crimes alleged(typically a lower or intermediate military or civil official at the time the alleged crimes were committed); and
• (b) The gravity of the alleged acts is not excessive.^[3]

Transfer determinations are made by a special Referral Bench comprised of three appointed judges.^[4] The Referral Bench applies the criteria specified in Rule 11bis of the ICTY Rules of Procedure and Evidence in keeping with the Tribunal’s Completion Strategy. The Bench also determines which state court will receive the case.^[5] The criteria for the receiving court are:

• Ability to satisfy international law and international human rights standards;
• Ability to conduct a fair trial according to international standards.^[6]

Eligible states include the state where the crime took place, the state where the accused was arrested, or any other state with jurisdiction willing to prosecute.^[7]

Transfer Scenario: Dragan Vasiljkovic
We have previously discussed the plight of Dragan “Captain Dragan” Vasiljkovic. Under the ICTY transfer scheme, Captain Dragan is potentially subject to transfer from the ICTY as an individual who was investigated but not indicted by the ICTY. Presently, Captain Dragan is under indictment in Croatia for crimes against humanity while sitting in detention in his home state of Australia. At the time of this post, Australia has not yet made a decision on whether or not to grant Croatia’s formal extradition request.

Although an ICTY indictment is still possible for Mr. Vasiljkovic, it is unlikely. However, there is no statute of limitations on offenses like genocide, war crimes, or crimes against humanity, so there is no significant legal bar preventing the ICTY from issuing an indictment against him in the future.

By the same token, it is possible but unlikely that the ICTY will formally create the case against him at this point solely for the purpose of not indicting him, but transferring his case to a national court. Likewise, the ICTY completion strategy and political considerations are the more significant contraindications of indictment.

Therefore, although jurisdiction of the ICTY has primacy over national courts, if the ICTY does not indict an individual or otherwise assert that authority, any state court with jurisdiction may assert its own jurisdiction over the alleged acts and the individual. In the case of Mr. Vasiljkovic, barring a request from the ICTY, the case against him will be tried either in Croatia or in Australia.

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[1] Zeljko Mejakic, Momcilo Gruban, Dusan Fustar, and Dusko Knezevic Transferred to Bosnia Herzegovina, ICTY Press Release CT/MOW/1076e, May 9, 2006.
[2] Status of Motions Under Rule 11bis, ICTY Fact Sheet (last visited May 11, 2006).
[3] ICTY Rules of Procedure and Evidence [hereinafter ICTY Rules], Rule 11bis(A) and (C). (A)“After an indictment has been confirmed and prior to the commencement of trial, irrespective of whether or not the accused is in the custody of the Tribunal, the President may appoint a bench of three Permanent Judges selected from the Trial Chambers (hereinafter referred to as the “Referral Bench”), which solely and exclusively shall determine whether the case should be referred to the authorities of a State…”
[4] ICTY Rules, Rule 11bis(A).
[5] ICTY Rules, Rule 11bis(E).
[6] ICTY Rules, Rule 11bis(A) and 11bis(B).
[7] ICTY Rules, Rule 11bis(A).

ICC—Debate on the System of Disclosure

In a recent post, we introduced some of the issues of contention arising at the International Criminal Court (ICC) as it works its way through the first international criminal proceeding. This post focuses on the debate surrounding the issue of pre‑trial disclosure of exculpatory and incriminating evidence in the case of Prosecutor v. Thomas Lubanga Dyilo. Mr. Lubanga has been accused of committing war crimes.

Broadly stated, the interim system of disclosure requires the Prosecution to provide both incriminating pre‑trial evidence that it intends to rely on in the upcoming confirmation hearing, as well as evidence it might already have determined to be exculpatory, to the Registrar in an undifferentiated “dossier” style, and for the Registrar to then provide that information to the Defense.^[1] On May 2, both parties submitted written arguments concerning the Pre‑Trial Chamber’s interim system of disclosure of evidence.

Summary of Defense Arguments
The defense argued that the rights of a defendant under the Rome Statute, the ICC Rules of Procedure and Evidence, and the jurisprudence of the UN ad hoc courts are jeopardized when the Prosecution filters evidence or delays in providing evidence to the defense and to the Court.^[2]

The lead defense attorney, Jean Flamme, made the following points:

1. In the context of the upcoming confirmation hearing, Mr. Lubanga’s rights under the Rome Statute, Article 61.6, to object to the charges against him, challenge the evidence, and present evidence in his own defense will be violated if he only has access to some of the evidence used in obtaining the arrest warrant. This problem exists whenever the defendant is not afforded an opportunity to “get to know” the evidence—whether documentary, tangible, or testamentary—at any trial‑related proceeding.^[3]
   
2. The Court, not the Prosecutor, is empowered to determine which evidence is exculpatory. Otherwise, it would be as though the Prosecutor is allowed to “decide which kind of defence the accused is going to bring.”^[4] Moreover, a defendant cannot “defend himself against ‘redacted’ evidence,” therefore, no materials should be withheld from the defense at any phase of the proceedings.^[5] The concern for the protection of victims and witnesses can be addressed adequately, without affecting the accused’s right to a fair trial, by withholding some evidence from the public.
   
3. Expanding on his arguments, Mr. Flamme argued that efficiency and the principle of equality of arms should grant the defense full and complete access to the materials resulting from the Prosecutor’s investigation into both Mr. Lubanga’s case and the Situation in the Democratic Republic of the Congo. Mr. Flamme recommended that Mr. Lubanga be supplied with a computer, full access to the Office of The Prosecutor (OTP) database, and instruction on accessing the information contained within the database.

Summary of Prosecution Arguments
The Prosecution argues that the interim system of disclosure violates two principles of law according to the Court’s Rome Statute and its Rules of Procedure and Evidence:

1. A system of disclosure that requires an intermediary (the Registrar) violates the mandate for direct disclosure and interferes with the Prosecutor’s duty to maintain accountability for accuracy and timeliness of its disclosures.
   
2. A “dossier” system of disclosure that treats all categories of discovery the same violates the statutory and regulatory distinctions between handing over (documentary) evidence and granting access for inspection of (tangible) evidence. Furthermore, the Prosecutor insists that it is required to disclose only exculpatory evidence and incriminating evidence that it intends to rely on in meeting its burden.
   
3. Finally, the Prosecutor stated that running disclosure through any intermediary creates practical problems that “defeat the purposes of effective disclosure.”^[6]

The Pre‑Trial Chamber may request oral arguments on this issue or it may simply provide a written decision. After the decision is announced, either party has the right to appeal to the Appeal Chamber. The hearing to confirm the yet-to-be-revealed indictment is scheduled for June 27, 2006.

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[1] Decision Requesting Further Information from the Prosecution and the Duty Counsel for the Defence on the System of Disclosure, Prosecutor v. Lubanga, ICC 01‑04/01‑06, Mar. 24, 2006.
[2] Observations of the Defence Relating to the System of Disclosure in View of the Confirmation Hearing, Prosecutor v. Lubanga, ICC 01‑04/01‑06, May 2, 2006 [hereinafter Defence]. Mr. Flamme notes that the term “evidence” in the pre‑trial context is not limited to evidence that would be admissible at trial.
[3] Defence supra note 2 at pg. 14. Mr. Flamme points out the greater clarity of “prendre connaissance de…” in the French version of the Rules than in the English “inspect.”
[4] Defense supra note 2 at pg. 7.
[5] Defense supra note 2 at pg. 12. Mr. Flamme notes that a strict interpretation of Article 20 places defendants’ rights before victims’ rights. If the Pre‑Trial Chamber agrees, it could set a precedent in the general dispute about the balance between the rights of victims and defendants before the Court.
[6] Prosecution’s Final Observations on Disclosure, Prosecutor v. Lubanga, ICC‑01/04‑01/06, May 2, 2006 at para. 13.

War Crimes—ICTY Sentences Rajic to 12 Years

The International Criminal Tribunal for the Former Yugoslavia (ICTY) handed down the judgment and sentence this week in the case against Ivica Rajic, a former commander in the Croatian Defense Counsel (HVO) sometimes known as Viktor Andric.^[1] Rajic was indicted on 10 counts of war crimes and pled guilty to four of those charges.^[2] The remaining six counts were dismissed at judgment.

In making its decision, the Trial Chamber considered the Prosecution’s recommendation that it consider a sentence of 12 to 15 years in prison, based on the gravity of the crimes.^[3] The Chamber measured “gravity” in terms of the scale and brutality of the acts, the role of the defendant, and the impact of the crimes on the victims. In discussing the seriousness of the acts, the Chamber held that the fact that the events were widely known and were brought to the attention of the United Nations Security Council did not add to their “seriousness.”^[4]

Aggravating and Mitigating Factors
In addition to the gravity of the crimes, the Trial Chamber considered both mitigating and aggravating factors.

Mitigating Factors
Responsibility: In entering a guilty plea, the Chamber found that Mr. Rajic should be credited with helping to establish the truth of the events that took place in the villages of Stupni Do and Vares in 1993. The judges also considered the favorable impact of his plea on establishing reconciliation in the region affected and in conserving the resources of the Tribunal.

Remorse: The Chamber found Mr. Rajic’s expressions of remorse to be “real and sincere.”^[5]

Cooperation with the Prosecution: The Chamber gave positive weight to the Prosecutor’s assessment of the quality and quantity of the information Mr. Rajic provided by cooperating with the investigation.

Personal Circumstances: The Chamber took note of the fact that Mr. Rajic had no prior criminal convictions and was not “driven by racial or religious hatred.”^[6]

Aggravating Factors
Position of Authority: The Chamber recognized that it had already made a finding regarding Mr. Rajic’s position as a superior in assessing the gravity of his acts. Therefore, the judges gave no aggravating weight to this factor.

Impact of the Crimes: The Chamber considered the particular vulnerability of some of the victims.

Participation in a Cover-up; Absconding from or Obstructing Justice: The Chamber held that customary international law and general principals of law did not permit the consideration of fleeing or covering up the alleged crimes as aggravating factors at sentencing. However, the judges did make note of the prosecutor’s arguments in considering Mr. Rajic’s good character.

Comparative Sentencing Procedures
Formally, except for the prohibition against imposing a death penalty, there are no real guidelines for sentencing levels at the ICTY.^[7] Similar to the practice in United States federal criminal trials, the Trial Chamber is not required to follow any sentencing recommendation resulting from a plea agreement.^[8] Under the ICTY Rules of Procedure and Evidence, the Trial Chamber “shall” consider both aggravating and mitigating factors in constructing a cumulative sentence.^[9]

The International Criminal Court (ICC) rules regarding sentencing are substantially similar. However, the opportunity to assess reparations to victims prior to, during, and after the trial process is likely to affect both sentences and plea agreements.^[10] At the ICTY, reparations are handled only as private civil actions in national courts.^[11]

Another key distinction between sentencing practice at the ICC and the ICTY is that the ICC is strongly disposed to following the U.S. “bifurcated” model of considering sentencing evidence apart from guilt/innocence evidence. The two proceedings may be separated by request of either party or upon the Court’s own initiative.^[12] In a previous post, we have discussed the impact of blended trials on a defendant’s procedural rights.

Mr. Rajic will be transferred to a prison facility in one of the countries that have an enforcement agreement in place with the ICTY and the UN.^[13] Mr. Rajic and his defense attorneys have the right to appeal the sentence by filing within 30 days.^[14] Appeals practices at the ICC are similar and also include the possibility of also seeking a revision of a sentence based on new evidence or serious judicial misconduct.^[15]

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[1] Ivica Rajic Sentenced to 12 Years’ Imprisonment, ICTY Press Release OK/MO/1075e, May 8, 2006.
[2] Judgement, Prosecutor v. Rajic, IT-95-12‑S, May 8, 2006 [hereinafter Judgement].
[3] Id. at para. 72.
[4] Id. at para. 87.
[5] Id. at paras. 150-152.
[6] Id. at para. 162.
[7] ICTY Statute, art. 24 [hereinafter ICTY Statute].
[8] ICTY Rules of Procedure and Evidence, Rule 100 [hereinafter ICTY Rules].
[9] Id. at Rule 101.
[10] ICC Rules of Procedure and Evidence, Rule 98 [hereinafter ICC Rules].
[11] ICTY Rules supra note 8 at Rule 106.
[12] ICC Rules supra note 10 at Rule 143.
[13] ICTY Statute supra note 7 at art. 27.
[14] ICTY Rules supra note 8 at Rule 108.
[15] Rome Statue, art. 84.

McNabb in the News (5-7-06) 2

Senior Principal Douglas McNabb has been quoted in an Associated Press article on Lance Malone, whose trial is related to that of Dario Herrera and May Kincaid-Chauncey.

Douglas McNabb, ... who specializes in federal criminal cases, said Malone faces a long prison stay. Malone already has received a three-year sentence in the San Diego case, and McNabb said any sentence he might receive in the Las Vegas case could be added to that time.^[1]

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[1] Lawyer: Malone Can’t Get Fair Trial in Las Vegas, Associated Press (via Las Vegas Sun), May 6, 2006.

McNabb in the News (5-7-06)

Senior Principal Douglas McNabb has been quoted in a Las Vegas Review-Journal article about possible sentences for Dario Herrera and Mary Kincaid-Chauncey.

In the federal prison system, white-collar criminals with no prior record are typically sent to minimum-security facilities known as prison camps.

"That's what's commonly referred to as Club Fed," said Douglas McNabb, ... who specializes in federal criminal cases. "It's like a college dormitory without bars."

According to the Federal Bureau of Prisons' Web site, the camps have a relatively low staff-to-inmate ratio and limited or no perimeter fencing. Inmates can walk away -- at the risk of facing an escape charge.

"You definitely want to be able to get into a camp," McNabb said.

…

McNabb said Herrera may be precluded from placement in a prison camp because his record includes a misdemeanor conviction for battery. "The likelihood of being designated to a camp because of the conviction for a crime of violence -- battery -- is very slight," the attorney said.

Herrera pleaded no contest to the battery charge in August 2004, while awaiting trial in the corruption case. The charge stemmed from a scuffle with another man at a construction site, where Herrera was working as a supervisor.

McNabb said Herrera probably will be sent to a low-security facility, such as the one adjacent to the Taft camp.

…

McNabb said Kincaid-Chauncey and Herrera face sentences of at least 33 months under the federal guidelines, which are advisory.

Wright said he plans to ask Hicks for leniency based on his client's lifetime of good deeds.

"If it's at all likely that someone would get less than whatever the guideline calculation is, I think she's a good candidate for it," the lawyer said.

Under the guidelines, sentencing ranges are calculated based on the seriousness of the offense and the defendant's criminal history. In the corruption case, Hicks must determine, based on the preponderance of the evidence, the dollar value of the bribes the defendants accepted.

According to a plea agreement reached between Galardi and prosecutors, Galardi paid between $200,000 and $400,000 in bribes to public officials involved in the Las Vegas case. That amount results in a sentencing range of 51 to 63 months, McNabb said.

The attorney said Hicks could choose to increase the sentences if he finds that the defendants' conduct "was part of a systematic or pervasive corruption of a governmental function, process or office that may cause loss of public confidence in the government."

He said the judge also could increase the sentences if he finds that Herrera and Kincaid-Chauncey, who professed their innocence from the witness stand, committed perjury.^[1]

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[1] Carri Geer Thevenot, Pair Might Get Sent to Stay at “Club Fed,” Las Vegas Review-Journal, May 7, 2006.

McNabb in the News (5-6-06)

Senior Principal Douglas McNabb has been quoted in a Las Vegas Review-Journal article about the political corruption trial of Dario Herrera and Mary Kincaid-Chauncey.

Douglas McNabb, … who specializes in federal criminal cases, said Herrera and Kincaid-Chauncey face prison sentences of at least 33 months under federal guidelines, which are advisory.

The potential sentences could go as high as 63 months if Hicks holds the pair responsible for the total amount of bribes involved in the case, McNabb said.

According to Galardi's plea agreement, he paid between $200,000 and $400,000 in bribes to public officials. Cases involving such amounts result in a sentence range of 51 to 63 months, McNabb said.

The attorney said Hicks could choose to increase the sentences if he finds that the defendants' conduct "was part of a systematic or pervasive corruption of a governmental function, process or office that may cause loss of public confidence in government."

He said Hicks also could increase the sentences if he finds that Herrera and Kincaid-Chauncey, who professed their innocence from the witness stand, committed perjury.

"The trial judges are given a lot of discretion," McNabb said.^[1]

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[1] Adrienne Packer, Political Corruption Trial: Convicted, Las Vegas Review-Journal, May 6, 2006.