INTERNATIONAL CRIMINAL JUSTICE AND GENOCIDE
Within the last few weeks two important judgments have come down from the Hague. One was handed down by the International Court of Justice [ICJ] in relation to Croatia’s suit against Serbia for genocide arising from certain events during the 1990s secession conflict in the former Yugoslavia, and Serbia’s countersuit arising from a similar factual matrix. The other judgment was an appellate decision handed down by the ad hoc International Criminal Tribunal for the Former Yugoslavia [ICTY] in the “Popović et al.” case. Central to it was the issue of genocide allegedly committed by the defendants in Srebrenica in the course of the same conflict, in July of 1995.
The common thread of these judgments is the issue of what constitutes genocide under the Convention and what evidentiary criteria are to be applied in determining whether or not it had been committed. As the brief comparative analysis that follows will show these two international courts, both ultimately dependencies of the United Nations, have relied on substantially different legal standards in adjudicating essentially the same issue.
But before we enter into a more detailed discussion of the main issue, it would be worthwhile to point out a problematic dictum in the “Popović et al.” judgment which is paradigmatic of the way ICTY functions but might have easily escaped notice.
The defendants in the “Popović” case are high level Bosnian Serb army and police officers alleged to have been involved in the Srebrenica operation. As is generally the case in most ICTY indictments the concept of “Joint Criminal Enterprise” [JCE] plays the key role as a mechanism for linking diverse defendants and other allegedly associated actors to each other and to specific criminal acts. A peculiarity of ICTY jurisprudence in this regard is that most JCEs as recited in the indictment usually comprise a number of persons considerably exceeding those actually on trial in a particular case. In practice, JCE turns out to be a convenient prosecutorial device for imputing vicarious criminal liability to various members of a group that has been conjured by the prosecutor entirely arbitrarily.
A peculiar illustration of how that system works is provided in the “Popović” judgment in par. 1052 where the role of General Ratko Mladić is discussed. Mladić is confirmed by the chamber as an alleged member of the same JCE to which the convicted Vujadin Popović and Ljubiša Beara are said to belong and whose life sentences for participation in the Srebrenica massacre were left standing by the Appellate Chamber. The Appellate Chamber declared that it was “satisfied that the only reasonable inference” is that “Mladić was also a member of the JCE to murder” and that he was a “central, driving force behind the plan to murder and its implementation.”
Even those lacking in a legal education will notice the anomaly. If active participation by General Ratko Mladić in the same “joint criminal enterprise” as the two defendants in the “Popović” case who were found guilty of genocide is now officially affirmed even before the conclusion of the general’s trial, it follows that he is co-responsible for the commission of the same crime of which they were found guilty. It would seem, therefore, that based on this legal conclusion drawn in a different case while the general’s trial was still in progress Mladić’s criminal liability for genocide in Srebrenica has already become an adjudicated fact. Has continuing with Mladić’s trial any further purpose then if the central issue bearing on his guilt has been settled in advance in another case, where Mladić was not even a defendant and did not have an opportunity to present a defence? Hardly. But this glaring anomaly within the system of jurisprudence of ICTY is mirrored even more strikingly upon a comparative analysis between some aspects of the practice of ICTY and ICJ, in the matter of genocide at least.
The issue concerns the possible presence of significant nuances and differences in approach between the two courts with regard to genocide as reflected in the two cited recent judgments. A careful reading and comparison suggests the conclusion that key differences exist and that their implications may be important.
Essentially, in the “Croatia v. Serbia” case the ICJ chamber has declared that while both the Croatian suit and the Serbian countersuit contain a number of material elements that could hypothetically form the actus reus of the criminal act of genocide, nevertheless both lawsuits are unsuccessful because they fail to satisfy the subjective element, i.e. do not reach the standard for demonstrating special intent, or dolus specialis. Special intent, we should recall, is the differentia specifica or particular feature which distinguishes genocide from other forms of killing. Pursuant to the provisions of the Convention, without such showing the crime of genocide cannot be validly established.
That is why in terms of equality before the law the way in which ICJ treats this key concept, in contrast to ICTY, is of extraordinary significance.
ICJ unqualifiedly takes the view that the commission of the act of genocide may not be determined unless the existence of genocidal intent, under the relevant facts, is “the only possible inference” (par. 148). This high threshold of proof erected by ICJ is of great importance in assessing critically the process by which various chambers of ICTY reached their conclusion that the events in Srebrenica in July of 1995 constitute genocide.
Acting more in conformity with political expectations than sound professional appraisal of facts, and in the absence of specific evidence pointing to the requisite intent, ICTY has improvised a “mosaic” theory as an ancillary means of filling gaps in the available evidence. In accordance with that theory the chamber appropriates to itself the right to conclude the existence of special intent by relying on the inductive method stretched to the outer limits of credibility. The evidentiary “mosaic” may consist of a number of individual pieces which viewed in isolation may not reflect any genocidal intent per se. However, it is alleged that in their totality they may be more than the apparent sum of their separate parts and that, viewed as a whole by the chamber, they may still reflect the intent to physically destroy one of the protected categories under the Convention.
In other words, according to the procedure followed by ICTY which forms the foundation of Srebrenica judgments in all cases where that tribunal made a finding of genocide, the evidentiary matrix is a sort of Rorschach test. Various viewers looking at the same image may reach a different conclusion about what it signifies. The ICTY chamber, however, utilizes its judicial prerogative to impute to the accused parties the intent to commit genocide regardless that others assessing the same picture or circumstantial matrix would fail to note such intent. Clearly, this is far lower than the standard of “the only possible inference” posited by the ICJ chamber, as articulated in the “Croatia v. Serbia” judgment.
The not so subtle difference between ICJ and ICTY with respect to the standard of proof of the requisite intent in cases involving genocide ought to become the subject of more systematic analysis. According to ICJ “for a pattern of conduct to be accepted as evidence of its existence [referring to dolus specialis] it would have to be such that it could only point to the existence of such intent” (par. 145). ICJ therefore cautions that “it is difficult to establish such intent on the basis of isolated acts” (par. 139). Further on in the judgment (par. 161 – 163) the chamber gives more elaborate expression to the same thought when it rejects, point by point, the material bases for the Croatian suit because they are not unequivocally linked to the physical destruction of the targeted group but may be equally, if not even more convincingly, explicable in terms of some alternative theory. The chamber consequently affirms that, to be legally sustainable, the finding of genocide must be “conclusively proved” (par. 178).
Two final observations may be offered. First, a crime of the magnitude and gravity of genocide may not be substantiated by evidence of a superficial character and, just as much, it may not be established without engaging in the highest form of due deliberation. Virtually any raising of the threshold in setting the standard of proof is therefore most beneficial to the proper functioning of the system of international justice. At the same time, every movement toward stricter standards should be eagerly welcomed by the Serbian side which ought to be keenly interested in the proper legal qualification of the events related to Srebrenica.
Secondly, both of the courts involved, the International Court of Justice and the International Criminal Tribunal for the Former Yugoslavia, belong to the international justice system under the aegis of the same institution, the United Nations. Regardless of the fact that one court deals with inter-state disputes [ICJ] while the other’s task is to adjudicate individual criminal responsibility [ICTY], it would appear that their standards ought to be in harmony in cases involving the same material issue, such as genocide, if the system of international justice is to afford equal protection under the law to states and individuals alike. All actors, both state and individual, have a legitimate expectation to be judged in accordance with the same standards. ICJ is a permanent court of the United Nations while ICTY is an ad hoc tribunal. That fact alone should suffice to indicate which of these two courts’ jurisprudence ought to set the standard and whenever substantive discrepancies appear prevail. Good judicial practice demands normative harmony and suggests the obvious answer how to achieve it; otherwise, the international justice system of which these courts are an integral part will be seriously compromised.
If the preceding analysis is valid that has the following broad implications with regard to ICTY’ s Srebrenica-related genocide verdicts. Retrospectively, defence teams representing all defendants in such cases who were adjudged guilty of genocide or are awaiting appellate judgment (the “Tolimir” case) should demand without delay revision of the standard of proof for genocide such that the stricter and more appropriate criterion articulated by ICJ would be applied. Prospectively, the Mladić and Karadžić defence teams, in whose cases verdicts have not yet been pronounced, should anticipatorily demand the same.
One suspects that ICTY genocide verdicts would have difficulty to be sustained upon the conscientious application of the ICJ genocide standard.