Do Overturned Convictions Undermine Hague Tribunal?

Thursday, 21 March, 2013

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Rachel Irwin

Senior Reporter

When appeals judges at the Hague tribunal quashed the conviction of Momcilo Perisic for crimes committed during the 1990s war in Bosnia, it was the second time they had overturned a trial verdict in four months.

In September 2011, Perisic, who was chief of staff of the Yugoslav army during the Bosnian war, was convicted of aiding and abetting crimes committed against civilians during the 44-month sniping and shelling campaign directed against Sarajevo, which left thousands dead, as well as the 1995 Srebrenica massacre in which over 7,000 Bosniak men and boys were murdered. He was sentenced to 27 years in prison.

On February 28, appeals judges ordered his immediate release after dismissing the conviction. (See Yugoslav Army Chief Acquitted on Appeal .) 

In November 2012, Croatian generals Ante Gotovina and Mladen Markac were released after the appeals bench fully reversed their convictions and dropped their prison sentences. (Croatian General Acquitted on Appeal)

Gotovina was found guilty in April 2011 of ordering unlawful and indiscriminate attacks on Serb civilians during an operation to recapture the Krajina region of Croatia in August 1995. He was also found to be responsible for the deportation of at least 20,000 Serb civilians from Krajina; the murder, persecution and cruel treatment of Serb civilians; and counts of plunder and wanton destruction.

Like Gotovina, special police commander General Mladen Markac was convicted of eight out of the nine counts in the joint indictment. A third co-defendant in the case, Knin garrison commander General Ivan Cermak, was acquitted of all charges.

Gotovina was sentenced to 24 years’ imprisonment, and Markac to 18 years, with credit for time already served.

When the appeals chamber quashed those sentences last November 16, both men left The Hague for a rapturous reception in Croatia.

While other defendants at the tribunal have had their sentences reduced or increased on appeal, the Perisic and Gotovina/Markac cases are the starkest examples of what can happen during the appeals process.

The cases raise numerous questions about how a complete reversal is even possible when Hague trials are supposed to not only establish a factual account of the wars in the former Yugoslavia, but also further truth, reconciliation and peace in the region. If a trial judgement of more than 1,000 pages, as in Gotovina’s case, can be abruptly reversed in a 50-page appeals verdict, what does that say about the tribunal’s overall credibility?

As Christian Axboe Nielsen, a historian at Aarhus University in Denmark, put it, “It’s extremely problematic for the legacy of the tribunal that we essentially have two verdicts – which involve by tribunal standards relatively long prison sentences –not only reduced but also overturned completely, with the formerly convicted out as free men.”

Nielsen has testified as an expert witness for the tribunal in several trials at the tribunal.

“The intensely problematic thing is explaining to the diverse populations of the former Yugoslavia how this makes any sense at all,” he told IWPR.

Lawyers and academics who have analysed the two cases say that while unusual, total reversals are possible, as the appeals court has an enormous amount of discretion in how it reviews the facts and legal standards of cases.

Mark Ellis, executive director of the International Bar Association, told IWPR that the purpose of the appeals process is to examine “the way the trial chamber applied the law and whether or not evidence was there to support the trial chamber’s decision”.

However, as Ellis acknowledges, this explanation “doesn’t help victims, it doesn’t help the perception of the court, because [people ask] ‘How could you get this so wrong? How could you go from one spectrum to another?’ That’s what is so frustrating about it.”

Timothy Waters, an associate professor of law at the University of Indiana, said that while the appeals chamber’s job is to arrive at judgements on the legal standards applied in individual cases, that is not how most people understand it.

“They either read a very short answer – guilty or not guilty – or they are looking for these grand narratives,” he said. “The judicial process is right in the middle of that, telling a very complicated legal story that may have nothing to do with what happened in the broader sense.”

In terms of how appeals decisions affect perceptions of the court, Jens David Ohlin, an associate professor at Cornell University Law School in New York, said they can be interpreted in different ways.

“In one sense, you look at this and say, ‘I have less confidence in the system because if the trial chamber can get things this wrong, then why should I believe anything a trial chamber says?’” he said.

“On the other hand, you can look at this and say, ‘The appellate process isn’t just a rubber stamp. It’s a meaningful judicial review. It shows us that the process is legitimate.”

Marko Attila Hoare, a British historian at Kingston University in London, agreed, noting that “if the appeals chamber always [followed] the trial chamber, that would raise questions about the whole process of impartiality and justice. This does show that the tribunal represents a range of judicial opinions and that judges do disagree with each other.”

GOTOVINA ACQUITTAL RESTS ON HOW SHELL IMPACTS WERE MEASURED

In the Gotovina case, the appeals judgement hinged on the distance between shell impacts and legitimate military targets during the Operation Storm offensive in 1995.

Reading out the verdict, tribunal president Judge Thedor Meron noted that the original trial chamber had concluded that both Gotovina and Markac were part of a joint criminal enterprise, JCE, with other members of the Croatian political and military leadership. The aim of this JCE was the “permanent removal of the Serb civilian population from the Krajina by force or threat or force”.

The appeals verdict stated that the trial chamber used the distance between artillery shell impact sites and the nearest identified artillery targets “as the cornerstone and organising principle” for determining whether projectiles were aimed at lawful military targets. It found that the trial chamber had erred in finding that all impacts located more than 200 metres away from a legitimate target “served as evidence of an unlawful artillery attack”.

The appeals bench found that the trial judgement contained no indication that any of the evidence “suggested a 200-metre margin of error”. The judgement, Judge Meron said, was “devoid of any specific reasoning as to how the trial chamber derived this margin of error”. As a result, the trial chamber’s shell impact analysis could not be sustained.

The other findings in the original verdict – including the existence of a JCE – fell apart as a result.

Ohlin believes it was a “mistake” for the original trial chamber to “go to such a level of specificity” with the 200-metre standard – which they constructed themselves – because it opened them up to criticism from the appeals chamber.
“A large part of the appeals chamber judgement was devoted to the fact that this standard seemed arbitrary,” he said.

Ohlin argues that the original trial judges could have reached the same conclusions from the other evidence available and did not need to devise the impact-to-target distance as a standard.

The final decision – to acquit Gotovina of all counts in the indictment – was controversial precisely because it stemmed from such a specific issue.

“The controversy seems to be, once you admit the [metre standard] is kind of weird and invented, do you throw everything out? This is what the appeals chamber did,” Waters said, noting that two dissenting judges on the appeals bench did not believe the rest of the original judgement should have been discounted because of it.

Those two judges delivered scathing opinions of the view taken by their three colleagues in the majority.

“At every turn, rather than looking at the totality of the evidence and findings, the majority takes an overly compartmentalised and narrow view,” wrote Judge Carmel Agius.

Judge Fausto Pocar said the entire appeals judgement “contradicts any sense of justice”.

PERISIC: NO PROOF OF “SPECIFIC DIRECTION” TO COMMIT CRIMES 

In the September 2011 judgement against Perisic, judges found that in his role as Yugoslav army chief, he “repeatedly exercised his authority to provide logistic and personnel assistance that made it possible for the [Bosnian Serb army] to wage a war that he knew encompassed systematic crimes against Muslim civilians”.

Perisic was also found guilty, as a military commander, of failing to punish members of Serb forces in Croatia for launching rocket attacks on the capital Zagreb in May 1995.

When they reversed all these findings on February 28, appeals judges found that the original trial chamber “declined to consider whether Mr Perisic specifically directed aid” towards crimes committed by Bosnian Serb forces. Instead, they said, the original judges found that Perisic “made a substantial contribution to these crimes, knew that his aid assisted the crimes in Sarajevo and Srebrenica, and was aware of the general nature of the crimes”.

That, however, was not enough to establish aiding and abetting, especially since the accused – based in Belgrade throughout the war – was “remote” from the crimes on the ground, the appeals bench concluded.

“The appeals chamber… reaffirms that no conviction for aiding and abetting a crime may be entered if specific direction has not been proved beyond a reasonable doubt,” said Judge Meron, who presided over the appeals bench for the Perisic case as well as for Gotovina/Markac.

As with the Gotovina appeal judgement, the Perisic verdict was not unanimous, but there was only one dissenting opinion. Judge Liu Daqun of China would have upheld the aiding and abetting convictions for Sarajevo and Srebrenica.

Setting out his reasons for dissenting, Liu essentially concurred with the findings of the original judgement. He argued that “specific direction” was not required to prove aiding and abetting; that Perisic knew of criminal acts being committed by the Bosnian Serb army; and that the assistance provided to that force was crucial to its “very existence”.

“Perisic’s acts, which facilitated the large-scale crimes of the VRS [Bosnian Serb army] through the provision of considerable and comprehensive aid, constitute a prime example of conduct to which aiding and abetting liability should attach,” Judge Liu wrote.

Observers point out that the legal standard now set for “aiding and abetting” has never been used at the tribunal before. Others say that the evidence was so circumstantial that it could have gone either way on appeal, and note that the original trial judgement was not unanimous, either.

Most agree that the requirement to show “specific direction” –in this case linking the aid given by Perisic and the Yugoslav army directly to crimes on the ground in Bosnia – is probably impossible to meet.

“We don’t even have that order for the Holocaust. So it’s not going to work that way,” Waters said.

“One of the reasons why people want a stricter standard is because there are wars all the time, people are constantly involved in them, and where do we draw the line?” he asked. “The concern is that now we’ll never be able to prove anything. But the reason not to worry about that is because what these cases mostly show is that courts and judges are prepared to push aside the standards when they want to reach a conclusion.”

Other observers argue that both the Gotovina and Perisic appeal verdicts reflect a more cautious approach by appeals judges as the Hague tribunal moves towards the end of its work.

“The [appeals chamber] is afraid that some of the trial chamber rulings created new law that expands the range of potential enforcement, and they don’t want to let that happen,” said Eric Gordy, a senior lecturer in South East European Politics at University College London. “It’s this new legal conservatism that’s creeping in. They want to control the effects of what they established before.”

DECISIONS REVERBERATE ACROSS REGION

Neither of these appeals judgements overturn the basic facts that have already been established about the wartime events in question, like, for instance, that Sarajevo was placed under siege, that a massacre occurred at Srebrenica, and that crimes were committed against ethnic Serbs during Operation Storm in Croatia.

But they do change the overall narrative of the Bosnian and Croatian conflicts, and especially perceptions on the ground.

“When you get an appeal being the exact opposite of the trial judgement, it makes it twice as impossible to imagine that these courts are telling stories that have authoritative narrative power,” Waters said.

For example, many people were closely monitoring the outcome of the Perisic appeal because he was the first Serbian state official to be convicted of crimes that occurred in neighbouring Bosnia. His trial conviction was seen by some as formal proof that Belgrade was involved in that war, since former Serbian president Slobodan Milosevic died before a judgement could be rendered.

Now, however, the assistance that Perisic gave to Bosnian Serb forces has been classified not as aiding and abetting crimes, but instead as a contribution to their overall war effort. This will have a profound impact on perceptions of Serbian state involvement.

With Perisic’s acquittal, Waters said, “what happens in Belgrade is that it’s treated like a general proof of collective innocence. That’s a very different thing from what a conviction does in terms of narrative, if it does anything.”

The Perisic case is not the final opportunity to demonstrate Serbian state involvement in Bosnia and Croatia. There is still one remaining Hague case in which high-level Serbian state officials are charged with wartime crimes in those two states. Judgement is pending in the trial of security service officials Jovica Stanisic and Franko Simatovic.

While the Gotovina appeals verdict rested on technicalities, it was interpreted in Croatia as a full exoneration of Gotovina himself – who is revered as a war hero there – and moreover of the country’s actions during Operation Storm.

According to historian Nielsen, the major Croatian newspaper Jutarnji List plastered its website with the headline “Croatia is Innocent” right after the acquittal was announced.

“This is a completely ridiculous and frankly unhelpful assertion that demonstrates a complete misunderstanding of the entire point of the [tribunal],” Nielsen said, adding that the Croatian state “was never convicted in the first place”.

“I understand the frustration of Serbs who say: ‘We are not going to get anybody convicted for what happened in Croatia in 1995,’” he continued. “My answer to that would be, those types of convictions are going to have to happen in Croatia and Serbia, and I really hope for the sake of the region that they do happen.”

As Dov Jacobs, an assistant professor at the University of Leiden in The Netherlands, points out, the appeals verdict “doesn’t mean that no crimes were committed. That’s not what the judgement says”.

TRIBUNAL’S CREDIBILITY AS SOURCE OF HISTORICAL TRUTH

Many experts have long argued that war crime tribunals exist to deliver justice, not to determine the truth about any conflict, so expecting them to do the latter creates unrealistic expectations.

“Everybody put their eggs in one basket, [as if] the tribunal is going to come up with findings and this is going to resolve all of the disputes,” said Gordy, the sociologist at UCL. “Probably if you think about it, no court could ever really do that.”

Waters pointed out that with some exceptions, “the people who were outraged at Gotovina’s conviction were overjoyed at his acquittal on appeal. We could do the same exercise with Perisic. This is an ethnic census.”

In light of that, many wonder how these appeal judgements square with the tribunal’s professed goal of not only establishing a factual record but also contributing to the lasting peace in the region.

Refik Hodzic, director of communications at the International Centre for Transitional Justice and a former tribunal spokesman, says people in the former Yugoslavia still have unanswered questions about why such radical reversals are possible on appeal.

“I’m talking specifically about the Gotovina judgement,” he said. “People are saying, ‘You have dismissed this 200-metre standard, so what is the new legal standard you are establishing? If this is not the correct criteria, then what is it? On what basis are you establishing that this is or isn’t the right criteria?’”

“The importance of these judgements for people in the region goes far beyond the relationship between the accused and the court,” Hodzic said.

Hague decisions are “seismic in their impact,” and not just in the region, he added, recalling how a state prosecutor from Brazil who is leading the effort to prosecute past human rights abuses told him that he looked to precedents at the tribunal for challenging amnesty laws that would shield perpetrators.

“I was stunned to hear that,” Hodzic said. “But it does carry enormous weight. It’s an international UN court whose decisions have shaped international humanitarian law. To have that jurisprudence shifted dramatically without proper reasoning or explanation goes against what the tribunal’s record has been.”

In the future, he predicted, “the conduct of military commanders will be determined by these [Gotovina and Perisic] judgements and you will have people looking to them as the legal basis for their actions”.

However, Waters, the law professor at the University of Indiana, does not believe that these appeal findings will necessarily set a new standard of proof for future cases. It is likely, he says, that judges will continue to sweep aside existing standards when it suits the circumstances of a case.

“That’s not a happy conclusion to say that we have no standards, but it does suggest that this is not a precedent that will stand and determine the future. I don’t think the [Perisic verdict] will tell us what will happen the next time we have a military intervener in a conflict,” he said.

However, other defendants at the tribunal are already trying to use the two recent judgements in their favour.

Last week, during the appeal hearing for four Serbian officials convicted of crimes against Albanian civilians in Kosovo, lawyers for Yugoslav army General Vladimir Lazarevic argued that his conviction for deportation should not stand because there was no proof that he gave “specific direction” for the commission of crimes.

According to the SENSE news agency, the prosecution asked the appeal bench in this case not to apply the “specific direction” standard as it would run “contrary to the interest of justice”.

Despite all the controversy, observers say that the Gotovina/Markac and Perisic appeal verdicts should not detract from the many solid cases of lower-level defendants tried at the tribunal.

“In a way, the [two recent cases] say much more about our need for an overly simplistic understanding of the conflict in the former Yugoslavia, which translates into a lingering desire for symbolic convictions of the ‘big guys’,” historian Nielsen said.

Rachel Irwin is IWPR’s Senior Reporter in The Hague.