Krstić in Poland

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Radislav Krstić, who was convicted of aiding and abetting genocide by the International Criminal Tribunal for the former Yugoslavia and sentenced to 35 years’ imprisonment, was transferred to Poland where he is to serve the remainder of his sentence.  Krstić was originally sent to the United Kingdom. There he was brutally attacked by other inmates. He was subsequently transferred to the Detention Unit in The Hague because he was a witness in ongoing proceedings. After much hesitation, he has now been sent to Poland.

Krsti?  arrived last Saturday and has been placed in a form of interim detention for a two-month period after which he is to be moved to a prison. Polish courts have not yet decided how his sentence will be adapted to the realities of Polish law. Under national legislation, he is entitled to ask for pardon or conditional release after serving 15 years of his sentence. When he was in Britain, the date of eligibility for parole was set as 1 June 2016, just over two years from now. But under Polish law he may already be eligible for parole, given that his sentence is calculated from 3 December 1998 when he was first taken into custody by the Tribunal. Polish law does not contemplate a custodial term longer than 25 years’ imprisonment, although it permits a sentence of life imprisonment.

There is much information on earlier stages in the proceedings concerning the detention of Krstić in an article by Oktawian Kuc in the 2012 edition of the Polish Yearbook of International Law. There is also a decision concerning his detention issued by the United Kingdom High Court dated 13 August 2010 ([2010] EWHC 2125 (Admin)).
Thanks to Karolina Wierczynska.

Starvation as a Crime Against Humanity

The thorough and detailed Report of the Commission of Inquiry on North Korea includes a very complete discussion of crimes against humanity. One of the more innovative aspects of the Commission's discussion concerns mass starvation, something that has been a feature of life in North Korea for many years. The Commission concludes that mass starvation resulting from policy decisions constituted a crime against humanity. The relevant part of the Report begins at paragraph 1115. The Report explains that North Korea had become reliant upon the Soviet Union and China to make up its own deficiencies in food production. But by the 1990s, it could no longer meet its needs for food in this way. The Report continues (at para. 1121):

With a famine already underway, relevant DPRK officials adopted a series of decisions and policies that violated international law and aggravated mass starvation. This greatly increased the number of people who subsequently starved to death. The archives of the DPRK may one day provide greater insights into the underlying motivations. Based on the testimony and other information available to it, the Commission could not conclude that DPRK officials acted with the subjective purpose of starving its general population or even a part thereof to death. However, according to the findings of the Commission, the authorities were fully aware that a number of decisions they took in the 1990s would greatly aggravate mass starvation and the related death toll in the ordinary course of events. They nevertheless took these decisions because they prioritized the preservation of the political system of the DPRK, the Supreme Leader and the elites surrounding him. As noted above, this level of criminal intent is sufficient for the crime of extermination.

This is among the very interesting findings of the Commission. Its Report runs to more than 370 pages. 

Call for Papers: Proof in International Criminal Trials

From 27-28 June 2014, Bangor Law School and the Bangor Centre for International Law will host a conference on proof in international criminal trials, kindly funded by the British Academy. Here is the conference abstract:

“There is now an impressive body of literature on the precise scope, context and application of evidentiary rules in international criminal trials. However, the issues surrounding proof and reasoning on evidence in international criminal law have remained relatively under-examined to date. By bringing together judges, practitioners and leading scholars on evidence, international criminal procedure and analytical methods, this conference will comprehensively address issues related to proof in international criminal proceedings. These issues include, inter alia, the means by which inferences are drawn, how reasoning on findings of fact is articulated in judgments, and how witness credibility is assessed. Participants will analyse some of the challenges of fact-finding in the complex context of international criminal trials, which often involve large masses of evidence and hundreds of witnesses.”

Confirmed speakers include:
• Professor Terence Anderson, University of Miami;
• Professor Nancy Combs, College of William and Mary School of Law;
• Judge Teresa Doherty, Residual Special Court for Sierra Leone;
• Professor John Jackson, University of Nottingham;
• Dr Mark Klamberg, University of Uppsala;
• Dr Yassin M’Boge, Leicester University;
• Dr Yvonne McDermott, Bangor University;
• Professor Paul Roberts, University of Nottingham;
• Professor William Twining, University College London.

There are still a limited number of places available for those who would like to present a paper at the conference. Please contact y.mcdermott@bangor.ac.uk for further information.

Some Thoughts on the Katanga Judgment

Readers of this blog will doubtless be aware that the ICC’s Trial Chamber II convicted Germain Katanga of murder as a crime against humanity and four counts of war crimes on Friday, 7 March. The judgment includes a 170-page 'minority opinion' from Judge van den Wyngaert, and a ‘concurring opinion’ from Judges Cotte and Diarra. It is unprecedented, and quite bizarre, for a majority of judges to issue a joint separate opinion concurring with themselves (this is something we can usually take as a given).

The Rome Statute introduces a requirement that crimes against humanity must be committed as part of a ‘state or organisational policy’. In a dissenting opinion in the Ruto et al. confirmation decision, Judge Kaul argued that an organisation, for these purposes, had to be ‘state-like’. The Katanga judgment, referring to the object and purpose of the Statute, held that a requirement that the organisation possess quasi-state characteristics would not enhance the aim of the Statute to punish those who have committed the gravest crimes (para. 1121). Instead, the sole requirement for an organisation in this context is the means and resources to carry out an attack on the civilian population. This reasoning essentially renders the requirement of a pre-existing organisational policy an irrelevance – once an attack has been carried out, it will suffice that the perpetrators had the ability to carry out such an attack for them to be considered an ‘organisation’.

Similarly circular reasoning is found in the judgment on the ‘policy’ requirement. The Chamber noted that, in most cases, the existence of a prior policy to carry out an attack on the civilian population will have to be inferred, after the fact, from an examination of the attack. It noted (para. 1110) that a policy in this context ‘may face an evolutionary process’ that might not be set in stone from the outset of the attack, or even when the attack against civilians has commenced. This means that the policy requirement will be met when the Chamber is convinced that an attack has in fact taken place. In effect, what had been seen as an additional burden for the prosecution to prove – the existence of a state or organisational policy to carry out an attack against a civilian population – has been relegated to a requirement to prove simply that an attack took place.

On the classification of the armed conflict as non-international, the Chamber determined that the Ngiti fighters in Walendu-Bindi were an organised armed group. This was despite the fact that the group did not have a single name that they acted under, or an identified leader, or a clear chain of command. The Chamber felt that it ‘could not adhere to the defence thesis’ (para. 680) that these were relatively autonomous groups. However, as Judge van den Wyngaert pointed out in her dissenting opinion, judges are not obliged to accept one party’s theory of the case over another, but rather consider whether an alternative explanation offers reasonable doubt on the guilt of the accused.

At trial, Katanga waived his right to silence and testified about his role as co-ordinator. This was relevant to his defence under the original charge under Article 25(3)(a), which required that he had control over the perpetrators. However, under the new mode of liability, precisely this testimony was used as a basis of his conviction because, the Chamber held, he had illustrated his ‘significant contribution’ for the purposes of Article 25(3)(d). This clearly raises issues on the right to freedom from self-incrimination and will have an immeasurable impact on defence strategies in future cases, given that it is now foreseeable that defence evidence may be used against the accused in amended charges.

Lastly, the rather shocking remark, at paragraph 70 of the judgment, must be noted. The Chamber stated that just because the accused has not been convicted of certain charges, it does not mean that he is actually innocent, just that there was insufficient evidence to prove him guilty beyond reasonable doubt. How any judge can reconcile such a statement with the presumption of innocence is a mystery.