ICTY Appeals Chamber acquittal in Prosecutor v. Gotovina intersects IHL, military doctrine & ICL

On Friday, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia announced its judgment in Prosecutor v. Ante Gotovina, acquitting Colonel Generals Ante Gotovina (left) and Mladen Markač (below right) of all charges and ordering their release.
This case, the subject of earlier posts here, here and here, focused on Operation Storm, the Croatian operation to re-take the Krajina region in August 1995.
Prosecutor v. Gotovina is one of very few ICTY cases focused on complex targeting decisions involving the use of artillery against a range of military objectives in populated areas during a sustained assault.
The Office of the Prosecutor alleged that Gotovina launched unlawful attacks against Knin, the capital of the self-proclaimed Republic of Serbian Krajina, and three other nearby cities, and that these attacks formed the foundation of a joint criminal enterprise to ethnically cleanse the region of Serbs.

Because Knin was the operational command and control center of the Republic of Serbian Krajina, the case thus centered on actions during "force on force" combat operations. (credit for map showing the Krajina in red)
In April 2011, the Trial Chamber sentenced General Gotovina to 24 years for war crimes and crimes against humanity, on a joint criminal enterprise theory of liability.  The judgment quickly garnered significant attention in the academic and policy communities, including the report of an experts roundtable held at Emory International Humanitarian Law Clinic, for which I serve as Director, and an amicus brief submitted (but not admitted) by a group of international operational law experts.
Trial Chamber I, composed of Presiding Judge Alphons Orie (Netherlands) along with Judges Uldis Ķinis (Latvia) and Elizabeth Gwaunza (Zimbabwe), had found:
►  First, that all targets subjected to deliberate attack in Knin were lawful military objectives, and that the means (weapons) and methods (tactics) used in attack were not unlawful. However, it then applied a 200-meter radius of error around each lawful military objective as the test for determining whether the effects of each artillery shell could be attributed to a lawful attack. Finding that a mere 5% of the shells fell outside this 200-meter radius, the Trial Chamber nonetheless inferred the intent to launch unlawful attacks on civilians.
► Second, that limited harassing fire at the apartment of the President of the Republic of Serbian Krajina violated the principle of proportionality. In so finding, the Trial Chamber did not indicate how a small number of projectiles and no resulting civilian casualties demonstrated an anticipated excessive impact on civilians compared to the expected value of disrupting enemy command and control.
These two findings drove the chamber's conclusion that Croat attacks were directed at civilians and were intended to terrorize the civilian population, and thus served as the basis for the conviction for war crimes and crimes against humanity as a joint criminal enterprise.

In its judgment issued Friday, the Appeals Chamber overturned the Trial Chamber judgment. The five-member panel comprised Presiding Judge Theodor Meron (at right, of the United States) and Judges Carmel Agius (Malta), Patrick Robinson (Jamaica), Mehmet Güney (Turkey), and Fausto Pocar (Italy). It categorically rejected both the findings of the Trial Chamber and the Trial Chamber's conclusion that the Office of the Prosecutor had met its burden of proving guilt beyond a reasonable doubt.
First, the Appeals Chamber rejected the 200-meter radius of error (a unanimous conclusion, although there were dissents on other matters) and held that, as a result, there was no basis for the Trial Chamber's finding of unlawful attack on civilians in Knin or three other towns at issue. It stated:

News flash: Nondisclosure stalls Mladić trial

Well, that was quick.
Scarcely had a defense motion to disqualify a judge been denied before that judge turned 'round and granted another defense motion – "a ruling that throws the future of the trial into question."
So says a just-issued Associated Press dispatch from the International Criminal Tribunal for the former Yugoslavia at The Hague. (credit for photo of ICTY)
It reports that ICTY Judge Alphons Orie, presiding at the trial of former Bosnian Serb General Ratko Mladić,

'said he was delaying the Yugoslav war crimes tribunal case due to "significant disclosure errors" by prosecutors, who are obliged to share all their evidence with Mladic's defense team. He said judges are still analyzing the "scope and full impact" of the error and aim to establish a new starting date "as soon as possible."'

The decision today came amid opening arguments, and just 2 days after ICTY President Theodor Meron denied a motion to disqualify Orie from the case. It reflects a recurring problem in international criminal adjudication, a fact rather painfully reflected in the AP sidebar entitled "Glance of delayed international war crimes cases."
Time frames for a Mladić trial restart seem to run into many months. No small thing given that Mladić, who was indicted in 1995 and arrested in 2011, is 70 years old and not in the best of health.

Initial Reflections on JCE and Terrorism in the Taylor Judgment

(Another of IntLawGrrls' several posts on the Charles Taylor judgment, part of our Sierra Leone accountability series)

Among scholars who follow the jurisprudence of the Special Court for Sierra Leone and the Taylor trial in particular, there was much anticipation about how Trial Chamber II would rule on the issue of joint criminal enterprise, often abbreviated JCE.
This mode of liability has been widely used in various international criminal tribunals and has been the subject of much debate. (Prior IntLawGrrls posts.) The Special Court’s application of JCE is no exception – scholars and practitioners have questioned and criticized its application by the court nearly every step of the way.
In anticipation of receiving the full reasoned judgment (which, as Sara Kendall discussed in a post yesterday, is not yet available), this post will discuss the general issue of JCE in the Taylor trial, including a key decision about the alleged common purpose handed down by the Trial Chamber very late in the trial. It will also provide a few comments on the relationship between joint criminal enterprise and aiding and abetting, the latter being one of the modes of liability on which the Trial Chamber relied in its recent conviction of Charles Taylor.

Pleading JCE 
One of the central debates about joint criminal enterprise at the Special Court is how the prosecution pleaded the required common purpose. According to paragraph 574 of the prosecution’s final trial brief, Taylor, together with the Revolutionary United Front (RUF) and Armed Forces Revolutionary Council (AFRC)/RUF junta, shared a common plan involving

'the use of criminal means, a campaign of terror encompassing the indictment crimes, in order to achieve the ultimate objective of the JCE, to forcibly control the population and territory of Sierra Leone and to pillage its resources, in particular diamonds.'

This plan was allegedly hatched between Taylor and Foday Sankoh, leader of the RUF, in the 1980s – an allegation the Chamber rejected. (credit for above photo of Taylor, at right)
During the course of the trial, however, the prosecution had put forth various versions of the common plan. The initial indictment, similar to the indictments in the RUF and AFRC cases, alleged that the RUF and AFRC were participants in a joint criminal enterprise to take political and physical control of Sierra Leone and its diamond mines. The diamonds and other natural resources, according to paragraph 23 of the Original Indictment,

'were to be provided to persons outside Sierra Leone in return for assistance in carrying out the joint criminal enterprise.'

Taylor, according to paragraph 20, allegedly participated in the JCE by

'provid[ing] financial support, military training, personnel, arms, ammunition and other support” to the RUF in order to “obtain access to the mineral wealth of the Republic of Sierra Leone, in particular the diamond wealth of Sierra Leone, and to destabilize the State.'

The Second Amended Indictment (the final indictment) did not clearly specify a common purpose, but alleged that Taylor acted in concert with the RUF, AFRC and others to commit the crimes charged “as part of a campaign to terrorize the civilian population” of Sierra Leone (para 5). There is no mention of taking control of Sierra Leone, or of its diamonds or natural resources. However, in subsequent filings the prosecution argued various other common purposes, including the theory finally relied on in its final brief.
Adding to the confusion, the Trial Chamber determined yet another version of the common plan over a year into the trial and after the prosecution had rested its case (which was later re-opened for the Campbell testimony). Some ten months after a motion was filed by the defense challenging the JCE pleading, Trial Chamber II decided by a majority that the alleged common purpose was to engage in a “campaign to terrorize the civilian population of the Republic of Sierra Leone” and that the crimes charged were part of a campaign of terror or a reasonably foreseeable consequence therefore. This was upheld on appeal.

Guest Blogger: Jean Galbraith

It's IntLawGrrls' great pleasure to welcome Jean Galbraith (left) as today's guest blogger.
As a Sharswood Fellow in Law and International Affairs at the University of Pennsylvania Law School, Jean teaches and has published in the areas of international law and foreign relations law.
She received her undergraduate degree summa cum laude from Harvard University and her J.D. from Berkeley Law (Boalt Hall). After law school, she clerked for Judge David S. Tatel at the U.S. Court of Appeals for the D.C. Circuit and Justice John Paul Stevens at the Supreme Court. Following her clerkships, she was an Associate Legal Officer at the International Criminal Tribunal for the former Yugoslavia, where she worked for Judge Theodor Meron.
In her guest post below, Jean presents a creative proposal to speed up the pace of U.S. treaty-making while at the same time enhancing the executive's credibility in treaty negotiating.

Heartfelt welcome!

Miami midyear musings

Some intriguing scenes at last weekend's midyear meeting of the American Society of International Law, held for the 1st time in recent memory outside of Washington, D.C.
The setting was southern Florida, awash in warm sun at the very same time that a foot of snow blanketed northern climes. The 2-day conference took place at host University of Miami School of Law and at the Biltmore Hotel - Coral Gables, a mammoth relic of America's Jazz Age.
Of particular interest to this 'Grrl were panels on criminal and human rights adjudication.
► In "Revisiting the Place of International Law in Domestic Law," panelists discussed the challenges posed when cases of transnational nature land in courts within the United States. Judge Adalberto Jordan, U.S. District Court for the Southern District of Florida, described the process by which he reached his ruling denying a motion to dismiss in Mamani, et al. v. Sánchez de Lozada and Mamani, et al. v. Sánchez Berzain, an Alien Tort Statute matter arising out of killings in Bolivia in 2003. (As we've posted, in another Alien Tort case, Judge Jordan awarded a $22.5 million default judgment against "Chuckie" Taylor, son of the former Liberian President.) It's now on appeal before the 11th Circuit. Meanwhile a judge of that circuit, the Honorable Rosemary Barkett, wondered how Oklahoma could enforce State Question 755, a law just passed by voters, subsection C of which declares that the state's judges "shall not consider international law or Shariah Law." (On Monday, Chief U.S. District Judge Vicki Miles-LaGrange will hear arguments on whether to grant a preliminary injunction against the law in her Oklahoma City courtroom.)
► In "National, Regional, and International Perspectives on International Criminal Accountability," I was honored to moderate a discussion between Olivia Swaak-Goldman, International Cooperation Adviser at the Office of the Prosecutor, International Criminal Court, and George Washington University Law Professor Dinah Shelton, since 2009 a member of the Inter-American Commission on Human Rights. Explored were the role that the ICC and regional institutions play in achieving accountability for perpetrators and redress for victims.
► The dinner keynote was "Justice and Leadership Dilemmas in Shakespeare," by the Honorable Theodor Meron, Shakespearean scholar and Judge of the International Criminal Tribunal for the former Yugoslavia. Of particular interest was the discussion of the predicament that Hubert de Burgh -- whom Meron described as a "legal adviser" -- faced when the eponymous King John ordered an unjust killing.

Sharing Biltmore breakfast space with us on the last day, the former President at left (that's Jeb behind him).

A small world, indeed.

Go On! International Law Weekend-West

(Go on! is an occasional item on symposia of interest) For a decade now we intlawyers on the West Coast having been making a biennial treak to International Law Weekend-West, a free 2-day conference on all aspects of law organized by American Branch of the International Law Association. Time to put the next one on our schedule:
The 5th biennial ILW-W is set for March 6 and 7, 2009, at Willamette University College of Law in Salem, Oregon.
Featured are addresses on “International Criminal Justice: Does It Work?”, by Judge Theodor Meron of the International Criminal Tribunal for the Former Yugoslavia, and on “The American Law Institute Goes Global,” by Columbia Law Professor George Bermann. Topics for panels include:
► Prosecution of international war crimes in the United States
► Taming capital markets
► Water resources
► Detention and other treatment of refugees
► NAFTA
► Life cycle of an international technology transaction
► Empirical approaches to developments in international humanitarian law
► Law of the sea and the environment
► Intellectual property rights
► International and foreign law in immigration law practice
Special features of the conference will be a:
► Commemoration of the 400th anniversary of Mare Liberum (Freedom of the Seas), a masterwork by Hugo Grotius, the Dutch legal theorist whose 425th birthday IntLawGrrls marked last year; and a
► Tribute to the late international law scholar Louis Sohn.
Details are available here or by contacting our colleague James A.R. Nafziger at jnafziger@willamette.edu.

Go On! ASIL Leadership California Tour

(Go On! is an occasional item on symposia of interest.) California international lawyers will be treated this week to visits from two leaders of the century-old, D.C.-based American Society of International Law: President Lucy Reed (below left), a partner at the New York office of the Freshfields law firm, member of the Eritrea-Ethiopia Claims Commission, and IntLawGrrl, and Executive Director Elizabeth Andersen (below right). Coordinating the events is ASIL-West, the regional pilot project of which yours truly's a co-chair. Here's the itinerary:

Wednesday, October 1: Sacramento/Davis area

12 noon: Networking International Law, a lunchtime discussion with Lucy Reed and Betsy Andersen at the University of California Davis, School of Law (Martin Luther King, Jr. Hall). Cosponsored by the King Hall International Law Society.

6 p.m.: New Types of International Courts and Tribunals, dinner and discussion featuring Lucy Reed, Betsy Andersen, and Pacific McGeorge Law Professor Stephen C. McCaffrey; moderated by California-Davis Law Professor Andrea K. Bjorklund. At the University of California Davis, School of Law (Martin Luther King, Jr. Hall).

Thursday, October 2: San Francisco Bay Area

12:30 p.m.: Contemporary International Tribunals: From Investment Disputes to War Crimes, lunch discussion featuring Lucy Reed, at Stanford Law School, Palo Alto.

4:30 p.m.: Vice Presidential Debate Party. Begins with pre-debate foreign policy/international law panel featuring Lucy Reed, Betsy Andersen, and 3 former State Department officials now based in the Bay Area: William D. Kissinger, Abraham D. Sofaer, and Allen S. Weiner. Followed by dinner and viewing of debate between Joe Biden and Sarah Palin, respectively, the GOP and Democratic nominees for Vice President. At Munger Tolles Olson law firm in San Francisco. Registration (required) here.

Friday, October 3: Los Angeles

11 a.m.: International Criminal Justice: Does It Work? Public lecture by Judge Theodor Meron of the International Criminal Tribunals for the former Yugoslavia, with commentary by General Wesley K. Clark (ret.), former Supreme Allied Commander of NATO, moderated by UCLA Law School's David Kaye, at that law school.

Saturday, October 4: Orange County

6 p.m.: Debating International Law Since 9/11: Principled & Pragmatic Controversies, lecture by Richard Falk, Betty & Wylie Distinguished Visiting Professor of Law, Chapman University School of Law, at that law school, located in Orange.

Details and registration for all events here.