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:

Balkan Injustice?

On Friday, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia Appeals Chamber reversed the ICTY Trial Chamber’s conviction of two Croatian generals, Ante Gotovina (far left) and Mladen Markač (near left).
Gotovina and Markač had been convicted by a unanimous Trial Chamber in April 2011 of war crimes and crimes against humanity. A deeply divided (3-2) Appeals Chamber reversed the conviction and acquitted the generals.
While the Appeals Chamber’s decision was celebrated in Croatia, some scholars in the international legal community highlighted its dubious legal reasoning and its apparent lack of consideration for established legal precedent regarding appellate review.
In this post, I will briefly highlight four of the most problematic aspects of the Appeals Chamber’s decision. Each point supports my contention that the decision not only undermines the overall legacy of the ICTY as a neutral and just international forum, but also provides support for the Serbian view that Hague justice is political rather than legal.
► First, let me start with the dissenting opinions.
To claim that Judges Carmel Agius (Malta) and Fausto Pocar (Italy) virulently disagreed with the majority would be an understatement.
Judge Agius (right) said he thought that the majority was misinterpreting, ignoring and dismissing the findings of the Trial Chamber, while Judge Pocar (left) argued that the majority’s reasoning was “grotesque,” was driven by non-legal motives, and contradicted “any sense of justice.” I am not aware of any other appellate cases where the dissenting judges so scathingly reviewed the opinion of their colleagues in the majority.
 It is also noteworthy that the Trial Chamber in Gotovina and Markač had unanimously convicted the generals, whereas the Appeals Chamber seemed so deeply divided in its reasoning that one could almost imagine the ICTY appellate judges having passionate personal disagreements over these cases.
► Second, let me highlight the irregularity of the standard of review adopted by the Appeals Chamber.
The Appeals Chamber correctly announced the standard of review which it was supposed to adopt: the appellate process is not a de novo trial, but instead, a process in which the reviewing judges look at the totality of the evidence, give deference to the Trial Chamber’s fact-finding, and disturb the evidentiary record only if no reasonable fact-finder could have made the relevant findings based on the existing record. It is unfortunate that in this instance the Appeals Chamber decided not to follow its own rule.
The Appeals Chamber focused on the Trial Chamber’s conclusion regarding the proper standard for the accepted margin of error in shelling operations performed by the Croatian army in the so-called Krajina region. The Trial Chamber, perhaps erroneously, had determined that it would accept a 200-meter margin of error regarding shelling operations – that any shell that fell within a 200-meter radius of its purported target would be accepted as having hit its mark, but that any shell falling outside of such radius would constitute evidence of unlawful targeting.
The Appeals Chamber determined that the Trial Chamber's 200-meter standard was wrong; however, the Appeals Chamber did not then proceed to announce the correct standard. In fact, readers of this appellate opinion were left to wonder as to how the Appeals Chamber viewed this error – as an error of law or error of fact? An error of law should have been corrected by a pronouncement of the correct legal standard in assessing the lawfulness of shelling operations; an error of fact should have been corrected only if, in light of the totality of the evidence, no reasonable trier of fact could have reached the same determination.
The Appeals Chamber did neither.

On September 26

(credit)

On this day in ...
... 1992 (20 years ago today), The New York Times quoted "senior Administration officials" who said that "'as many as 3,000' Muslim men, women and children were killed in May and June at Serbian-run detention camps near the Bosnian town of Brcko." The report of the atrocity -- said to be the 1st for which U.S. officials had "independent information corroborating" a reported massacre -- coincided with the voicing, by Acting Secretary of State Lawrence S. Eagleburger, of U.S. support for an inquiry. The ensuing U.N. war crimes inquiry commission would be headed by DePaul Law Professor M. Cherif Bassiouni.

(Prior September 26 posts are here, here, here, here, and here.)

Look On! Esma's Secret: sexual violence in wartime

(Look On! takes occasional note of noteworthy productions)

Grbavica: The Land of My Dreams (2006) is one of the best movies about consequences of the Balkan conflict.
The story line of this film focuses on the life of a single mother and her teenage daughter in the Grbvica neighbourhood of Sarajevo, Bosnia. As the plot unfolds it becomes apparent that the mother, Esma (played by Belgrade-born Mirjana Karanović), was raped by a Serbian soldier and became pregnant as a result.

(credit)

As Professors Ingvill C. Mochmann (Köln, Germany) and Stein Ugelvik Larsen (Bergen, Norway) wrote in their 2008 article, "Children Born of War": The Life Course of Children Fathered by German Soldiers in Norway and Denmark During WWII—Some Empirical Results (p. 361):

'How important it is to provide information to society concerning children born of sexual exploitation and abuse is clearly seen by the impact of the film “Grbvica”. The film produced in 2006 told the story of a relationship between a Bosnian woman who had been raped by a Serbian soldier during the civil war in Bosnia-Herzegovina, and gave birth to a daughter. This film created a shock in society and raised the awareness of the topic in society. A positive consequence of the movie was that rape victims were acknowledged as victims of war and do now receive a small pension.'

Written and directed by Bosnian filmmaker Jasmila Žbanić, the film is definitely worth watching, as an example of how popular culture, and film in particular, can be used to influence the law.
The film, which was released in Britain as Esma's Secret: Grbavica, is also interesting in its depiction of post-traumatic stress.
Esma suffers from trauma and relives the experience of her sexual assault in certain scenes. Through the medium of the film, the director speaks of crimes which are both 'unspeakable' and 'undiscussable', to use to terminology of Dr Janja Beč, a Serbian sociologist and genocide researcher. Yet under pressure from Esma's daughter, who wishes to go on a school trip, Esma and the film finally break the silence surrounding her trauma.

(Cross-posted at Human Rights Film Diary blog)

On May 27

On this day in ...
... 1999, at The Hague, Netherlands, the International Criminal Tribunal for the former Yugoslavia indicted the sitting President of Serbia, Slobodan Milošević (right), and top aides on charges of having committed war crimes and crimes against humanity in Kosovo, a breakaway province. (Our colleague Michael P. Scharf analyzed the charges in this 1999 ASIL Insight.) The indictment came 2 months into the bombing campaign that NATO, acting without U.N. Security Council approval, launched against Serbia on account of its crackdown in Kosovo. That bombardment would end fewer than 2 weeks later. Milošević would remain in power for a time, but then would lose an election and be transferred to ICTY custody in 2001. (photo credit) His trial dragged on, and he died in his Dutch cell in 2006.

(Prior May 27 posts are here, here, here, here, and here.)

On April 6

On this day in ...

... 1992 (20 years ago today), cities on the border between Bosnia and Serbia, for many decades both provinces of Yugoslavia (until the Bosnian declaration of independence a day earlier), were attacked "by the Yugoslav Army and its allied paramilitary groups" -- and the siege of Sarajevo began. These events marking the onset of a protracted bloody war that would see Bosnia gain independence and the U.N. Security Council establish the International Criminal Tribunal for the former Yugoslavia, which to this day continues to prosecute persons accused of international crimes stemming from that conflict.

(Prior April 6 posts are here, here, here, here, and here.)

Syria & Serbia: Different Countries, Same Leaders

Téa Obreht, a critically acclaimed young novelist, wrote the following at page 283 of her debut novel, The Tiger’s Wife (2011):

'When your fight has purpose– to free you from something, to interfere on the behalf of an innocent – it has a hope of finality. When the fight is about unraveling – when it is about your name, the places to which your blood is anchored, the attachment of your name to some landmark or event – there is nothing but hate, and the long, slow, progression of people who feed on it and are fed it, meticulously, by the ones who come before them. Then the fight is endless, and comes in waves and waves, but always retains its capacity to surprise those who hope against it.'

Obreht was referring, in the quote above, to the civil war fought in the former Yugoslavia in the 1990s. As many readers may remember, Serbian leadership, and in particular, Slobodan Milosevic (right; prior IntLawGrrls posts), were largely blamed for the worst of the bloodshed in that civil war. (credit for 1996 photo)
The situation in Syria today resembles Serbia in the 1990s.
Although many commentators have compared Syria with Libya, Syria, in my view, looks more similar to Serbia.
► First, Syria today, as Serbia in the 1990s, is ruled by a long-standing dictator, President Bashar al-Assad (below left), whose leadership revolves around a personality cult and who does not face any serious internal political opposition. (credit for 2011 photo)
Assad, like Milosevic, is shrewd and smart and enjoys the support of a substantial portion of the population. Assad, like Milosevic in his heyday, has managed to win support of his ethnic group, the Alawites, and has pitted Alawites against other ethnic groups in Syria. In fact, Assad has successfully persuaded Alawites (and some Christians) that only under him can they remain safe against the country’s Sunni majority. (Also see here.)
Many will remember how Milosevic played the Serbian nationalist card in Kosovo in the late 1980s, and how he infamously declared to a group of minority Serbs gatherehttp://www.blogger.com/img/blank.gifd in Kosovo Polje:

'No one has the right to beat you…. No one will beat you ever.'

Milosevic rose to power precisely because he persuaded a segment of the Serbian population that only he could adequately protect them from the rise of other ethnic groups in the former Yugoslavia. Many of his policies throughout his reign as leader of Serbia centered on the premise of protecting and developing a larger Serbian state. Even when such policies proved detrimental to Serbia, and when no other state supported such expansionist visions, Milosevic remained true to his personal dream of a greater Serbia.
Today, Assad seems to be on the same path.
Yesterday, the United Nations General Assembly overwhelmingly voted for Resolution A/66/L.36 (full text here), which supported an Arab League plan that had called for Assad to step down and which had condemned human rights violations committed by the Assad regime.

On November 27

On this day in ...
... 1991 (20 years ago today), U.N. Security Council Resolution 721 was adopted. It acknowledged that participants on all sides of the disputes in Yugoslavia had requested U.N. peacekeepers. The resolution of the Council (above left) indicated that a peacekeeping mission could be initiated, but only if all parties complied with a 4-day-old unconditional ceasefire agreement. (photo credit)

(Prior November 27 posts are here, here, here, and here.)

On September 22

On this day in ...
... 1992, in A/RES/47/1, the U.N. General Assembly voted to exclude the Federal Republic of Yugoslavia -- by then, comprising only Serbia (including Kosovo) and Montenegro -- from automatic continuance of the Yugoslavia seat in the United Nations. It thus required the entity to reapply for U.N. membership, and barred it from participation in General Assembly (right) business pending acceptance of that application. (photo credit) The decision came amid the 1990s Balkans Wars and days after the issuance of Security Council Resolution 777, in which the Council declared that "the state formerly known as the Socialist Republic of Yugoslavia has ceased to exist."

(Prior September 22 posts are here, here, here, and here.)

ICTY appeal & U.S. suit review Operation Storm

Ante Gotovina (left), a defendant before the International Criminal Tribunal for the former Yugoslavia, recently filed his ICTY appeals brief. The case concerns the two-day Operation Storm, a Croatian offensive to reassert control over parts of the Serb-held Krajina (map below right), which had declared its independence from Croatia.
What exactly happened on those two days in August 1995 remains contested. It is clear that the lightning-fast operation coincided with a massive exodus of the Serbian population from the area four years after many of its Croatian inhabitants had themselves been pushed from the area by Serbian forces.
Was this a case of retaliatory ethnic cleansing and persecution, as alleged in the indictment and believed by some observers, or a natural response to armed conflict conditions and an evacuation order by the Serb leadership, as others have argued? The Operation also occasioned looting and plunder. But by whom: Soldiers under Gotovina’s command and control, civilians, or retreating Serbian forces?
In a 1,500-page opinion issued on April 15 (available in two parts here) , the ICTY Trial Chamber sentenced Gotovina to 24 years for war crimes and crimes against humanity on a joint criminal enterprise theory of responsibility. (The Prosecutor also charged Gotovina under a superior responsibility theory. But the Trial Chamber made no findings in this regard and limited itself to the joint criminal enterprise ruling, even though Gotovina's alleged omissions were central to the case as discussed below).
In its Judgment, the Trial Chamber squarely adopted the ethnic-cleansing narrative. Indeed, the entire opinion is premised on a finding that Gotovina ordered a direct attack on civilians in the Krajina. The rest of the Judgment balances on this finding like an inverted pyramid.
This finding thus serves as the basis for the wanton-destruction war crimes charge. The crimes against humanity convictions rely on the indiscriminate attack as the predicate widespread/systematic attack against a civilian population. The attack also serves as a key actus reus for the persecution count and the other inhumane acts count. The attack is conceived of as one of the means by which the Croatian forces effectuated the deportation of the Serbian population (the other being the subsequent acts of plunder). Finally, the attack serves as one of two “substantial contributions” made by the defendant to the apparent joint criminal enterprise. (The other was an omission; that is, the failure to take the necessary and reasonable measures to prevent and punish foreseeable crimes committed in connection with effectuating the joint criminal enterprise.)
Not surprisingly, the defendant’s 120-page brief challenges the Trial Chamber’s characterization of the attack as unlawfully directed against civilians.
The defense points out that the Trial Chamber concluded that almost 95% of the Croatian Army’s artillery rounds were aimed at military objectives. For the 5% that fell further from any military objective contained on the Croatian Army’s target list, Gotovina’s lawyers argued that the Trial Chamber failed to consider other reasonable explanations, such as

• the existence of opportunistic and mobile targets in the form of Serbian forces or tanks;
• equipment malfunction;
• the existence of additional military objectives not previously identified on target lists;
• destruction by mortar fire by Serbian forces (there was evidence in the record of some Serb assets in town); or even
• a larger acceptable range of error for the weapons systems employed.

The defense argues that Gotovina did no more than engage military objectives on the front lines and within the Serb army’s operational depth. It concedes the mass departure of the Serbian population (photo at left above), but argues that based on the evidence presented at trial, a reasonable finder of fact could reach alternative explanations. For example, it argues that people:

• Were adhering evacuation orders issued by the Serbian army,
• Followed their family or neighbors,
• Feared contact with Croatian forces or other authorities,
• Were understandably motivated by a desire to avoid the armed conflict, even one lawfully fought, or
• Actually left in advance of the Operation given rumors of its imminence.

Indeed, it seems that no Serb civilian actually testified that he or she left the Krajina in response to unlawful shelling. In short, the defendant has invoked the old saw that correlation is not the equivalent of causation.
Virtually invisible within the opinion is the role played by the United States in Operation Storm. It has been alleged that the U.S. trained and provided intelligence, strategic and potentially other forms of support to Croatian troops involved in the Operation, which proved to be decisive in the conflict against the Serbs in the former Yugoslavia and contributed to Milosevic’s eventual capitulation. (For elaborate accounts of U.S. involvement, see here and here). It does seem unlikely that Gotovina would have ordered an attack on civilians given the amount of U.S. involvement and oversight in the operation.
More on the U.S. role in Operation Storm may come to light in a different courtroom. A private military contractor then called Military Professional Resources, Inc., and subsequently acquired by L-3 Communications, was hired to train and equip the Croatian military. The company is now subject to a class action lawsuit filed in Chicago in August 2010 (case number 10-cv-5197). (See story here and here). The suit, brought by Serbian refugees, alleges that MPRI enabled genocide and ethnic cleansing in the Krajina. Our colleague Anthony D’Amato of Northwestern University School of Law apparently serves as counsel for the plaintiffs. So far, no published opinion appears available, so stay tuned.

On July 3

On this day in ...
... 2001 (10 years ago today), his "[j]utting chin raised contemptuously," as The New York Times' Roger Cohen and Marlise Simons colorfully reported, the ex-President of Serbia, Slobodan Milošević, made his 1st appearance before the International Criminal Tribunal for the former Yugoslavia at The Hague, Netherlands. Milošević, depicted at top in the wanted poster at left (credit), refused both to enter a plea and to accept counsel, setting the stage for protracted proceedings that would end not with a verdict, but with his 2006 death during trial-in-progress detention. Still in Hague cells are the 2 other men in the post: from left, Radovan Karadžić, whose trial began in 2009, and Gen. Ratko Mladić, arrested just last month.

(Prior July 3 posts are here, here, here, and here.)

Breaking News: Ratko Mladić Captured!

After 16 years on the run, Serbian indictee Ratko Mladić—former commander of the Bosnian Serb Army (the VRS) (right)—was captured today by the Serbian Security Intelligence Agency. He had been living under an assumed name in northern Serbia (map left, photo credit).
Mladić has been under indictment before the International Criminal tribunal for the Former Yugoslavia (ICTY) since 1995 for genocide, crimes against humanity and war crimes. Mladić’s co-accused, Radovan Karadžić, President of the so-called Republika Srpska, was arrested in 2008 and has been on trial in The Hague since 2009.
The long-awaited arrest of Mladić opens the way to Serbia’s membership in the European Union, which has been contingent upon a showing of full cooperation with the ICTY.
Following the arrest of Mladic, only one indictee out of 161 remains at large: Goran Hadžić (right), former President of Republic of Srpska Krajina (a Serb break-away republic in Croatia), who has been indicted for crimes against humanity and war crimes.
The ICTY press release on the arrest is here; the Office of the Prosecutor's statement is here.

Remembering Beijing: The Ferraro Factor

(Thanks to IntLawGrrls for the opportunity to contribute this guest post)

Geraldine A. Ferraro, who passed away this weekend, is a symbol of women’s rights advocacy.
As America’s first female candidate of a major party for vice-president, she broke barriers. But readers of IntLawGrrls may not know how actively and directly she influenced women’s rights issues in the international legal context as well.
Appalled by televised reports about the use of rape as a weapon of war by Serbs in the Bosnian conflict, Gerry contacted Madeleine Albright to ask what the new Clinton Administration was doing about it. She was immediately asked to join the Administration’s first delegation to the UN Commission on Human Rights in Geneva, in February 1993, where she helped convince Member States to adopt a separate resolution addressing rape in war.
As Gerry told it, accomplishing this task required her to conduct gender-sensitivity training, too. For example, she found herself telling the male diplomats from the Islamic Conference that they needed to recognize that such sexual violence was not so much an insult to THEIR ‘honor’ (which was all they were prepared to declare) but rather a very real lasting physical and psychological abuse of the women who were victimized. Gerry emphasized that something serious had to be done by the Commission to name it, stop it, punish the perpetrators and aid the survivors. As a result, the Commission adopted a resolution that called for ‘joint and separate action to end this despicable practice,’ as well as for investigations, accountability and assistance to the victims.
Later that year, the protection of women’s rights was affirmed as a major focus of the UN World Conference on Human Rights in Vienna – only a few hundred miles from Bosnia itself.
Gerry was then appointed to head the US delegation to the Commission on Human Rights in Geneva as Ambassador. After she took the reins of the delegation for its 1994 session, the UN created the post of Special Rapporteur on Violence against Women, with a mandate to investigate and intervene to stop abuses worldwide. Additionally, at Gerry’s direction, attention to women’s rights and a gender perspective was incorporated into UN resolutions authorizing many other investigations into human rights abuses.
The following year, after setbacks at a spring Preparatory Conference (“Prepcon”), women advocates realized it was urgent to have strong US leadership on women’s human rights issues as a part of the negotiating team for the upcoming Beijing World Conference on Women, scheduled for September 1995. The World Conference was under attack from various quarters – representatives of the Vatican and Islamic countries had worked vigorously at the Prepcon to place large portions of the draft Platform for Action into brackets (meaning they would remain open to negotiation) and had added proposals challenging the universality of human rights. Some opponents of the Conference offered the concept of ‘human dignity’ as an alternative to that of equal rights (i.e., women might have dignity but may not have equal rights). Others demanded recognition of parental rights and duties rather than the human rights of women and girls, and questioned the use of the word gender. The topic of reproductive rights was challenged directly in ways seeking to undermine advancements stemming from the October 1994 Cairo World Conference on Population and Development.
Gerry was appointed a vice-chair of the US delegation to Beijing in June 1995 and reached out immediately to NGOs and experts alike to work with her and tackle the issues one by one. She engaged in a wide range of informal contacts to try to improve the diplomatic atmosphere—and to reach agreements that affirmed rather than destroyed women’s universal rights. Ensuring a successful outcome in Beijing required her to engage with critics at home, as well as to interact with the representatives of the Vatican and Islamic states from Iran to Sudan. Conference language affirming universality of women’s human rights was threatened by other proposed language that would have both endorsed cultural relativity and emphasized national sovereignty, in particular, through repetition of a key footnote that had ‘saved’ the Cairo conference by encouraging each country to interpret the rights any way it wished. In the end, Gerry Ferraro succeeded in maintaining a US position that preserved the emphasis on universality of women’s rights for all, and concentrated on ensuring equal rights for women.
Hillary Clinton’s remarkable speech at the Conference fixed in delegates’ minds the concept that “women’s rights are human rights” and that they are not something different, inferior, or diminished as compared to other human rights.
The Beijing Declaration and Platform for Action went on to affirm that violence against women was not merely an ‘obstacle’ to equality and peace as had been stated earlier in the 1980 Copenhagen World Conference on Women, but also an abuse that impaired and violated the enjoyment of human rights by women. It defined violence against women broadly – as a phenomenon occurring in public and in private – that had to be prevented, outlawed and punished. The document calls for reporting and monitoring of violations, investigations and prosecutions of perpetrators, due diligence by governments and accountability. The document identifies rape in armed conflict – the issue that spurred Ferraro to engage with the UN’s human rights bodies – as a war crime and under certain circumstances as a crime against humanity or act of genocide. The Beijing World Conference advanced women’s rights both conceptually and politically.
Gerry Ferraro, who was born on Women’s Equality Day (August 26), could claim a victory for the ideas, strategies, and ongoing efforts to bring women’s human rights issues into the mainstream of UN human rights bodies and world attention. Here, as in her unprecedented political candidacy, her efforts and achievements strengthened the position of all women.

(credit for September 12, 1995, UN/DPI 120801 photo by Chen Kai Xing of Ferraro, center, in Beijing)

On February 17

On this day in ...
... 2008, "in an extraordinary meeting" held on a Sunday in Pristina, the Kosovo Declaration of Independence. Pivotal paragraphs:

1. We, the democratically-elected leaders of our people, hereby declare Kosovo to be an independent and sovereign state. This declaration reflects the will of our people and it is in full accordance with the recommendations of UN Special Envoy Martti Ahtisaari and his Comprehensive Proposal for the Kosovo Status Settlement.
2. We declare Kosovo to be a democratic, secular and multi-ethnic republic, guided by the principles of non-discrimination and equal protection under the law. We shall protect and promote the rights of all communities in Kosovo and create the conditions necessary for their effective participation in political and decision-making processes.

(credit for image of Kosovo coat of arms) As readers of IntLawGrrls' Kosovo posts know, last summer, an Advisory Opinion of the International Court of Justice deemed the unilateral proclamation of independence from Serbia to be in accordance with international law. There seems to have been little movement toward fully realized statehood; U.N. membership, for example. This may be due in part to various scandals swirling about Kosovo's leadership -- a situation that led a BBC commentator recently to describe Kosovo's uncertain status as "unfinished business which has implications that range far wider than this small territory in the former Yugoslavia."


(Prior February 17 posts are here, here, here, and here.)

Kosovo: Secession dilemma déjà-vu

(Many thanks to IntLawGrrls for giving me the opportunity to contribute this guest post!)

Since 17 February 2008 – the day of Kosovo’s declaration of independence from Serbia – it has become rather pressing to understand whether this act has legal precedential value and hence what its consequences are. The International Court of Justice (below right) issued an Advisory Opinion on Kosovo this past summer. (Prior IntLawGrrls posts available here.) But that opinion has not shed much, if any, light on the question of precedence.
Whether the Court was asked, on the one hand, to analyze the legal consequences of the independence of Kosovo, or, on the other hand, merely to “narrow[ly] and specific[ally]” reply whether “the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo is in accordance with international law,” remains, of course, a separate debate.
Be it as it may, the dilemma remains:

Is Kosovo a precedent for (remedial) secession?

My article recently published in the Goettingen Journal of International Law, "Secession in Theory and Practice: The Case of Kosovo and Beyond," attempts to put forward a lucid account of the legal implications of Kosovo’s independence. To do so, the article explores the international regulations on secession, as well as the circumstances that led to the case at hand.
The paper carves out the place of secession in international law by appeal to fundamental principles and legal doctrine, and concludes:
► There is no general jus secedendi, or right to secede.
► There are instances in which a right to secession is recognized under international law. These refer to states explicitly acknowledging a right to secession in their domestic law, or multinational states recognizing that their constituent peoples have the right to self-determination.
► There is one controversial case that divides scholarship, the one of remedial secession.
► Lastly, there is a trend towards the legality principle governing secessions, as distinguished from the traditional neutrality doctrine.
It is useful to consider the theory on secession with state practice, to the extent that such practice can be discerned from major socio-political events of Kosovo’s history – from the battle of Kosovo Polje in 1389 to Security Council Resolution 1244 (1999) that set up the United Nations Interim Administration Mission in Kosovo (UNMIK). From the juxtaposition of this theory and practice, a second conclusion can be drawn: Kosovo is a case of remedial secession and thus it represents a potential legal precedent.
And yet the exceptionality discourse!
While the elements of remedial secession are gathered, states deprived this instance of practice of its precedential value, and made it a legally insignificant act.
Some explanations are in order.
An action that is novel or inconsistent with current practice gains precedential value if other states accept it; acquiescence and protest are the fundamental state reactions to an action, therefore those are of interest in the case of Kosovo. Serbia, as the state with most interest in resolving the Kosovo case, has strongly protested against the legality of Kosovo’s secession. Other states protested or decided to withhold recognition. All officially identify the potential of setting a legal precedent as reasoning.
The fascination about the Kosovo case lies in the discourse of those states that chose to support and recognize Kosovo as an independent state, describing it as a sui generis/special/exceptional case. Throughout the years that it has sought independence from Serbia, Kosovo has maintained that it has the legal right to do so. In this context, the most staggering statement is made by Kosovo itself in its own declaration of independence:

Kosovo is a special case arising from Yugoslavia’s non-consensual breakup and is not a precedent for any other situation.

The Kosovo secession has been articulated, but as a non-precedential situation. In the end, as scholars Georg Nolte and Helmut Philipp Aust wrote in an article published last year,

states are both subjected to international law and create and authoritatively interpret it.

And in this case, even the recognizing states have consciously and clearly opted not to create a general rule governing remedial secession. Ultimately, states have guarded the status quo, and continued to act allergic to a right to remedial secession with set boundaries and clear coordinates. Ironically, the consistent state practice is evidence of the absence of a customary right of remedial secession.
In other words, the international community missed a rare opportunity to clarify the concept of remedial secession and to reassert its preventive force as a non-traditional human rights protection mechanism. The consequences of not assuming the precedent are, regrettably, far more important.
The force of remedial secession lies in its prevention potential – empowering minority groups to hold governments accountable to their international obligations. It is not an implosive weapon within the Westphalian system, but rather a non-traditional human rights mechanism.
By presenting Kosovo as unique, the international community undermined the theory of remedial secession, and made states and their borders sacrosanct even when a government, by way of its discriminatory and repressive actions against part of its population, puts its own raison d’être into question. It is a perverse implication, one that states will have to deal with when another unique Kosovo enters the international arena.
Thirty-nine years ago, Bangladesh seceded from Pakistan. The debate whether Bangladesh set a precedent for a right to remedial secession continues. Regrettably, Kosovo is merely a Bangladeshi déjà-vu.

On November 12

On this day in ...
... 1920 (90 years ago today), at a town near Genoa, the Treaty of Rapallo was signed (right) by the Kingdom of Serbs, Croats, and Slovenes and the Kingdom of Italy. (ohoto credit) By the terms of the treaty a number of territories, containing populations of varying ethnicities, were annexed to Italy. An independent state known as Fiume also was established; later it became part of Yugoslavia.

(Prior November 12 posts are here, here, and here.)

Not so fast toward the EU?

'Our children must not be burdened by policies of the 1990s.'

So said Serbian President Boris Tadić a few days ago, while laying a wreath near Vukovar, Croatia, where Serb forces executed more than 200 hospital patients as part of a 3-month siege in which more than 1,000 Croats were killed, 5,000 civilians seized, and 22,000 non-Serbs expelled. (credit for Reuters photo)
Tadić said he had come

to pay respect to the victims, to say words of apology, to show regret and create a possibility for Serbia and Croatia to turn a new page.

Part of that post-atonement chapter, Serbia hopes, is European Union membership, so that Serbia no doubt welcomed subsequent EU and the U.S. State Department comments heralding the visit as a welcome step toward reconciliation.
But the move brings to mind the objection that Serge Brammertz (below right), Chief Prosecutor of the International Criminal Tribunal for the former Yugoslavia, raised regarding any plan to allow EU admission while ICTY indictees like former Bosnian Serb General Ratko Mladić remain at large. As we've posted, Brammertz has said:

Be sure to ask countries to support the tribunal. There is a tendency to think, 'Let's move on. Let's take the countries into the international community. We are saying, 'There can be no compromise. There can be no alternative to bringing the fugitives to justice.'

The Asylum Law Round-Up

In the past two weeks, two federal courts of appeals have weighed in on important asylum issues, yet again demonstrating the poor quality of decision-making at the immigration courts and the Board of Immigration Appeals (BIA) and the importance of access to judicial review for asylum seekers.

Last Monday, in Todorovic v. Attorney General, the Eleventh Circuit vacated and remanded an immigration judge's decision denying an asylum claim because he did not believe that the asylum seeker was gay. As the Court noted, the immigration judge "relied impermissibly on stereotypes about homosexuals" to find that the applicant was not a credible witness.
The applicant, Todorovic, described a litany of abuses, from rape to severe beatings, that had been perpetrated upon him by various state and non-state actors in Serbia and provided ample corroboration of his claims. He further explained that these instances of persecution occurred either because the perpetrators knew he was gay or because he was in a gay bar or with his boyfriend, a gay rights activist. Yet the immigration judge held:

The Court studied the demeanor of this individual very carefully throughout his testimony in the Court today, and this gentleman does not appear to be overtly gay . . . since he bears no effeminate traits or any other trait that would mark him as a homosexual.

Of even greater concern, based on the record described above, the Board of Immigration Appeals affirmed the immigration judge's determination that Todorovic was not a credible witness. Even under the highly deferential substantial evidence test, the Eleventh Circuit could not support this determination. While Todorovic can celebrate this outcome, it was disturbing to note that this was the fourth court of appeals decision in the past four years to overturn an immigration judge's credibility findings because they were based on stereotypes about gays. This reveals a significant failure of training in the immigration courts and of effective review at the BIA.
On Wednesday, in Cheng v. Attorney General, the Third Circuit remanded to the BIA the case of a young Chinese woman who claimed persecution based on her opposition to China's coercive population control policies. Cheng became pregnant by her boyfriend at the age of nineteen; though they wanted to marry, their village forbade women from marrying before the age of twenty-three. When town officials discovered her pregnancy, they tried to force her to have an abortion. Cheng fled, and when the officials learned she had given birth elsewhere, they confiscated her family's farm and truck, on which Cheng's family depended to earn a living. The town government ordered that Cheng and her boyfriend be sterilized, and threatened to take her baby from her and detain her boyfriend for months if she did not cooperate. Under this pressure, Cheng agreed to have an IUD inserted, which was particularly painful, and was forced to submit to gynecological exams every three months to verify its presence (and was assessed significant fines when she was unable to appear for these exams). Because she had two more children in the United States, Cheng feared sterilization upon return to China.
The immigration judge, finding Cheng credible, initially granted her claim, but then the BIA vacated the decision and remanded it for further proceedings in light of their recent decisions on China's population control policies. The BIA concluded that mandatory IUD insertion alone does not render an applicant eligible for asylum, but failed to address Cheng's resistance to the IUD and the harms that resulted. The immigration judge on remand denied the asylum claim, and on Cheng's second appeal, the BIA affirmed. (credit for photo at left).
Again, even applying the substantial evidence standard of review, the Third Circuit was compelled to disagree. The Court laid out the history of the coercive population control provisions of U.S. asylum law. In 1989, the BIA decided that China's family planning policies, even where they resulted in forced sterilizations, could not be considered persecution. Congress disagreed, and in 1996, expanded the definition of refugee to include those who suffered forced abortion, forced sterilization, or persecution for resistance to a coercive population control law. In 2008, the BIA decided that forcible insertion of an IUD, though "intrusive", does not rise to the level of persecution without aggravating circumstances.
Though it was disappointing that the Third Circuit did not dismantle this standard, the court sidestepped it by holding that the aggregate mistreatment suffered by Cheng constituted persecution on account of her resistance to China's population control policies. Again, the case presents a chilling reminder of the limitations of review by the BIA and the administrative asylum process. What has become of the Chengs and Todorovics of the world who were not able to pursue their asylum appeals into the federal courts?

On October 5

On this day in ...
... 2000 (10 years ago today), in what the BBC called a "relatively peaceful revolution," demonstrators "stormed the Yugoslav parliament building in Belgrade" (right) and "ransacked" the building housing state broadcast channels. (credit for AP photo) The crowds were protesting the intention of Serb President Slobodan Milošević to remain in office after contested elections that many believed his opponent had won. Within a day after these demonstrators, Milošević had resigned from office; within a year, he was transferred to a detention center at The Hague; within 6 years, he had died while still on trial before the International Criminal Tribunal for the former Yugoslavia.

(Prior October 5 IntLawGrrls posts are here, here, and here.)

Not liking Lotus in Kosovo

New sighting of old law is not always a welcome event.
Take glimpses of Lotus in Kosovo, for example.
Kosovo, as detailed in yesterday's post, refers to the Advisory Opinion on Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo issued on July 22 at the Peace Palace (above) in The Hague, Netherlands. (photo credit)
About 7-1/2 months after the proclamation on February 17, 2008, of the Kosovo Declaration of Independence, the U.N. General Assembly asked the 15-member International Court of Justice: Is that declaration "in accordance with international law"?
"The answer to that question," the ICJ reasoned in ¶56 of its principal opinion, "turns on whether or not the applicable international law prohibited the declaration of independence." Below the surface of that phrasing, this reader caught sight of S.S. Lotus, the 1927 Permanent Court of International Justice holding that international law permits whatever it does not prohibit. Yesterday's post pointed to problems this methodology creates, and further noted that Lotus receives no citation on any of the principal opinion's 44 pages.
In point of fact, though the Kosovo judgment comprehends 9 additional, separate opinions, Lotus is discussed only once anywhere -- in the 3-page Declaration filed by Judge Bruno Simma (left).
Simma too saw Lotus lurking in ¶56. He did not like what he saw.
Adoption of the Lotus approach "reflects an old, tired view of international law," wrote Simma, whose many academic positions include former Law Dean at the University of Munich and current Visiting Law Professor at the University of Michigan. Simma's Declaration variously termed such reasoning "mechanical," "obsolete," "anachronistic, extremely consensualist," and "redolent of nineteenth-century positivism, with its excessively deferential approach to State consent." A onetime advocate before the Court in cases such as LaGrand, Simma lamented what he considered a missed opportunity for the ICJ "to move beyond" in Kosovo:

The Court could have considered the scope of the question from an approach which does not, in a formalistic fashion, equate the absence of a prohibition with the existence of a permissive rule; it could also have considered the possibility that international law can be neutral or deliberately silent on the international lawfulness of certain acts.

Simma imagined "a deeper analysis" of whether self-determination or remedial secession -- concepts raised in submissions during the pendency of the Kosovo case -- "permit or warrant independence (via secession) of certain peoples/territories." He continued:

[T]he Court could have delivered a more intellectually satisfying Opinion, and one with greater relevance as regards the international legal order as it has evolved into its present form, had it not interpreted the scope of the question so restrictively. To treat these questions more extensively would have demonstrated the Court's awareness of the present architecture of international law.

Forcing an act into a Lotus-like legal/illegal binary refuses to consider the act along a spectrum that includes other labels, such as "tolerated," "permissible," and "not illegal," that may be less clear yet, in Simma's view, clearly reflect the needs of present-day international law.
The future will tell whether Simma's succinct Declaration augurs something new in the ICJ, an institution whose 65-year-old Statute assumes -- as did the PCIJ in Lotus -- that international law primarily governs disputes between sovereign states, resoluble by litigation limited to states alone.

(Part 1 of a 2-part series; Part 1 is here)