Tag Archives: acquittal

Guilt, Innocence and Post-Election Violence: Lessons from the ICTY

Marko Milanovic over at EJIL Talk! has analysed a recent Appeals Judgement by the International Criminal Tribunal for the Former Yugoslavia. The judgement acquitted Momcilo Perisic, a Croatian Serb, of aiding and abetting war crimes. In it, Milanovic notes that regardless of whether the Appeals Chamber was right or wrong in its reasoning, Serb nationalists are already using it to paint another piece of the narrative portrait of Serbian forces as wholly guiltless during the Yugoslav war of the 1990s.

A similar process in relation to Croat nationalists happened when a Croat general, Ante Gotovina, was acquitted on appeal a few months ago. Here is an excerpt from Milanovic’s piece:

“…what in my view makes [the Perisic judgement] even more unfortunate are its wider consequences, in particular in the solidification of official narratives of the warring parties in the former Yugoslavia ¬†– and in that the Perisic and Gotovina acquittals are depressingly similar. ¬†Even though both the trial and appellate judgments provide ample evidence of the enormous amount of support that the then FRY provided to the Croatian and Bosnian Serb separatists, the current Serbian government has decided to treat the Perisic acquittal as some kind of general exoneration of Serbia as a state for its involvement in mass atrocities in Bosnia and Croatia. It thus, for instance, decided to emulate the Croatian government, which had sent a state plane to pick Gotovina and Markac up from the Hague with a red carpet welcome in Zagreb upon their acquittal, and sent its own decrepit and barely airworthy jet for Perisic, who then grandstanded at a press conference at the Belgrade airport about the innocence of the Serbian state, people, and his own little self, to much applause from the Serbian press, officials and elites. And so, through an act of concerted political manipulation, the ICTY becomes an instrument for collectivizing innocence rather than for individualizing guilt, becoming indeed the opposite of what many of us had hoped it would be.” [emphasis mine]

I’ve highlighted this commentary because I think it’s highly relevant to what certain Kikuyu and Kalenjin politicians are attempting with regard to the ICC trials of Ruto, Sang, Kenyatta and Muthaura. While the Kenya cases do not involve warring parties or two ethnic states like Croatia and Serbia, the creation of ‘official narratives’ is well underway. Though the ICC has several times emphasised that Kikuyus and Kalenjins are not on trial, this does not suit the narrative of the politicians. They would rather feed the perception that both ethnic groups are being persecuted via these trials. The recently concluded elections showed how effective this can be in rallying voters. I expect the same kind of ethnic grandstanding of Serbian and Croat nationalists to be repeated if any of the Kenyan cases end in acquittal (or dropping of charges, in the case of Muthaura.). We got a small taste of it when the court refused to confirm charges against Henry Kosgey.

The creation of such official narratives of persecution will also help to deter Kenya itself from trying to investigate and prosecute others bearing the greatest responsibility for 2007/8 PEV. So for these politicians, it kills two birds with one stone.

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Watching Reactions to Ngudjolo Acquittal

The blog katangatrial.org has been monitoring the effect of the acquittal by the ICC of Mathieu Ngudjolo. As I mentioned in an earlier post, this acquittal (and the Thomas Lubanga conviction) tells us a little bit about the potential reaction in the Kenya cases if one group of defendants is convicted while another is acquitted.

According to katangatrial.org the reaction varies from joy (among members of Ngudjolo’s ethnic group) to despondency and disappointment among members of the Hema community (where the victims of the crimes hail). But it seems a lot of the blame is being heaped on the Prosecution for conducting shoddy investigations in Ituri (sound familiar?). There is also the question raised by one interviewee about why the President of Congo’s alleged role in the crimes in Ituri was not investigated (again, sound familiar?).

I also think that the Office of the Prosecutor has a worrying tendency in some, though not all, cases to start well in the authorisation and confirmation stages and then lose its way in the midst of the trial. Perhaps this flows from problems at the investigatory phase; a case is rarely stronger than the facts on which it is built. It seems the judges have taken note of this tendency. Without passing judgement on the propriety of the court doing so, it appears several trial chambers have stepped in- through separating joint trials, re-characterising the offences or re-characterising the mode of liability- to stop a series of Prosecution trials from completely collapsing.

In the meantime, much like Kenya, Ituri and the Congo will have to soldier on and fight the battles of social justice: against poverty, disease, illiteracy and gender violence,

even as criminal justice proves frustrating and somewhat illusive.

Another milestone or millstone? The First ICC Acquittal

Today the ICC acquitted Mathieu Ngudjolo Chui. He was on trial for allegedly committing war crimes in the DRC. This acquittal is important not only as another dubious first- the summary suggests that the judges were dissatisfied with the quality of the prosecution’s witness testimony- but because of how it may guide other trial chambers in the standard of review of evidence and modes of liability.

One member of the trial court, Judge Wyngaert, was particularly troubled by the elements of indirect co-perpetration and the application of the so-called control theory imported from German Legal doctrine. Her analysis of the engineworks of international criminal law theories of liability will probably interest lawyers more than non lawyers. But these same issues of modes of liability are being challenged by at least one defence team of the Kenyan Accused. So I’ll blog more on this once I’ve looked through the various judgements (so far the main judgement is french only).

Another important lesson from the Ngudjolo acquittal is just how problematic joint trials can become. The Prosecutor originally charged Ngudjolo and Germain Katanga separately. A decision was then taken to join the two cases for trial. Shortly before Ngudjolo’s acquittal, the Judges again separated the two cases. We’ll know the reasons fully once the Katanga case ends but it is food for thought in view of the way the Kenya cases have been joined for trial.

UPDATE 22 DECEMBER 2012: Another reason why Judge Wyngaert’s Opinion is vital is that she is one of the trial judges in the Kenya cases where, among other things, Uhuru Kenyatta and Francis Muthaura are charged as indirect co-perpetrators of crimes against humanity. Will her strong views on the nature of indirect co-perpetration affect how the parties (Prosecutor and Defence teams) approach the trial?

UPDATE 23 DECEMBER 2012: Ngudjolo’s acquittal may also cause ethnic turbulence in his home province of Ituri. This is because some of the fighting in the 2002-2003 Congo conflict took the form of ethnic war between Hema and Lendu within Ituri Province. Now a Lendu leader, Ngudjolo, has been acquitted whereas Thomas Lubanga who led a largely Hema militia was convicted. How will it play in the ‘silent war’ of histories where each ethnic group writes it’s own history of the conflict casting itself as an innocent victim responding to atrocious aggression by the enemy? How will it play in terms of perceptions of the court where aggrieved Hemas may feel themselves ‘victims’ of international justice that has convicted one of their sons, while acquitting a son of the perceived Lendu enemy?

The ethnic dimension is also present in the Kenya case and remains a thorny question that must be addressed throughout and after the trials. While PEV did not degenerate into all-out war at the level of the Ituri conflict, how would an acquittal in one case be met if it is accompanied by a conviction in the other? Will it feed the sense of victimhood amongst Kalenjin, Kikuyu or Meru? Or will it show that international justice is fair-handed and each accused had an equal chance before the court?

Following the Hague trials of 4 Kenyans to the end. A blog by Archie Nyarango

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