08 Jul An Egregious Error in Tadic
I discovered the error this morning, as I was re-reading the Appeals Chamber decision for the joint criminal enterprise section of my book on the Nuremberg Military Tribunals. The decision cites Einsatzgruppen as an example of JCE I, “basic” joint criminal enterprise, and then attributes the following quote to the Einsatzgruppen tribunal (para. 200):
the elementary principle must be borne in mind that neither under Control Council Law No. 10 nor under any known system of criminal law is guilt for murder confined to the man who pulls the trigger or buries the corpse. In line with recognized principles common to all civilized legal systems, paragraph 2 of Article II of Control Council Law No. 10 specifies a number of types of connection with crime which are sufficient to establish guilt. Thus, not only are principals guilty but also accessories, those who take a consenting part in the commission of crime or are connected with plans or enterprises involved in its commission, those who order or abet crime, and those who belong to an organization or group engaged in the commission of crime. These provisions embody no harsh or novel principles of criminal responsibility […].
The Appeals Chamber then claims in footnote 245 that “the tribunal went on to say” that:
Even though these men [Radetsky, Ruehl, Schubert and Graf] were not in command, they cannot escape the fact that they were members of Einsatz units whose express mission, well known to all the members, was to carry out a large scale program of murder. Any member who assisted in enabling these units to function, knowing what was afoot, is guilty of the crimes committed by the unit. The cook in the galley of a pirate ship does not escape the yardarm merely because he himself does not brandish a cutlass. The man who stands at the door of a bank and scans the environs may appear to be the most peaceable of citizens, but if his purpose is to warn his robber confederates inside the bank of the approach of the police, his guilt is clear enough. And if we assume, for the purposes of argument, that the defendants such as Schubert and Graf have succeeded in establishing that their role was an auxiliary one, they are still in no better position than the cook or the robbers’ watchman.
I know all of the judgments extremely well at this point in writing my book, and I could not recall ever seeing a reference to cutlasses and pirates and watchmen in Einsatzgruppen. So I went to the Green Set and found the volume and page cited in Tadic — Volume 4, page 373. And guess what I discovered?
Both quotes are from Telford Taylor’s closing argument, not from the Einsatzgruppen tribunal’s judgment.
That, my friends, is an egregious error. I have no doubt that the the Einsatzgruppen tribunal agreed with Taylor’s statement of the law. But it is not unreasonable to expect an Appeals Chamber to avoid confusing tribunal judgments with prosecutorial arguments — especially when that Appeals Chamber is relying on case-law to justify reading a controversial mode of participation into the ICTY Statute.
No wonder the ECCC recently rejected the entire concept of JCE III after revisiting the cases that Tadic cited in defense of the concept! With errors like this one, how can we trust anything the decision has to say?
Wow, that is an egregious error. Looking forward to seeing what you have to say on JCE on your book.
Great catch, Kevin.
There is also an interesting discussion in the Bosnian Genocide case concerning the Tadic Appeals Chamber’s misreading of the ICJ’s Nicaragua Judgment and its articulation of an “overall control” test for determining state responsibility over non-state actors, which allowed it to hold that the Bosnian war was an IAC.
Milan, I would hardly consider the Tadic Appeals Chamber findings on the control tests from Nicaragua a “misreading”. The Appeals Chamber departed explicitly from the ICJ, describing its findings as “not convincing”. The ICJ reaffirmed its own position in the Bosnian Genocide case, basically telling the ICTY to stick to the law that it knows best – IHL/ICL and not general international law – instead. I do not see the link between a failed attempt to affect the law of state responsibility on the one hand and a clear egregious error on the other. Moreover, pages and pages have already been written about the ICTY-ICJ disagreement, while what Kevin describes here is brand new. Could you maybe explain what the link is?
Wim,
Kevin ends his post with asking whether we can trust anything the Tadic court has to say. I was simply pointing out that the ICJ has also questioned one of the central holdings of the Tadic. I did not know go into it because as you note there have been pages and pages spilled on the point.
And I completely disagree with you on the Nicaragua point. Yes, the Appeals Chamber stated that it was departing from the control test of Nicaragua but it did so after incorrectly defining what the test was. (The ICJ proposed two tests for attribution 1) complete control and dependence over the non-state actor and 2) effective control over specific acts of the actor). The ICTY claimed that the ICJ test was only effective control and then found its own test.
Anyway, this is not to detract from Kevin’s significant finding, which I view as the latest nail in the coffin of Tadic.
Kevin, This is extremely interesting. The overall point in Tadic, as I read it, is that the Military Tribunal and others entered convictions on the basis of what the Judges could have called (had they not been common lawyers) dolus eventualis. In a sense, this does provide a basis for convictions under JCE III.Tadic – and the subsequent Kvocka, Brdjanin and Martic appeal judgments – essentially appear to say, among other things: forget the long list of ways to participate in a crime listed in Article 7(1) of the Statute: it is clear that any person who in some significant way contributes to a crime is guilty if he intended the crime or could at least foresee that his actions or omissions would lead to this crime. I am simplifying, of course, but this does not appear to be so revolutionary and is shared by many legal systems – I can actually think of a few examples where less than this has been considered enough to execute or detain individuals in the US and in other civilized countries, especially in times of war. So, while I share your disappointment at the sloppiness of the arguments of some ICTY judgments, I… Read more »
How about this for a mistake:
“When the Appeals Chamber of the ICTY turned to the de jure and factual relationship between the Russian Federation and the Abkhaz and South Ossetian forces, the elements it considered shed some light on the nature and degree of this control.”
Report of the IIFFMG on the Russia Georgia conflict, p.303.
http://www.ceiig.ch/Report.html
Dear Mr. Heller,
To make things even more delicate, para. 200 of the Tadic Appeals Judgment itself is a direct citation from Brigadier Telford Taylor’s closing argument (Volume 4. p 371.) and NOT from the Opinion and Judgment.
In the same vein, the rest of footnote 245 starting with “with respect to the defendants such as Jost and Naumann” appears in Taylor’s Closing Argument (Vol. 4 p. 372.)