BREAKING: ICTY Orders Immediate Execution of All Acquitted Defendants

by Kevin Jon Heller

PRESS RELEASE
(Exclusively for the use of the media. Not an official document)
The Hague, 25 December 2013
MS/PR1593e

Acquitted defendants to be immediately apprehended and executed

The Trial Chamber on Saturday issued a decision on the status of the freedom of individuals acquitted by the Tribunal. The Chamber unanimously ordered all such individuals immediately apprehended and executed.

The Chamber’s order is made pursuant to Rule 54 of the Rules of Procedure and Evidence, which provides that “[a]t the request of either party or proprio motu, a Judge or a Trial Chamber may issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial.” The Trial Chamber rejected the argument of counsel for acquittees Ante Gotovina and Momčilo Perišić, made in an October 31 motion, that Rule 54 did not apply to the post-trial phase of a case and, in any event, did not permit the Chamber to order the execution of an acquitted individual. The Chamber noted that “the trial” could be fairly read to include the post-judgment phase and pointed out that the Rule provided the Chamber with broad discretion to do whatever is “necessary.”

The Chamber also rejected the claim of defence counsel that Art. 14(3) of the Statute, which provides that “[t]he accused shall be presumed innocent until proved guilty,” prohibited post-acquittal execution. The Chamber held that the provision did not apply, because an individual acquitted by the Tribunal could no longer be considered an “accused.” The Chamber equally disagreed with the claim that the decision countenanced summary execution, noting that it had carefully considered the merits of the issue and that, as judges, the Chamber would never countenance any action that was inconsistent with the rights of the defence.

Finally, the Chamber emphasized that today’s decision was consistent with the object and purpose of the Statute, which is to combat impunity. “The Chamber cannot permit individuals to avoid justice through technicalities such as acquittal,” the judges wrote.

The Office of the Prosecutor issued a statement in support of today’s decision, citing Churchill’s suggestion that high-ranking Nazis be rounded up and shot as precedent for the Trial Chamber’s order. It also immediately filed a motion with the Trial Chamber asking it to prospectively apply the order to current trials, in the unlikely event that guilty defendants such as Karadžić or Mladić are acquitted.

PS. No actual acquitted individuals were harmed in the making of this post, which is satire. Alas, the reasoning that it makes fun of is all too real. See here, for example.

http://opiniojuris.org/2013/12/16/breaking-icty-orders-immediate-execution-acquitted-defendants/

8 Responses

  1. Finally they did it. Good for them.

  2. Mr. Heller, stop embarrassing yourself. If your time in the Karadzic defence team has affected your views so much that any possible/hypothetical infringement on the rights of an accused immediately impairs your ability to assess the entirel picture and further propels you to lash out at the tribunal’s work in its entirety, it is advisable to consider publishing such satirical pamphlets in some less respectable forum. Your sense of justice is shockibg: you are in practice telling us here that the death/replacement of a judge at the end of an international trial, affecting thousands of individuals, should inevitably lead to an aquittal of the accused. Yes, it is regrettable that one judge had to be replaced at a very late stage of the proceedings, but it will be a travesty of justice to not enter deliberations on the guilt of an accused of such rank because of such technicality. 

  3. From a case management and completion strategy perspective, the extrajudicial execution of accused whose cases are not yet completed would be more logical.

  4. Nenad,

    So you are telling us here that the trial of a high-ranking accused should inevitably lead to a conviction, even if that means his guilt is decided by a judge who was appointed to a panel in violation of the Tribunal’s rules and who was not present for even a day of the accused’s trial. Someone’s sense of justice is indeed shocking — but it’s not mine.

    Thank you, by the way, for reminding us that the only rights that matter in an international criminal trial are those of the prosecution and victims.

  5. 1. I did not say that Seselj should be convicted. I said that his trial must continue and his guilt or innocence determined by the judges, rarher than simply calling for a mistrial on a technicality and no determination his reaponsibility.
    2.  The rules can be interpreted in several ways and it is apparent that your interpretation is the one that takes into account solely the interest of the accused and puts a scratch on everything else. So, yes, it is a sense of justice that is shocking since it lacks any balance. If we were to uphold such a standard of justice, then we might as well not bother to prosecute any alleged war criminals. All the Nazis should have been acquitted because the judges were Allied nationals, Eichmann because he was unlawfully arrested, Seselj because a judge was replaced etc. I am sure that for every single case out there, a defence zealot such as yourself can find an argumebt why the defendant should not be tried at all.
    3. Yes, provided that the new judge is given adequate facilities to familiarize himself with the case, study it carefully etc., I don’t see why such a replacement will automatically be prejudicial to the rights of the accused. So yes, at this point, it is a hypothetical. 

  6. So, for Nenad, “concern for the rights of the accused” = “defence zealot.” That pretty much says it all.

    This will be my last word on the subject.

  7. This is the second time you are putting words in my mouth. I’m sure we all have concerns for the rights of the accused. It is the extremety of your arguments and your unwillingness to look any further than Seselj’s interests that makes you a defence zealot in my eyes. 
    My last words: as a person who has suffered in this war, I will be more at peace with a reasoned acquittal of Seselj, than with no verdict at all because of some vaguely defined procedural rule which someone decides to automatically use in the defendant’s benefit.

  8. I am reluctant to wade into this, but I have spent some time recently looking at the fairness of the ICTY’s judgments (by comparing the indictments to the judgments), and I found little evidence of systematic unfairness.
    The article is here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2192247
    Of course, this says nothing about the results of particular cases, but is an attempt to look for evidence of unfairness across the ICTY’s caseload as a whole.

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