Guest Post: Merry-Go-Round Justice–The Retrial of Stanišić and Simatović

[Wayne Jordash , QC, is a Managing Partner of Global Rights Compliance LLP and a barrister at Doughty Street Chambers. He served as counsel for Jovica Stanišić in the proceedings described in this post and has been temporarily assigned for the new proceedings.]

On the 15 December 2015, the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) Appeals Chamber ordered a retrial of Jovica Stanišić and Franko Simatović. The Appeals Chamber granted the Prosecution’s request that the decision to acquit be quashed because the Trial Chamber’s approach to joint criminal enterprise (“JCE”) and aiding and abetting were deficient. The retrial will take place under ICTY’s successor, the United Nations Mechanism for International Criminal Tribunals (“MICT”).

Before launching headlong into a discussion on the merits of the decision to order a retrial, it is worthwhile noting that intelligent minds often reasonably disagree on complex ICTY appellate issues. As the ICTY has learnt to its chagrin over the last few years, this is the nature of appeals and sometimes the storms must just be weathered. That said, in the final analysis, some minds might turn out to be more reasonable than others and the quality of the reasoning is as good as signpost as any of the true merits and bona fides of a decision and the prospects of it contributing to our understanding of the law. Accordingly, in the circumstances of the Stanišić and Simatović appeal, it is worthwhile beginning any discussion concerning the merits of the order for retrial with a discussion of the merits and reasoning of the substantive aspects of the appeal. It is instructive to contrast the arguable before moving to the indefensible.

First, for the JCE ground, the Majority of the Appeals Chamber concluded that the Majority in the Trial Chamber had made an error in the course of finding that Mr. Stanišić had not intended to pursue any criminal purpose. They argued that the Trial Chamber should have first considered whether the Serbian leadership had a plan to commit crimes in Croatia and Bosnia, what the scope of that plan was, who was involved and whether Mr. Stanišić’s acts contributed to the plan. They concluded that it was only by first reaching these definitive conclusions about the alleged criminal plan could Mr. Stanišić’s JCE intent be properly adjudicated. At first glance, this approach surely has a superficial attractiveness that warrants further consideration.

However, a closer examination of the underlying premise of this ground reminds us that all that glitters is not gold. The reasoning of the Appeals Chamber appears to suggest that it is not possible for a Trial Chamber to take a holistic view of the evidence and recognise an accused’s consistent avoidance of crime in order to reach a conclusion that the accused did not make a significant contribution to any criminal plan and had no criminal intent. Instead, it seems, the Trial Chamber should painstakingly describe the criminal plan in all its florid detail – even though they are convinced from an examination of the accused’s established conduct that he was consistently engaged in conduct that did not advance or further crime.

Logic suggests that if Mr. Stanišić was alleged to have taken part in a robbery of a bank, a trier of fact would be well-equipped to acquit on the basis that he established a solid alibi that showed he was elsewhere, involved in lawful activity and made no contribution to the specific acts alleged to be within the robbers’ plan. On the Majority view in the Stanišić appeal, it was impossible to be satisfied that Stanišić was acting lawfully without describing all of the robbery, even though he was not there, did not contribute to any aspect of it and was shown to be contemporaneously pursuing legitimate purposes.

The fact that the Majority in the Appeals Chamber eschews this type of analytical discussion in favour of bald assertions that JCE intent may only be inferred through a rigidly linear, calculative approach tells us something about the merits of the conclusion, even if reasonable minds could agree or disagree about some of the arguable points. As does the fact, as pointed out by Judge Afanđe in his eloquent dissent, that such an approach is a departure from previous analytical frameworks employed in cases such as Popović, Pandurević, Milutinović and others and Prlić and others. Whichever way it is spun, and however arguable the issues are, it does seem a little late in the day to be overturning acquittals on the basis that unbeknownst there is only one way to assess JCE intent.

Moreover, the trenchant critique of their fellow judges, Judge Agius and Judge Alfanđe, tells us how the Majority got to where they wanted to go and why there may be little that resembles adequate explanation or express reasoning. As stated by Judge Agius:

[i]t is unfortunate that the Majority’s approach contains a number of shortcomings. Not only is it difficult to identify and understand the Majority’s reasons from the text of Judgment, but in its limited discussion, I respectfully submit that the Majority: (i) misstates the applicable law; (ii) fails to reconcile its analysis, in any meaningful fashion with the learned submissions advanced by counsel for the parties; and (iii) takes the practice of the Appeals Chamber dramatically out of context when applying it to the circumstances of this case.

He finds the “lack of transparency” in the Majority’s approach “particularly troubling, in light of its own obligation to provide a reasoned judgment in writing.” That irony was also not lost on Judge Afanđe, who, whilst discussing the flaws in the Majority’s approach, mused on the Majority criticising the Trial Chamber for failing to provide adequate reasoning for its decisions while doing precisely the same thing: a classic case of kettle calling the pot.

Considering the other aspect of the substantive merits, the decision to reverse the acquittals rested on the Trial Chamber’s analysis of Stanišić’s mens rea that was arguably assessed through the lens of the much-debated ‘specific direction’ requirement. Even if one can once again bemoan the lack of reasoning and legal engagement, as with the JCE ground, one can at least see how the Majority of the Appeals Chamber got to where it wanted to go, even if reasonable minds might have queried whether in the particular analytical circumstances the application of specific direction had any meaningful impact on Stanišić’s aiding and abetting acquittals. Nonetheless, as many stakeholders in the international criminal process learn to their cost, this is sometimes the way the die is cast: discretion is discretion and that is the day-to-day business of criminal courts.

The order for a retrial

However, the order for a retrial in this case may not be so easily reconciled with reason or reasonable exercise of judicial discretion. The power to order a retrial is stated in article 25 of the ICTY Statute and rule 117(c) of the Rules of Procedure and Evidence, which provide that the Appeals Chamber may, “in appropriate circumstances”, order a retrial. What might amount to appropriate circumstances is not explained. However, there can be no doubt that the power to order a retrial should be exercised sparingly. As described by the Appeals Chamber in Krajišnik in 2009, it is an “exceptional measure” to which “resort must necessarily be limited”.

The Appeals Chamber in Krajišnik cited the Jelisić case. In the Jelisić case, the Appeals Chamber chose not to remit that case for a new trial on “interests of justice” grounds. An order for retrial is an exceptional measure, they reasoned, to which resort “must be exercised on proper judicial grounds, balancing factors such as fairness to the accused, the interests of justice, the nature of the offence, the circumstances of the case in hand and consideration of public interest.” Considering the length of the proceedings to date, the narrowness of the issues to be (newly) considered, the length of time between the date that the offences were committed (May 1992) and the date of any potential retrial and “the ad hoc nature of the International Tribunal which, unlike a national legal system, means resources are limited in terms of man-power and the uncertain longevity of the Tribunal”, the Appeals Chamber declined to exercise their discretion in favour of a retrial.

In Haradinaj, Balaj and Brahimaj, a retrial was ordered. The Appeals Chamber’s reasoning is difficult to discern. However, it granted the Prosecution’s appeal ground that the Trial Chamber failed to use all tools in its arsenal to secure two ‘crucial’ prosecution witnesses. Further, in Muvunyi at the ICTR, a retrial was ordered. The Appeals Chamber found an aggregate of errors in addressing the inconsistent testimony of three witnesses. Accordingly, the conviction for direct and public incitement to commit genocide was quashed and a retrial ordered. The Appeals Chamber reminded itself of the exceptionality of the measure, but concluded a retrial was required due to the manner in which the factual evidence was considered: a retrial was needed to assess fully the relevant evidence and provide a properly reasoned opinion. Again, whether one agrees with the outcome, it is possible to discern a certain underlying logic concerning the decision to retry. Rather than needing to apply a different calculative approach or new law to existing factual conclusions, the decisions rested on errors that required new evidence or the correction of existing factual assessments that were critical foundations for later dispositive factual and legal assessments. Therefore, one could see how the Appeals Chamber decided that a retrial was required to ensure the missing analysis and supply the foundational assessments.

In light of the above, the Appeal Chamber’s decision to retry Stanišić and Simatović is novel and raises fundamental principles of due process. The Majority’s reasoning lacks any attempt to explain through the lens of legal principle why such an exceptional step is required, merely reminding that the offences were serious, that the Court has a discretion to order a retrial and that this exceptional course must now be taken. The only concrete justification offered – the practicability of returning two of the three original judges to the ICTY – (see below) is a long way from grasping the legal mettle and advanced without any reasoning or elaboration. Moreover, it should be recalled, this was a judge-initiated remedy. The Prosecution had not sought a retrial, arguing that it would not be the most appropriate remedy. Rather, they argued that the most appropriate way forward was a process of re-adjudication based on the evidence already adduced at trial. The shocked faces of insiders from all corners of the ICTY following the order for a retrial was a measure of the overall reasonableness underpinning this approach.

Assuming for the sake of argument that the Majority’s analysis of the substantive merits of the appeal was correct and the Trial Chamber did make those JCE and aiding and abetting errors, the logical and expeditious remedy was plain: send the trial Judgment back to the original Trial Chamber to complete the missing analysis. No new evidence is needed, only new analysis of the existing factual conclusions; a simple task involving the three original Judges sitting down to examine the factual findings (most of which have not been shown to be flawed or wrong), reviewing the trial record (if necessary) and their subsequent testing of prior conclusions. Why then did this not occur?

We are told by the Majority that it is because

“of the three judges of the original Trial Chamber, who directly heard the witnesses at trial, Judge Picard and Judge Gwaunza no longer hold office at the Tribunal. Therefore, it is impractical to remit the case to the original Trial Chamber composed of the same three Judges, who would have been best placed to make the necessary findings on the basis of the original trial record.”

No other explanation was provided that might help ICTY stakeholders understand how the interests of justice were weighed and how these practical considerations outweighed evident legal and due process demands. As discussed above, naturally, the absence of coherent or logical reasoning tells us without more something about the merits and bona fides of legal decisions. However, in this instance, the greater insight derives from some pretty basic, common sense calculations and a rudimentary sense of due process considerations and the way that regular processes ought to work.

Of course, it is not unreasonable to assume that the two departed Judges now have other full-time professional engagements. After all, not many busy professionals from the first trial, now expected to pick up the reins of a new trial and appeal process, still work in the Hague or at the ICTY or at the MICT, and certainly not for the next 5 years. Consequently, the alternative proposition requires a little inconvenience. The two would need to be re-elected in the usual way set out in the Statute by the General Assembly of the United Nations as either permanent or ad litem Judges prior to commencing their new deliberations. They would be required to find a few weeks over the next few months to sit down together (or during teleconferences), go through their original analysis and add that which the Appeals Chamber Majority concluded was missing. Of course, it may already be nicely arranged in their notebooks or minds and had remained there because the critical points resided more in the participation and not in the plot. Through this process, a new Judgment could be delivered in less than six months at no cost to anyone but the original Trial Chamber and their respective legal officers, and of course the accused. Given that the United Nations and the international community is about to shoulder the cost and inconvenience of a new five to seven year trial and appeal process (see below), the practicability of this approach surely must seem obvious.

Despite that, the Appeals Chamber Majority claims that the interests of justice instead demand a repeat of the whole trial and appeal process. It has been estimated that a trial of one accused at the ICTY costs between $6.4 – 9.5 million. On this figure, the retrial option may cost the international community the best part of $20 million dollars and keep the MICT busy until 2020 – that is if the trial and appeal process advance with due haste. It is apparently more practicable to employ three new Judges for the next three to four years, five new Judges on appeal, and re-assign 20 – 30 lawyers and an army of administrative staff, than it is to bring back the original bench for further deliberation.

Putting aside these fiscal calculations, the Appeal Chamber’s decision seems to suggest (but neglects to reason) that due process considerations somehow also pointed inevitably to a retrial. Presumably, these include the rights of the accused and the witnesses and the interests of justice more generally. It is worthwhile examining those to gain a better view of the salient issues that constitute these (not mentioned, and apparently low priority) interests of justice. By 2020, Mr. Stanišić, whose original trial was plagued with ill-health and resulting delays, including findings of unfitness that necessitated a yearlong delay and subsequent trial modifications allowing only two to three and a half days of sitting per week, will be 70 years old. He will have been on trial for 17 years with an undisputed collection of stress-related illnesses that militate against good health, active participation in trial issues and of course reaching the finishing post. No reasonable court should consider this an expeditious process and no well-informed doctor would bet against the unedifying prospect of an incomplete retrial process and another dead Serb in the ICTY’s detention centre.

Putting aside these issues, there are also fundamental issues of procedural fairness that fell to be reasonably weighed and expressly considered. Following a gargantuan trial involving one of the broadest and all encompassing indictments at the ICTY, alleging the most serious violations of international law, tens of thousands of pages of evidence and legal and factual submissions, the Majority in the original Trial Chamber found that Mr. Stanišić acted lawfully consistently throughout the five years of the conflict. Despite extensive involvement in the Serbian war effort, time and time again, he was found to be acting lawfully. The Prosecutor on appeal did not argue that these factual findings were flawed, and the Appeals Chamber did not find that they were decided wrongly, only that the final mens rea conclusions needed to be reconsidered or better described. Accordingly, the Appeals Chamber must have weighed the prospect of ordering the original Trial Chamber to re-visit the vast range of exculpatory findings establishing a lack of contribution to crime and the very likely outcome that would have seen Mr. Stanišić’s acquitted for all or most of the alleged crimes.

That weighing would have also illuminated the fact that, at the very least, Mr. Stanišić could have relied upon a multitude of findings that have already established his lawful conduct and these would have been at the core of any new consideration of whether he had contributed to the newly described criminal plan sufficiently to allow an inference of criminal intent across its scope. Similarly, with the aiding and abetting ground, most of the facts found by the Majority were favourable to the accused; notably, his contribution to the alleged crimes was remote and insubstantial. Even though the Appeals Chamber did not discuss these issues, they could not have been more obvious. Despite this disregard, the new Trial Chamber will need to grapple with this unfairness and recognise these JCE and aiding and abetting findings or risk driving a coach and horses through fair trial principles, including non bis in idem, res judicata and finality.

Considering such unpopular accused, perhaps these nagging consequences will not cause too many sleepless nights. However, for those who hold due process as an irrevocable right, the failure to expressly grapple with these issues or even reference them casts more than a doubt on the bona fides of the decision-making process. The discussion of only one factor – the inconvenience of judicial employment – is a long way from any rounded or balanced discussion concerning the interests of justice. It does not begin to explain to the many stakeholders of the ICTY why such an exceptional step is unavoidable and the right thing to do. Such unreasoned and one-sided reflection offers little: as seems to have been forgotten, judges are (supposed to be) servants of the law and inconvenience and a certain degree of impracticability is part of the oath.

Moreover, it is not only the interests of the accused that ought to have remained paramount and expressly debated. The inconvenience of two of the Judges must be weighed against the consequences that now impact the many stakeholders and individuals from the affected communities. As Judge Wald in the Jelisić case correctly noted, and who could reasonably disagree, any retrial involves having to “rehear evidence already taken and witnesses from afar put through the trauma of reliving their terrible experiences again”. Just as witnesses, victims and affected communities were hoping for closure and finality, their lives are once again up-turned by the ICTY. As 2016 approaches, over 100 witnesses (including victims), struggling to return to normality after a bitter ethnically-motivated war and their experiences at the ICTY, know that the Prosecution and Defence will come knocking in the new year and that they must leave the comfort of their homes and return again to face the gladiatorial pit of an adversarial trial.

To protect against re-traumatization and to relieve stress, counsel for the parties are properly restrained and prevented from harassing witness, including unnecessary and repetitive questioning on issues that have been previously covered or decided. Each of the participants in the international justice project owes a duty to adhere to these essential requirements and take the least intrusive measures to avoid these and related risks. It ought to go without saying that all the ICTY stakeholders expect the Appeals Chamber to be the guardian of these considerations, and, at the very least, provide reasons to justify the risks and discomfort that repeat performances demand. A failure to adhere to these basic requirements is a failure of due process and neglect of a duty of care that undermines the object and purpose and legitimacy of any judicial process.

So to conclude, for those that are tempted to celebrate this peculiar brand of merry-go-round justice, it is not too much to ask for decisions that benefit the few with significant costs to others be well grounded in legal principle and balanced, express consideration. The Majority’s sole claim of a lack of “practicability” is a tacit acceptance that none exists or none exists that balance or would stand up to scrutiny. Stakeholders in the process, including victims and affected communities, can find no solace in the woefully inadequate three paragraphs of reasoning offered.

As will become evident over the coming years as the ICTY closes its doors and the MICT busy itself with the retrial, handing the Prosecution another opportunity to convict in these circumstances is no cause for celebration. It is a manifest demonstration of a system that values convictions and historical narrative more than genuine justice. As the day-to-day grind of these complex criminal court proceedings recommence and stretch into 2020, and the Court overflows with a procession of unnecessary and unwarranted witnesses, documents and argument, the cost to the international community and (at least, the appearance of) international justice as a whole will become more apparent. Unfortunately, it is this trial and all that it evidently represents that is set to be the ICTY’s swan song and that really is a terrible shame.