January 2016

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.