Slobodan Praljak – Croatia, the War, and the Future

Croatia: Distancing From Communist Yugoslavia Still Like Having Teeth Pulled Out Without Anaesthetics

October 31, 2021 by inavukic 4 Comments

_{Upper left image – removed mural dedicated to victims of Serb aggression/Vukovar, with inscription “People will never forget”}

If there is a living example of a miserably painful transition from communism into democracy it is Croatia. At times the moves that those in power make which degrade and offend those who fought or participated by other means in the war for Croatia’s independence during the 1990’s feels to such patriots like having one’s teeth pulled out one by one – without the anaesthetics or pain-numbers!

During the past couple of weeks, the newly elected President of the Supreme Court, Judge Radovan Dobronic, wasted no time to publicly declare that the age-old greeting for Croatian patriots “For Homeland Ready” (“Za dom spremni”) has no place anywhere, must not exist, and that people were killed under that greeting during WWII in Croatia! Of course, he did not do the same for the communist greeting “Brotherhood and Unity”, or its red star symbol or that many more innocent people were killed under “Brotherhood and Unity” greeting during WWII and after it than under any greeting known to Croatian history! What Dobronic said was just what the former communists and Yugoslav nostalgics wanted to hear. He omitted completely to say that in 1990’s the people that formed HOS units (Croatian Defence Forces) whose official symbol and greeting was “For Homeland Ready” are owed utter respect as they contributed significantly to today’s freedom and independence. For over a decade there have been cruel attempts to make the greeting “For Homeland Ready” illegal in Croatia in all instances of life and having a Supreme Court head judge whose one of the first public declarations that touches upon national morality undertones certainly signifies that communists and pro-Communists now have a new friend in Croatia that will continue targeting the values fought for during Croatia’s Homeland War in 1990’s.

A few days after Judge Dobronic stated that the Croatian patriotic greeting “For Homeland Ready”, on 27 October 2021, wall murals on the walls of electric power station in the capital city of Zagreb dedicated to Croatia’s Homeland War, Vukovar and Victims of Serb Aggression during that war were painted over; disappeared. Public revolt and protest, against these acts, occurred in some media, not mainstream that is government controlled, and especially in social media. Protest by members of former HOS units occurred as did from politicians from the right side of political spectrum.

_{Erased Mural in Zagreb dedicated to General Slobodan Praljak and suffering of Croats in Bosnia and Herzegovina}

This depraved act of erasing the patriotic murals can also be compared to the pain of having teeth pulled out without anaesthetics. It signifies pure hatred for the glorious victory Croats had over communist Yugoslavia in 1990. These acts were done by the City of Zagreb administration (via HEP/Croatian Electricity) whose new Mayor Tomislav Tomasevic brought in a leftist administration riddled with communist Yugoslavia nostalgia. Coupled with the fact that on the state level the HDZ government is kept alive by its coalition with Serbs in Croatia who sided with the Serb aggressor against Croatia during the Homeland War there is no doubt in many minds that this act also forms an ongoing plan to keep wearing down Croatian patriotism and the values fought for during separation from communist Yugoslavia. Within a day or two Mayor Tomasevic came out saying that the painting over the murals dedicated to Vukovar, victims of aggression, war, Homeland war was a mistake that the only mural that was meant to be painted over was the one that had the late General Slobodan Praljak’s face on it (Slobodan Praljak was a General in the Croatian Defence Forces in Bosnia and Herzegovina during 1990’s who committed suicide (29 November 2017) in the Hague courtroom of the International Criminal Tribunal insisting he was innocent of war crimes charged with and convicted of.)

Of course, it was only a matter of a day or so after the murals were removed or painted over that new mural on the same walls appeared – thanks to patriotic citizens who were among those abhorred by the act of murals dedicated to Vukovar and Croatian Homeland War being removed.

_{New mural dedicated to Vukovar and victims of Serb aggression in Croatia being painted again on same wall by protesting patriots}

Often we hear that the sadness of attacks on Croatian patriotism will turn into defiance against current political leadership and into political assertion of values fought for during 1990’s for a free and independent Croatia. This though is proving to be a task of gigantic proportions as former communists or their offspring hold onto their family’s past during which most profited – they still reside in properties stolen from Jews or wealthy pro-Croatian citizens after WWII, they still know that nepotism and corruption is their only ticket to success in life …

Forty-one years after the death of Josip Broz Tito. The one and only president of former communist Yugoslavia ever. All other presidents were presidents of the Presidency set-up in accordance with his wishes after his death in 1980 so that no other living person could become a lifelong president of Yugoslavia ever. This Presidency ensured that seeds are planted after Tito’s death among people that would not tolerate, that would hate with a vengeance any expression of national pride or independence from it by any of its republics.

It has been thirty years since in 1991 Croatia severed all its ties with communist Yugoslavia, bravely forging its independence through a brutal was of Yugoslav Army and Serb aggression. The later twenty years of those thirty, i.e., from year 2000, after President of Croatia Franjo Tudjman passed away in December 1999, Croatia has proven to be a continuance of the same hunting ground that it was under communist Yugoslavia for any and every sign or display of Croatian patriotism taking hold among the public. More and more people from the communist Yugoslavia “family” breed crept into the power echelons of Croatia, not having spilled a drop of blood for her freedom, not wanting her free and independent in the first place, not having deserved to have power by merit but placed there through communist-bred corruption and nepotism.

If most offspring of former Yugoslav communists did not hold such a commitment to their families’ past, then every public debate about Tito would not still create unrest among Croats and push them into antagonistic opposing sides and conflicts as it occurs even forty years after his death. On the one hand there is an ideologically blinded and noisy group of Croats of Yugoslav orientation, who persistently claim that Tito saved the Croatian people and laid the foundations for the establishment of today’s state of Croatia, and on the other hand, there Croats who reject that and, rightfully so, claim that the 1990’s Homeland War was and is the foundations of today’s modern and independent Croatia.

The absolute truth about Josip Broz Tito and his communist Partisans is that they committed horrendous crimes and genocide against the Croatian people who fought for an independent Croatia, not Yugoslavia, not within Yugoslavia. The absolute truth is that Josip Broz Tito is today counted among top ten mass murderers of the Twentieth century as his state ordered purges ordered many hundreds of thousands of anti-communist citizens (more than 500,000). Thankfully, after the disintegration of Yugoslavia, with the appearance of new facts as more than a thousand of mass graves of victims of communist crimes were unearthed, as state archives of historical records were opened, merits and positive opinions about Tito began to decline and today, more than ever, people in Croatia and the world consider him a dictator and a criminal of suspicious ethnic or national origins. But this “more than ever” is not enough to it seems to place communism far far behind those who live in a supposedly democratic Croatia.

Tito used all possible means and methods in the destruction of Croatia and the Croatian people. Unfortunately, along with the Belgrade authorities, Croatian Yugoslavs, the Serbian Orthodox Church and the Serbian national minority in Croatia helped him a great deal. The consequences of his long-term policy towards the Serbian minority and bribery of certain members of that minority, whose ancestors in the time of Ante Starcevic were considered Croats of the Orthodox faith, were well felt by the Croatian people in the 1990s in the Greater Serbia aggression.

Today’s Croatia and Croats who wish Croatia well cannot legally or morally deny civil rights to members of minorities living in Croatia, but at the same time the Croatian people rightly expect members of all national minorities to act in accordance with Croatian law, without being required and enjoying special privileges and serving foreign masters. Above all it is expected that minorities in Croatia adhere to and respect the values and significance of the Croatian Homeland War of Independence. But they do not do this, and one would be completely correct in saying that it’s because the governments have not developed the mechanisms that would police and monitor matters of that importance for the nation.

It needs to be kept in mind that with the establishment of communist Yugoslavia, Tito created the conditions for the killing and persecution of Croats and devised a system whose purpose was the biological destruction of the Croatian people. For the killing, imprisonment, and persecution of Croats in Tito’s Yugoslavia, it was enough to declare someone an enemy of the people. So too, it needs to be kept in mind that the victims of Serb aggression against Vukovar, against Croatia bother Mayor of Zagreb Tomasevic and they bother the leftist political parties, including those in power since year 2000. They do not like the fact that Croats fought for and risked their lives for Croatian patriotism and democracy while most of them hid away while the war of aggression against Croatia raged. All of them should have long ago banned the Red star symbol of communism and torn down all monuments to the criminal dicator Tito and his communist Yugoslavia regime. But they did not, they continue hounding Croatian patriots, throwing their dearest symbols into the waters of worthlessness and criminal connotation.

The removal or the painting over the patriotic murals in its capital city of Zagreb may continue to remain politically significant and encourage the right-wing patriotic parties and movements to unite into a force that may change Croatia’s political and moral future into that what it should have become after 1998 when the last occupied areas were reintegrated into Croatia. Let’s hope that the protests against this incident of trying to erase the victims of Homeland War from those city walls will not constitute a yet another short-lived protest and become just a point of street-talk for a while, until it dies out with a shrug of the patriotic shoulder. Perhaps we will see much more action that will result in a new Croatia after the next general elections; a new political landscape that cemented the Croatian resolve to defend itself from communist Yugoslavia and Greater Serbia onslaughts.

_{Retired General and former Member of Croatian Parliament Zeljko Glasnovic}

The reactions to the erasing of the patriotic murals were many and one so well and succinctly put (that also demonstrates the political landscape in Croatia at present as related to transitioning from communism) on a Facebook profile was that by retired General and former Member of Croatian Parliament Zeljko Glasnovic on 29 October 2021 and it was as follows:

“Mausoleum of Vukašin Šoškočanin in the middle of Borovo selo – permitted, monuments to partisans all over Croatia – permitted, hundreds of pits full of Croatian bones – permitted, streets and squares named after the biggest mass murderers – permitted, five-pointed stars on buildings and flags – permitted, graffiti of the unrepentant Yugoslavia, bloody locksmiths and communism – permitted, marching through the cities to the beats of ‘White Violet’ (song about Tito) – permitted.

Murals dedicated to Vukovar, the 204th Guards Brigade, General Praljak and Dinamo – not permitted. They made criminals out of heroes and made heroes out of criminals. They made an aggressor out of a victim; they made a victim out of an aggressor. It only exists in Croslavia. To celebrate the executioners and the anniversaries of their monstrous crimes committed against their own people and to humiliate, belittle and degrade their liberators. To live in Croatia and to hate and despise everything that is Croatian. Fight for independence and freedom and sell that same freedom for a couple of silver coins. Frightening. The selective memory of the Croatian people has reached its peak. Apathy, amnesia, and indifference are just some of the characteristics of the average Croat who still sits passive in his home hiding behind his keyboard. And while he is virtually fighting for his country, with popcorn in his hands, he is waiting for the solution and the continuation of his carefree future, which he will not fight for alone. Why would he? He brought these people to power with his indifference. Good night Croatia.” Ina Vukic

Filed Under: Uncategorized Tagged With: communist crimes Croatia, Communist Yugoslavia, Croatia, Croatian Homeland War, Croatian independence, Croatian patriotism under attack, Franjo Tudjman, Radovan Dobronic, Slobodan Praljak, Tomislav Tomasevic, transition from Communism, Zeljko Glasnovic

CROATIA: Poaching In The Hague – An Interview With Nika Pinter

May 22, 2021 by inavukic 2 Comments

REDUCING FACTS TO FIT A MYTH – A HORRIBLE MISCARRIAGE OF JUSTICE

Book Covers “Poaching in the Hague” by Miroslav Tudjman. Portrait Photo of Nika Pinter (C) by B. Čović/ Glas Koncila

Interview by Ina Vukic

(Interview in the Croatian language can be accessed by clicking this link/ preuzmite injercju na hrvatskom jeziku)

In 2019 the late Professor Dr. Miroslav Tudjman wrote a book which should be compulsory reading, not only for those interested in the tangled story of the Croat-Muslim War of 1992-1994, but also in the work of the Hague Tribunal (ICTY), its evidently biased approach in the case of the so-called Herceg Bosna Six (Jadranko Prlic, Milivoj Petkovic, Bruno Stojic, Slobodan Praljak, Berislav Pusic and Valentin Coric) and in the wider problems of supranational criminal justice.

Readers may remember that in May of 2013 the ICTY Trial Chamber pronounced these six defendants guilty of the so-called Joint Criminal Enterprise and its Appeal Chamber confirmed this verdict on 29 November 2017. As the Appeal Judges pronounced its guilty verdict, General Slobodan Praljak, one of the six defendants, committed suicide in front of the sitting court, the televised images of which suicide circled the world in a shock that rocked the very foundations of the ICTY’s delivery of justice. As he consumed the poison in the courtroom Slobodan Praljak faced the judges and said: “Judges, Slobodan Praljak is not a war criminal. With contempt, I reject your verdict!“

The ICTY case against the Herceg Bosna Six is now remembered principally for the act of suicide of General Slobodan Praljak, televised and in open court. But Dr Miroslav Tudjman’s lucid investigation of the judicial process should leave any objective reader with another impression, namely of the systematic and cumulative unfairness of what transpired. In that light I interviewed Nika Pinter, A Croatian former court judge who also served as an attorney on the General Slobodan Praljak’s defence team in the Hague, at the ICTY.

Miroslav Tudjman’s book “Haški krivolov”, which was published in 2019, aroused great interest around the world and was recently published in English with the title “Poaching in the Hague”. How much do you think the very title of that book contributed to the public’s significant curiosity?

The title of Dr. Tudjman’s book is intriguing and certainly, under such a title, arouses curiosity about the content provided to the reader. The title suggests that actions in the criminal process were carried out in an incorrect manner and contrary to the rules of criminal procedure. The book shows how a verdict should not be written and how criminal proceedings should not be conducted. I hope that the book will be read and also read by people who are prone to their own theses and who support the myths about the “division of Bosnia”, the myth of aggression of the Republic of Croatia against Bosnia and Herzegovina (BiH), the myth about a plan of Croatian politicians during the war to annex part of BiH.

In your opinion, why is this book by Dr. M. Tudjman so important and to whom is it mainly directed?

I don’t think the book is intended for any specific reader profile. It is addressed to all readers who are interested in the facts about the Hague verdict in the Prlic et al. case and how the facts on the basis of which the verdict was rendered were established in the proceedings. I want to believe that the book will be a stimulus to historians and experts in criminal law and procedure for an analytical approach to the criminal proceedings conducted before the Tribunal in The Hague.

A great deal of effort has been put into writing the book. It was necessary to read a significant number of pages of court records, closing letters of the defence, review hundreds of documents in order to make a comprehensive analysis. The work paid off, because we got facts placed in order in one place. And those facts are a response to the myths we have been hearing for years about the alleged meeting in Karadjordjevo, about the alleged division of Bosnia and Herzegovina, about the alleged existence of a joint criminal enterprise.

With its content, the book indisputably shows that the conclusion in the verdict, in relation to the joint criminal enterprise, is based on the reduction of facts. The conclusion about the existence of a fact cannot be derived from a part of a document, but the whole document must be read and then the facts from the document must be connected with the events to which they refer and put in context. Selectivity in the choice of the content within a document leads to a reduction of facts, and reduced facts are unreliable, leading to erroneous determination of decisive facts and factually unfounded conclusions and then to wrong application of law.

Drawing a conclusion at will and not from the facts presented in the criminal proceedings cannot lead to a fair and factually based verdict. The book clearly shows this only on a segment, an important segment, of the existence of Joint Criminal Enterprise (JCE).

Witnesses on whose testimonies the court based its decision in relation to the JCE are elaborated in detail in the book, their testimonies, allegations, interpretations. And then they are contradicted by evidence that refutes their allegations. Just the facts.

Dr. Miroslav Tudjman says: “The indictment and the verdict on the Joint Criminal Enterprise are not based on material facts but on interpretations of written documents (primarily presidential transcripts), on the testimonies of witnesses who were not direct participants in certain events but their interpreters, on expertise and conspiracy theories (Karadjordjevo is the crowning proof of a conspiracy, about which there are no witnesses or records)”.

Do you think that the content of this book actually justifies the widespread opinion in the world that the Hague International Criminal Tribunal for the former Yugoslavia was largely defined by political efforts rather than hard evidence of the crimes that many Croats were accused of?

I think so, indeed. The verdict ignored the defence evidence and the conclusions in the verdict were based on the allegations in the indictment and the actions taken by the policy of the Croat people in BiH and the Republic of Croatia were assessed outside the context of peace talks, conferences and requests of international representatives. This is my conclusion as a defence counsel in the case, and by analysing the testimony of witnesses and documents, Dr. Tudjman concluded the same in the book. In presenting the book, I referred to Resolution No. 827 adopted on 23 May 1993, by which the UN Security Council established the ICTY and adopted its Statute, and strongly emphasised that the judges, the prosecutors and the staff be significantly equipped with experience in criminal procedure (extracted from provisional verbatim record of the three thousand two hundred and seventeenth meeting Held at Headquarters, New York, on Tuesday, 25 May 1993, at 9 p.m).

Ms. Madeleine Albright, as the representative of the United States, reminded all, among other things, of the statement she made in previous sessions: “This will be no victors’ tribunal. The only victor that will prevail in this endeavour is the truth. “(S / PV.3175, p. 11)” (This will not be a victorious court. The only winner that will prevail in that endeavour will be the truth).

However, the aim of the investigation was not to establish the facts about the responsibility of the accused persons, but the Prosecutor used the reverse method of bringing about charges. He first decided who to charge, and then he went in search of evidence and only those that support his thesis. As I have also been a prosecutor for a significant part of my life, I know that the facts are first established by evidence, which then shows or points to the perpetrator. In this case it was the other way around.

The proceedings were not conducted as proceedings in a criminal case, nor were the judges professionals with experience in criminal procedure and the winner was certainly not the truth.

International criminal tribunals seek the twin goals of domestic catharsis and bringing culpable individuals to justice. Based on your extensive experience at the International Criminal Tribunal for the Former Yugoslavia, how do you see this balance being struck in practice?

My position on this is visible from the answers I have already given here and that position is that there was no possibility of achieving a balance in bringing individuals before the court. Dr. Jadranko Prlic’s defence counsel, Michael G. Karnavas, on his blog ( http://michaelgkarnavas.net/blog/2017/12/05/praljaks-defiance/ ) regarding the Appeal Chamber verdict in the text entitled General Praljak’s honorable defiance, among other things, wrote:

“…when the ICTY website, outreach material, and exhibition posters depicted the narrative below (or a variation of it) before, during, and after the trial, and while the appeal was pending:

The republic’s [BiH’s] strategic position made it subject to both Serbia and Croatia attempting to assert dominance over large chunks of its territory. In fact, the leaders of Croatia and Serbia had in 1991 already met in a secret meeting where they agreed to divide up Bosnia and Herzegovina, leaving a small enclave for Muslims.

… Bosnian Croats soon followed, rejecting the authority of the Bosnian Government and declaring their own republic with the backing of Croatia. The conflict turned into a bloody three-sided fight for territories, with civilians of all ethnicities becoming victims of horrendous crimes.

In light of these claimed facts on the ICTY website, can it be said that the accused in Prlić et al. truly enjoyed the presumption of innocence? For years this text has been part of the ICTY narrative for public consumption. It was not drafted by accident. Nor is it likely that it was posted and paraded about without the express approval of the presidents of the ICTY. Incidentally, sitting on the Appeals Chamber in Prlić et al. were two former presidents (Judge Theodor Meron and Judge Fausto Pocar) and the current president, Judge Carmel Agius…”

I believe that with this quote from the lawyer Karnavas, whose position I fully share, I explained why there was no balance and why its achievement was not even wanted when bringing individuals to court.

In relation to guilt by chain of command, the former Chief Prosecutor at the Hague, Louise Arbour, said in an interview published by PBS during her tenure that “What this statute actually provides is the fact that these acts– genocides, crimes against humanity, violations of the laws in customs of war–thought they were committed by a subordinate does not relieve his superior of criminal responsibility, if the superior knew or had reason to know that the subordinate was about to commit such acts, or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts, or to punish the perpetrators, thereafter. So that, in a nutshell, is the doctrine of command responsibility. It’s the responsibility of superiors, it’s a concept that originates in army settings, in military settings. But in a civil administration setting it would apply to any person who has control over a subordinate (who committed crimes). He can be personally criminally liable if he knew or should have known that the subordinate was committing crimes and failed in his duty of supervision to stop him.”

You are a lawyer by profession, and you have dealt specifically with criminal law, how do you see the fact that the indictments of the Hague Tribunal were often based not on the commission of a war crime but on the so-called command responsibility and were you satisfied with the manner and evidence with which the Hague Tribunal tried to prove command responsibility? Namely, as a lawyer, are you satisfied with the thoroughness of the evidence that the court requested from the prosecution, and if you were not professionally satisfied, why?

My many years of experience in criminal law cannot reconcile with the way in which criminal responsibility of a superior (command responsibility) is established in proceedings before the ICTY. The basic criterion in determining guilt in criminal proceedings is the objective effect of the criminal offense (actus reus) and the subjective component on the part of the accused (mens rea).

To claim that a commander is responsible for issuing combat orders is beyond the process and life logic.

We are talking about war. In war, the commander issues orders in order for them to be carried out. It can by no means be an element of a crime. But an order does not in itself prove an order for a crime. In order to be responsible, the commander must be informed of the crime, so he must know about it. I agree with Louise Arbour on the definition of command responsibility “if the superior knew or had reason to know that the subordinate committed such acts or did so and the superior did not take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereafter”. The verdict does not indicate any evidence linking the accused directly to the crime, or that he may be charged with failure to go unpunished within his authority. The evidence provided by the prosecutor in the proceedings does not allow such a conclusion even by applying the method utilising indications. The links to close the chain of indications are missing, which, after making a closed circle, do not allow any other conclusion except that the commander knew about the actions of the subordinate and did nothing to prevent crimes or punish the perpetrator.

In the criminal proceedings against the senior military commanders, I am of the opinion that the decision on the responsibility of the superior should have been made by the military court, and as General Praljak insisted. The basis for the criminal responsibility of the commander is marked with three Cs – Command, Communication, Control. If one of the elements is missing, it cannot be claimed that the commander is responsible. The prosecutor did not provide evidence of the existence of all three elements of C.

The criminal proceedings, in the way they were conducted and approached primarily by the prosecutor, resembled the proceedings before the International Commission for the establishment of crimes, where descriptions, feelings, assessments, and political condemnations are sufficient.

To clarify, at no point were the crimes denied, they were undisputed. It was disputable whether the accused knew about these crimes, whether they were responsible for them and whether they ordered them.

This book by Miroslav Tudjman deals in particular with the analysis of the Hague Tribunal’s proceedings in the case of Jadranko Prlic, Bruno Stojic, Slobodan Praljak, Milivoj Petkovic, Valentin Coric and Berislav Pusic, the so-called case of the Herceg Bosna Six. Can it be concluded from that book that the Hague Tribunal rendered a wrong verdict of guilty for these six and for Joint Criminal Enterprise and if your answer is affirmative why do you think or assess it that way?

The content of the book gives an affirmative answer to this question. Yes, in relation to the Joint Criminal Enterprise, the verdict was not rendered on the basis of the facts available.

The book systematically and analytically deals with why there was no basis for a JCE conviction. I have nothing to add to the analysis given in the book. It should certainly be emphasised that the Trial Chamber Presiding Judge in relation to JCE gave his extensive opinion in which he explained why in this particular case there is no basis for claiming the existence of JCE. The judgment in the first-instance proceedings, in the Trial Chamber, was not rendered unanimously.

The verdict was handed down on a significant reduction of documents, contents of which went in favour of the defence and refutation of the claim about the existence of JCE. This was especially true of the evidence related to the attacks and offensives of the BIH Army and the participation of the Mujahideen in its ranks.

As a lawyer, you were personally on General Slobodan Praljak’s defence team. During the trial and appeal, did you experience protests that justice and the truth about Croatia’s efforts in the war on the territory of Bosnia and Herzegovina would be denied or incomplete?

Yes. Decisions on the admission of defence evidence, the admission of segments of individual documents, the selective approach to the admission of defence evidence and the non-selective approach to the admission of prosecution evidence often frustrated me. All the effort put in with the best intention of presenting all the facts, so that the Chamber would have a chance to reach a proper verdict, seemed futile, but we did not give up. In the end, yes, it was in vain.

The proceedings before the Tribunal are a compilation of two legal systems, Common law and Civil law. However, the basic principles of criminal procedure remain the same, the prosecutor must base his accusation on the evidence and its content. The manner in which the indictment was filed, just contrary to the principles of criminal procedure, shifted the burden of proof to the defence.

The prosecutor came from the Anglo-Saxon legal field with the aim of winning, regardless of the facts. The defence had matured in a legal order in which the goal is to establish the facts, and the prosecutor and the court and the defence have that obligation. And it is not a question of winning the process at any cost, but of establishing the facts with evidence. In the legal order I come from in criminal proceedings there is no maxim rule that the goal justifies the means. The goal is not to indict at all costs or to obtain a conviction at all costs. We have not advocated a thesis, if the facts do not support the allegations of the prosecution, then that’s worse for the facts.

In one of her presentations, I can now not determine exactly whether written or oral, journalist and author Visnja Staresina referred to the professor of international law at Paris Oest, Alain Pallet, and his position published in Vecernji list on September 27, 1997:

“In our continental legal system, the investigation is conducted by the prosecutor and the investigating judge, the prosecutor is not autonomous, but is under the control of the judge and when the investigating judge assesses reasonable suspicion, he submits the file to the prosecutor to decide whether to indict. It is the task of the investigating judge to establish the truth. In the American system, with an adversarial procedure, in which the investigation is entrusted to the prosecutor, he tries to find all the evidence that is against the accused, and not to establish the truth.”

Can you explain the concept of Joint Criminal Enterprise and whether this concept is accepted in other countries, e.g. Australia, USA, UK?

Yes, but only in brief, because countless papers have dealt with the concept of JCE. I refer to Prof. Mirjan Damasca (Yale School of Law) who wrote that the JCE doctrine was built by the ICTY. The Hague tribunal, first the prosecutor and then the court, resorted to the construction of the JCE institute because the institute of indirect command responsibility (Article 7, paragraph 3 of the Statute) proved flawed and insufficient to prosecute all those it sought to prosecute. crimes committed. Therefore, he derived the doctrine of JCE from Article 7, paragraph 1 of the Statute 27. (Dr. Mirjan Damasca. On the criminal law analysis of the charges before the Hague Tribunal against high officials and military commanders of the Republic of Croatia for a “joint criminal enterprise” in Operation Storm. // Round table. Zagreb: Croatian Academy of Legal Sciences/ University of Zagreb, Faculty of Law, 2005., pp- 1.-39.)

I found it difficult to accept this form of criminal responsibility.

The “basic” type, or first category of JCE, encompasses all defendants who act with a common purpose and have the same criminal intent within a common plan in committing the crimes provided for in the ICTY Statute. The mildest form of JCE concerns cases in which crimes do not arise from common goal of the JCE but are nevertheless a natural and foreseeable consequence of its realisation.

The accused must voluntarily participate in one aspect of the joint plan which does not necessarily imply that the accused personally committed any acts of the criminal offenses from the Statute but can also be in the form of helping or contributing to the realisation of a common goal.

As far as I am aware, and I think I am informed enough, JCE is a creation of the Tribunal and this concept is not accepted in other criminal justice systems.

JCE, – would not be accepted in the court proceedings of the said States. Judicial systems based on the presumption of innocence and the provisions on the properties that evidence must have, equality of all sides in the proceedings and the requirement of a fair trial would not allow the application of this concept as accepted by the ICTY.

I believe that the reason is in the fact that the criminal responsibility of a criminal association must include evidence of a criminal agreement, the individual responsibility of each member of the criminal association with specific limits of responsibility of all members of the association and their intentions and degree of guilt. All these elements do not matter in JCE.

If the JCE doctrine as accepted by the Hague Tribunal were accepted as the ruling doctrine, the circle of military and political persons, which can be covered by criminal proceedings under international law, would be wide with criminalisation of political decisions or decisions of high military commanders.

Since this is a criminal procedure, the JCE doctrine is not in line with the basic requirement of criminal responsibility, the existence of actus reus and mens rea. Individual criminal responsibility cannot be inferred from generalised allegations. A common criminal purpose, a significant contribution to a common plan or purpose must be proven beyond a reasonable doubt. The accusation must be based on facts and not on a political decision.

Dr. Miroslav Tudjman writes about the extensive evidence favourable to Croatian defendants that the court rejected in that process. Can you give some examples?

It is true that Dr. Tudjman in his book wrote exhaustively about the rejected documents, that is, only about those documents about the existence or rather the non-existence of JCE, in relation to the documents presented to witnesses, and whose statements he analysed.

The defence pointed to double standards in the admission of evidence throughout the proceedings. The prosecutor introduced the documents obtained from the Croatian State Archives without hindrance and they were accepted by the decision of the panel, while the documents from the same source, when submitted by the defence, were rejected. The majority of the panel adhered to the position of the prosecutor.

Perhaps best of all about General Praljak’s approach to the introduction of defence evidence is the separate opinion of the Trial Chamber President on the decision to accept or not to accept documentary defence evidence.

The President of the Trial Chamber, in his separate opinion, points out that the defence followed the instructions for the introduction of documents, so it is unclear why the prosecutor opposes the introduction of 65% of the proposed documents, especially since the vast majority of documents were obtained from the prosecutor. According to the presiding judge, it is unreasonable for the prosecutor to claim that the documents are inauthentic and unreliable, especially when the prosecutor submitted them to the defence.

With regard to documents relating to the treatment of Muslims, the arming of Muslims and the training of BIH Army members, the President of the Trial Chamber disagrees with the majority’s decision that they are irrelevant. The arguments of the defence that these documents refute the JCE, because the Republic of Croatia assisted BiH in the fight against the common enemy, are acceptable.

General Praljak’s defence proposed 73 documents relating to the fact that the BIH Army had initiated conflicts against the Croatian Defence Council (HVO). Most chambers have decided not to introduce certain documents as evidence because they are geographically outside the scope of the indictment. When all the documents between the prosecutor’s arguments that the HVO attacked the BIH Army and the defence’s arguments that the BIH Army attacked the HVO are added up, these documents are essentially JCE.

The President of the Trial Chamber, when asked how the Chamber will decide on the probative value of the theory of defence if it does not accept defence’s documents, points out in his separate opinion that the rejection of defence’s evidence can be interpreted as one side’s theory already having been accepted.

Photos of Mostar showing the locations of the sniper’s victims were proposed by the defence to be considered together with the findings of the prosecution expert and related to General Praljak’s questions to the expert witness and witnesses who were hit by the sniper. All in order to determine the position of the sniper and whether it is possible that a shot was fired from the area under the control of the HVO. The photos were rejected by a majority decision.

The approach of the majority in the chambers in the decision to accept the written statements of General Praljak’s defence witnesses is almost identical.

In a separate opinion of the Trial Chamber President on the decision to accept written witness statements under Rule 92, it was noted that the Chamber received the defence’s request on 14 September 2009 and had more than a year to accept the summaries or statements of 155 witnesses.

It took the Trial Chamber more than a year to eventually accept only 4% of the statements, all after General Praljak’s defence had completed its case.

It has been said on many occasions that there were problems with court translators and interpreters in the Hague Tribunal. Some of their mistakes seem astounding. Can you also give a few examples of these errors?

From the very beginning of the process, we pointed out the problem of translations. The official languages of the court were English and French. Ninety percent of the documents referring to the time and events in the indictment were written in Croatian or Serbian. The accused spoke Croatian, the witnesses mostly spoke Croatian. Translation was therefore a key factor in the proceedings.

When it comes to translation, interventions in translation were necessary in the hearing itself at the time of simultaneous translation, in the minutes of the hearing and in the translation of documents into the official language of the court. Court interpreters have shown remarkable effort to translate the spoken words accurately.

In criminal proceedings, it is also important to understand a small nuance of language or slight variations in terminology in order to get a fair and accurate impression of the witness statement. In ICTY trials, where testimonies are translated simultaneously, the panel is often deprived of this important opportunity. During the trial, there were many cases where translations and / or language problems were quite obvious. Despite the best efforts of the translator and the reactions of the defence in the event of some noticeable errors in the translation, minor errors went unnoticed, not to mention some linguistic nuances that could not be properly understood (Example is in this extract from ICTY Transcropts: T. 23108:7 – 23108:17, 3 October 2007, Witness DW:

MR. KOVACIC: I’m sorry, I apologise but now I recognise the problem. Judge Trechsel asked me why do I think that the question was capricious? Because this is the terms as my Croatian was translated. It was wrongly translated. I used a term in Croatian “kapciozno” which in our theory includes — which in our theory — which in our theory means leading, because there is a response included in the question. So this word which is here in translation, capricious, is absolutely wrong. Sorry, Judge. It’s a misunderstanding on this part.

JUDGE TRECHSEL: Yes, and I’m very happy.

MR. KOVACIC: I do think your question was leading.

JUDGE TRECHSEL: I accept that and I apologise.-

T. 44256:25 – 44257:6, 2 September 2009:

JUDGE ANTONETTI: [Interpretation] Mr. Praljak, let me add something so you can know what my position is. The difficulty we all have here is that we’re working in several languages, and each language has its own nuances, and sometimes there’s storms in the teacup just because of translation problems. The words expressed by one person are not necessarily completely translated into another language with all its nuances, and sometimes there could be misinterpretation.)

Written translations required corrections. Because of such problems, the Trial Chamber is sometimes simply unable to fully comprehend some details of testimony or citations that could be critical to a proper assessment of the evidence.

Example: The prosecutor offered General Praljak’s post-war interview as evidence, according to which, according to the prosecutor, the general said that the policy of the Serbs in BiH was closer to the Croats than the Muslim one. Simply, unity is out of the question. He also played a video of the interview at the hearing.

The allegation “Unity is out of the question” does not exist in the original text, nor is it recorded in the minutes of the hearing, but it is stated in the transcript of the video translated into English and submitted as evidence by the prosecutor.

In fact, in the Tribunal, where many lawyers and participants in the proceedings were unable to read or understand the original evidence, the meaning of “reasonable doubt” was not appreciated given the distance from the original evidence.

Another example: The Prosecutor introduced a document on the return of a unit from the H.V. Hrvatinic Brigade as evidence of the involvement of the Republic of Croatia in the armed conflict in BiH and the presence of the Croatian Army (abbreviated as H.V) in BiH. Time was spent proving that H.V. abbreviation in this case was not an abbreviation for the Croatian Army, but the initials of the person after whom the unit was named (Hrvoje Vukcic Hrvatinic).

In relation to translations Dr. Tudjman concludes in his book:

It is time for the methods of forensic linguistics to address the Hague processes. It is to be assumed that the results of these analyses will rather confirm the views of the defence that demanded them, than the beliefs of the Prosecution and the judgments of the judges who considered linguistic and semantic problems to be just a “storm in a glass of water”.

Would you like to add something else about Dr. Miroslav Tudjman’s book or about your conclusions regarding the Hague Tribunal verdict in the case of the “The Herceg Bosna Six”?

I would like to point out, not as crucial but significant indicators, about the understanding of the Trial Chamber or those who wrote the verdict about the area they were making decisions about.

Volume 2 of the judgment, paragraph 5, footnote 7 states “Prozor, which means ‘window’ and is also called Rama, 7 is the entry point from Herzegovina into Central Bosnia.”

In the same Volume 2 of the judgment in paragraph 670. It is stated “The river Neretva flows through Mostar in a north-east direction.”

There is no place for desires and goals in criminal proceedings. Criminal proceedings have the task of establishing the facts and should remain uninfected by political, social or any other influences or motives.

The conclusion regarding the verdict as a whole my words would be the final words of General Praljak on November 29, 2017 at 11:35 AM: Judges, Slobodan Praljak is not a war criminal. I reject your verdict with contempt.

————

„Poaching in the Hague“ is available through AMAZON in both print and Kindle versions.

St. George Society, Dobriše Cesarića 9, 10000 Zagreb, Hrvatska, https://nsf-journal.hr/

PRESS RELEASE AVAILABLE HERE (PDF)

Filed Under: Uncategorized Tagged With: Berislav Pusic, Bosnia and Herzegovina, Bruno Stojic, Croatia, Haški krivolov, Herceg-Bosna, Herceg-Bosna Six, ICTY, International Criminal Tribunal for Former Yugoslavia, Jadranko Prlic, Milivoje Petkovic, Miroslav Tudjman, miscarriage of justice, Nika Pinter, Poaching in the Hague, Slobodan Praljak, Valentin Coric

In Memory Of Croatian General Slobodan Praljak

December 13, 2017 by inavukic 16 Comments

10 December 2017
Commemoration held in Zagreb, Croatia
for General Slobodan Praljak
Photo: Stipe Renic

General Slobodan Praljak’s honorable defiance

By Michael G Karnavas

(Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.)

Having listened to the summary of the Appeal Judgment and having stood up to hear the litany of crimes affirmed by the Appeals Chamber before his sentence of 20 years was upheld, General Slobodan Praljak took his own life by drinking poison – but not before expressing his utter contempt for the Judgment, and by extension, his contempt for the Judges and the ICTY as a judicial institution.

Questions abound. How did General Praljak smuggle the vial of poison into the courtroom? How could he have gotten it through the numerous check-points where he would have been searched? Did he have it on him when he arrived at the ICTY? Did someone smuggle it to him there? Or, was it waiting for him at the ICTY, secretly planted in his cell or in the toilet?

Relevant as these questions are, few are asking what I think is perhaps the more important question: why did General Praljak take his life?
General Praljak had spent about a dozen years in the United Nations Detention Unit (UNDU). With credit for the time served, he would have been eligible for early release within two to three years, and would very likely have been released before serving his full sentence.

But detention never troubled General Praljak. Unlike the other accused in his case, he refused to be provisionally released under house arrest. It was a matter of principle. And when it came to his principles, he was stubbornly uncompromising. His argument would be: if I am presumed innocent, if I voluntarily came to the ICTY upon hearing of my indictment, if the Croatian government was offering a guarantee for my return to the ICTY, if my every movement while on provisional release in Zagreb will be shadowed by the police, and if I have complied with the conditions of my provisional release in the past, then why should I now be under house arrest as a condition of my provisional release? Of course, he wanted to be in his home with his wife, children, and grandchildren who he adored, and who adored him. But it was the principle of it – a principle he was willing to adhere to, come hell or high water. And for that I admired General Praljak. He unsentimentally walked his talk.

Reflecting on General Praljak’s final moments, I believe it was his principles that drove him to take his own life – not fear, not anger, not depression, not desperation, and certainly not any of the other reasons that cause a person to seek peace through suicide.

General Praljak was no romantic fool; he did not harbor illusions that his conviction would be overturned. Any objective observer would have come to the same conclusion. I certainly did. At best, the Appeals Chamber might have reduced the sentences, but the convictions, for the most part, would stand, even though, in my opinion, the evidence does not support the factual findings and legal conclusions made by the Trial Chamber. This is particularly so with the claim in the indictment of an overarching joint criminal enterprise (JCE) to reconstitute the Croatian Banovina within its 1939 borders, so it could either join Croatia or be an independent state within Bosnia and Herzegovina (BiH) with close ties to Croatia – and that this JCE involved permanently removing and ethnically cleansing Bosnian Muslims and other non-Croats who lived in these areas.

Convicted persons on appeal, generally, are susceptible to irrational hope, unsubstantiated rumors of behind-the-scenes machinations of friendliness and supposed efforts to steer the judges in a favorable direction, or false claims of exoneration (usually couched in language that is sufficiently vague to allow plausible deniability) – claims that are sometimes peddled by charlatans posing as high-powered lawyers seeking to make a quick (and exorbitant) fee.

General Praljak had no patience for any such nonsense. General Praljak was rational, intelligent, and pragmatic. His thinking was shaped by the hard sciences, even though he was equally versed in the soft sciences or liberal arts of philosophy, sociology, history, literature, theater, and cinema. Though I am assuming that General Praljak hoped and perhaps expected (as my client, Dr. Jadranko Prlić, did) that he would get a fair trial at the ICTY, it should have been obvious to him either before arriving at the UNDU, or sometime shortly thereafter, that convictions on most of the alleged crimes were predestined.

General Praljak (and the other accused) should have been disabused of any thoughts of justice and a fair trial. Maybe because hope springs eternal we all, including General Praljak, clung to some vestige of expectation that the accused would have an opportunity to set the record straight. General Praljak certainly wanted to. He spared no time or expense to bring to light evidence that he believed was contextually relevant for the trial Judges to understand and appreciate, among other things:
• what it was like to be in his shoes;
• what he did and why;
• what he did not do or could not have done;
• what the Croatian Community (and later Republic) of Herceg Bosna was all about;
• the dire predicament the Croats in Bosnia and Herzegovina (BiH) found themselves in and the imperative to react with all deliberate speed and purpose; and
• Croatia’s generosity in helping the Muslims of BiH at a time when Croatia was one-third occupied and fending for its very survival against the rump Yugoslavia and its highly trained and armed Yugoslav People’s Army.

General Praljak’s expectations – as legitimate as they were – were not met to any degree of satisfaction. I know, because since early 2005 I represented Dr. Prlić in this case. He too harbored expectations of a fair trial – as all accused appearing before any judicial institution should, especially when being tried at a tribunal founded by the United Nations.

Granted, I may not be the most objective observer, and it can be claimed that I have a considerable interest in this case, which consumed over 12 years of my career. Be that as it may, I can say with full responsibility that what I witnessed during the trial was a parody, a charade, theater of the absurd disguised as a trial. Everyone who was at the ICTY saw it. As I repeatedly complained to the Judges during the trial, none of them, nor any of the Judges at the ICTY, would want to be tried in the way my client was being tried.

If there is one case, one trial, and now, one appeal that stands out as part of the dark legacy of the ICTY, it is Prlić et al. It is a textbook example of how not to try a case, how not to select the panel of trial judges, how not to conduct the trial proceedings, how not to analyze the evidence, and how not to draft a judgment. It is also a textbook example of why convicted persons cannot and should not expect that the errors and sins of the Trial Chamber will be exposed with unrelenting precision, brutal honesty, and unvarnished integrity, especially when to do so would require the Appeals Chamber to reexamine virtually the entire record (in this case, 52,967 pages of trial transcripts, 818 written decisions, and 5,926 exhibits admitted over five years of trial proceedings). But that is exactly what the Appeals Chamber should have done in Prlić et al. – especially when the Defense handed them the needles of errors hidden in the massive haystack of a record.

How naïve it was to think that the result of this case would have been any different! The ICTY – as a judicial institution – had already adjudicated many of the alleged major issues confronting the accused in Prlić et al., such as whether the Muslim-Croat conflict in BiH was an international armed conflict, whether Croatian President Tuđman and his government were attempting to carve up BiH, whether the Croats in BiH set up a statelet that would either be autonomous or part of Croatia, and whether there was ethnic cleansing of the Muslims in BiH – all of which was claimed to have been part of some grand scheme, a master criminal plan, a JCE.

Though I may not be the most objective observer (as I have already noted), I am convinced beyond doubt based on the evidence submitted during the trial that there was no JCE, no statelet, no efforts to carve up BiH, and no ethnic cleansing, etc. I fully recognize that errors were made, that serious crimes were committed against soldiers and citizens, and that there must be accountability. But as far as the prosecution’s overarching theory that there was a JCE to reconstitute the Croatian Banovina within its 1939 borders, and that ethnic cleansing occurred to achieve this goal, I simply do not see anything more than, at best, circumstantial evidence that points to this as just one of many inferences that can be drawn.

Others, no doubt, see it differently. Fair enough. But can it honestly be said that the Judges of the Trial Chamber or the Appeals Chamber were not, at least to some degree, predisposed to find the existence of the overarching JCE as claimed by the prosecution, and resultantly, that this would not spill over into a determination of guilt, when the ICTY website, outreach material, and exhibition posters depicted the narrative (at ICTY website) below (or a variation of it) before, during, and after the trial, and while the appeal was pending:

“The republic’s [BiH’s] strategic position made it subject to both Serbia and Croatia attempting to assert dominance over large chunks of its territory. In fact, the leaders of Croatia and Serbia had in 1991 already met in a secret meeting where they agreed to divide up Bosnia and Herzegovina, leaving a small enclave for Muslims.
… Bosnian Croats soon followed, rejecting the authority of the Bosnian Government and declaring their own republic with the backing of Croatia. The conflict turned into a bloody three-sided fight for territories, with civilians of all ethnicities becoming victims of horrendous crimes.”

In light of these claimed facts on the ICTY website, can it be said that the accused in Prlić et al. truly enjoyed the presumption of innocence? For years this text has been part of the ICTY narrative for public consumption. It was not drafted by accident. Nor is it likely that it was posted and paraded about without the express approval of the presidents of the ICTY. Incidentally, sitting on the Appeals Chamber in Prlić et al. were two former presidents (Judge Theodor Meron and Judge Fausto Pocar) and the current president, Judge Carmel Agius.

This narrative invariably served as the subtext during the trial. How could it not? When reflecting on how the trial was conducted and how some of the accused were treated (especially General Praljak, who was not shy in expressing his opinion), it is clear as crystal from day one that none of the accused in Prlić et al. stood much chance of a fair trial and a just outcome. Questions or comments that came from some of the Judges displayed a pro-prosecution bias, such as calling the Croatian Defence Council the “Catholic army.” Occasionally, the Judges commented on the evidence, prejudging it based on their supposed personal knowledge.1 The list goes on.

In our Appeal Brief filed on behalf of Dr. Prlić, Ms. Suzana Tomanović and I argued that Dr. Prlić was denied a fair trial and that the Trial Judgment was profoundly flawed with legal and factual errors, because the Trial Chamber facilitated a confirmation bias by:
• failing to consider and assess all relevant evidence admitted into the record, instead opting to systematically rely on selective evidence that distorted the truth and led to false conclusions (Ground 1);
• disregarding the testimony of virtually all of Dr. Prlić’s witnesses, sprinkling the names of his witnesses throughout the Trial Judgment and citing them on inconsequential matters to create an appearance of having considered them (Ground 2);
• failing to make specific findings on documentary evidence it purported to assess, for example, claiming to have considered all documentary evidence admitted by written motion in the context of the evidence submitted, without specifying which documents it gave little or no weight and the reasons as to why it did so (Ground 3);
• relying on uncorroborated hearsay from the Mladić Diaries, while denying Dr. Prlić the opportunity to tender excerpts from the Mladić Diaries and/or present viva voce testimony in response to the hearsay admitted (Ground 5);
• failing to properly assess prosecution lay and expert witnesses and failing to provide a reasoned opinion as to their credibility; (Grounds 4 and 6); and
• systematically denying Dr. Prlić adequate time and facilities to question critical witnesses and present essential evidence by applying a one-sixth-solution: all six defense teams would collectively have the same time for cross-examination as the prosecution would have for direct examination for each witness (Ground 7).

And so, it was deeply disappointing, indeed shocking, to hear Judge Agius read the summary that was carefully crafted for public consumption (since few, if any, will read the 1400-page Appeal Judgment) stating that Dr. Prlić’s sole fair trial right claim was that he was “systematically denied adequate time and facilities to question witnesses.” Whoever wrote that summary for his Honor was clearly ignorant of the details of the appeal.

These mischaracterizations of the fair trial errors raised by Dr. Prlić in his brief are simply propaganda. They lead to the intended consequence of facilitating a fictitious perception in the public’s mind that, save for this belly-aching claim of not having enough time to present his case – something that is too amorphous and imperceptible for the public to fully appreciate – Dr. Prlić was content with how the evidence he presented was assessed.

The Appeals Chamber’s summary remarks concerning the Mladić Diaries are equally as hollow, reflecting an economical use of the facts. The Appeals Chamber claims that:
Prlić never unconditionally requested that his case be reopened and, in any event, the Trial Chamber expressly permitted him to admit evidence to rebut these diary extracts, which he did. General Praljak was likewise offered an opportunity to challenge these extracts.

This mischaracterizes the record. After the close of evidence, the prosecution sought to reopen its case to tender into evidence excerpts from the Mladić Diaries, which were found in Mladić’s residence in Belgrade by the Serbian authorities. In response, Ms. Suzana Tomanović and I argued that the prosecution’s case should not be reopened, but if reopened, Dr. Prlić should be afforded an equal right to reopen his case and have admitted excerpts of the Mladić Diaries relevant to his defense. It would have been contrary to logic and common sense for us to open the door and move for the Mladić Diaries to be admitted without the prosecution’s motion being granted. But, seeing as how the prosecution’s excerpts were coming in (the Mladić Diaries were newly discovered evidence), we requested the Trial Chamber on several occasions to admit excerpts relevant to Dr. Prlić’s defense. How many times should the same request be made before it can be considered “unconditional”?

This was only one of the issues raised by Dr. Prlić. Not that I wish to relitigate the point, but some sunshine on one particular entry in the Mladić Diaries is worth examining. You be the judge as to whether this is how a reasonable trier of fact should admit, assess, and rely on uncorroborated hearsay evidence.

The Majority admitted and relied on excerpts from the Mladić Diaries, which contained quoted remarks purportedly attributed to General Praljak, in making JCE findings – excerpts that directly implicated Dr. Prlić. General Praljak’s statements are uncorroborated hearsay. Mladić did not testify. No prior testimony had been elicited concerning these meetings, and no witnesses testified to the meetings. General Praljak’s request to reopen his case and testify concerning the meetings with Mladić and the statements attributed to him in these extracts was denied. In denying his request, the Majority’s suggestion that General Praljak’s counsel vouch for General Praljak in the closing brief and testify during closing arguments in lieu of viva voce testimony from General Praljak was absurd. Even law students know that counsel cannot testify and representations by counsel in closing briefs and closing arguments are not evidence. And what of Dr. Prlić’s right of confrontation, his right to question General Praljak on what he purportedly said or meant?

These points may seem inconsequential, but I think not. Here is why. Even if the Appeal Judgment addresses all the fair trial right challenges raised by Dr. Prlić, that is beside the point. What is relevant is the false perception these segments of the summary read to the public created – intentions aside.

And speaking of perceptions, anyone who witnessed the trial would attest to just how dysfunctional the Trial Chamber was, with two of the Judges often publicly quarrelling with the Presiding Judge, who seemed incapable of managing the trial proceedings. None of the Judges were up to the task, and it was obvious. Their rampant intervention while the parties were conducting their examinations led me to invite the Judges to either conduct the proceedings properly and in accordance with the letter and spirit of the ICTY Statute and the Rules of Procedure and Evidence (and refrain from inappropriately interfering as they had been doing), or to pack their bags and go home. And since they seemed clueless on how the proceedings should be conducted, I further requested that the Judges allow the prosecution and the defense one hour each to lecture them – since both the prosecution and defense had considerable experience in trying cases at the ICTY.2 Cheeky as this may seem, my request was granted, and submissions were made.3 The proceedings improved somewhat after this intervention and training session, but overall, I can safely say that in my 35 years as a lawyer, the Prlić et al. trial was the absolute worst experience I’ve ever had as a lawyer.

But why should this matter and how does it account for General Praljak taking his own life?
It matters because, had the Trial Chamber been balanced and measured in their treatment of the defense, had they not adopted the unreasonable approach of allowing the six accused to have only a combined amount of time equal to the time allotted to the prosecution for every witness, had the Judges been more patient with General Praljak and allowed him greater latitude in questioning witnesses (after all he was in situ on the matters on which he wanted to confront the witnesses), had they not virtually wholesale ignored the defense evidence, and had they drafted a judgment that represented the evidence submitted during the five-year trial, then, perhaps he may have accepted the findings and conclusions. Perhaps, General Praljak might have accepted that he may have erred during the fog of war as he tried his best to command and control a citizen-soldier army led by a few professional officers of ranks that exceeded their experience and competence.

I say this because of the time I spent getting to know General Praljak before the trial and observing him for over a decade as the case progressed through the trial, all the way up to his last day. General Praljak was fearless. He was not afraid to be held accountable for any acts of commission or omission – so long as the evidence bore out his responsibility. He took the stand and testified for over three months. He did not equivocate, did not feign an absence of memory, and he certainly did not try to shift the blame.

General Praljak did not suffer fools, perhaps because his intellect was off the charts, not because of a superiority complex or arrogance. At times, however, he could be contentious, vociferous, and cantankerous. He had an overwhelming presence bursting with energy and determination to expose what he knew, what he saw, and what he felt about the events he had experienced. Sometimes his exuberance to get to the truth or to set the record straight got the best of him as he would stray or get carried away, depending on the topic being discussed. Occasionally, he had difficulty seeing the trees for the forest. And yes, occasionally, he could be exasperatingly difficult to contain, just as he exasperatingly had difficulty containing himself when hearing nonsense masquerading as facts.

If I have learned anything in representing accused in highly contentious and stressful trials, unless the judges are courteous, considerate, patient, and solicitous, an accused will be hard pressed to accept a ruling or final judgment, irrespective of the quality or sufficiency of the evidence. But when also factoring in how the case was tried, the way two of the Judges interacted with General Praljak, the way they often condescended to him, and of course, their ultimate findings and conclusions in the judgment and how these were reached, is it any wonder that General Praljak would challenge the even-handedness of the proceedings, or that he would reject the Trial and Appeal Judgments with contempt?

General Praljak’s final act casts a long shadow over the factual findings and legal conclusions made by the Trial Chamber and upheld by the Appeals Chamber. The evidence, for the most part, is available for scrutiny for anyone interested in judging the Judgments. Of course, few, if any, will take the time to go over this material to see what is proved, what is speculative, what is true, and what is false. But no one should be gulled into imagining that General Praljak exited the field as a concession to and acceptance of the findings of his guilt, or because he feared continued incarceration. Rather, his sacrifice was the ultimate repudiation of the injustice with which he was tried and judged.

Some will look at the Judgments in Prlić et al. and find vindication and perhaps even solace. Others no doubt will reject them as General Praljak did, perhaps with an equal amount of contempt. But what is for sure is that these Judgments will not foster reconciliation any more than it can be claimed that they represent the historical truths of what happened in BiH during the Muslim-Croat conflict.

I have profound respect for the Judges of the Appeals Chamber who rendered the Judgment. I also accept, as all must, that their Judgment is final. However, in good conscience, I cannot respect most of the findings and conclusions in the Appeal Judgment made by these esteemed Judges. My critique is not an attack on the ICTY as an institution; it is an indictment on the way the Trial Chamber conducted the proceedings in Prlić et al., resulting in a miscarriage of justice, which, regrettably, the Appeals Chamber failed to cure. And while it is claimed that counsel at the ICTY have “a positive obligation to protect the reputation of the Tribunal,”4 it would be cowardly of me and an affront to General Praljak’s memory to pretend the proceedings were fair, that there was no predisposition shown by the Judges during the trial or that the Trial and Appeal Judgments are not flawed. Some may try to twist these words as an assault on the ICTY’s reputation and legacy, but in the words of Voltaire, “To the living we owe respect, but to the dead we owe only the truth.”

General Praljak’s suicide was an act of defiance that has shed light on the ICTY’s legacy. No amount of spin will erase the tragic event that occurred in Courtroom 1 on 29 November 2017. What was expected to be the ICTY’s swan song – ending by reaffirming the convictions in Prlić et al. just days after the Mladić trial verdict – turned into a sad and confusing sight. General Praljak preferred to take his life, rather than validate the result of the trial and appeal proceedings – proceedings that in his view produced a false narrative based, in part, on the Judges’ unwillingness or inability to look beyond the settled orthodoxies that were touted on the ICTY website and peddled by its Outreach Program, even as the proceedings were ongoing.