The Hague Tribunal ICTY rejected Monday 18 July 2016 the request of the Republic of Croatian to join the appeal case against the six former Bosnia and Herzegovina Croatian senior officials from the 1990’s Herceg-Bosna part of Bosnia and Herzegovina. Jadranko Prlic, Bruno Stojic, Slobodan Praljak, Milivoj Petkovic, Valentin Coric and Berislav Pusic. As farcical as the findings were seen by many, the ICTY Trial Chamber did find May 2013 the six men guilty for crimes against humanity and war crimes committed in Bosnia and Herzegovina from 1992 to 1994 and pronounced a total of 111 years imprisonment.
Presiding judge last week, Judge Carmel Agius delivered the Appeal Chamber’s decision denying Croatia’s application to appear as amicus curiae (friend of the court) in the above six men’s appeal proceedings to dispute the Trial Chamber’s conclusions that the six accused participated in a Joint Criminal Enterprise (JCE) and that three Croatia’s officials – first Croatian President Franjo Tudjman, former foreign minister Gojko Susak and Croatian army general Janko Bobetko – were members of that JCE (Joint Criminal Enterprise).
Croatian’s application claimed that the 2013 Trial Chamber verdict violated the right of presumption of innocence under the European Convention on Human Rights of the three Croatian official’s – Tudjman, Susak and Bobetko, who were all deceased at the time ; that the three Croatian officials were innocent of allegation that they were members of JCE and that the Trial chamber’s conclusion is tantamount to “posthumous conviction”.
The Appeals Chamber rejected Croatia’s application saying it would not assist the Appeals Chamber in its considerations of questions in issue at the appeal.
However, an unexpected bonus arrived from this application – the Appeal judges articulated their assessment that the original Trial Chamber findings that included conclusion regarding Croatia’s Franjo Tudjman, Gojko Susak and Janko Bobetko do not and cannot amount to a guilty verdict against these three Croatian officials (Full PDF version here):
“…the Appeals Chamber emphasises that findings of criminal responsibility made in a case before the Tribunal are binding only on the accused in a specific case. In this regard, Appeals Chamber observes that the Three Croatian Officials were not indicted or charged in the present case. Furthermore, the Trial Chamber made no explicit findings concerning their participation in the JCE and did not find them guilty of any crimes. Chamber considers that the Trial Chamber’s findings regarding the mere existence and membership of the lCE do not – and cannot – constitute findings of criminal responsibility on the part of any persons who were not charged and convicted in this case. Thus, the Trial Judgment is binding only on the Six Accused, and the presumption of innocence of the Three Croatian Officials is not impacted. The Appeals Chamber further observes that the Tribunal’s jurisdiction is restricted to “natural persons” and the Tribunal does not have the competency to make findings on state responsibility. Accordingly, the Appeals Chamber emphasises that the findings in the Trial Judgment regarding the Three Croatian Officials in no way constitute findings of responsibility on the part of the state of Croatia. The Appeals Chamber therefore finds Croatia’s submissions to be without merit and dismisses them.”
“The Appeals Chamber has essentially reversed the findings of the Prlic Trial Chamber about Tudjman, Susak and Bobetko’s alleged participation in a JCE. In a unique procedural maneuver, it did so in the context of a decision to reject an amicus curiae application. Scholars and practitioners of international criminal procedure should take note.
The Appeals Chamber went on to emphasize that “the presumption of innocence of the three Croatian officials is not impacted” by the Prlic Trial Chamber judgment, and furthermore “”the Appeals Chamber emphasizes that the findings in the Trial Judgment regarding the Three Croatian Officials in no way constitute findings of responsibility on the part of the state of Croatia.”
The ICTY Appeals Chamber has thus ruled that President Tudjman, Minister Susak and General Bobetko were not found to be members of a JCE in Bosnia and remain presumed innocent by the ICTY. Prosecutor Ken Scott stated publicly that the Trial Chamber in Prlic was ‘very clear and adamant about the significant role played by Tudjman and Susak’ and that these findings were ‘one of the most historical, remarkable things about the case.’ Those findings are now reversed.
Croatia could not have hoped for a better result from the Appeals Chamber even if the Appeals Chamber had granted Croatia amicus status,” says the US based, well-known attorney Luka Misetic.
This decision at the ICTY Appeals Chamber blows right out of the water the wild and evil claims that Croatia’s plan at the time was to create a Greater Croatia by joining to it the territory of Bosnia and Herzegovina known as Herceg-Bosna and, hence, concluded that Croatia’s leaders were members of the JCE that was to achieve this goal. The Hague Prosecution did accuse the Six Croats of participating in a joint criminal enterprise that was intended to “permanently remove and ethnically cleanse Bosnian Muslims and other non-Croats” from the territory of the newly-established Herceg-Bosna, which they wanted to attach to a planned “Greater Croatia”. Now that the Appeal Chambers have found last week that Croatian leaders were not members of that JCE as Trial Chamber maintained it would stand to reason and truth that any Greater Croatia could not be created without Croatia. Appeal Chamber’s decision with regard to the Herceg-Bosna Six Croats is expected around November 2017. Given that many have considered the 2013 Trial Chamber verdict against them a farce and an utterly unfair and unjust, one awaits the outcome of the appeal with intense interest as it could turn the tides towards actual justice and truth and point to a different picture of the conflict between the Croats and Muslims in 1990’s in Bosnia and Herzegovina than the one painted by the ICTY Trial Chamber verdict. We can only pray for now. Ina Vukic, Prof. (Zgb); B.A., M.A.Ps. (Syd)