Croatia: To Claim Back Justice Sold Via Giving Amnesty To Serb War Criminals

Nikola Kajkic Photo: dnevnik.hr

In any global or international community agenda small countries suffer and are left to their own devices to live with consequences that are often harsh, that more often than not, mean that someone ends up with their human rights brutally violated.

On the point of global pressure where someone ends up a victim of human rights usurpation, I am transported back to Croatia 1997/1998 when, highly pressured by the international powers (in particular the European Union and Bill Clinton’s or Democrats’ America) to make deals in the process of reintegrating (liberating) the remaining parts of Croatia occupied by the brutal and murderous Serb aggressor. The deal included the granting of amnesty to hundreds of Serbs from prosecution for suspected and evidenced war crimes committed against Croatian people. And so, the Croatian authorities at the time caved into this pressure in which the international community was insisting that Serbs’ human rights must be protected, that they must be allowed to live without fear of prosecution or retribution if they returned to Croatia (most of these war criminals had already fled Croatia into Serbia)! The human rights of Croatian victims of Serb aggression, of war crimes, were not as important.

Scandalous!

Some twenty years later, today, the situation Croatia is faced with is that Serb war criminals or suspected war criminals are moving freely, living in Croatia, among their victims! Protected! So, it is not unusual to come across in Vukovar, for instance, Serb rapists, murderers, torturers who have returned to live in that area. Of course, whether on justice or humanity’s level, this is not acceptable! This naturally causes perpetual protests and distress on the side of Croats. And what does Croatia’s Prime Minister Andrej Plenkovic do? He takes Croatian Serb leaders who in Croatia chase after Serbia’s interests rather than Croatia’s, Milorad Pupovac, Boris Milosevic (and others), whose brothers, sisters etc are among those brutal Serb aggressors from 1990’s, as coalition partners in government! Talk about rubbing salt on open wounds!

For the duration of Pupovac being a part of Plenkovic government Nikola Kajkic, an investigating officer with Croatian Police Unit for War Crimes, was suspended from duties in July 2018 just as his investigation into executions by Serbia’s forces at Ovcara farm (Vukovar, November 1991) was showing up irrefutable evidence for war crimes for several Serb nationals (some of whom live in Vukovar or nearby!)! He is still fighting the bent courts to get his job back; he remains unemployed and a sore in the Serb and Croatian government eyes. Kajkic courageously continues (via various independent media outlets) to bring out various concrete details and names of Serbs, who now live in Vukovar or elsewhere in Croatia, who had murdered, raped or tortured Croatian people during the Serb aggression against Croatia in the 1990’s.

As to an impending global “Great Reset” lots of people are talking about these days Croatian government and authorities need a great morality and justice reset and start paying priority attention to the victims of Serb war crimes. It is evident, twenty years on, that the 1997/1998 grant of amnesty to Serb war criminals is reaping havoc and unbearable distress and injustice in Croatia. So, let’s revisit how this tragic move to grant amnesty to war criminals came about and gave licence to Serb torturers, rapists and murderers to roam the streets of Croatia today under the protection of the internationally (including Serbia) weaved pressures and tricks.

Since the hostilities resulting from Serb aggression in 1991, the Ministry of Justice of the Croatian government had maintained lists of suspected Serb war criminals, numbering as many as 3,000 at one point. These official lists had frequently been criticised by the international community pushing for amnesty of Serb war criminals in Croatia for inaccuracies and uncertainties. In February 1997, a Vinkovci newspaper published a list of suspected war criminals including 1,200 names. At the same time, pressured by international forces who, under a pretence it wanted to achieve peace, obviously favoured the aggressor more than the victim, the Croatian government had passed several laws granting amnesty for those who engaged in certain acts relating to the war in 1991 and thereafter. The laws granted amnesties to all those who committed “criminal acts during the aggression, armed rebellion or armed conflicts, in or relating to the aggression, armed rebellion or armed conflicts in the Republic of Croatia . . .  during the period from 17 August 1990 to 23 August 1996” (Law of General Amnesty). The law expressly excluded those who had committed “flagrant violations of humanitarian law having the character of war crimes.” The passage of the law was followed by the circulation of a list of ninety-six persons who were then in detention on charges of armed rebellion.

After promulgation of the amnesty law, the Croatian government continued to retain a list of 311 Serb war crimes suspects. This list was criticised for inaccuracies and errors by the Serbian side, saying some of the named were already dead.(So what, posthumous trials are not a thing of impossibility) The existence of this list of war crimes suspects had not been embraced by the Serb Executive Council (the assembly of the Eastern Slavonia Serb leadership) and on the minds of many Serbs in Eastern Slavonia who contemplated decisions as to whether to remain in Croatia. As a result, Transitional Administrator Jacques Paul Klein requested the Croatian government to produce a smaller list, with those who are not on the list being de facto amnestied. In March 1997, Mr. Klein received a new list of 150 names which he passed on to the Serb Executive Council, which, in turn, notified those on the list. This list contained the names of those who have been convicted in absentia for crimes against international humanitarian law, those who had been indicted for such crimes, and those who were otherwise suspected of having committed such crimes.  (“Amnesty,” UNTAES Bulletin, No. 28, March 1997)

The negotiations over the lists and amnesty laws raised several fundamental human rights concerns. First, throughout negotiation over the size of the list, it was claimed that the standards for inclusion on the war crimes list were not made clear. Even after the list had been given to Mr. Klein, the grounds for inclusion on the list allegedly remained unclear, especially for those who have not already been indicted or tried in absentia. So claimed the international community involved in pressuring Croatia for amnesty of Serbs. The same international community insisted that an effective safeguard would be for Croatia to refer war crimes indictments to the International Criminal Tribunal for the former Yugoslavia (ICTY) for prior review.

But what does one do when one knew and now knows that ICTY’s crimes indictments were often political rather than based on clear evidence! One would insist on protecting one’s own people – victims of crimes that were seen on daily basis against Croatian civilians and armed forces.  

UNTAES’s (UN Transitional Administration of Eastern Slavonic, in Croatia) insistence that the government of Croatia provide a “final” list of suspects also raised serious human rights concerns for Serb aggressor, evidently diminishing the importance of Croatian victim human rights. “Now, we have asked the Croatian Government for a final list very soon and before the elections. The list should have those names who, we believe, would possibly be indicted by the War Crimes Tribunal at The Hague if there was enough evidence. By that definition, everyone else is automatically amnestied,” said Mr Klein in “Elections announced for 13 April: an interview with TA Jacques Klein,” UNTAES Bulletin, No. 25, February 1997.

If those who commit war crimes are to be held accountable for their crimes, it is unclear in what sense any list of suspects provided by the Croatian government could have been considered final. If sound legal principles were to govern the indictment and trial of suspected war criminals, the Croatian government should have indicted those against whom sufficient evidence of such crimes was gathered, regardless of whether this evidence came to light before or after a “final” list was prepared. Indeed, several Croats, including relatives of those who were killed or “disappeared” during and after the siege of Vukovar told Human Rights Watch/Helsinki of their discomfort over what they perceived to be “private” negotiations between UNTAES and the Croatian government regarding the length of the list of suspects. They feared such negotiations might result in the removal of war crimes suspects from the list, as a matter of political expediency, rather than through a judicial process that would have determined the absence of an evidentiary basis for prosecution (Human Rights Watch/Helsinki interviews, Zagreb, February 23, 1997).

Human Rights Watch/Helsinki recognised that the list of suspected war criminals had powerful political force: it said that it intimidated Serbs in Eastern Slavonia while appeasing Croats who have lost family members in that region. Given the political nature of the list, UNTAES may have felt compelled, as the administrative body of the region, to address it in a political context. However, entering into (or appearing to enter into) negotiations over who will or will not be prosecuted for war crimes, politicises a process that should be subjected solely to legal considerations. These negotiations ran the risk of compromising not only UNTAES’s credibility but also the legitimacy of any future proceedings against suspects, as there will be suspicions that some Serbs were dropped as suspects in a political “deal” engineered by UNTAES. At the least, the controversy and negotiations over the number of names on the list has distracted attention from the fundamental rights to due process and fair trial.

The list, in the meanwhile, continued to raise more questions than it answered. Only in early March 1997 did it become clear that the list comprised only those who faced indictments in the courts of Osijek and Vinkovci. As a result, Serbs who perpetrated crimes in Eastern Slavonia who were not included on the “final” list were still faced with the possibility of indictment on charges relating to serious violations of humanitarian law for acts carried out in other jurisdictions, such as those of Knin and Sisak.

The temptation to suspend justice in exchange for promises to end a conflict had arisen with respect to the international community pressures work in Darfur, Uganda and in Croatia in 1997/1998, and threatened to recur elsewhere as parties and mediators struggle to negotiate peace deals. Indeed, to get parties to the table, blanket amnesties have often in the past been offered to those responsible for horrific human rights abuses. Supporters of amnesties argued that those bearing the greatest responsibility for atrocities have no interest in laying down their arms unless they believe that they will not face criminal charges. Others have argued that while justice is important, it should take a back seat to peace!

In the short-term, it is easy to understand the temptation to forego justice in an effort to end armed conflict. However, Human Rights Watch research over the past 20 years in many different countries has demonstrated that a decision to ignore atrocities and to reinforce a culture of impunity may carry a high price. While there are undoubtedly many factors that influence the resumption of armed conflict, and it is not asserted that impunity is the sole causal factor, Human Rights Watch research shows that the impact of justice is too often undervalued when weighing objectives in resolving a conflict.

Foregoing accountability, on the other hand, often does not result in the hoped-for benefits. Instead of putting a conflict to rest, an explicit de jure amnesty that grants immunity for war crimes, crimes against humanity, or genocide may effectively sanction the commission of grave crimes without providing the desired objective of peace. All too often a peace that is conditioned on impunity for these most serious crimes is not sustainable. Even worse, it sets a precedent of impunity for atrocities that encourages future abuses.

In Croatia, for example, amnesty provisions failed to consolidate the hoped-for peace, that is, amnesties did not lead to the called for “forgiving and forgetting.” Serbia still denies aggression against Croatia, Croatia is helping it in attempts to equate victims with aggressors, while Croatian people are increasingly angry at this injustice. The so-called peaceful reintegration of Eastern Slavonia, Baranja and Western Syrmia (1995-1998) that rested upon amnesty given to Serb war criminals is anything but peaceful, for a great majority of Croatian people. It has kept the terrible wounds of Serb aggression wide open.

And so, twenty years on the Serb fight to protect their war criminals in Croatia from prosecution is still a current and pressing issue acting against the victims’ rights. Cover ups, suspensions from duties such as the one experienced by Nikola Kajkic are encouraged by the government that has as its Deputy Premier Boris Milosevic, a hard-core politician actively pursuing the interests of Serbia rather than Croatia on Croatian soil. Of course, Milorad Pupovac is his main ally and, it seems, Croatian Prime Minister Andrej Plenkovic and the remainder of his cherry-picked team! With them, Croatian national interests of defending the values of Homeland War and its victims have been lost, or rather, tossed away while wounds are still unhealed. Is this not a ground for a “Great Reset” in Croatia, starting with ditching the General Amnesty laws that protect criminals and aggressors? Justice has been short-changed in Croatia, thanks to international community pressure, it is time Croats started to look inside their country’s borders rather than outside if peace with justice is to prevail. Otherwise, fuelling fears for escalated unrest remain justified. Ina Vukic

Croats, ICTY and Communist Yugoslavia Counterintelligence

 

Robin Harris (L) Visnja Staresina (C)
Zeljko Tanjic (R) (Rector of Croatian Catholic University)
Photo: Screenshot

 

 

11 December 2017 saw the launch of journalist Višnja Staresina new book titled “Hrvati pod KOS-ovim krilom – završni račun Haaškog suda”, translated into English the book title would read: “Croats under the wing of Communist Yugoslavia Counterintelligence Service – The Hague Tribunal’s Final Account”. The book presents as compelling reading particularly as it contains presentations of the manipulations, falsifications, fabrications, mounted court processes, unjust verdicts, politically motivated indictments brought before the court, the Hague Tribunal ICTY,  that were designed and executed to damage and convict Croatian people of crimes they had not committed, crimes that fall under the doctrine, of joint criminal enterprise, where the convicted person does not even need to be indicted of having personally committed any crimes.

A comprehensive review of this book was delivered by Robin Harris in Zagreb, Croatia at the book’s launch and it reads as follows:

I was honoured to be invited to speak at the launch of this important book.

Višnja Starešina is a knowledgeable and authoritative commentator on the activities of the International Criminal Tribunal for the Former Yugoslavia – the ICTY – and on the political background. She is a fearless journalist of great integrity, and her conclusions should be studied by those in charge of the affairs of this country.

The book could not be more timely or more necessary. Croatia today feels stunned and abandoned, a sensation only increased by the clearly well planned international move to crush dissent in the social media. It is natural that people are asking why Croatia finds itself in this position. Hrvati pod KOS-ovim krilom (Croats under the wings of Yugoslav Counterintelligence Service)  provides at least part of the answer.

I shall summarise the arguments of Višnja’s book, adding a few observations of my own. But before that I cannot avoid commenting on the orgy of self-congratulation with which the ICTY terminated its twenty-four years of work. The Croatian President spoke tactfully though eloquently in defence of Croatia on that occasion. But the picture that the ICTY judges and officials painted of their own achievements is so grotesquely misleading that it cannot go unchallenged.

The ICTY has been an expensive failure. It has done the bare minimum that was expected of it – but slowly, incompetently, working through dishonest compromises, heavily politically influenced, following an immoral programme of equalising guilt between the constituent parties. From starting out as a modest attempt to uphold standards of justice that the international community was too weak and divided to impose by force – it became – as those recent vainglorious speeches show – a self-declared paradigm for future conflict-resolution by international courts. The judgements of the Tribunal, even if sometimes merited on other grounds, were not in fact reached by processes, or according to standards, which would have been acceptable in any developed country – let alone in Britain, which so heartily endorsed the ICTY conclusions.

A classic example is the creation of the concept of the Joint Criminal Enterprise, which in its most extended – and least defensible – form, was used to achieve a guilty verdict in the recent case against the Croat Six from Bosnia and Herzegovina. That was an unjust judgement. It may be accepted – just as the weather tomorrow may be accepted – but it does not need to be respected, and neither does the institution which delivered it.

Two other brief preliminary points:

First, contrary to the claims of the Tribunal’s admirers, its record does not demonstrate that international justice is a useful means of righting international wrongs. Only one significant indicted war criminal was delivered to the court before Operation Storm. It was only after Croatia, with US support, achieved military victory against the Serbs, that the ICTY had any chance of operating at all. This makes it ironic, to say the least, that the Tribunal then sought to indict the very political and military figures whose success made its work possible.

Second, the work of the Court, as Višnja shows, was subject to sustained manipulation by outsiders, not least by the JNA Military Intelligence, the KOS. The assumption that the further away justice is delivered from the concerned parties, the purer it will be, has been shown to be false. That lesson extends beyond the realm of courts. Even small countries, like Croatia, cannot expect better, but rather worse, treatment, if they surrender their interests to multilateral, international bodies, than if they seek bilateral, state-to-state agreements. Sovereignty is important, however small your state.

So let me turn directly to the book. There are eleven chapters and a final and important epilogue. The book examines events on the ground and arguments in the Tribunal both chronologically and thematically.

Chapter one describes the origins of the Hague Tribunal, an organisation which from its modest beginning in 1993 expanded to an annual budget of 270 million US dollars with a staff of a thousand people.

Visnja Staresina and her book cover

Chapter two provides an overview of the close but murky relationship between the Tribunal and the different state intelligence services. An especially important role seems to have been played by British, Australian and Canadian personnel. Particular focus applies here to Graham Blewitt, an Australian, with an anti-Croat track record, who from the Tribunal’s establishment in 1994 to the raising of the last indictments at the end of 2004, was the effective chief of investigations. Višnja suggests that Blewitt served as a guarantee that, the British policy of sharing Serbian and Croatian guilt for the war, as a precondition for the new erection of some new Balkan state association under Serb hegemony “would prevail (p.27). [..jamstvo da će se u politici optuživanja provoditi britanska politika podjele srpsko-hrvatske krivnje za rat, kao preduvjet za ponovnu uspostavu neke nove balkanaske državne asociajicije pod srpskom hegemonijom].

I shall offer a comment on that subject later.

The other intelligence service whose plans and interests were of great importance was the JNA Kontra-obaveštajna služba, or „KOS“. Its head, General Aleksandar „Aca“ Vasiljević, it is suggested, had, well before the outbreak of hostilities in 1991, inserted key agents into what would soon be warring entities. From these positions, KOS agents could do far-reaching damage, while putting the blame onto someone else. A well-known instance is Operation Labrador – the bombing of the Zagreb Jewish graveyard and attempted bombing of the Jewish Community Centre in August 1991. But there were kennelfuls of Labradors, only some of which have ever been tagged and identified.

Chapter three is about Vukovar. Vukovar is crucial to the work – and to the failure – of the Hague Tribunal, for as Višnjna notes:

Uz malo truda, sintezom zločina nad Vukovarom, nad ratnim zarobljenicima i civilima poslije zauzimanja grada i etničkog čišćenja na cijelom okupiranom području istočne Slavonije i Baranje nakon uspostave lokalnih vlasti, moglo se napraviti i vrlo uvjerliv slučaj genocida – najtežeg zločina koji podrazumijeva politički planirano istrebljenje nekog naroda ili etničke grupe s određenog teritorija“. (p. 43) (Translation of quote: With a little effort, synthesis of crimes against Vukovar, against prisoners of war and civilians after the city’s occupation and ethnic cleansing across the whole of the Eastern Slavonia and Baranja region after the establishment of local authorities, a very convincing case for genocide could have been made – the worst of crimes that imply politically planned extermination of some peoples or ethnic group from a certain territory)

Responsibility for the crimes was quickly transferred to local Serb officials – notably Slavko Dokmanović, who conveniently later committed suicide. JNA involvement, by contrast, was minimised, while the role of Četnik paramilitaries was stressed.

Chapter four deals with events and investigations in the Lašva Valley and in Northern Hercegovina.

I found this chapter extremely revealing. Having read Charles R. Shrader’s excellent book, The Muslim-Croat Civil War in Central Bosnia, and having interviewed many Bosnian Muslim and Croat refugees in 1993, I thought that I knew the situation pretty well. But I did not, until now, grasp the full military rationale for the Muslim military campaign in Northern Hercegovina. Nor, despite at the time hearing various unsubstantiated allegations, did I grasp the extreme and extensive savagery of the mujahedeen – who were imported, deployed and controlled by the Army of BiH in its campaign to expel Croats. The Bosniak intelligence service, the AID, sought to conceal that connection. But their success in doing so raises other large questions  – about the seriousness of the work of the Tribunal Prosecutor’s investigative team 9; about the involvement of other agencies – including the British – in downplaying the mujahedeen atrocities; and about the total failure of Croatia, then and since, to publicise the persecution of Croats.

By contrast the (equally real) crimes committed by Croat forces in the military campaign in the Lašva Valley, notably at Ahmići, were vigorously pursued by the Prosecution. The cases relating to these operations were used first to assert a degree of command responsibility unwarranted by realities, resulting in the 45 year sentence (later sharply reduced) against the HVO general Tihomir Blaškić. They then served to allege, in the judgement against Dario Kordić, the existence of a politically-determined plan of ethnic cleansing of non-Croats. This was the foundation of the indictment against „Prlić and others“, which involved President Tuđman and the Croatian state.

As is described in chapter five, no such extended line of responsibility was established by the Prosecution against Serbia for crimes committed in pursuit of ethnic cleansing in Bosnia and Hercegovina. The Serb concentration camps were an embarrassment because they were created and commanded by JNA, including KOS, officers. Višnja Starešina provides documentary proof of the responsibility of the KOS and of General Vasiljević for these camps. It was necessary to ensure, therefore, that investigation of these facts was frustrated, as indeed it was – by a series of politically convenient and timely deaths.

Chapter six deals with the background to another equally timely death – that of Slobodan Milošević.

The Tribunal’s investigative staff had invested suspiciously little effort in the case against Milošević and Serbia. The Prosecution was, therefore, now desperate for convincing evidence, and when this became available through the good offices of Vasiljević and the KOS networks concessions were willingly made. Instead of sitting beside Milošević on the bench of the accused, as had originally been envisaged, Vasiljević now appeared in 2003 as a major prosecution witness. Moreover, reliance on Vasiljević and on the new post-Milošević government in Serbia for documentation – the Tribunal’s own efforts having been so limited and fruitless – allowed Belgrade to provide just what was necessary and no more. Documentation was redacted and filtered – unlike that supplied wholesale by Croatia under President Mesić. Great efforts were made to deflect blame away from the Yugoslav state, military and intelligence authorities onto Milošević. And then Milošević, himself, on Saturday 11 March 2006, obligingly died before a judgement was reached.

With chapter seven the story returns to Vukovar. The Hague Prosecutor was less interested in pursuing this case, once the Serbian state, the JNA and the KOS became the Prosecutor’s allies in the case against Milošević, of which Vukovar was now just one element. In Belgrade, a criminal case was also now brought. But significantly – as the book notes – while that in The Hague was entitled „Vukovar hospital“ which involved the whole process of identifying and selecting patients up to and including their liquidation, that before the Belgrade court was entitled simply „Ovčara“, in other words removing the first part of the crime in which the JNA and the KOS, that is the Yugoslav state, were the perpetrators. This would not have mattered so much if the Belgrade trial had not been the scene for the preparation – and suppression and distortion – of evidence for the trial in The Hague. This soon became apparent in the way the ICTY indictments were framed.

This chapter also covers the detailed circumstances of the Vukovar Hospital crime, as vividly described in Višnja’s documentary. It shows JNA involvement right up to the moment of the executions. It describes the performance orchestrated by the KOS for media consumption.

To my mind the key fact is the arrival on the evening of 19 November at about eight o’clock of General Vasiljević and other JNA military intelligence officers at Negoslavci, a few miles from Vukovar. The JNA already had a full list of all those inside the hospital. The next day they were to be evacuated. There is, naturally, no evidence of what was actually said at this meeting. But it is as clear as day that its purpose was to decide on which categories of enemy – all of course were regarded as „Ustaše“ anyway – should be subjected to particular kinds of torture and interrogation, and then liquidated.

Vukovar deserves to be regarded as a crime on the level of, and with similar purposes to, that of Srebrenica – which is the subject of chapter 8. Again the connection with former JNA and KOS officers is evident. The methods and chains of command are similar – in the Srebrenica case via Mladić to Karadžić. But while that chain of command was exposed, it was concealed in the case of Vukovar.

Chapter nine examines why the KOS was such an important player. The answer is: because the JNA was indeed, as the book says, „the last defence-bunker of communism and Yugoslavia“(p. 205). As the rest of the structures started to crumble, particularly in Croatia and Slovenia, the JNA, and what can be described as its „brain“, the KOS, became effectively the new power centre.

Chapter ten deals with the indictments against Croats connected with the military operations, Medački džep in 1993 and Storm/Oluja in 1995. It illuminates the unprofessional practice of the Hague Prosecution, notably in the use made of Savo Štrbac and his misnamed NGO „Veritas“ in researching alleged crimes. Chapter eleven deals with the recent case of the Croatian six.

What strikes me in these cases is the complete absence of realism. Wars are never completely clean. But there are degrees of dirt. Moreover, a set of moral rules apply – the rules that over centuries became known as „the laws of war“, from which the different Geneva and Hague Conventions and eventually the ICTY emerged. According to these traditional understandings, there is a difference between aggression and defence, between regaining one’s own territory and capturing someone else’s, and between letting civilians leave a potential battle field and driving them out of their homes. That residuum of moral good sense and legal tradition was effectively discarded in the first instance hearing of the case against Gotovina and others.

Similarly, in the case of the Croat Six, an elaborate, artificial structure of decision making and blame was devised to entangle in shared criminality people who had little or nothing to do with events on the ground. There is no credible evidence that President Tudjman sought to recreate the Croatian Banovina, or that he organised ethnic cleansing, or that he ever agreed with Milošević to divide up Bosnia – which is, indeed, a lie worthy of and perhaps stemming from the KOS. Again one is struck by the lack of understanding of the real significance of decisions made and the limited range of options available. No allowance was made by the Tribunal when assessing Croatian state policy for the fact that Croatia received no assistance from Bosnia when its territory was attacked – nor that without the HVO, and the operationally independent unit of Herceg-Bosna, the new Bosnian state would have been totally overrun in the first months of Serb aggression. No credit was given for the fact that without Croatia’s military action in 1995, Bosnia would now probably be a Serb fiefdom, with much of the Muslim population cowering in camps. No mention was made, except in passing, that even during Muslim-Croat hostilities half a million Muslim refugees were being fed and housed in Croatia – an extraordinary humanitarian gesture demonstrating practical good will from the Croatian state and people.

The book touches in many places on the role of British policy. I would like to add my own comment on this.

British state policy in the early 1990s was, indeed, as is described in this book, a continuation of that traditionally pursued by Britain of resisting German influence in South Eastern Europe, which had for many years also involved looking favourably on Serbia and Serb-dominated Yugoslavia. This was reflected in British Government hostility to Croatia, to which a certain amount of wartime nostalgic sympathy for the Partisans and the Serbs also contributed. It was, however, a quasi-automatic reaction rather than a thought out response, a result of laziness in the absence of leadership. The proof is that had Mrs Thatcher been Prime Minister in 1991 not John Major it would have been different. So explanations of state behaviour dependent on traditions of state interest are never entirely satisfactory.

Under Tony Blair, for example, there was a change in attitude – not towards the new Croatian state, which was now viewed – as I am sure Mr Blewitt viewed it – as a kind of Ustaša revival – but towards the Muslims in Bosnia. Previously, London had viewed the Muslims with no sympathy at all, as at the time of Srebrenica. I remember the military briefings blaming the Muslims for their own predicament.

Britain was also the main political force behind bringing and pursuing the Gotovina case. This, though, was not driven by British state interest, but rather a desire to spite the Americans, who had been proved right in pushing for the military option against Belgrade. Britain is now well disposed towards to Croatia. This is not primarily because of a change in interests but a change in UK government personnel.

Finally, in assessing the motivation of the Tribunal, particularly in later years, it is important not to forget that ideology became increasingly dominant. The doctrine and practice of universal jurisdiction, as a central element of global governance, has been pressed by America – until the election of President of Trump – and by the EU. It is also backed by powerful international financial interests. This globalist anti-national programme is arguably the single most important factor driving world events. Its adherents regard Croatia as the antithesis of what they want the new world order to look like. Croatia is a small, recently created, state, committed to national identity and to the Catholic faith and tradition. Today’s doctrinaire internationalists certainly view Croatia with at least as much contempt and hostility as did Karl Marx. That should be a badge of pride; but the badge is also, and will always be, a target.

————————————–

 

(Dr Robin Harris is a British historian, author and publicist worked as close adviser to British Prime Minister Margaret Thatcher herself from 1985, writing her speeches and advising on policy. By the close of her premiership, he was probably the most trusted member of her political team at Downing Street, and he left Number Ten with her.)

In Memory Of Croatian General Slobodan Praljak

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.

Disclaimer, Terms and Conditions:

All content on “Croatia, the War, and the Future” blog is for informational purposes only. “Croatia, the War, and the Future” blog is not responsible for and expressly disclaims all liability for the interpretations and subsequent reactions of visitors or commenters either to this site or its associate Twitter account, @IVukic or its Facebook account. Comments on this website are the sole responsibility of their writers and the writer will take full responsibility, liability, and blame for any libel or litigation that results from something written in or as a direct result of something written in a comment. The nature of information provided on this website may be transitional and, therefore, accuracy, completeness, veracity, honesty, exactitude, factuality and politeness of comments are not guaranteed. This blog may contain hypertext links to other websites or webpages. “Croatia, the War, and the Future” does not control or guarantee the accuracy, relevance, timeliness or completeness of information on any other website or webpage. We do not endorse or accept any responsibility for any views expressed or products or services offered on outside sites, or the organisations sponsoring those sites, or the safety of linking to those sites. Comment Policy: Everyone is welcome and encouraged to voice their opinion regardless of identity, politics, ideology, religion or agreement with the subject in posts or other commentators. Personal or other criticism is acceptable as long as it is justified by facts, arguments or discussions of key issues. Comments that include profanity, offensive language and insults will be moderated.
%d bloggers like this: