Prostitution Of Justice A-la-Judge-Frederik-Harhoff Style

ICTY Judge Frederik Harhoff

ICTY Judge Frederik Harhoff

Well, it’s been a most interesting (for want of a stronger word) week around interpretations of ICTY judgments that acquitted of war crimes some senior Croat and Serb military leaders, particularly in the past 18 months. Personal, but damming thoughts of Danish Judge Frederik Harhoff, which one can take or leave, have been leaked into the public arena and one cannot but stand abhorred!

Why on earth would a Judge of the Tribunal come out with his criticism of the same Tribunal and by doing so interfere with, or influence the process and the outcome of those ICTY cases which have yet to exhaust their right of appeal!?

Absolutely shocking! A Judge effectively denying uncontaminated justice/due process to parties within his own court! I hope Harhoff is made to suffer consequences for his poisoning of the mind-set of both the ICTY prosecutors (who would undoubtedly grow extra wings of false righteousness on the basis of Harhoff’s wicked public pondering) and the defendants who will surely feel intimidated by such poison. Harhoff should not sit on any bench, let alone the ICTY, a moment longer.

Judge Frederik Harhoff wrote a letter last week in which he criticised the ICTY President, US judge Theodor Meron. The letter seems to have been an email sent to a number of recipients, and it’s not clear to whether it was originally written in English, says Marko Milanovic of EJIL Talk.

Milanovic writes: “Harhoff is a judge on the International Criminal Tribunal for the former Yugoslavia. His criticism amounts to a severe and dramatic accusation against the tribunal as a whole. He maintains that the American president of the tribunal has exercised ‘persistent’ and ‘intense’ pressure on his fellow judges to allow top-ranking officers to go free.
Harhoff’s five-page letter (PDF), the precise contents of which are confidential, was addressed to 56 people, including several lawyers. In the letter, Harhoff scrutinises and criticises a series of judgements acquitting Serbian and Croatian leaders.
‘The most recent of these judgements have occasioned a deep professional and moral dilemma for me, one that I have never before experienced. The worst of it is the suspicion that some of my colleagues have been exposed to short-term political pressure and this completely changes the premises of my work to serve the principles of justice and reason”, Harhoff writes in the letter. He makes it clear that the development “has awoken deep concerns both in myself and other colleagues in the corridors of this tribunal’.

‘It would seem’, writes Judge Harhoff, ‘that the military establishment’ in leading states such as Israel and the US ‘felt that the tribunal was getting too close to top-ranking military commands.’
He continues:
‘Has an Israeli or American official influenced the American President of the tribunal to effect a change of course?’ Harhoff writes in the letter.

Judge Harhoff states in his letter that the public ‘will probably never’ be told to what extent his suspicion that the American President of the tribunal has influenced the result of the case for political reasons is true:
‘But the report of the American president of the tribunal’s persistent pressure on his colleagues in the Gotovina and Perisic cases does more than suggest that he was fairly intent on arriving at an acquittal and especially that he was lucky in being able to persuade the ageing Turkish judge to change his mind at the last minute.’
The ‘ageing Turkish judge’, Harhoff refers to is the 77-year-old Mehmet Güney, who voted in November to release the two Croatian generals Gotovina and Markac.
Harhoff says that the new precedent ‘will in future and in the majority of cases allow the top-ranking person to go free. This means that American (and Israeli) commanders in chief can breathe a sigh of relief…’. Harhoff adds ‘I am left with the distinctly unpleasant impression that the tribunal has shifted course as a result of the pressure from ‘the military establishment’ of certain powerful countries’.

Marlise Simons, of New York Times, gives a further insight into possible motives behind Harhoff’s letter: political lobbying within ICTY towards elections of its President, due in autumn 2013?  She writes: “A spokesman at the court declined to comment on the letter. Other judges and lawyers were willing to speak, provided that their names were not used.
By their accounts, a mini-rebellion has been brewing against Judge Meron, prompting some of the 18 judges of the International Criminal Tribunal for the Former Yugoslavia to group around an alternative candidate for the scheduled election for tribunal president this fall. Until now, Judge Meron had been expected to be re-elected”.

Judge Harhoff writes in his letter: “…Right up until autumn 2012, it has been a more or less set practice at the court that military commanders were held responsible for war crimes that their subordinates committed during the war in the former Yugoslavia from 1992-95, when the Daytona Agreement brought an end to the war in December 1995.

The responsibility then was either normal criminal responsibility as either (1) contributing to or (2) responsibility for the top officers with command responsibilities in a military system of command authority where these failed to prevent the crime or punish the subordinates. There is nothing new in this. We had also developed an extended criminal responsibility for people (ministers, politicians, military leaders, officers and others), who had supported an overall goal to eradicate ethnic groups from certain areas through criminal violence, and which in one way or another contributed to the achievement of such a goal; it is this responsibility that goes by the name of “joint criminal enterprise”.

But then the court’s Appeals Chamber suddenly back-tracked last autumn with the three Croatian generals and ministers in the Gotovina case. They were acquitted for the Croatian army’s war crimes while driving out Serbian forces and the Serbian people from major areas in Croatia – the so-called Krajina area in August 1995 (home to generations of Serbians)”.

Oh my God! This is a judge saying this! He just simply does not accept the fact that the Croatian generals were acquitted on appeal of “join criminal enterprise” (i.e. driving out Serbian forces and Serbian people)! And he is a Judge in the same Tribunal!

Luka Misetic, defence attorney for Croatian General Ante Gotovina has registered his comment on Harhoff’s letter :

Marko Milanovic writes: ‘Needless to say, this is one of the worst scandals to engulf the ICTY in its history, regardless of whether Harhoff’s accusations have a basis in fact or not.’
I find it troubling that something can be deemed a scandal ‘regardless of whether Harhoff’s accusations have a basis in fact or not.’ If something has no basis in fact, it is not a ‘scandal,’ it is defamation. I agree with Professor David Kaye, who noted that Harhoff’s email “reflects a ‘conspiracist attitude, tinged with anti-semitism, is obnoxious.’ Moreover, Harhoff doesn’t offer any evidence for these claims.
I also note the inconsistency of Harhoff’s claims: on the one hand, Judge Orie allegedly succumbed to ‘American pressure’ to acquit Jovica Stanisic and Franko Simatovic, yet on the other hand Orie’s conviction of Ante Gotovina was allegedly overturned by the Appeals Chamber ‘under American pressure.’ Which one is it? Is Orie subject to ‘American pressure’ as claimed in the Stanisic case, or is he the victim of ‘American pressure’ as in Gotovina?
Moreover, Harhoff’s claim that Judge Meron put pressure on Orie to finish the Stanisic judgement by the end of May is probably true. However, there is a big distinction to be made between ‘finishing the case,’ and actually interfering as to the actual decision in the case. The ‘pressure’ by Meron was not imposed by the Americans, but rather the Security Council, which noted in a resolution that the ICTY Appeals Chamber will only hear cases in which the Notice of Appeal is filed by 30 June 2013. Any cases in which the Notice of Appeal is filed on 1 July 2013 or thereafter will be heard by the new Residual Mechanism. This is likely the reason why both the Stanisic and Prlic cases were decided in the last week of May 2013, i.e. so that both cases could be heard by the ICTY Appeals Chamber. This reflects Security Council pressure on Meron to implement the Completion Strategy (which Meron as President of the ICTY is duty bound to implement), and certainly does NOT mean that Meron actually put pressure on any Trial Chamber concerning the RESULT to be reached in these cases. The fact that Harhoff is not familiar with Security Council deadlines concerning the ICTY’s completion strategy, and instead through rumor and innuendo impugns the reputations of both Meron and the ICTY, reflects at the very least a profound ignorance on Harhoff’s part.
Finally, it is ironic that Harhoff attacks the ‘specific direction’ finding in the Perisic case as proof of a ‘US / Israeli conspiracy’ to protect military commanders, given that Harhoff himself adopted the ‘specific direction’ standard in his recent judgement in the Zupljanin case. (See paragraph 786 here).
If Harhoff really had a problem with the ‘specific direction’ standard, he shouldn’t have adopted it in Zupljanin. Rather, he should have written a well reasoned dissent, explaining the legal reasoning behind his objection to the ‘specific direction’ standard. Instead, Harhoff to his discredit chose to follow the Appeals Chamber’s lead while ‘on duty’ as an ICTY judge, but when off duty chose to impugn the integrity of his ICTY colleagues in a frivolous email to over 50 of his friends.
Shame on him. Harhoff should be reminded of the old adage: ‘When you point a finger of accusation at someone else, remember that you have three fingers pointing right back at you. Luka Misetic”

Having all above in mind: what hope does democracy have, what hope does humanity have when we have among us judges who prostitute the rule of law (as set by courts) so; cheapen justice and due process; fuel conspiracy theories that have not, up until now, found a voice among the judiciary!

There have been ample criticisms of the ICTY Trial Chamber’s decisions in the past years, and I myself have certainly not shied away from them. Dishing out of political decisions rather than justice has been a consensus between many independent analysts and commentators. However, when an ICTY judge joins the ranks of public analysts and commentators on the judgments of his own court then there is cause for alarm; due process of justice, which is inseparable from independence of the bench, is profoundly compromised. Furthermore, it gives cause to question every decision, every judgment, ever delivered by the ICTY, every indictment ever delivered by the ICTY Prosecution.

Not only that, it would seem that the world does not need due process any more: if it were up to Harhoff, all we need is an indictment, no trial, no appeal, – straight to prison! Ina Vukic, Prof. (Zgb); B.A., M.A.Ps. (Syd)

CHECK OUT MORE OPINION ON THE MATTER:

tartine_confitureDov Jacobs, Assistant Professor in International Law and International Criminal Law at Leiden University

Dissenting From the Dissenting Opinions of Judges Pocar and Agius (Part I)

Luka Misetic    Photo: Darko Tomas/Cropix

Luka Misetic Photo: Darko Tomas/Cropix

Reblogged

From Misetic Law

By Luka Misetic

[PART I][1]

On 16 November 2012, the International Criminal Tribunal for the former Yugoslavia established that Ante Gotovina and Mladen Markac are innocent as a matter of law, and that there is insufficient evidence of a Joint Criminal Enterprise to remove the Serb population from Croatia during and after Operation Storm.  The Judgement has been criticized in certain limited circles, including Serbian government officials, Serbian academics (Milena Sertio, Miroslav Baros, Marko Milanovic), lawyers representing the Republic of Serbia (Marko Milanovic), former employees of the Office of the Prosecutor (including Carla Del Ponte and Anton Nikiforov) and persons affiliated with former Deputy Prosecutor David Tolbert  (Paul Seils, Refik Hodzic).[2]  All of these individuals cite the dissenting opinions of Judges Pocar and Agius to justify their criticism of the ICTY in the Gotovina case.

I decided to write this blog post in order to set the record straight. The dissenting opinions of Judges Pocar and Agius are based upon incorrect interpretations of the law, the evidence and the positions of the parties in this case.  As I will explain below and in subsequent blog posts, the Majority’s Judgement in this case was grounded not only in the law and the evidence, but also in traditional notions of fair play and substantial justice.

THE “TOTALITY OF THE EVIDENCE”

One of the popular criticisms of the Gotovina Judgement is that the Appeals Chamber did not consider the “totality of the evidence” in assessing the culpability of Gotovina and Markac, but instead focused too narrowly on the 200 Meter Standard.

Any fair assessment of the “totality of the evidence” leads to the following inescapable conclusions:  Gotovina and Markac are innocent, there was no JCE, and the convictions of Gotovina and Markac by the Trial Chamber was one of the biggest scandals in the history of international criminal law.  The Prosecution, the Defence, the Trial Chamber and the Appeals Chamber (including Judges Pocar and Agius) all unanimously agree on the following “totality of the evidence”:

1.     The Prosecution could not produce any evidence of the identity of a single civilian victim of shelling by Gotovina’s forces.  The evidence in the trial record did not provide a single scrap of evidence that identified any civilian who was killed or even injured by shelling, anywhere in the so-called “Krajina.”

2.     The Prosecution could not produce any evidence of the identity of a single Serbian civilian who claimed to have fled Croatia due to fear of shelling. Thus, while the Trial Chamber (wrongly) concluded that at least 20,000 Serb civilians fled Croatia from the four towns of Knin, Benkovac, Obrovac and Gracac due to fear of shelling, not a single one of these 20,000 has ever been identified.

3.     The United Nations conducted an investigation into the shelling of Knin immediately after Operation Storm.  On 18 August 1995, the United Nations concluded that the shelling “was concentrated against military objectives,” and that “only few impacts (3-5) is observed in other urban areas.”[3]

4.     Both the Trial Chamber and Appeals Chamber unanimously agree that in all areas of the “Krajina” except Knin, Benkovac, Obrovac and Gracac, the “Krajina” Serbs left for their own reasons, unrelated to any unlawful conduct by Croatian forces.  According to the Trial Chamber, these reasons included:

•      “Krajina” Serb officials telling inhabitants to leave the areas (Trial Judgement, paragraph 1762);
•    Fear of violence commonly associated with armed conflict (Trial Judgement, paragraph 1762);
•   General fears of Croatian forces and a distrust of Croatian authorities (Trial Judgement, paragraph 1762); and
•      The fact that other Serbs were departing caused some to leave (Trial Judgement, paragraphs 1754, 1762).

Generals Gotovina and Markac were thus the first (and hopefully the last) defendants in the history of international criminal law to have been convicted and sentenced to draconian punishments even though there are no known victims of the alleged common criminal purpose of the Joint Criminal Enterprise.  Moreover, no coherent explanation has ever been provided (by the Prosecution, Trial Chamber or Judges Pocar and Agius) justifying the claim that the Majority acted unreasonably in concluding that the Krajina Serbs in Knin, Benkovac, Obrovac and Gracac left for the exact same reasons that the Krajina Serbs left from everywhere else in the “Krajina” (cited above in paragraph 4).

Even though there are no victims of shelling in the four towns, and even though not a single Serb civilian was ever identified as having left Croatia from the four towns due to fear of shelling, Judges Pocar and Agius argue that “no reasonable trier of fact could conclude any differently” than that the Serbs from these four towns were expelled by Gotovina’s artillery fire.[4]  Why?  Which Serbs? No responses to these questions are ever provided. Why did the Prosecution have no trouble identifying shelling victims in Sarajevo (Galic, Dragomir Milosevic cases) and Dubrovnik (Strugar case) and Zagreb (Martic case), but couldn’t identify a single shelling victim in Operation Storm? Could not a reasonable Appeals Chamber have concluded that, unlike the shelling of Sarajevo, Dubrovnik and Zagreb, the shelling in Operation Storm was so lawful that it produced no civilian casualties?

Any discussion of the “totality of the evidence” must start with the undeniable fact that this was a victimless alleged JCE 1, a fact that Judges Pocar and Agius do not address in their analysis.

WHY JUDGE POCAR IS WRONG

Preliminary Comment Concerning the Tone of Judge Pocar’s Dissent

Commentators have noted the inappropriate, ad hominem tone of Judge Pocar’s dissent. Indeed, Judge Pocar refers to some of the Majority’s arguments as “grotesque,” and chastises the Majority’s opinion as “contradict[ing] any sense of justice.”  But what would we say about the “sense of justice” of a court that affirms a 24-year sentence against a person even though there are no known victims?  I leave it as an open question.

More disturbing is Judge Pocar’s repeated claim that the Majority was “pretending” to analyze the evidence and the law, a claim that he repeats five times.[5]  The word “pretend” is defined as:  “to appear falsely, as to deceive, feign.”  Judge Pocar’s repeated use of such a loaded word is an unfortunate ad hominem assault on the integrity of his colleagues in the Majority, which is unjustified given the serious errors in reasoning that litter Judge Pocar’s dissent.

At other sections in his opinion, Judge Pocar belittles his colleagues. For example, he claims that the Majority misrepresented the Prosecution’s arguments concerning alternate modes of liability, and uses this “fact” as evidence of the overall “erroneous analysis” by the Majority:

From a purely legal perspective, the Majority’s reasoning with respect to the possibility of revising a mode of liability is based on a legal confusion. In its analysis, the Majority repeatedly refers to the possibility of entering convictions under alternate modes of liability. It does so even when summarising the Prosecution’s submissions in this respect, although the Prosecution never referred to “entering” new convictions on appeal, but carefully adopted the correct language of “revising” a conviction for a certain crime from one mode of liability to another. The Majority’s mischaracterization and incorrect attribution of legal arguments to the parties in this case is another illustration of the Majority’s erroneous analysis.[6]

It goes without saying that before a judge decides to launch ad hominem arguments against his colleagues and belittle them for allegedly “mischaracterizing and incorrectly attributing” legal arguments to the parties, he must be sure that he has his own facts right.  Here, Judge Pocar got his facts wrong:  the Majority correctly recited the Prosecution’s position.  The Prosecution argued as follows:

However, in the event that the Appeals Chamber were to find any error affecting Gotovina’s JCE liability, it should enter convictions under one of the alternative modes of liability, namely: ordering, planning, instigating, aiding and abetting and superior responsibility under Art.7(3). Because the Chamber found Gotovina liable through his participation in the JCE, it did not enter findings on the alternative modes of liability.[7]
Hence, the Prosecution in fact did ask the Appeals Chamber to “enter” convictions on alternate modes of liability. Judge Pocar thus hoists himself on his own petard:  rather than belittling the Majority for misstating the Prosecution’s position, he exposes his own erroneous analysis, which unfortunately is evident throughout his dissent (as will be explained more fully below and in subsequent blog posts).

The Motives Behind Quashing the Existence of the JCE

Before turning to the substance of Judge Pocar’s arguments, it is appropriate here to address another issue that is related to the ad hominem arguments Judge Pocar advances against his colleagues in the Majority.  This concerns Judge Pocar’s criticism of the Majority for quashing not only Gotovina’s and Markac’s convictions based on JCE, but also for quashing the Trial Chamber’s finding of the existence of a JCE altogether:

Even if the Majority wished to acquit Gotovina and Markac entirely, one might wonder what the Majority wanted to achieve by quashing the mere existence of the joint criminal enterprise rather than concentrating on Gotovina’s and Markac’s significant contributions to the joint criminal enterprise. I leave it as an open question.[8]

Some commentators have claimed that this passage contains “an implicit suggestion that in considering the trial judgment the majority could be guided by motives other than purely legal.”[9]  I disagree. Judge Pocar’s criticism here is directed against the Majority’s refusal to consider anything other than purely legal motives in arriving at its Judgement.

Judge Pocar essentially argues that even if the Appeals Chamber were to acquit Gotovina and Markac, it should have established that a JCE existed involving three deceased individuals:  Croatian President Franjo Tudjman, Minister of Defence Gojko Susak, and Croatian Army Chief of Staff Zvonimir Cervenko.  From the context of his dissent, it is clear that the main focus of Pocar’s ire is Tudjman.[10]  But it is indisputable that there is no legal purpose to be served in condemning three individuals who are deceased and thus unable to defend themselves from the allegation that they were members of a JCE, in particular in a case where the accused who are actually before the court are going to be acquitted. Judge Pocar apparently wanted to use the ICTY’s imprimatur to condemn Tudjman as a war criminal, without Tudjman being able to defend himself.  Had the Tribunal done so, it arguably would have violated the European Convention on Human Rights.[11]  Judge Pocar notably fails to address this issue.

Judge Pocar perhaps hoped to use such a “conviction” of Tudjman for the purposes of “reconciliation” and “evenhandedness” that we have heard so much about since the Appeals Judgement.[12]  The Majority, to its credit, limited itself to the evidence and the law, and resisted calls to consider extra-legal issues in arriving at its Judgement.  If Judge Pocar believed that there was some legitimate purpose to be served in using an acquittal of Gotovina and Markac to condemn Tudjman, Susak and Cervenko without trial, he should have provided some justification for his position.  The Majority, however, should not be accused of playing “politics.”  On the contrary, it is the Majority’s refusal to play politics (i.e. deliver judgements on the basis of outside political concerns like “reconciliation,” or creating the perception of ICTY “evenhandedness”) that has caused such consternation among some, including perhaps Judge Pocar.  If so, the question arises as to whether Judge Pocar’s motive to condemn Franjo Tudjman is “purely legal,” or whether it is something else.  I leave it as an open question.

The Majority Correctly Applied the Standard of Review

All five judges of the Appeals Chamber unanimously agreed that the Trial Chamber erred in establishing a 200 Meter Standard.  The Trial Chamber made an error of fact in establishing the 200 Meter Standard because it was “not linked to any evidence.”[13]  Judge Pocar also agrees with the Majority that the 200 Meter Standard amounts to an error of law because the Trial Chamber failed to provide a reasoned opinion in writing, in violation of Article 23 of the Tribunal’s Statute.[14]  Because the Trial Chamber failed to provide a reasoned opinion on a key element of the offences of persecution and deportation (i.e. whether there was an unlawful attack against civilians and civilian objects), the Majority decided that it would “consider de novo the remaining evidence in the record to determine whether the conclusions of the impact analysis are still valid.”[15]

The question arises whether the Appeals Chamber should conduct a de novo review of the evidence in a case where the Appeals Chamber has concluded that the Trial Chamber has failed to provide a reasoned opinion on a key element of an offense.  The Appeals Chamber eleven months earlier in the Bagosora case resolved this question.  There, in assessing whether the Trial Chamber erroneously convicted the appellant of command responsibility, the Appeals Chamber concluded that the Trial Chamber had failed to provide a reasoned opinion in support of its conclusion that the appellant had failed to punish culpable subordinates. As a result:

The Appeals Chamber considers that, given the absence of any further reasoning supporting the conclusion that Bagosora failed to fulfil his duty to punish culpable subordinates, the Trial Chamber failed to provide a reasoned opinion. In these circumstances, the Appeals Chamber has reviewed the Trial Chamber’s factual findings and the relevant evidence on the record to determine whether a reasonable trier of fact could have found beyond reasonable doubt that Bagosora failed to take reasonable and necessary measures to punish his subordinates for the crimes committed.[16]

The Appeals Chamber used a similar approach in the Haradinaj Appeals Judgement.[17] In Haradinaj, because of the Trial Chamber’s failure to provide a reasoned opinion, the Appeals Chamber conducted a de novo review in order to determine “whether a reasonable Trial Chamber” could have found certain witnesses to be credible.

The Majority here adopted the same standard of review as did the Bagosora and Haradinaj Appeals Chambers (which, notably, both included Judge Pocar).  Once it was established that the Trial Chamber had failed to render a reasoned opinion concerning the 200 Meter Standard, the Appeals Chamber reviewed the Trial Chamber’s factual findings and relevant evidence on the record to determine whether a reasonable trier of fact could have found beyond reasonable doubt that Gotovina and Markac had launched an unlawful artillery attack against civilians and civilian objects.

The Majority’s approach was thus well established in the jurisprudence of the Tribunal.  However, Judge Pocar muddies the waters by conflating two separate types of errors of law:  (1) errors of law resulting from a Trial Chamber’s failure to render a reasoned opinion, and (2) errors of law resulting from the application of an incorrect legal standard.  In the case of the former, the Appeals Chamber has no obligation to provide “the correct legal standard,” because the Trial Chamber’s legal error is not in the misapplication of a legal standard but in the failure to provide a reasoned opinion of its assessment of the evidence or its legal conclusions. It is only in the latter case, where the Trial Chamber has applied the wrong legal standard, that the Appeals Chamber is required to articulate the correct legal standard.

By conflating the two distinct types of errors of law, Judge Pocar speciously criticizes the Majority for allegedly failing “to articulate the correct legal standard and review the factual findings of the Trial Chamber accordingly.”[18]  However, the Majority never claimed that the Trial Chamber had applied the wrong legal standard, but rather that it failed to render a reasoned opinion in writing.  This is a critical distinction.

There is simply no support in the Tribunal’s jurisprudence for Judge Pocar’s claim that where a Trial Chamber fails to render a reasoned opinion, the Appeals Chamber must establish “the correct legal standard.”  Indeed, Judge Pocar in Bagosora and Haradinaj supported the approach ultimately adopted by the Gotovina Majority. Bagosora and Haradinaj amply support the Majority’s standard of review adopted in the Gotovina appeal.

[In my next blog post in Part II, I will address Judge Pocar’s arguments concerning the Majority’s findings on the artillery attack, the Joint Criminal Enterprise, and the alternate modes of liability.   In Part III, I will address Judge Agius’s dissent.]

________________________________________

[1] Full disclosure:  for those who are not aware, I was counsel for Ante Gotovina in the proceedings before the ICTY.
[2] Seils and Hodzic are employed by the International Center for Transitional Justice, of which David Tolbert is president.  While Deputy Prosecutor of the ICTY, Tolbert was involved in the preparation of the indictments against Ante Gotovina and Ramush Haradinaj, both recently acquitted.
[3] See trial exhibit P64, at the following link:  http://icr.icty.org/LegalRef/CMSDocStore/Public/English/Exhibit/NotIndexable/IT-06-90/ACE80787R0000319865.TIF
[4] Dissenting opinion of Judge Agius, at paragraph 46.
[5] Judge Pocar’s Dissenting Opinion, at paragraphs 11, 23, 25, 31 and at footnote 30.
[6] Pocar dissent, paragraph 32.  Emphasis added.
[7] Respondent’s Brief of the Prosecution,  28 September 2011, at page 116, footnote 1112, as found at http://icr.icty.org/LegalRef/CMSDocStore/Public/English/Response/NotIndexable/IT-06-90-A/BRF286R0000349149.pdf
[8] Pocar dissent, at paragraph 30.
[9] Open Question About Intentions, SENSE News Agency, 20 November 2012, as found at http://www.sense-agency.com/icty/open-question-about-intentions.29.html?news_id=14408
[10] See Pocar dissent, paragraph 26.
[11] See case of Vulakh and Others v. Russia, before the European Court of Human Rights, Application Number 33468/03 (10 January 2012), at paragraphs 32-37, as found at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-108500.
[12] David Harland, Selective Justice for the Balkans, as found at http://www.nytimes.com/2012/12/08/opinion/global/selective-justice-for-the-balkans.html?_r=0
[13] Appeals Chamber Judgement, at paragraph 61.
[14] Pocar Dissent, at paragraph 6.
[15] Appeals Judgement, paragraph 64.
[16] Bagosora and Nsengiyumva v. The Prosecutor, Case No. ICTR-98-41-A, Judgement, 14 December 2011, at paragraph 683, as found at http://www.unictr.org/Portals/0/Case%5CEnglish%5CBagosora%5CJudgement%5C111214-%20Appeals%20Judgement.pdf
[17] Haradinaj Appeals Judgement, paragraph 134, 147, 154, 226, 254, as found at http://www.icty.org/x/cases/haradinaj/acjug/en/100721.pdf
[18] Pocar Dissent, at paragraph 9, 11.

Croatian Generals at ICTY Appeal: we fought honourably, facts have been twisted

Croatian Generals Ante Gotovina and Mladen Markac

Like many throughout the world I sat for hours watching the live streaming of the Croatian generals’ Appeal hearing in the ICTY, Monday 14 May. Had I not heard the Appellants’ defence arguments first, had I tuned in at the point of prosecution’s arguments I could have easily concluded that the reason Operation Storm occurred in August 1995 was to expel Serbs from Croatia.

The prosecution’s view is that Operation Storm was not a military offensive (to liberate Serb occupied territory) that brought about undesired consequences, but an attack aimed at deporting the Serb civilian population out of Croatia. They said some 20,000 Serbs left Krajina due to fear from shelling by the Croatian Army. They argued that the transcripts from Croatian leadership meeting at Brijuni (July 31, 1995) and the events when Croatian army targeted whole towns for shelling where there were both civilian and military targets supported the prosecutions claim of joint criminal enterprise to drive Serbs out.

When asked by Presiding Judge Theodor Meron about the defence claim that there had been no civilian casualties during the shelling, the prosecution said that there was no need to prove that there had been civilian casualties because several witnesses said during the trial that they had seen dead bodies and wounded people in the streets of Knin.

The problem with these cited witness statements is that they had not been tested in court, nor had the credibility of the witnesses been tested; the Trial Chamber simply accepted as fact statements of witnesses who merely said that they saw some bodies lying on the streets of Knin, without proving that those bodies were in fact dead people and that, if they were dead, they were killed by the shelling… Gotovina’s defence attorney Luka Misetic brought the court’s attention to the fact that at no time, not even till today – 18 years after Operation Storm – had anybody come forth saying that a person they knew or was a family member had been killed in the shelling of Knin. Simply there were no civilian casualties from that shelling.

The prosecution pressed on with its case, saying that even if the Appeals Chamber should decide that Croatian artillery attacks during Operation Storm in the summer of 1995 were not illegal, it should rule that Croatian army did set out to expel Serbs from Krajina under joint criminal enterprise that had that goal.

Gotovina’s defence attorney Greg Kehoe challenged the use of t so-called “200-metre rule” by the Trial Chamber (2011) to determine whether artillery shells were aimed at military or civilian targets. The Trial Chamber had ruled that any shells falling more that 200 metres from a military target were aimed at civilians and Kehoe said that the Trial Chamber had introduced this rule after the prosecution failed to prove civilians were targeted.

Gotovina’s defence team sought the quashing of his convictions.

There’s no dispute that shelling was legal, it was a military operation to liberate occupied territory – legal operation whichever way one looks at it.

General Mladen Markac defence attorney John Jones said that a conclusion on the existence of a joint criminal enterprise aimed at the persecution of the Serb population could not be drawn from the transcripts of the Brijuni meeting. He said that all conclusions from the trial chamber’s verdict about the persecution of civilians were based on the conclusion on the illegal shelling, stressing that if there had been no illegal shelling, there had not been a joint criminal enterprise either.

The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) said on Monday, after a day-long appeal hearing, that a verdict would be handed down soon, adding the the key point would be the reasons for the departure of the Serb population from the territory which was under their control until the 1995 Operation Storm.

General Ante Gotovina and Mladen Markac were given the opportunity to address the court themselves and this is what they said:

Gotovina spoke in the French language:  “During my entire military career, I endeavoured to perform my duties dignifiedly and honourably, and have always given my all as a commander and soldier in order to protect civilians. As a commander I am proud of the results of the Operation Storm. I’m proud not only because we won but because the damage to the civilians and their homes was minimal. As a man I very much regret every lost life and damaged property. I cannot, however, be responsible for that which others have done or omitted to do while I was away in Bosnia.

Even to this day I am convinced that I have fulfilled my duties in the best possible way. We were in a battle for life and death with the enemy, fought so we could liberate our country. We tried hard to maximally protect the lives of soldiers and civilians. If I made mistakes, such as refusing to give myself up to the court, I am the first to regret that. I am not saying that I am without sin, but I hope I will not be judged for not being perfect. But, even if you conclude that I had made wrong decisions you will not establish that I had ever wanted or agreed to that any soldier or civilian should be killed because he/she was a Serb or belonged to some other national group. 

I am conscious of and content that my actions during Operation Storm were correct and my commands are witness to that fact. Therefore, I do not seek any favours from you, nor do I ask you to do anything other than what my defence has asked of you in my name. I live with the feeling of satisfaction that my actions were in harmony with the actions of an honest and diligent military officer who had given his all in hard circumstances.

If this Chamber could simply examine my actions in that context, I will be content and would not ask anything else”.

Markac spoke in the Croatian language: “I am surprised at the statements made about Storm that were not based on facts. Moved by the attempts to reshape the facts from the Homeland war I want to say that I am not a member of a joint criminal enterprise nor am I a war criminal. I have heard about existence of a joint criminal enterprise for the first time during these proceedings. Neither the representatives of the European Union or anyone from Croatia had shown me that joint criminal enterprise exists. Never had anybody shown me illegal actions by members of the special police MUP, whose professionalism makes me especially proud. I have not committed nor hidden any crime because that is not my way of viewing life. I am a police-military officer who has performed the tasks given to him by the Minister of internal affairs of Croatia responsibly. My job was to defend and liberate illegitimately occupied Croatia.”

Ina Vukic, Prof. (Zgb); B.A., M.A.Ps. (Syd)

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