Milivoje Petkovic – Croatia, the War, and the Future

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

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

Interview by Ina Vukic

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

JUDGE TRECHSEL: I accept that and I apologise.-

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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