On July 19th, the Appeals Chamber of the ICTY in the Prlic case rejected an application by the Republic of Croatia to appear as amicus curiae (friend of the court). Croatia had applied for amicus curiae status in order to defend the rights of President Franjo Tudjman, Defense Minister Gojko Šušak, and Croatian Army Chief of Staff Janko Bobetko, contending that these Croatian officials were wrongfully found by the Prlic Trial Chamber to be members of a Joint Criminal Enterprise to expel Bosnian Muslims from Croatian controlled parts of Bosnia-Herzegovina (known as Herceg-Bosna). Croatia further argued that it was wrong for the Prlic Trial Chamber to reach these conclusions about Tudjman, Šušak and Bobetko not only because there was no evidence to substantiate such conclusions, but also because the Trial Chamber violated the European Convention on Human Rights by naming three deceased individuals as members of a Joint Criminal Enterprise, without giving them an opportunity to defend themselves. Croatia asked that it be given amicus status so that it could challenge the Trial Chamber’s findings on behalf of Tudjman, Šušak and Bobetko.
When the Prlic Trial Chamber judgment was delivered on 29 May 2013, the ICTY publicized the Trial Chamber’s conclusions that Tudjman, Šušak and Bobetko had all been found to have been members of a JCE. This excerpt is from the Tribunal’s own press release about the Prlic judgment (found here):
The JCE existed approximately from January 1993 to April 1994. Its criminal objective was to be reached through the commission of crimes by HVO forces in a campaign of ethnic cleansing against the non-Croat population. The Chamber concluded that “[i]n the majority of cases, the crimes committed were not the random acts of a few unruly soldiers. On the contrary, these crimes were the result of a plan drawn up by members of the JCE whose goal was to permanently remove the Muslim population from Herceg-Bosna.”
Apart from the six accused, a number of persons joined, participated in and contributed to the JCE, including among others: Franjo Tuđman, the President of the Republic of Croatia; Gojko Šušak, the Minister of Defence of the Republic of Croatia; Janko Bobetko, a general in the Army of the Republic of Croatia; and Mate Boban, President of the Croatian Community (later Republic) of Herceg-Bosna.
As reported by the New York Times that day, the lead prosecutor in the Prlic case, Kenneth Scott, placed greater emphasis on his “conviction” of Tudjman and Šušak than he did on the conviction of the six accused who were parties to the case (found here):
The court’s judgment was more than 2,600 pages. A summary that was read aloud in court did not provide many details, but it said the president of Croatia at the time, Franjo Tudjman, and his defense minister, Gojko Šušak, were part of a “joint criminal enterprise” that led to the persecution, abuse, rape and killing of Muslims and ethnic Serbs in eight Bosnian provinces in 1992 and 1993. Mr. Tudjman and Mr. Šušak have since died. […]
One of the lead prosecutors, Kenneth Scott, said he was pleased with the verdict. “All six men were convicted of very serious crimes, and the judgment clearly established the role of Tudjman and other senior Croats,” Mr. Scott said. “This is the part of the Bosnian war that was least known internationally.”
Prosecutor Scott told the Associated Press that same day [found here]:
“This is the first time the court has been very clear and adamant about the significant role played by Tudjman and Šušak," prosecutor Kenneth Scott said. "There's no question in my view that's one of the most historical, remarkable things about the case."
Croatia’s amicus application was intended to challenge these core findings. But amicus requests are very rarely granted at the ICTY. In the 23 years of the Tribunal’s existence, it is likely that less than ten have been granted. It was therefore no surprise that the Appeals Chamber rejected Croatia’s application.
What was surprising, however, was that in explaining why it was rejecting Croatia’s amicus application, the Appeals Chamber essentially granted everything that Croatia wanted. Specifically, the Appeals Chamber found that, “[t]he Trial Chamber made no explicit findings concerning [Tudjman's, Šušak's and Bobetko's] participation in the JCE and did not find them guilty of any crimes". [See paragraph 9, here]. This conclusion by the Appeals Chamber is remarkable in light of the ICTY’s own earlier press release on 29 May 2013 (quoted above) which reported that the Trial Chamber conclusion was that “[a]part from the six accused, a number of persons joined, participated in and contributed to the JCE, including among others: Franjo Tuđman, the President of the Republic of Croatia; Gojko Šušak, the Minister of Defence of the Republic of Croatia; Janko Bobetko, a general in the Army of the Republic of Croatia.”
The Appeals Chamber has essentially reversed the findings of the Prlic Trial Chamber about Tudjman, Šušak and Bobetko’s alleged participation in a JCE. In a unique procedural maneuver, it did so in the context of a decision to reject an amicus curiae application. Scholars and practitioners of international criminal procedure should take note.
The Appeals Chamber went on to emphasize that “the presumption of innocence of the three Croatian officials is not impacted” by the Prlic Trial Chamber judgment, and furthermore “"the Appeals Chamber emphasizes that the findings in the Trial Judgment regarding the Three Croatian Officials in no way constitute findings of responsibility on the part of the state of Croatia."
The ICTY Appeals Chamber has thus ruled that President Tudjman, Minister Šušak and General Bobetko were not found to be members of a JCE in Bosnia and remain presumed innocent by the ICTY. Prosecutor Ken Scott stated publicly that the Trial Chamber in Prlic was "very clear and adamant about the significant role played by Tudjman and Šušak" and that these findings were "one of the most historical, remarkable things about the case." Those findings are now reversed.
Croatia could not have hoped for a better result from the Appeals Chamber even if the Appeals Chamber had granted Croatia amicus status.