Thursday, March 8, 2012

A Response to Serge Brammertz and Vesna Teršelić

I. Introduction
Earlier this week, I received a press release from the ICTY’s Press Office with the subject line, “Outreach hosts group of war crime monitors and journalists from Croatia. The Tribunal's Outreach Programme welcomes today a group of war crime monitors and journalists from Croatia on a week-long study visit.” The press release quotes Head of the Documenta Vesna Teršelić, as saying: "With this visit, we aim to contribute to more objective reporting by the Croatian media of the ICTY trials. This is particularly important because the public in Croatia does not receive quality information about war crimes or the judicial proceedings for these crimes."
The ICTY’s Outreach program hosted selected NGO’s and journalists in order to provide them with “quality information” about the judicial proceedings at the ICTY because of an alleged lack of “objective reporting” by Croatian media concerning ICTY trials. Vesna Teršelić’s allegation of a lack of “objective reporting” in the Croatian media about the Gotovina trial repeats the allegation often advanced by the ICTY’s Prosecution. Just this week Chief Prosecutor Serge Brammertz told journalists attending the Outreach event:
I do not wish to assess the media as a whole, but my impression is that Croatian journalists during the Gotovina trial gave more space to his Defence, and less space to the elements from the Indictment. I believe that is one of the reasons why a significant portion of the Croatian public was shocked by the Trial Judgement.[1]
How accurate are the claims of Teršelić and Brammertz? Did the majority of the Croatian media misinform the Croatian public about the proceedings in the Gotovina trial? In order to properly assess this question, it is important to look at two things: 1) The findings of the Trial Chamber in the Gotovina Judgement; 2) the statements made prior to the Judgement by the Prosecution and Defence as well as by Croatian journalists who attended the previous Outreach visit organized by Vesna Teršelić to the ICTY in April 2010.
II. The Prosecution’s Allegations at Trial, and the Trial Chamber’s Findings
The Prosecution during the trial alleged that there existed a Joint Criminal Enterprise, hatched at Brioni, to expel the Serb population from the “Krajina” by directly attacking civilians with artillery fire and causing them to flee. This was accomplished allegedly by firing artillery on towns like Knin, Benkovac, Obrovac and Gracac even though there were “no or few” military targets in those towns. Furthermore, the Prosecution alleged that after Operation Storm, the members of the JCE led by President Tudjman established a policy purposely allowing and encouraging crimes such as murders, burnings and lootings against Serbs to take place so as to prevent any Serbs from being able to return to Croatia.
The Trial Chamber in the Judgement rejected many of the Prosecution’s arguments. Specifically, the Trial Chamber found that there were many legitimate military targets in the towns, and that the Croatian Army fired at least 95% of its artillery rounds against legitimate military objectives (see Judgement, paragraphs 1262-1266). Furthermore, the Trial Chamber was unable to identify any civilian victims of shelling anywhere in the so-called “Krajina.” (See, e.g., Judgement at paragraphs 1360-1364). Finally, the Trial Chamber rejected the Prosecution’s argument that the alleged members of the JCE intended to allow crimes to take place against Serb civilians and property:
“The Trial Chamber finds that the common objective did not amount to, or involve the commission of the crimes of persecution (disappearances, wanton destruction, plunder, murder, inhumane acts, cruel treatment, and unlawful detentions), destruction, plunder, murder, inhumane acts, and cruel treatment.(Judgement, paragraph 2321);
Rather, the evidence includes several examples of meetings and statements (see for example D409, P470, and D1451), indicating that the leadership, including Tudjman, disapproved of the destruction of property. Based on the foregoing, the Trial Chamber does not find that destruction and plunder were within the purpose of the joint criminal enterprise.” (Judgement, paragraph 2313);

In light of the testimony of expert Albiston, the Trial Chamber considers that the insufficient response by the Croatian law enforcement authorities and judiciary can to some extent be explained by the abovementioned obstacles they faced and their need to perform other duties in August and September 1995. In conclusion, while the evidence indicates incidents of purposeful hindrance of certain investigations, the Trial Chamber cannot positively establish that the Croatian authorities had a policy of non-investigation of crimes committed against Krajina Serbs during and following Operation Storm in the Indictment area.” (Judgement, paragraph 2203).
Nevertheless, the Trial Chamber convicted Generals Gotovina and Markac because it found that the remaining 5% of artillery rounds (approximately 65 out of 1200 rounds) fell too far (i.e. more than 200 meters) from known military objectives. According to the Trial Chamber, these 5% of artillery projectiles were the “primary and direct cause” of the departure of Serb civilians from Knin, Benkovac, Obrovac and Gracac, even though the Trial Chamber could not identify any Serb civilian who was killed or injured by shelling or who claimed to have left Croatia out of fear of shelling. The Trial Chamber expressly limited its findings to these four towns. With respect to the remaining areas of the “Krajina,” the Trial Chamber found that Serb civilians left for reasons unrelated to unlawful conduct by the Croatian Army. (See Judgement, paragraphs 1754, 1755 and 1762).
The Trial Chamber then proceeded to convict Generals Gotovina and Markac for crimes such as murders, burnings and lootings committed after Operation Storm, not because Generals Gotovina and Markac intended those crimes to take place but because these crimes were allegedly a “foreseeable consequence” of the unlawful artillery attack, and therefore under the doctrine of Joint Criminal Enterprise Gotovina and Markac are allegedly liable for those crimes even if they actively opposed their commission.
Any objective analysis of the Judgement will recognize that the artillery findings are central. If there was no unlawful artillery attack, then there was no Joint Criminal Enterprise at Brioni, and Generals Gotovina and Markac would not have been convicted under the JCE theory.
As will be explained more fully below, however, the Prosecution prior to Judgement argued that the artillery allegations were not “at the core” of the Prosecution’s allegations. Instead, the Prosecution claimed that the focus on artillery in the Croatian media was a ploy by the Defence to take attention away from more serious allegations about the crimes committed after Operation Storm.
III. The April 2010 Outreach Visit to the Tribunal, and the Prosecution’s Public Positions in the Media Prior to the Judgement
Prior to this most recent Outreach visit in March 2012 led by Vesna Teršelić, a similar Outreach visit to the ICTY was organized by Teršelić for selected Croatian journalists in April 2010. Teršelić at that time organized a delegation of Croatian journalists to the ICTY in order to “contribute to more objective reporting by the Croatian media of the ICTY trials.” Among the Croatian journalists attending the Outreach April 2010 event was journalist Saša Kosanović of HRT and the weekly Novosti. During this Outreach visit, Croatian journalists met with members of the Office of the Prosecutor to discuss “more objective reporting” in the Croatian press.
Upon their return from The Hague, the Croatian journalists who attended the Outreach event led by Teršelić began to publish articles allegedly providing the “truth” about the Gotovina proceedings, in contrast to the “Defence disinformation” being spread by mainstream Croatian media. Thus, journalist Kosanović, writing in the weekly Novosti on 14 May 2010, argued as follows:
Croatia media have, no doubt, done everything to misrepresent the roles of the Prosecution and the Court, thus contributing in great measure to the negative perceptions which many citizens have of The Hague. The best evidence of this is in the selective reporting on the trial of Gotovina, Cermak and Markac: their only source of information is Ivan (sic) Misetic, one of Gotovina’s lawyers, who serves up only information which suits his team. Thus it has been hidden from the Croatian public that the famous “excessive shelling of Knin” which Misetic has pronounced to be the most important part of the indictment, is in reality only a marginal part. The real truth is that the Indictment against these Croatian generals is extremely serious: they are accused of persecution, deportation, ethnic cleansing, plunder of property and many murders of civilians (dozens of murdered civilians are identified by name from the villages around Knin: Kovacic, Durici, Zagrovic and Grubori, Orlic village, Sarenoj, Uzdolj and Kakanj, Oton and Oraovac).[2]
One week later, journalist Slavica Lukić wrote a column in Jutarnji List titled, “The Artillery Logs Are Really Not that Important”. In the column, Lukić repeated many of the arguments that had been advanced at the April 2010 Outreach event and which Kosanović had published one week earlier:
Through his persistent insistence on the artillery logs, thus converting these documents into the most important topic in the trial of the three generals, Brammertz has turned the public’s focus away from other, more important parts of the trial.
Aware that the allegation of excessive and indiscriminate shelling of Knin is the weakest part of the Indictment against Gotovina, Cermak and Markac, Brammertz has expertly used the absence of these documents to in advance create an alibi for the most likely collapse of his allegation of indiscriminate attack.
In the shadow of the story about the famous artillery logs, many more substantive and important things in the past two years have remained hidden from the Croatian public which have transpired in the Hague courtroom of the three member Chamber of Alphons Orie: testimony and evidence of murders of civilians in the village of Grubori and other villages of southern Lika and northern Dalmatia.
Also hidden in the shadows of the artillery logs are the testimonies of looting, the intentional destruction and burning of hundreds of houses, as a result of wantonness and not military necessity, in other words a series of other types of crimes against humanity and violations of international humanitarian law.[3]
In June 2010, Kosanović continued to argue that the Croatian media was misinforming the Croatian public about the importance of the allegations of unlawful shelling attack. This time, however, the link between this theory and the Prosecution was made perfectly clear because the argument was being advanced by the Prosecution’s spokeswoman, Olga Kavran, who was being interviewed by Kosanović:
[Kosanović] How do you comment on the fact that the Croatian public, influenced by the media, is expecting acquittal in the case of Ante Gotovina?
[Kavran] The media all the time stressed the story from the perspective of Gotovina's defense, that is their strategy on how the very core of the indictment is the excessive shelling of Knin. However, things are different. First, the allegation concerns unlawful shelling aimed at the expulsion of the population. Second, this unlawful shelling of Knin and other places in the area is only one element of the joint criminal enterprise, and not the "very essence" as the Defence claims, and which the media then passes on. The Prosecution considers that at that time, Croatian political and military leadership clearly intended to expel civilians. It is evident from the systematic and widespread looting and the burning of Serbian houses, killings and harassment of the remaining civilians, as well as taking various measures to prevent the return of refugees. In this sense, my personal opinion is that the Prosecutor's Office presented a lot of very convincing evidence. Last word is, as always, for the judges.
However, when it comes to media reports, there I have to place the blame on myself and the prosecution. Unfortunately, I think that we did not do enough to inform the public with regard to the case against Gotovina, Cermak and Markac. Nevertheless I do not think we would have substantially changed the picture: in Croatia, as well as everywhere in the Balkans, we mostly have “fan journalism” which picks a side at the expense of objectivity. With some notable exceptions. However, the fact is that since the start of the trial in the case of Gotovina, I have on a few occasions, on the instructions of my superiors, had to decline invitations to participate in live TV shows in Croatia on the subject. Every time I was told that I can not accept such invitations because the prosecution can not comment on cases that are ongoing. Of course, I agree that it is impermissible for a judicial officials and institutions to comment on items that are in progress, but I also think that it certainly has something to say about certain subjects, and this would not cross an ethical boundary. For example, we can talk about the content of the indictment, the types of witnesses and evidentiary material that will be presented in court, the manner in which cases are being conducted, etc. However, in the prosecution and the tribunal there are simply not enough people who have experience with the media. Consequently, they are afraid of the media and are reluctant in front of them. This, unfortunately, has had great influence on the perception of the Tribunal. What I'm saying not only applies to the case against Gotovina and others, but for all cases. This is a big omission Tribunal - most of those who are in leadership positions at the Tribunal lack an understanding of public relations and do not give enough freedom to those who are the professionals.[4]
IV. The Judgement and the March 2012 Outreach Event at the ICTY
The Trial Chamber’s Judgement, however, demonstrated that the Defence’s comments in the Croatian media during trial on the central nature of the shelling allegations were quite accurate: without the artillery findings, there is no finding of the existence of a JCE hatched at Brioni. Moreover, the Trial Chamber found that the Prosecution had failed to establish any policy by the members of the alleged JCE to allow criminal activities like murder, burning and looting after Operation Storm. In fact, as explained above, the Trial Chamber found that President Tudjman disapproved of destruction of property (Judgement, paragraph 2313).
In contrast, the journalists who attended the April 2010 Outreach event led by Vesna Teršelić were the ones who turned out to be spreading misinformation, as was the Prosecution’s spokeswoman Kavran. Indeed, the shelling allegations were not merely Defence spin designed to mislead the Croatian public as Kavran claimed, or a “marginal part” of the case as claimed by Kosanović and Lukić.
These are the documented, indisputable facts. Nevertheless, yet another Outreach event this week was organized by Vesna Teršelić amongst others, and we are once again told that “the public in Croatia does not receive quality information about war crimes or the judicial proceedings for these crimes.” What she does not acknowledge, as explained above, is that it was the journalists who attended her last Outreach event in April 2010 (as well as Prosecution spokeswoman Kavran) who were spreading the misinformation in Croatia about the “marginal” nature of the shelling allegations.
Furthermore, the journalists who attended this week’s Outreach event are now publishing interviews with Prosecutor Brammertz in which he repeats the tired Prosecution cliché that “my impression is that Croatian journalists during the Gotovina trial gave more space to his Defence, and less space to the elements from the Indictment. I believe that is one of the reasons why a significant portion of the Croatian public was shocked by the Trial Judgement.”[5]
Which elements of the Indictment does Mr. Brammertz believe were not properly publicized in Croatia during the trial? His spokeswoman, Ms. Kavran, two years ago complained that the Croatian mainstream media was giving too much attention to what the Trial Chamber concluded was the most important allegation in the Indictment, i.e. the alleged unlawful artillery attack. The Trial Chamber rejected Mr. Brammertz’s allegation of a Croatian policy to condone and encourage crime after Operation Storm. So what more should the Croatian mainstream media (as well as the Prosecution and the Defence) have emphasized to the Croatian public during the trial?
These are the questions that are left unanswered because the journalists who attended the Outreach event did not put them to Mr. Brammertz. Instead, some of the journalists who attended the Outreach events in 2010 and/or 2012 uncritically repeat that which has been served to them in The Hague by the Prosecution, as if they are the modern day Moses descending from Mt. Sinai and distributing to the people that which was written in stone for them on the mountaintop.
Benjamin Franklin famously said, “It is the duty of every citizen to question authority.” My advice to the Croatian public and journalists? Don’t listen to me or to Mr. Brammertz. Instead, first sit down and read the Judgement. Pose critical questions to Mr. Brammertz and me after you have done so.
Then draw your own conclusions.

[1] Interview with Serge Brammertz, 8 March 2012, as found at
[2] See Mi smo se pomirili, sada je na vama red, 14 May 2010, in the weekly Novosti, as found on the internet at:
[3] See Slavica Lukić Topnički dnevnici uopće nisu tako bitni, 22 May 2010, in Jutarnji List, as found on the internet at:
[4] See Kosanović interview of Olga Kavran, titled “Dokazi protiv Gotovine veoma su uverljivi,” 24 June 2010, in the weekly magazine Novosti, as found on the internet at:
[5] Interview with Serge Brammertz, 8 March 2012, as found at