ICTY reverses findings on Tudjman, Šušak participation in joint criminal enterprise in Herceg Bosna

On July 19^th, 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.  

Aleksandar Vučić will soon acknowledge Srebrenica genocide. Or else.

The twenty-first anniversary of the Srebrenica genocide  is approaching.  Numerous judgments of the International Criminal Tribunal for the former Yugoslavia (“ICTY”) have confirmed that the execution of thousands of Bosnian Muslim men by Bosnian Serb forces was genocide.  Yet every year tensions rise between Bosnia and Serbia due to Serbia’s refusal to acknowledge that the heinous crime committed at Srebrenica amounted to genocide.  This year is no different.  The mayor of Srebrenica, Camil Durakovic, announced recently that Serbian officials were no longer welcome at events commemorating Srebrenica due to Serbia’s genocide denial.

Serbia’s policy of denial may come to an end in the next few years, however, due to pressure from the European Union.  Serbia’s government has set its sights on full EU membership and has been pushing hard to open so-called “Chapter 23”and “Chapter 24”  negotiations on the Judiciary, Rule of Law and Human Rights.  In order to achieve full EU membership, Serbia will have to satisfy all of the conditions and benchmarks that the EU has set out in Chapters 23 and 24.  Little public attention has been paid thus far to a condition that Croatia was able to insert into the EU’s conditions that Serbia must fulfill in order to complete its obligations under Chapter 23:

The EU delegation will recall that full cooperation with the International Criminal Tribunal for the former Yugoslavia (ICTY) remains essential. While awaiting the spring report of the ICTY, the EU delegation will stress its expectations that Serbia will continue its recent record of cooperation with the ICTY and with war crimes prosecution offices in the region. It will urge Serbia to fully and unequivocally accept the ICTY's rulings. It will also call on Serbia to step up its efforts in domestic handling of war crimes in line with international humanitarian law and the jurisprudence of ICTY and to significantly improve its witness protection system. It will call for full political support and commitment to cooperation with war crimes prosecution offices in the region.

The condition that Serbia must “fully and unequivocally accept the ICTY’s rulings” is crucial.  It means that if Serbia wants to become a member of the EU, it can no longer continue to deny what the ICTY has established in multiple judgments:  genocide was committed at Srebrenica by Bosnian Serb forces.  Croatia and other EU member states will insist that Serbian officials acknowledge the genocide before Serbia will be allowed to close Chapter 23. 

Accordingly, one day in the not-too-distant future, we should expect to see Serbian Prime Minister Aleksandar Vučić publicly acknowledge that genocide was committed at Srebrenica by Bosnian Serb forces.  If not, Serbia will remain outside of the EU as a result of its preference for genocide denial over EU membership.

Despite Aquittal, the Tribunal Can Order Šešelj’s Continued Detention. Here's How.

The acquittal of Serbian warloard Vojislav Šešelj has caused outrage in Croatia, Bosnia-Herzegovina and around the world.  There is little doubt about Šešelj’s role in Joint Criminal Enterprise to create Greater Serbia by means of displacement of the non-Serb civilian population.  This was already confirmed by the Trial Chamber in the Martić Judgment, which at paragraph 446 found: “The Trial Chamber therefore finds that at least Blagoje Adžić, Milan Babić, Radmilo Bogdanović,Veljko Kadijević, Radovan Karadžić, Slobodan Milošević, Ratko Mladić, Vojislav Šešelj, Franko “Frenki” Simatović, Jovica Stanišić, and Captain Dragan Vasiljković participated in the furtherance of the above-mentioned common criminal purpose.”  Can the Appeals Chamber do anything to remedy the gross injustice that was perpetrated by Judge Jean-Claude Antonetti’s majority Trial Chamber yesterday?

Fortunately, the answer to that question is “yes”.  Judge Antonetti’s Trial Chamber made numerous, egregious errors in reaching its decision to acquit Šešelj, including:

1.     Finding that a JCE to create “Greater Serbia” did not exist.  This finding goes against prior precedent of the ICTY, namely in the Martić case, where the Trial Chamber found the existence of a “Greater Serbia” JCE, and the Appeals Chamber affirmed it.  As recently as last week, the Trial Chamber in the Karadžić case concluded  that “The Accused [Karadžić],Momčilo Krajišnik, Nikola Koljević, Biljana Plavšić, Ratko Mladić, Mićo Stanišić, Momčilo Mandić, Željko Raţnatović (Arkan), and Vojislav Šešelj formed a plurality of persons who acted pursuant to this common plan and shared the intent for the crimes which formed part of the plan.” 

2.     Finding that civilians in Croatia and Bosnia-Herzegovina were not subject to a “widespread and systematic attack”.  This conclusion is contrary to the conclusions of many prior Chambers of the ICTY, including Martić, Karadžić.  The Trial Chamber in the Mrkšić case concluded:

472. It is in this setting that the Chamber finds that, at the time relevant to the Indictment, there was in fact, not only a military operation against the Croat forces in and around Vukovar, but also a widespread and systematic attack by the JNA and other Serb forces directed against the Croat and other non-Serb civilian population in the wider Vukovar area. The extensive damage to civilian property and civilian infrastructure, the number of civilians killed or wounded during the military operations and the high number of civilians displaced or forced to flee clearly indicate that the attack was carried out in an indiscriminate way, contrary to international law.

It was an unlawful attack. Indeed it was also directed in part deliberately against the civilian population.” (Mrkšić Trial Judgment, paras. 470 and 472; references omitted.)

3.     The International Court of Justice, in the genocide case of Croatia v. Serbia,  found the existence of a widespread attack:

416. The findings of the Court and those of the ICTY are mutually consistent, and establish the existence of a pattern of conduct that consisted, from August 1991, in widespread attacks by the JNA and Serb forces on localities with Croat populations in various regions of Croatia, according to a generally similar modus operandi.

Notable is the ICJ’s statement at paragraph 412 that “Serbia does not contest the systematic and widespread nature of certain attacks.” Judge Antonetti thus denies the existence of a widespread and systematic attack despite the fact that Serbia itself did not deny it when Serbia was brought before the International Court of Justice.

For these reasons and more, I expect the Appeals Chamber of the Residual Mechanism to overturn the Šešelj Trial Judgment on the basis of the Prosecution’s appeal.  But an appeal is likely to take at least three years to complete, and Šešelj is allegedly ill with cancer and may not survive that long.  If Šešelj were to die before the Appeals Chamber pronounces judgment, the Trial Chamber Judgment becomes a final judgment, and the historical record is tainted forever.

So what can the Appeals Chamber do to undo the damage that was done by the Trial Chamber’s unjust acquittal of Šešelj?  Once the Prosecution files its Notice of Appeal, the Appeals Chamber may order Šešelj’s immediate re-arrest and return to the Detention Unit of the ICTY.

Rule 123 of the MICT Rules of Procedure and Evidence states:

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Rule 123

Status of Acquitted Person

(A) Subject to paragraph (B), in the case of an acquittal or the upholding of a

challenge to jurisdiction, the accused shall be released immediately.

(B) If, at the time the judgement is pronounced, the Prosecutor advises the Trial

Chamber in open court of the Prosecutor’s intention to file notice of appeal

pursuant to Rule 133, the Trial Chamber may, on application by the Prosecutor

and upon hearing the Parties, in its discretion, issue an order for the continued detention of the accused, pending the determination of the appeal.

****

Rule 131 provides that Rule 123 applies mutatis mutandis to proceedings before the Appeals Chamber.  Accordingly, Rule 123 allows the Appeals Chamber to order Šešelj’s immediate return to the ICTY and his continued detention, despite his status as an acquitted person.

Let’s hope the Appeals Chamber acts, sooner rather than later.  The gross errors committed by the Antonetti Majority, combined with the widespread outrage throughout the world that the acquittal has caused, demand swift action on the part of the Appeals Chamber.