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Croatia vs. Serbia ICJ Genocide Case – A Door To Future Success Or Failure Of Genocide Claims?

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Vukovar cemetery - Photo politikaplus.com

Vukovar cemetery – Photo politikaplus.com

By Vesna Skare-Ozbolt

First published in Politikaplus.com
Translated into English by Ina Vukic

When a respectable British Weekly such as The Economist in its article from 11 March regarding the ICJ genocide trial between Croatia and Federal Republic of Yugoslavia (FRY) pronounces (promotes)  that case as “utterly idiotic” in advance, that, in the least, must cause a decent reader to raise his or her eyebrows.

That is, this trial opens up several controversial questions upon which the international and the domestic professional circles are bound to debate; from the standards of proof of genocide, questions associated with the continuity and succession in the dissolution of a state, questions of state responsibility as well as the retroactive application of the Convention on Genocide. Court practice – even the one associate with genocide – has developed significantly during the past several years and this court could perhaps offer new interpretations, at least for some of these questions.

The Croatian legal team submitted its presentation properly and it’s worth emphasising the submissions made by James Crawford, Professor of International Law at Cambridge University, Philippe Sands, Professor of Law at London University and Davorin Lapas, Professor of International Law at the Law Faculty of University of Zagreb.

It’s difficult to give a serious assessment of Serbia’s legal team’s strategy because the extraction of evidence contained in the ICTY Trial Chamber judgments when it’s favourable for Serbia, bargaining with ICTY Appeal Chamber judgments when they are in favour of Croatia, appealing to the judges to study the ICTY Trial and Appeal judgments in an individual case and then to decide which one of these they like best, etc., does not constitute a serious strategy.

The biggest surprise from the trial is the British professional and professor of International Law, William Schabas. Although it was known in advance that Serbia had weak arguments one expected that he would, nevertheless, pluck something strong out of that material. The fact that even he was not successful at that speaks volumes of the quality of Serbia’s counter-claim in the proceedings. Regardless, Professor Schabas has appeared as a master in evading matters that did not benefit Serbia and, hence, when he rejects the key point Serbia relies on – that FRY did not exist as a state before 27 April 1992 and that in accordance with the Convention on Prevention of Genocide it is not responsible for events that occurred before that date – he omits to mention the fact that the very wording of the Convention does not seek nor exclude retroactive application or UN Convention regarding the application of statute of limitations for war crimes and crimes against humanity from 1968, where, it says in Article 1 that “statute of limitations will not be applied for crimes … regardless of the date of their perpetration … and for the crime of genocide under the definition in the 1948 Convention”. Also, even though this is a matter of a trial against a state it is worth reminding ourselves of the judgment in the Eichmann case where it says: “… that the crime with which he is charged has always carried the stamp of an international crime” and this adds to the weight favouring the retrospective application of the Convention. Or, as the renowned Serbian lawyer, the late Srdja Popovic, said in relation to the genocide lawsuit Bosnia and Herzegovina Vs. Serbia: “ … no one can call upon the dissolution and anarchy, because it is exactly in such situations when genocides occur …” (interview in BH Dani, 2006)

The charming Professor Schabas suggests to the court “not to enter into some new areas” but to keep firmly to the restrictive standard for proof of genocide contained in article 373 in the Bosnia and Herzegovina vs. Serbia 2007 judgment and not the lower one from the Karadzic case. While on the one hand he is right, because the Kardazic judgment has not passed the Appeal stage, I think that this trial is the moment when the court must and should “enter into some new areas”, that is, open the debate around the question as to whether the standard from article 373 is the best standard for the finding of responsibility of some state for genocide? If it is, that would mean that future proof of genocide will become an impossible mission.

Schabas claims that there was no genocide anywhere in the former Yugoslavia (except in Srebrenica which he characterised as a mini-genocide) because “ … there was no uniform pattern nor plan nor defined state politics on implementing genocide …” and, as an example of the existence of such a plan he gave Adolf Hitler’s stay at the Landsberg prison in 1924 where he began writing Mein Kampf. On the other hand, he does not mention the existence of the mid-19th century onwards plans for the formation of Greater Serbia to Croatia’s detriment (Nacertanije by Ilija Garasanin, as the first Greater Serbia political Memorandum SANU, etc.). (SANU – Serbian Academy of Science and Arts)

The fact that the Serbian academics Dobrica Cosic and Antonije Isakovic had as early as 1989 offered Istria and Dalmatia to the Italian neo-fascists (Alleanza nazionale Gianfranca Finija) serves as one more example of the Serbia’s leadership’s plans directed at the “annulment” of the Croatian state, not as a whole but within the frame of the rattling Virovitica-Karlovac-Ogulin border against which the HDZ of the day had protested publicly on 29 September 1989, labeling the “academic matters” of these two Serbian academics as “Greater Serbian customisation of Croatia”.

Also, the data from dr Andrija Hebrang’s book “Crimes in the Serb-Montenegrin aggression against the Republic of Croatia” which shows that more civilians than solders were killed on battlefields on the Croatian side contributes to genocidal intentions. The killing of 400 children, all of whom were not “collateral victims” of say bombing but were intentionally murdered, often in the most cruel of manners in front of or together with the whole of their families, needs to be emphasised.

Serbia’s legal team, in fact, did not attempt to deny the crimes perpetrated on Croatia’s territory in the 1991-1995 period, but it kept exhausting itself in the attempts to accomplish a win-win situation, according to which Milosevic was guilty for 1991 and Tudjman for 1995, that is, maintaining an eternal balance of responsibility for the war. The introduction of events from NDH (WWII Independent State of Croatia) into the whole story, as supposedly the exclusive reason for the rebellion of the Krajina Serbs in 1991 against the independent Croatia and the attempts to prove the so-called genocidal character of the Operation Storm had the placing of a connection Jasenovac 1941 – Storm 1995 as their aim in order to continue ad nauseam perpetuation of the concocted genocidal stigma of Croatia.

This court will mainly rely on ICTY judgments – confirmation of this can be found in the separate deliberation by the presiding judge Peter Tomka from 2008 when decisions were being made regarding the court’s jurisdiction in the case of Croatia’s genocide lawsuit against Serbia: “…it remains to be seen how Croatia will succeed in proving that the crime of genocide has been committed and that FRY is responsible for it …” although ICTY “…has not passed its judgment against the persons who carry the greatest responsibility for genocide in Croatia” – and one could conclude that a judgment of genocide has no chance.

Regretfully the court does not have a fact-finding mission capacity and it’s difficult to expect that the judges will “comb” through all the documents (from the Croatian as well as from the Serbian sources), which are archived in the Croatian Homeland War Memorial-Documentary Centre and which were collected by dr. Ante Nazor and his team through to this year, or that they will read every book written by Serbian academics or war leaders of the day that could significantly contribute to a judgment about the intent to commit genocide within a limited time span and within specific areas, especially in Eastern Slavonia.

One also should not exclude the option to dismiss both claims. If it comes to that, this court case will nevertheless represent a victory for Croatia – or, a useful defeat – as the renowned professor Mirijan Damaska said (interview, Nacional, 2007) because it will, once again, remind the international public that the ICTY has not convicted a single Croat, that Croatia is not responsible for the War and that its defence was legitimate. On the other hand, Serbia has come out from the ICTY with 13 final convictions so far, and with a conviction from this court for failing to prevent genocide in Srebrenica.

One thing is for certain: this court has a very difficult task before it and it’s distasteful to enter into prognoses because, as Luka Misetic, a member of Croatia’s legal team said: “all options are on the table”.

Vesna Skare-Ozbolt Photo: Politikaplus.com

Vesna Skare-Ozbolt
Photo: Politikaplus.com

 

 

 

About the author: Vesna Skare-Ozbolt is a Lawyer with post-graduate studies in Criminal law. She served as legal advisor to the late President Franjo Tudjman for ten years. She led the process of Peaceful reintegration of Eastern Slavonia in the late 1990’s. She was Minister of Justice of the Republic of Croatia (2003-2006) and author and initiator of many legislative proposals in Croatia. She served as elected member of Croatian Parliament over three mandates from year 2000. She is also President of Democratic Centre party. Honorary citizen of Vukovar, Ilok and Brela. 1998 Woman of the Year. Decorated with the Order of Croatian Interlace, Order of Croatian Trefoil and Order of Katarina Zrinski and Vukovar Medal. Source: http://www.vesna.com.hr


Psychological Operations And Information Warfare Against Croatia and Croats – Part V

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Click on Banner image to enlarge

Click on Banner image to enlarge

Guest Post
By Ante Horvat

The former Yugoslav regime elements and their children spearheaded subversive activities against the facts, Croatia, and Bosnia and Herzegovina (B&H) Croats from the 1990s, through to today.

While overtly Yugoslav nationalist in their rhetoric, still to today expending taxpayer resources celebrating the Communist “liberation” and 1945 Partisan (private property) “liberators” of Croatia, they were the first to declare any opponents of their sham anti-war agenda as “nationalist,” “primitive nationalists,” etc. – blaming “nationalists” on “both sides” for the war, and not the marriage of greater Serbian fascism and retrograde Yugoslav Communist Titoism and the detailed Serbian General Officers plan for aggression, beginning with the reorganization of Territorial Defense in the mid 1980s, through to the ‘Yogurt Revolution,’ trampling of the SFRY Constitution, quasi-legal attempt at Kosovizing Croatia and the rest of then Yugoslavia, and of course the Rampart (RAM) Plan, with the explicit order to target civilians to demoralize ‘enemies,’ and overtly stated goal of creating a Greater Serbia at the expense of most of Croatia and the whole of B&H, with access to Croatia’s coastline.

Among the more vocal propagandists in the front of the charge was none other than Croatia’s current Minister of Foreign Affairs, and unofficial Shadow Foreign Minister of Serbia, Vesna Pusic, sister of UJDI (Association for Yugoslav Democratic Initiative) co-founder and current GOLJP head (Citizens Committee for Human Rights), Zoran Pusic.

Vesna Pusic helped form Erasmus Gilda in 1993, a declaratively pro-European organization, along with Slavko Goldstein, and other post-1990 self-styled “human rights” activists (the systematic violations of human rights before 1990 was apparently not a problem to them as they were silent and remain silent about them) and disinformation luminaries who all just happened to be against Yugoslavia joining the European Community prior to the first free elections in 1990, because the EC was a free market economy.

Along with the previously mentioned outlets like Arkazin, Feral Tribune and others regurgitating Belgrade’s propaganda on a weekly basis, Erasmus gatherings, published articles and their eventual failed magazine that generous USAID funds could not save, touted the line and gave the anti-fact agenda political legitimacy as they included many academics who rose to prominence within Tito’s Yugoslavia.

Here was yet another case of foreign aid subsidizing another controlled opposition – who foreign governments would openly put into power in 2000, and again in 2011.

The main propaganda agendas of these foreign-subsidized controlled opposition fronts, and foreign-financed controlled opposition political actors, as well as Belgrade’s propaganda, was during the war and remains the following, in no particular order:

  •  Push the “all sides are guilty” and “civil war” lie to spin Serbia’s aggression and the moral responsibility of the Western powers that overtly and tacitly supported Serbia’s aggression diplomatically and through domestic media filters and planted stories;
  • Equate Croatia’s defensive war effort with Serbia’s offensive aggression;
  • Equate Croatia’s defense of B&H in 1992 and the HVO’s defense of B&H Croats in the face of Serbian and later Muslim aggression with Serbia’s aggression against Croatia;
  • Push the Karadjordjevo fable and “Tudman divided B&H” myth;
  • Criminalize any and all symbols of Croatian statehood (the Kuna currency, Croatia’s Grb, etc.) by tying them to the Independent State of Croatia (WWII NDH);
  • Look for “Ustashe,” if you can’t find them, make them up;
  • Blow any Croatian backlash or isolated criminal act during wartime out of proportion and tie it to the highest levels of power while entirely ignoring the top-down, bottom-up systematic war crimes by the YPA/Yugoslav Peoples Army and VRSK/Army of Serbian Republic of Krajina (see the Zec family politicization since 1991, with the recent street naming ruse);
  • Lobby for “Krajina” political legitimacy at Western embassies and in Western capitals while domestically attack the government for being weak for not defeating “Krajina” while simultaneously claiming the “Krajina” is too strong to fall and Serbia will get involved if Croatia operationally engages it, implication being that it is better to leave it alone and recognize it;
  • Criminalize the Homeland War, all Generals, and all Veterans, with phrases like “turbo-Generals,” “Oluja/Storm was ethnic cleansing, “fake veterans,” “drunk veterans,” “gambling veterans,” etc. – anything to do with the Homeland War, the men who led it or the men who fought in it must be all negative, all the time with qualifiers regarding “our crimes” at any opportunity, all under the banner of “de-Tudmanization”;
  • Sack competent wartime and intelligence commanders whenever possible;
  • Legitimize ICTY political prosecutions and show trials of Croats from Croatia and B&H and applaud all politically-charged, logical acrobatic convictions based off of cherry-picked misquotes out of context, evidence suppression, and constructing events entirely out of chronological order;
  • Stay silent on Momcilo Perisic, Franko Simatovic and Jovica Stanisic’s acquittals, as well as no ICTY convictions of any Army of B&H commanders for the systematic war crimes and gunpoint ethnic cleansing of Croats in Central Bosnia and North Herzegovina between October 1992 and the1994 Split Agreement;
  • Paint Franjo Tudjman as a warmonger and authoritarian; compare to Ante Pavelic and Adolf Hitler when possible;
  • Push anything and everything Serbian in social and cultural spheres, no matter how low-brow (Baja Mali Knindza, Ceca, Cajke, how to be a Sponzorusa program on RTL, etc.);
  • Rehabilitate the cult of Tito and Communist Partisan “liberation” and infallibility myth at every corner, with if not daily then weekly stories referencing the “glories” of Tito and the Partisans, and make sure to have a weekly Yugonostalgia session on HRT by airing second rate, low-budget Yugoslav Communist political cinema;
  • Continually push WWII debates as if it was ongoing to cover up for failed policies and collapsing economy and no actual long-term political or economic strategy;
  • Frame all political and economic discourse about independent Croatia, especially the Homeland War, in a negative context while simultaneously framing any discussions about Tito’s Yugoslavia in a positive, at a minimum, neutral context;
  • Demand Croatia “come to terms with its crimes” of the 1990s while savagely denouncing any suggestion of the same in regards to the Communists’ crimes during and after WWII, or that the Serbian community in Croatia do the same in regards to both the 1990s, WWII, and the first Yugoslavia;
  • Ridicule the very idea of lustration laws being passed; label it “nationalist” to nip it in the bud;
  • Do everything possible to drive a wedge between Croatia’s diaspora and the Homeland;
  • Demand that Croatia abide by every single UN, EU, or ICTY demand, no matter how idiotic or how much of a double-standard, especially when they negatively affect Croatia’s sovereignty, national interests, and national security while simultaneously using all means available in defending the CCP (KPH/Communist Party of Croatia) and UDBa Octopus (Yugoslav Secret Police) at the expense of diplomatic relations with Germany and the EU;
  • Criminalize the very thought of Herceg Bosna or any Croatian legal or political equality, economic freedom, local self rule, or even following the Dayton Agreement as was agreed upon, and always support Sarajevo’s line, or remain silent on the burning Croat question;
  • Push a pro-London, anti-Berlin and anti-Vienna policy – sign a strategic partnership with the one state that comes in second to Serbia only in terms of damaging Croatia politically and diplomatically (UK) once foreign subsidies and foreign subsidized (and facilitated in foreign media) propaganda bring you to power;
  • Ignore Central Europe, never speak of the Visegrad Four (Poland, Czech Republic, Slovakia and Hungary), and speak only of the “region” to Croatia’s south, not to its north, northeast or west – never even entertain the idea of making the Visegrad Four the Visegrad five, and never demand Serbia meet the same criteria and extra criteria Croatia had to fulfill for EU entry;
  • Accept money from anyone, including those “capitalist pig” governments who were supposed to submit to the superiority of Yugoslav Socialist Self-Management;
  • Denounce, decry and try to legally bar the right of Croatia’s Diaspora and Croats in Herceg Bosna to vote while not demanding the same for Croatian citizens of Serbian origin in RS (Serbian Republic) and Serbia, who do not pay Croatian taxes – organize bus transport for them to vote in Croatia;
  • Thwart any meaningful investment with bizarre regulations, a monstrous tax code, bureaucracy, and torpedo any business investment, including sweet-heart deals, at the strategic and state level through incompetence if they conflict with Anglo-American business or geopolitical interests (see the Qatar debacle).
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About the author: Ante Horvat was born in the USA in 1970′s. He has recently moved to live permanently in Croatia and although spending most of his life in the USA he had made several temporary residence visits to Croatia during that time. His education and professional development in history and international relations also spans across the two continents. He is an active observer of and participant in the development of democracy in Croatia since the early 1990’s and its correlation with the developed Western democracies.

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Part VI – The next installment will look the new and subtle English-language information warfare against Croatia, subsidized by allies no less.

 

 

Related Posts:

PART IV:  http://inavukic.com/2014/04/08/psychological-operations-and-information-warfare-against-croatia-and-croats-part-iv/
PART III: http://inavukic.com/2014/04/05/psychological-operations-and-information-warfare-against-croatia-and-croats-part-iii/
PART II: http://inavukic.com/2014/04/02/psychological-operations-and-information-warfare-against-croatia-and-croats-part-ii/
PART I: http://inavukic.com/2014/03/30/psychological-operations-and-information-warfare-against-croatia-and-croats-part-i/

Croatia Rejects Unequivocally The Hatred Originating Once Again From Serbia

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Croatian Member of EU Parliament Andrej Plenkovic Who tabled the critical EUP resolution  on the Serbian nationalist Vojislav Seselj

Croatian Member of EU Parliament
Andrej Plenkovic
Who tabled the critical EUP resolution
on the Serbian nationalist Vojislav Seselj

 

Significant moves outside Serbia have occurred since my last post on Vojislav Seselj on 23 November and his hate speeches that attempt justifying Serb war crimes across Croatia and Bosnia and Herzegovina in the early 1990’s. These significant moves do not include an inkling of condemnation of Seselj’s dangerously hateful public outbursts by Serbia’s government. If anything, Serbia’s government can be seen as condoning Seselj’s actions even though they try very hard to convince the world that Seselj has nothing to do with Serbia’s government but find no words to condemn the man and his disturbing ethnic hatred speeches. He continues, freely, with the same rhetoric he served upon Serbs in the early 1990’s, which served as fuel to the despicable atrocities and war crimes against Croats, Bosniaks and other non-Serbs in former Yugoslavia.

The European Parliament resolution on 27 November instigated by Croatian MEPs and backed by all the main political groups has slammed the recent activities of accused Serbian war criminal Vojislav Seselj.
The EP resolution – declaration – condemns “Seselj’s warmongering, incitement to hatred and encouragement of territorial claims and his attempts to derail Serbia from its European path” and adds that his rhetoric “has reopened the victims’ psychological wounds” from the war and the atrocities of the early 1990s.
The resolution also calls on the International Crime Tribunal for the former Yugoslavia (ICTY) to “take measures to re-examine the existence of requirements for provisional release under new circumstances.”

Seselj, the vicious madman of Serbia’s Greater Serbia political cauldron, responded to the EP declaration by saying that he would not return to The Hague voluntarily, stressing that he was very proud of the declaration adopted by the Croatian Parliament and the resolution passed by the European Parliament, especially because the latter was initiated by Croatian MEPs. Serbia’s government, of course, instead of condemning Seselj’s hate speech and sanctioning, or at least limiting, the content for any public speeches to be made by Seselj in order to curb hate speech that easily stirs many an ultranationalist into criminal activities has gone on the defensive without actually addressing the hate rhetoric stirring up unrest in Serbia, Croatia and Bosnia and Herzegovina as well as deep concern in most EU countries.
Serbia’s Prime Minister Aleksandar Vucic has tried to play down the significance of Seselj’s comments.
There is nothing in today’s Serbia that connects this government and Vojislav Seselj, about whom I don’t even want to talk,” Vucic said on Thursday.
Serbia’s Prime Minister Aleksandar Vucic said that the EUP declaration was offensive for Serbia as well as annoying and disappointing for its citizens!

Croatia’s Prime Minister said on Friday 28 November (source HRT TV news) he had scrapped a planned trip to Serbia next month due to Belgrade’s failure to distance itself from comments made by the Serbian ultra-nationalist Vojislav Seselj recently temporarily freed from a U.N. war crimes tribunal pending judgment.
Zoran Milanovic’s cancellation highlights a new chill in ties between Croatia and Serbia. To my view “closer” ties should not have been cemented without Serbia’s acknowledgement of the crucial part it played in the war crimes and aggression against Croatia and Bosnia and Herzegovina in the early 1990’s. But Serbia has a disturbing knack at playing the victim, when in fact it represents the perpetrator of aggression.

Seselj continues to be hailed in Serbia as a hero by many supporters. He has said he still believes in the ‘Greater Serbia’ ideology that fuelled the wars in Bosnia, Croatia and Kosovo two decades ago. It would seem he has solid support for this devastating disposition within Serbia’s government. The lack of Serbian government’s condemnation of Seselj’s rabble rousing can, to my view, only be interpreted as support for him.
Addressing the Serbian authorities, Milanovic added on Friday:
All I am asking is that you say ‘this (Seselj’s comments) is not good, this is evil and I am distancing myself from this’. For some reason this government won’t say that and in these circumstances it would be ridiculous for me to go there“.

While Croatia plans to bring the issue of Seselj’s temporary release from The Hague, pending judgment, to the UN Security Council in the coming days it’s most prudent to consider the view on the matter presented by Luka Misetic, the defense attorney in the ICTY case against Croatian general Ante Gotovina who was acquitted by the Tribunal of war crimes contained in the indictment against

Justice Requires that Seselj’s Judgment Be Delivered Orally First

After eleven years of trial, the ICTY owes a final judgment to the victims, to the many witnesses who took the risk to testify against Seselj, and to Seselj himself. The ICTY cannot simply sit back and hope that Seselj survives his liver cancer for another year and half, long enough for Judge Niang to become familiar with the evidence and to deliver a written Trial Judgment in 2016.

The Trial Chamber can possibly avoid this doomsday scenario of Seselj dying before judgment can be delivered. It can deliver the Judgment orally, without a written judgment, almost as soon as a majority of the judges agree on the ultimate issue of the guilt or innocence of Mr. Seselj. Rule 98(C) ter of the ICTY’s Rules of Procedure and Evidence states:

The judgement shall be rendered by a majority of the Judges. It shall be accompanied or followed as soon as possible by a reasoned opinion in writing, to which separate or dissenting opinions may be appended. [5]

The phrase ‘or followed as soon as possible’ clearly implies that the Trial Chamber has the power to deliver an oral Judgement first, if it is in the interests of justice to do so, and provide a written Judgement as soon as practicable thereafter. Indeed, this procedure was followed in Aleksovski, where the Judges of the Trial Chamber first delivered an oral Judgement after finding that “at this stage of their deliberations it is important to convene a hearing in the presence of the accused, the Prosecution and Defence counsel as quickly as possible so that they may pronounce their Judgment.

In explaining the Trial Chamber’s decision to pronounce Judgement orally, the Presiding Judge in Aleksovski stated as follows:

Your trial proper started before this Trial Chamber on January 6th, 1998, and ended on March 23rd, 1999. Since that date, my colleagues and I have been deliberating, assessing, and reviewing all the evidence, briefs, and written documents of the trial. The conclusions which we have reached have seemed of such a nature that they justify amply the fact that the hearing be organised in the shortest of delays, without waiting for the final judgement to be put down in writing. This judgement will be made public as early as possible, but the urgency seems to be such that we have not waited for the return of the senior trial attorney of this trial, Mr. Grant Niemann, to which I would like to pay homage. May he be made aware that we are very sorry that he is not present today for we have always been very pleased with his work. I would like to say the same for Mr. Mikulicic: We are very sorry not to see them here today.

The Aleksovski Trial Chamber sentenced the Accused to two years and six months imprisonment. However, because the Accused had already been in detention for a period of time longer than the imposed sentence, the Trial Chamber ordered his immediate release on 7 May 1999. The written Judgement was not delivered until 25 June 1999.

The Seselj Trial Chamber should follow the precedent of the Aleksovski Trial Chamber and use its powers under Rule 98(C) ter to deliver a judgment as soon as a majority has reached a decision. If Judges Antonetti and Lattanzi have already reached a majority decision even without Judge Niang’s vote, then nothing precludes them from rendering their oral decision right now, because Rule 98(C) ter expressly states that the Judgement shall be rendered ‘by a majority of the Judges,’ not necessarily by all of the Judges. They do not have to wait for Judge Niang if they have already reached a majority Judgment. Indeed, even if Judges Antonetti and Lattanzi have reached a majority Judgment on certain counts but not others, Rule 98 (C) ter does not prevent them from issuing a partial oral judgment on those counts.

If Judges Antonetti and Lattanzi are deadlocked and have differing judgments on Seselj’s guilt, then the proceedings indeed will have to wait for Judge Niang to complete his review of the evidence, begin deliberations, and cast his tiebreaking vote. Even under this scenario, however, the Trial Chamber should not wait for a written Judgement to be prepared before pronouncing on Seselj’s guilt. As soon as Judge Niang has cast his vote, the Trial Chamber should immediately schedule an oral Judgment (hopefully in the summer of 2015), and render its decision on guilt or innocence orally. If Seselj dies thereafter, the Trial Chamber will nevertheless retain jurisdiction to deliver the written Judgement explaining its already delivered oral Judgment.

The ICTY will have to utilize some creative thinking and little known rules (like Rule 98(C) ter) in order to avoid the situation where Seselj dies and no judgment is ever delivered. That result would render the Seselj case a complete farce. Seselj has already been allowed to turn the ICTY proceedings against him into a circus during his lifetime. He should not be allowed to cement that legacy by escaping judgment through his death.”

Victims’ groups and human rights activists in Bosnia and Herzegovina, Croatia as well as some in Serbia have throughout the past week issued statements approving of the EU Parliament’s resolution regarding Seselj’s inflammatory rhetoric. But all that seems futile, for at the root stands the fact that nothing human or humane moves Seselj or those who think like him. The added suffering victims of war crimes are forced to endure because of his latest spree of cruelty on the public stage in Serbia means nothing to him or to the Serbian government that chooses not to ban his public gatherings. Perhaps the UN Security Council will bring a dose of peace and humanity and cut Seselj’s hatred from spreading further. Let’s watch and wait to see what develops even if one did expect, albeit in futility, the current Serbian government to promptly nip in the bud the regurgitation of 1990’s ethnic hatred it used to occupy parts of Croatia and Bosnia and Herzegovina. Ina Vukic, Prof. (Zgb); B.A., M.A.Ps. (Syd)

The Joint “Criminal” Enterprise Against Judge Theodor Meron

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Judge Theodor Meron, President of International Criminal Tribunal for the Former Yugoslavia

Judge Theodor Meron, President of International Criminal Tribunal for the Former Yugoslavia

Reblogged from Misetic Law

The Joint “Criminal” Enterprise Against Judge Theodor Meron

The Inside Story of How Carl Bildt, Intelligence Agencies from the Nordic countries, Serge Brammertz, Florence Hartmann, Mirko Klarin And Others Are Connected to the “Controversy” Designed to Discredit the ICTY’s President, Judge Theodor Meron
By Luka Misetic
As controversy continues to engulf the ICTY as a result of Judge Fred Harhoff’s seemingly senseless email, over the past week I have been asked the same question repeatedly.  Journalists, former prosecutors, defense attorneys, friends and relatives have all asked me the exact same question:
“What is going on here?”
Allegations are flying, from the pages of the New York Times to the website of the BBC to the cafeteria inside the ICTY itself, that the ICTY’s President, Judge Theodor Meron, has been corrupted by the government of the United States.  Judge Fred Harhoff passed along these rumors to 56 of his “closest friends”, thus triggering the “controversy.”[1]  Of course, there has not been a single shred of evidence to support this claim.  Nevertheless, the “story” continues to be driven by several individuals, many with close connections to the Office of the Prosecutor of the ICTY.
This blog post is my attempt to begin to answer to that often repeated query: “What is going on here?”  As I will explain in great detail below, the interests of many with an agenda against Judge Meron and/or Ante Gotovina have aligned, including current and former members of the Office of the Prosecutor, foreign intelligence services who have/had operatives inside the Office of the Prosecutor, a number of journalists, and the government of Serbia, among others.  Their objective is to so thoroughly discredit Judge Meron that they will (1) force his removal as President of the ICTY; (2) discredit the acquittals of Gotovina, Markac, Perisic, and Jovica Stanisic and create such an unbearable political climate that the judges will somehow reverse their acquittals even after final Judgement, and (3) in the case of former Prosecution spokeswoman Florence Hartmann, discredit her conviction for contempt of the Tribunal (of which all eight judges of the ICTY who reviewed her case found her guilty, unanimously).
In short, I argue that we are witnessing a Joint “Criminal” Enterprise unfolding against Judge Meron (the “crime” in this case being his defamation).  The “common purpose” of the Meron JCE is to destroy Judge Meron’s reputation so as to discredit the acquittals of Gotovina, Markac, and Perisic.    ICTY precedent holds that such a JCE can exist even if the participants in it have never formally agreed to such a conspiracy, and indeed even if they do not know of each other’s existence.  (See Gotovina Trial Judgement, page 985).  What is important is that they all share the same goal: to discredit Theodor Meron.
I.               Introduction
To understand “what is going on here,” some basic facts about Operation Storm and the Gotovina case must be established at the outset. First point:  Judges Meron, Robinson and Guney got it right when they acquitted Gotovina.  Contrary to the Prosecution’s novel theory at trial, and Judge Orie’s Trial Judgement based on his invented “200 Meter Standard” (which all five Appeals Chamber judges agreed was erroneous), the Serbs from “Krajina” were not ethnically cleansed by an unlawful artillery assault launched by Ante Gotovina.
I do not intend to re-litigate the Gotovina trial here.  In summary, the Prosecution argued at trial that the Serbs were deported from Croatia because they were allegedly terrorized into leaving by Gotovina’s merciless artillery assault on civilians and civilian objects.  But if you ask Serge Brammertz today whether the Prosecution has ever been able to identify (1) a civilian killed or injured by artillery shelling during Operation Storm or (2) a civilian who claimed to have left the “Krajina” due to fear of artillery shelling, Brammertz will concede to you that they were never able to find any such person.  There are no known victims of the alleged unlawful artillery assault or of the so-called “Brioni JCE” led by Croatian President Franjo Tudjman.  Judges Meron, Robinson and Guney overturned a 24-year conviction of a man where the Prosecution could not establish a single JCE victim.  In any domestic jurisdiction, it would be Orie’s Trial Judgement and not the Appeals Chamber’s Judgement that would be deemed the controversial decision.  But for many at the ICTY, this is merely an inconvenient truth.[2]
Ironically, former Prosecution spokeswoman Florence Hartmann wrote a book in 1999 titled “”Milosevic: la diagonale du fou (Milosevic: Diagonal of a Madman),” in which she argued that the “Krajina” Serbs were cleansed by Milosevic, not Tudjman.  In a chapter titled the “Abandonment of Krajina,” the book details why the “Krajina” Serb population left Croatia during Operation Storm.  Hartmann, a journalist covering the war for Le Monde at the time of Operation Storm, asserted, “every refugee could confirm that the population had fled at the request of their own [Krajina Serb] leadership.” Further, she wrote that every soldier was a witness to the deliberate withdrawal of the Serbian military, the officers abandoning the night shift at the front and the retreat of heavy armor. She describes the whole process as the  “strategic abandonment” of ‘Krajina’ by Milosevic and the entire Serbian leadership.
Accordingly, even Hartmann knows that Judges Meron, Robinson and Guney were right to strike down the Trial Chamber’s finding that Gotovina deported the “Krajina” Serbs through unlawful shelling. Nevertheless, Hartmann is one of the principle members of the “Meron JCE,” attempting to undermine Judge Meron in an effort to discredit her own conviction for contempt of the Tribunal.
II.             The Role of Foreign Intelligence Services Inside the ICTY’s Office of the Prosecutor
In the early years of the Tribunal, the ICTY did not have the resources to hire its own staff in large numbers.  Therefore, many of the prosecutors, analysts and investigators working for OTP in the 1990’s were “on loan” to the ICTY from their own governments.   In her book, “Peace and Punishment,” Florence Hartmann reveals that some of the “on loan” personnel were really intelligence agents working more for their home governments than the ICTY.  On page 47 of the Croatian edition of the book, Hartmann describes certain members of the Prosecution staff:
Some barely know where the Balkans even is. They are hounding the Prosecution, the moving force of the Tribunal, whose judges have been subdued to the position of arbitrators between the Defense and the Prosecutors. Military analysts, lawyers and intelligence officers easily blend in the crowd continuing to occupy humble yet strategic positions and serving more to their own governments than the ICTY.
This background information leads us to two Nordic intelligence agents named Joakim Robertsson (Sweden) and Thomas Elfgren (Finland), who became ICTY Prosecution investigators and whose stories are interwoven into the Gotovina case and the recent “Meron JCE.”
III.           Carl Bildt and the Gotovina Case
Intelligence agencies from the Nordic countries became heavily involved in the Gotovina case in order to protect the reputation of Sweden’s top diplomat, Carl Bildt.
Within 9 hours of the commencement of Operation Storm, Bildt, then acting in his capacity as the European Union’s chief peace negotiator in ex-Yugoslavia, issued a press release in which he declared that because the Croatian Army had “shelled the civilian population” in the town of Knin, Croatian President Franjo Tudjman would be brought before the ICTY.[3]  Bildt was in London when he sent this release and had no first hand information to support the claim.
After the Croatian takeover of the “Krajina,” international journalists descended on the town of Knin in order to find the evidence of Bildt’s claim that the Croatians had “shelled the civilian population.”  The international press unanimously concluded that the allegation was false:  there was no evidence of any unlawful shelling.  Pulitzer prize winner Roy Gutman reported from Knin on August 7th, 1995, three days after Storm began:
At the United Nations base in Knin, UN officers chaffed at a continued curfew and restrictions on movements, but they acknowledged that the UN had overstated the damage to Knin during the height of fighting. The UN commander, Brigadier-General Alain Forand of Canada had said that there had been no direct hits on Knin’s hospital. Reporters saw … large craters from shells that shattered most of the windows in a nearby apartment house but there was no evidence of indiscriminate shelling.[4]
Similarly, the New York Times reported:
The town does not appear to have been as badly damaged as reports of the shelling over the past few days would have suggested. For one thing, the hospital was not shelled, as had been reported. Only one shell hit the modern hospital building, and the Croats appeared to be aiming at a rebel Serbian tank firing from nearby, a United Nations official who had been at the hospital said today. “I don’t think they were shelling us,” said the official, who spoke on condition of anonymity. In three passes over the town by helicopter, little evidence was seen of the kind of damage that extensive shelling would cause. The red tile roofs on most houses are intact. The only gutted building was the Roman Catholic Church, which served the Catholic Croats, and the Serbs, who are Orthodox, did that during their occupation.[5]
Finally, United Nations Military Observers conducted their own investigation into the shelling of Knin.  On 17 August 1995, they reported that the shelling had been “concentrated against military objectives,” and that only 3 to 5 shells could be found outside the vicinity of military objectives.[6]
Accordingly, the United Nations and the international media had both investigated Bildt’s claims that Tudjman’s forces had “shelled the civilian population,” and concluded that they were unsubstantiated.
In reaction to Bildt’s call for Tudjman to be indicted by the ICTY, Croatia declared Bildt to be persona non grata in Croatia.[7]  Bosnia-Herzegovina quickly followed suit.[8]
Bildt thus found himself in the role of the EU’s top peace envoy but unable to travel to Croatia or be received by Bosnia-Herzegovina officials due to his status as persona non grata.  Bildt acknowledges this in his memoirs, even recounting that Croatia had refused his plane landing rights at the airport in Split as a result of the dispute.[9]  With Bildt and the E.U. on the sidelines, Richard Holbrooke took over as the primary international negotiator with the parties in ex-Yugoslavia and ultimately became the architect of the Dayton Peace Accords.
IV.           Nordic Intelligence To Bildt’s Rescue:  Robertsson and Elfgren Join the ICTY to Investigate Tudjman and Storm
When Operation Storm began on 4 August 1995, Joakim Robertsson was a Swedish military intelligence officer stationed in Zagreb as part of the United Nations Protection Force (UNPROFOR). [10]   Three weeks later, while Bildt was persona non grata in Croatia, Robertsson was sent by Sweden from Zagreb to the ICTY to be the ICTY Prosecution’s lead investigator into the shelling conducted in Operation Storm. Within weeks, Robertsson was joined by Thomas Elfgren, an agent with Finland’s National Bureau of Investigation who was loaned to the ICTY as an “Expert on Mission” to assist Robertsson in the Prosecution’s “investigation” of Operation Storm.[11]
The task given to Robertsson and Elfgren was simple.  They were to build the case that Bildt’s allegations against Tudjman were true by proving that the Croatian Army had indiscriminately shelled civilians, at Tudjman’s direction and on Gotovina’s orders.  Robertsson and Elfgren stopped at nothing to vindicate Bildt by making sure that Tudjman and his generals would be indicted for the alleged unlawful shelling of Knin.   Robertsson went so far as to fabricate evidence in the Gotovina case, and should have been criminally prosecuted for obstruction of justice.  (For a full discussion of Robertsson’s fabrication of evidence, see http://icr.icty.org/LegalRef/CMSDocStore/Public/English/Response/NotIndexable/IT-06-90/MSC7260R0000280559.pdf).
V.             Elfgren and Robertsson Leaked Information to the New York Times in 1999 Alleging Gotovina Indictment Was Rejected Due to U.S. Conspiracy
Elfgren and Robertsson failed to convince their colleagues in the Office of the Prosecutor that the shelling of Knin was unlawful.  The Prosecution in 1998 held an Indictment Review and concluded that the evidence was insufficient to include a charge of unlawful shelling in any indictment for Operation Storm.  This should not have come as a surprise given that (1) the United Nations investigation in the immediate aftermath of Storm confirmed the lawfulness of the shelling; (2) on site investigations by international media including the New York Times confirmed the same; and (3) the Prosecution could never identify a single shelling victim.
Having failed to fulfill the mission with respect to Bildt, Elfgren and Robertsson concluded that the failure of their case was not because of the lack of evidence, but because of a conspiracy led by the United States government to impede the investigation of Operation Storm.  Elfgren leaked an internal Prosecution assessment to the New York Times, spinning that the U.S. was blocking the Operation Storm investigation.[12]
Prosecutor Louise Arbour responded to the leak by stating that the Prosecution would conduct an internal investigation to determine the source of the leak.[13] Arbour’s investigation ultimately concluded that Elfgren was the source of the 1999 leak to the New York Times, which Elfgren himself confirmed to me via email recently.
Elfgren and Robertsson never had any evidence that the United States was blocking an indictment for the use of artillery in Operation Storm.   There was no charge for unlawful shelling because there was no evidence of unlawful shelling.  Indeed, even when the Prosecution ultimately indicted Gotovina in 2001, it did not include a charge that the Krajina Serbs were ethnically cleansed due to unlawful shelling.  Instead, the Prosecution charged that the Krajina Serbs were deported because the crimes committed after Operation Storm had prevented their return.[14]  It was not until 2006, after Gotovina’s arrest that the Prosecution first charged that the Serbs had been ethnically cleansed from Croatia due to the shelling attack.
VI.           Elfgren and Robertsson Attack Judge Meron
Elfgren and Robertsson left the ICTY before the judgements in the Gotovina case were issued.  After the Appeals Chamber’s acquittal of Generals Gotovina and Markac in November 2012, Prosecutor Serge Brammertz travelled to Helsinki, Finland where he appeared on a panel discussion with Elfgren on 22 January 2013 at Helsinki University.[15]  In his speech addressing Brammertz, Elfgren once again complained that Gotovina had been protected by the United States:
One could argue, with a fairly good reasoning, that the ICTY, at the very outset, failed to fulfill its intended purpose. The Tribunal posed no threat to the perpetrators. The Srebrenica massacre, also known as the Srebrenica genocide serves as an example. The widespread killings and forced displacement of the Krajina Serbs in August 1995 is just another one. Many more could be mentioned…
Criminal justice system professionals have their focus on technically perfect decisions. Too often they pay too little attention on the material truth and the importance of reconciliation. Truth and reconciliation should be on top of the agenda when peace and security is at stake.
In 1995, in the corridors of the ICTY, there were influential elements who knew that no crimes were committed by the Croats during Operation Storm. My question is, how could they know this?
Mr. Prosecutor, you did your utmost to prove the opposite, but you failed. The appeals chamber, in its recent decision shared the view with those who already had the answer in 1995. [16]
Elfgren and Robertsson did not stop with this speech in January 2013.  Instead, as they had done in 1999 in leaking to the New York Times, the two began their campaign to discredit Gotovina’s acquittal by acting as anonymous sources to Helsinki’s leading newspaper, Helsingin Sanomat.  One would not typically look to the Helsingin Sanomat for hard-hitting investigative journalism about the inner-workings of the ICTY in The Hague, but Elfgren turned to his local paper first.
On 14 April 2013, Helsingin Sanomat published a sensationalist piece claiming that the United States had influenced the Tribunal into acquitting Gotovina.[17]  Having participated in the Gotovina case and thus having had access to all confidential materials in the case, I can state with certainty that the article in Helsingin Sanomat was filled with outright lies that are intended to create the perception that the United States attempted to influence the ICTY in the Operation Storm case.  For example, the article claims that the CIA withheld satellite imagery concerning Operation Storm in an effort to protect Gotovina, despite U.S. denials that such imagery exists.  The author of the article reports that his sources (read: Elfgren and Robertsson) dispute the U.S. denial because “the investigators had previously received one satellite picture from the Canadian Colonel Leslie, which he had been given by the Americans. “ Leslie never produced such a picture and never claimed to have such a picture.  If he had, I as Gotovina’s Defence Counsel would know.
The article goes on to claim that my fellow Gotovina Defence Counsel, Greg Kehoe, “opposed” the investigation of Gotovina back during the time when he worked for the ICTY Prosecution.  This is an outright lie.  The Gotovina Trial Chamber thoroughly investigated whether Greg had a conflict of interest, reviewed all of the Prosecution’s internal memoranda, and concluded that Greg had no involvement in the Operation Storm case.[18]  Given that Greg was prosecuting a Croatian general (Blaskic) during his time at the ICTY, it is preposterous to suggest that he was secretly protecting one Croatian general (Gotovina) while successfully prosecuting another (Blaskic). Remarkably, the article mentions that the lawyer who prosecuted Gotovina, Alan Tieger, is also an American, suggesting that Tieger is somehow complicit in the U.S. conspiracy to protect Gotovina.
Interestingly, the Helsingin Sanomat article ghost written by Elfgren and Robertsson is the first to attack Judge Meron on the basis of Wikileaks cables from 2003.  Sanomat suggests that Judge Meron spoke to the U.S. Ambassador in 2003 in an effort to get rid of Carla Del Ponte in 2003 because she had indicted Gotovina.  Two months later in June 2013, other members of the “Meron JCE” have recycled the Wikileaks cables as new “news”[19] in an effort to discredit Judge Meron following a leaked email written by, guess who?
The ICTY’s lone Nordic Judge, the Scandinavian Judge Frederik Harhoff of Denmark.
End of Part I

Coming up in Part II, I will describe the roles of Florence Hartmann and Mirko Klarin of Sense News Agency in the Meron JCE, and how and why Serge Brammertz is knowingly using the members of the Meron JCE in an effort to topple the ICTY’s President.

[1] For my deconstruction of Harhoff’s email, see my earlier blog post:  Debunking Fred Harhoff’s Outrageous Email, http://miseticlaw.blogspot.com/2013/06/debunking-fred-harhoffs-outrageous-email.html
[2] For further discussion on why the Appeals Chamber was correct to acquit Gotovina, see my earlier blog post here: http://miseticlaw.blogspot.com/2012/12/dissenting-from-dissenting-opinions-of.html
[4] Newsday, In Krajina, Disorder Reigns, (8 August 1995).
[5] New York Times, “Croats Celebrate Capturing Capital of Serbian Rebels”(8 August 1995).
[9] Carl Bildt, Peace Journey, pages 75-80.
[10] See paragraph 4 and Annexes A and B here:  http://icr.icty.org/LegalRef/CMSDocStore/Public/English/Submission/NotIndexable/IT-06-90/MSC7260R0000280212.pdf . See also Robertsson’s LinkedIn Profile here: http://fr.linkedin.com/pub/joakim-robertsson/4/3b0/879.  Note that Robertsson on his LinkedIn CV has left out the year from September 1995 to August 1996, and claims to have only worked for OTP from September 1996 to September 1997.  In fact, Robertsson worked for OTP from September 1995 to September 1997.  See, e.g., Trial Exhibit P-214 at page 1: http://icr.icty.org/LegalRef/CMSDocStore/Public/English/Exhibit/NotIndexable/IT-06-90/ACE81081R0000320324.TIF.
[11] See Trial Exhibit P-721, demonstrating Elfgren’s status at ICTY as of December 1995: http://icr.icty.org/LegalRef/CMSDocStore/Public/English/Exhibit/NotIndexable/IT-06-90/ACE81779R0000321386.TIF
[12] New York Times, War Crimes Panel Finds Croat Troops Cleansed the Serbs, 21 March 1999, as found at http://www.nytimes.com/1999/03/21/world/war-crimes-panel-finds-croat-troops-cleansed-the-serbs.html?pagewanted=all&src=pm
[14] See Gotovina 2001 Indictment, at paragraphs 19-20; Gotovina 2004 Amended Indictment, at paragraphs 23-24 and 36-37.

[19] See Agence France-Presse, Wikileaks Cables Support Criticism of ICTY Judge, 18 June 2013, as found at http://www.globalpost.com/dispatch/news/afp/130618/wikileaks-cables-support-criticism-icty-judge

 

Luka Misetic    Photo: Darko Tomas/Cropix

Luka Misetic Photo: Darko Tomas/Cropix

About Luka Misetic: Lawyer, based in the United States of America. Luka Misetic represents clients in state, federal and international litigation, including commercial, civil, white-collar criminal and international criminal cases. In business litigation, Mr. Misetic represents corporations and partnerships, as well as their directors, officers and partners in breach of contract and fiduciary duty claims, regulatory matters, trade secrets claims, fraud and negligence suits, and a variety of other claims. Mr. Misetic represented Croatian General Ante Gotovina before the International Criminal Tribunal for the former Yugoslavia in The Hague, The Netherlands

 

Croatia: Luka Misetic Responds As Serb Denials Of Crimes Take New Form

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Luka Misetic Photo: Davor Puklavec/PIXSELL

Luka Misetic
Photo: Davor Puklavec/PIXSELL

Well, July was a disquieting month for justice at the UN Security Council. Serbia’s lobby with Russia had resulted in Russia’s veto on the British instigated motion to call the 1995 Srebrenica massacres genocide! And so, the verdicts delivered by the UN Security Council appointed International Criminal Tribunal for Former Yugoslavia (ICTY) officially became as valuable and as respected as a veto of one member state of the Security Council is worth! Denials can take one far these days, it seems!

In line with the appalling Serb denials of genocide and the horrendous crimes they committed in the aggression against Croatia and Bosnia and Herzegovina during 1990’s it was to be expected that Croatian Serbs and their wicked supporters were going to stage some outrageous display of denials ahead of the 20th Anniversary of Operation Storm that liberated Croatia from Serb occupation and aggression in August of 1995; just as they did with the 20th commemoration of Srebrenica genocide in July.

And so, it came – the ugly beast of denials, political corruption, lies and attempts to pervert the truth in the form of launching an interactive narrative named “Storm in the Hague” (webpage)! Those responsible for this launch on Friday 31 July 2015 in Zagreb, Croatia, are the Documenta association in Croatia (an organisation supposedly dealing with confronting the truth of history but in reality twists that history to promote bias and lies against Croatia), the Serbian National Council (led by Milorad Pupovac) and, as I and multitudes see it, the ultimately biased and politically corrupt SENSE Agency – Centre for transitional justice.

The ICTY concluded the following: 1.     There was no Joint Criminal Enterprise from the Croatian side.  2.     Krajina Serbs were not deported from Croatia by the Croatian  authorities but left Croatia out of other reasons  not associated with any Croatian officials'  illegal behaviour;  3.     Not only that the Croatian authorities did not permit crimes  against  Serbs and Serbs' property,  but they were actively  against those crimes;    4.   It's confirmed that 20,000 houses were not burned  after Operation Storm. The number is probably closer to 5,000,  and that, in both Sectors, North and South.      5.     The judgment has found that a total of 44 civilians  were killed by the Croatian forces, not 320 as the Prosecution claimed,  not 600 as HHO claimed and  especially not 2,000 as claimed by „Veritas“ i Savo Strbac. 6.     There were no politics of non-investigation of crimes by the Croatian  authorities.  7.     The housing laws after Operation Storm were not  in a collision with the international humanitarian law.

The ICTY concluded the following:
1. There was no Joint Criminal Enterprise from the Croatian side.
2. Krajina Serbs were not deported from Croatia by the Croatian
authorities but left Croatia out of other reasons
not associated with any Croatian officials’
illegal behaviour;
3. Not only that the Croatian authorities did not permit crimes
against
Serbs and Serbs’ property,
but they were actively
against those crimes;
4. It’s confirmed that 20,000 houses were not burned
after Operation Storm. The number is probably closer to 5,000,
and that, in both Sectors, North and South.
5. The judgment has found that a total of 44 civilians
were killed by the Croatian forces, not 320 as the Prosecution claimed,
not 600 as HHO claimed and
especially not 2,000 as claimed by „Veritas“ i Savo Strbac.
6. There were no politics of non-investigation of crimes by the Croatian
authorities.
7. The housing laws after Operation Storm were not
in a collision with the international humanitarian law.

Many in Croatia and abroad consider (rightfully) that the interactive narrative “Storm in the Hague” is an attempt to belittle and nullify the ICTY Appeal Chamber verdict of 16 November 2012 in the case of Croatian Generals Ante Gotovina and Mladen Markac, which had found that as far as the Croatian war efforts were concerned there was no Joint Criminal Enterprise, no excessive artillery shelling and no ethnic cleansing of Serbs.

I would think that the saddest thing about this twisting of the final verdict in the International Criminal Tribunal for Former Yugoslavia (ICTY) to suit the Serb denials of crimes and their aggression is that the Croatian taxpayers fund to a large extent the work of these organisations that twist the truth

Mr Luka Misetic, Ante Gotovina’s US based defense lawyer at the ICTY trial promptly addressed on his blog and in the Croatian media concerning and disquieting aspects of this launch of the interactive narrative “Storm in the Hague”. I have translated into the English language Mr Misetic’s address and here it is:

 

Today (31st July), in Croatia, there was a SENSE Agency and Serbian National Council launch of the presentation “Storm in the Hague”. As it was to be expected the presentation purposefully covers up that which the Hague Tribunal found in its judgments in the case of Gotovina (Ante Gotovina, Croatian General).

HOW DID THE HAGUE TRIBUNAL ANSWER TO ALL THESE QUESTIONS?
1. Were Serbs deported from Croatia?
2. Did the Croatian authorities purposefully permit crimes such as murders, plunder and arson in order to deny the Serbs the possibility of returning to Croatia?
3. Were there more than 20,000 homes burned after Storm in the Southern part of the liberated territory?
4. Did the Croatian forces kill more than 600 Serbs during and after Operation Storm?
5. Did the Croatian judicial authorities and the police practice the politics of non-investigation of crimes?
6. Have illegally discriminatory housing laws been introduced?
7. Finally, did the Joint Criminal Enterprise exist in Croatia?

1. WERE SERBS DEPORTED FROM CROATIA?

Firstly, we need to correct some misunderstandings regarding the Trial Chamber judgment in which General Gotovina received a 24 year prison sentence. The Tribunal had concluded that Krajina Serbs were deported ONLY from 4 towns: Knin, Benkovac, Obrovac and Gracac. So, only from those four places.

The Tribunal had concluded that Serb civilians from all other places in the so-called Krajina had left Croatia out of other reasons not associated with any illegal treatmen by the Croatian authorities. Those legal reasons for leaving were:
• “Serbian Republic of Krajina” officials had called upon the population to leave the areas (Trial Chamber judgment paragraph 1762);
• The fear of aggression usually associated with armed conflict (Trial Chamber judgment paragraph 1762);
• Generalised fear from the Croatian forces and disstrust in Croatian authorities (Trial Chamber judgment paragraph 1762); and
• The fact that other Serbs were leaving had caused the effect of some civilians deciding to leave with them (Trial Chamber judgment paragraph 1754, 1762).

Hence, the Hague Tribunal had even in its Trial Chamber judgment found that a huge majority of Serb population from the so-called Krajina had left Croatia out of its own reasons, and that the Croatian authorities were not responsible for that. Only the four said towns were questionable for the Trial Chamber.
2. DID THE CROATIAN AUTHORITIES PERMIT CRIMES:

The Trial Chamber had explicitly rejected the claims that the Croatian authorities had purposefully permitted crimes such as arson, plunder and killings in order to deny the Serbs the possibility of return:

2321. The Trial Chamber found that the common objective of the so-called Criminal enterprise did not amount to, or involve the commission of the crimes of persecution (disappearances of people, wanton destruction, plunder, murder, inhumane acts, cruel treatment, and unlawful detentions), destruction of property, plunder, murder, inhumane acts, and cruel treatment.

Moreover, the Court tribunal did not only find that Croatia did not permit such crimes, but it also found that the Croatian leadership had actively opposed the perpetration of such criminal acts:

2313. However, the evidence, in particular the statements made at meetings and in public reviewed in chapters 6.2.2-6.2.5, does not
indicate that members of the Croatian political and military leadership intended that property inhabited or owned by Krajina Serbs should be destroyed or plundered. Further, it does not indicate that these acts were initiated or supported by members of the leadership. 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.

3. Were 20,000 homes burned in the South Sector?

This claim was thoroughly discredited at the hearing. This hypothesis, which has constantly been repeated in the past 15 years, is based upon wrong claims made in the 1999 report by the HHO (Croatian Helsinki Committee) on Operation Storm in which HHO claimed that the Canadian General Alain Forand, UN forces chief commander based in Knin, stated that 22,000 houses were burned in the South Sector. The reality is that Forand stated that a total of 22,000 houses in South Sector were inspected, and not that they were burned. The truth regarding the number of burned houses in the liberated area is most likely closer to the report by the UN General Secretary in December 1995: about 5,000 of houses and stables in Sectors North and South were burned after Operation Storm.
4. Did the Croatian forces kill 600 civilians during and after Operation Storm?

This also is a usual claim perpetuated all the time in the media. However, the Prosecution had claimed that about 320 civilians were killed in Sector South, and not 600. The Trial Chamber had found that out of these 320, 44 were killed by members of the Croatian armed forces. The number of Serb civilians killed by Croatian forces is closer to 44 than 600.

5. Did the Croatian judicial authorities and police practice the politics of non-investigation of crimes?

The Court Tribunal had rejected this allegation, which is being repeated in the media all the time, even today, and, after the Appeal decision. In paragraph 2203 of its judgment the Trial Chamber found the following:

The evidence reviewed indicates that some investigatory efforts were made, but with relatively few results. Moreover, there are
indications in the evidence that at the political level, these efforts were motivated at least in part by a concern for Croatia’s international standing rather than by genuine concern for victims. 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.
These are the main findings of the Trial Chamber. As we all know, some parts of this judgment have remained disputable given that General Gotovina was sentenced to 24 years (and General Markac to 18) due to Trial Chamber’s conclusion that General Gotovina had executed illegal artillery attacks against the towns of Knin, Benkovac, Obrovac and Gracac.

That’s why we needed to wait for the final verdict by the Appeals Chamber regarding the disputed matters left from the Trial Chamber judgment, and that final judgment arrived on 16 November 2012. (Acquitting the Croatian generals of all charges).

Appeals Chamber verdict

6 and 7. Joint Criminal Enterprise and housing laws

There was no Joint Criminal Enterprise on the Croatian side. The Appeal Chamber had quashed Trial Chamber judgment on that count, concluding that the Krajina Serbs were not deported from Knin, Benkovac, Obrovac and Gracac, and with that, the Croatian authorities did not deport the Krajina Serbs nor did the Joint Criminal Enterprise involving the Croatian leadership, especially Franjo Tudjman, Gojko Susak, Zvonimir Cervenko, Ante Gotovina, Jure Radic and Mladen Markac – exist.

Furthermore, after the Appeal Chamber verdict, it can be concluded that the Croatian leadership did not pass discriminatory housing laws after Operation Storm (see firstly the Government regulation and then the Temporary assumption and administration of certain property Act/Government Gazette NN 073/1995). That is, the Trial Chamber had found that those housing laws were in breach of the international law as they were introduced after the Serbs from Knin, Benkovac, Obrovac and Gracac were deported from Croatia. However, given that the Appeals Chamber had quashed the finding that the Serbs were displaced, that is deported, the conclusion that housing laws passed after Operation Storm were in contravention of the international humanitarian law must also be quashed.

 

Croatia's Capital Zagreb  Prepares For The 20 Anniversary Of Operation Storm and Liberation From Serb Occupation Military Parade and Celebrations of Independence to be held 4th August 2015 Photo: FAH

Croatia’s Capital Zagreb
Prepares For The 20 Anniversary
Of Operation Storm and
Liberation From Serb Occupation
Military Parade and Celebrations of Independence
to be held 4th August 2015
Photo: FAH

 

TO SUMMARISE

The ICTY concluded the following:

1. There was no Joint Criminal Enterprise from the Croatian side.

2. Krajina Serbs were not deported from Croatia by the Croatian authorities but left Croatia out of other reasons not associated with any Croatian officials’ illegal behaviour;

3. Not only that the Croatian authorities did not permit crimes against Serbs and Serbs’ property, but they were actively against those crimes;

4. It’s confirmed that 20,000 houses were not burned after Operation Storm. The number is probably closer to 5,000, and that, in both Sectors, North and South.

5. The judgment has found that a total of 44 civilians were killed by the Croatian forces, not 320 as the Prosecution claimed, not 600 as HHO claimed and especially not 2,000 as claimed by „Veritas“ i Savo Strbac.

6. There were no politics of non-investigation of crimes by the Croatian authorities.

7. The housing laws after Operation Storm were not in a collision with the international humanitarian law.”

Written and Translated from the Croatian language by Ina Vukic, Prof. (Zgb), B.A., M.A.Ps. (Syd)

Hague Appeals Chamber Reverses Trial Conclusion Against Croatia’s Leaders

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From left: General Janko Bobetko, Presidentof Croatia Franjo Tudjman, Croatia's Defence Minister Gojko Susak Croatia - early 1990's Photo: Cropix/Goran Sebelic

From left: General Janko Bobetko,
President of Croatia Franjo Tudjman,
Croatia’s Defence Minister Gojko Susak
Croatia – early 1990’s
Photo: Cropix/Goran Sebelic

 

The Hague Tribunal ICTY rejected Monday 18 July 2016 the request of the Republic of Croatian to join the appeal case against the six former Bosnia and Herzegovina Croatian senior officials from the 1990’s Herceg-Bosna part of Bosnia and Herzegovina. Jadranko Prlic, Bruno Stojic, Slobodan Praljak, Milivoj Petkovic, Valentin Coric and Berislav Pusic. As farcical as the findings were seen by many, the ICTY Trial Chamber did find May 2013 the six men guilty for crimes against humanity and war crimes committed in Bosnia and Herzegovina from 1992 to 1994 and pronounced a total of 111 years imprisonment.

 

Presiding judge last week, Judge Carmel Agius delivered the Appeal Chamber’s decision denying Croatia’s application to appear as amicus curiae (friend of the court) in the above six men’s appeal proceedings to dispute the Trial Chamber’s conclusions that the six accused participated in a Joint Criminal Enterprise (JCE) and that three Croatia’s officials – first Croatian President Franjo Tudjman, former foreign minister Gojko Susak and Croatian army general Janko Bobetko – were members of that JCE (Joint Criminal Enterprise).

 

Croatian’s application claimed that the 2013 Trial Chamber verdict violated the right of presumption of innocence under the European Convention on Human Rights of the three Croatian official’s – Tudjman, Susak and Bobetko, who were all deceased at the time ; that the three Croatian officials were innocent of allegation that they were members of JCE and that the Trial chamber’s conclusion is tantamount to “posthumous conviction”.

Six Croats from Herceg-Bosna at ICTY in The Hague, 2013 Photo: ICTY

Six Croats from
Herceg-Bosna
at ICTY in The Hague, 2013
Photo: ICTY

 

The Appeals Chamber rejected Croatia’s application saying it would not assist the Appeals Chamber in its considerations of questions in issue at the appeal.

However, an unexpected bonus arrived from this application – the Appeal judges articulated their assessment that the original Trial Chamber findings that included conclusion regarding Croatia’s Franjo Tudjman, Gojko Susak and Janko Bobetko do not and cannot amount to a guilty verdict against these three Croatian officials (Full PDF version here):

“…the Appeals Chamber emphasises that findings of criminal responsibility made in a case before the Tribunal are binding only on the accused in a specific case. In this regard, Appeals Chamber observes that the Three Croatian Officials were not indicted or charged in the present case. Furthermore, the Trial Chamber made no explicit findings concerning their participation in the JCE and did not find them guilty of any crimes. Chamber considers that the Trial Chamber’s findings regarding the mere existence and membership of the lCE do not – and cannot – constitute findings of criminal responsibility on the part of any persons who were not charged and convicted in this case. Thus, the Trial Judgment is binding only on the Six Accused, and the presumption of innocence of the Three Croatian Officials is not impacted. The Appeals Chamber further observes that the Tribunal’s jurisdiction is restricted to “natural persons” and the Tribunal does not have the competency to make findings on state responsibility. Accordingly, the Appeals Chamber emphasises 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 Appeals Chamber therefore finds Croatia’s submissions to be without merit and dismisses them.”

Luka Misetic Photo: Darko Tomas/Cropix

Luka Misetic Photo: Darko Tomas/Cropix

The Appeals Chamber has essentially reversed the findings of the Prlic Trial Chamber about Tudjman, Susak 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 Susak 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 Susak’ 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,” says the US based, well-known attorney Luka Misetic.

This decision at the ICTY Appeals Chamber blows right out of the water the wild and evil claims that Croatia’s plan at the time was to create a Greater Croatia by joining to it the territory of Bosnia and Herzegovina known as Herceg-Bosna and, hence, concluded that Croatia’s leaders were members of the JCE that was to achieve this goal. The Hague Prosecution did accuse the Six Croats of participating in a joint criminal enterprise that was intended to “permanently remove and ethnically cleanse Bosnian Muslims and other non-Croats” from the territory of the newly-established Herceg-Bosna, which they wanted to attach to a planned “Greater Croatia”. Now that the Appeal Chambers have found last week that Croatian leaders were not members of that JCE as Trial Chamber maintained it would stand to reason and truth that any Greater Croatia could not be created without Croatia. Appeal Chamber’s decision with regard to the Herceg-Bosna Six Croats is expected around November 2017. Given that many have considered the 2013 Trial Chamber verdict against them a farce and an utterly unfair and unjust, one awaits the outcome of the appeal with intense interest as it could turn the tides towards actual justice and truth and point to a different picture of the conflict between the Croats and Muslims in 1990’s in Bosnia and Herzegovina than the one painted by the ICTY Trial Chamber verdict. We can only pray for now. Ina Vukic, Prof. (Zgb); B.A., M.A.Ps. (Syd)

Croatian Operation Storm 1995 and the Serb Self-imposed Exodus From Croatia

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  In honour of the 25th Anniversary of the Croatian August 1995 Operation Storm that within a matter of days liberated much of its Serb occupied territory I would like to share with the public and my readers the documentary film in the English language that clearly, verifiably and with absolute and irrefutable truth demonstrates […]
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