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Sljivancanin's Lawyers to Challenge Appeals Judgement

They say they’re working with Serbian authorities to question legality of ruling.
By Simon Jennings
Lawyers representing a former Yugoslav People’s Army, JNA, officer whose sentence was more than tripled on appeal this month, say they are working closely with the government of Serbia to establish the validity of the judges’ decision.

“We are working in close cooperation with the government [of Serbia] and it is our understanding that they are eager to determine the legality of the judgement,” Canadian lawyer, Stephane Bourgon who has represented Veselin Sljivancanin in his trial at the International Criminal Tribunal for the former Yugoslavia, ICTY, told IWPR.

On May 5, appeals judges at the court in The Hague overturned an acquittal by trial judges and convicted Veselin Sljivancanin of aiding and abetting the murder of 194 Croat and other non-Serb prisoners of war at a farm in Ovcara following the fall of the Croatian town of Vukovar to Serb forces in November 1991.

However, because the murder conviction was delivered by the appeals chamber – the highest judicial authority at the ICTY – Sljivancanin has no right to appeal that conviction. By being denied such an opportunity, Sljivancanin’s lawyers say that his basic rights as a defendant have been compromised.

The lawyers say the appeals chamber judgement and the extended jail term were “imposed in violation of his [Sljivancanin’s] fundamental rights”, citing the United Nations-endorsed human rights treaty, the International Covenant on Civil and Political Rights, ICCPR.

Article 14 of the ICCPR, which was established in 1966, states that “everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law”.

“It simply cannot be that the Appeals Chamber of the ICTY can issue any decision without any possibility of review in any situation,” said Sljivancanin’s lawyers, in a recent statement.

According to Bourgon, the Serbian government is “very eager” to determine whether the judgement is legal because it is in contradiction with article 14 of the ICCPR treaty which Serbia itself is a party to.

Sljivancanin was originally sentenced to five years in prison on September 27, 2007, after being found guilty of aiding and abetting the torture of the prisoners by Serb forces, but was acquitted of murder by trial judges. However, on May 5, the appeals chamber ruled by a majority of three judges to two that he was responsible for the murder of the prisoners of war and sentenced him to 17 years behind bars.

While trial judges ruled that Sljivancanin could not be held legally responsible for the murder of the prisoners of war because at the time of their killing he was no longer responsible for their security, appeals judges reached a different legal conclusion that, as a JNA officer, he still had the power to act to prevent the killings.

Assessing the facts of the case, the appeals judges further concluded that Sljivancanin had been informed by his commander and co-defendant Mile Mrksic that JNA protection afforded to the prisoners of war had been withdrawn and he was therefore aware that local Serb forces at Ovcara would likely kill them.

“The only reasonable inference is that upon learning of the order to withdraw the troops, Mr Sljivancanin realised that the killing of the prisoners of war at Ovcara had become a likely occurrence,” said Judge Theodor Meron, delivering the verdict.

“Mr Sljivancanin must have also realised that, given his responsibility for the prisoners of war, if he failed to take action to ensure the continued protection of prisoners of war, he would be assisting the [Serb forces] and paramilitaries to carry out the murders.”

The mass slaughter at a pig farm in Ovcara after the three-month siege of Vukovar by Serb forces has come to be seen as one of the most brutal crimes of the war in the former Yugoslavia. Prisoners of war were beaten for hours on end in the run up to their deaths and then buried in a nearby mass grave.

The decision to convict the defendant following his acquittal for the same charge of aiding and abetting murder at trial was a bitter blow for him and his defence team, particularly as he had almost completed his original five-year prison sentence.

Sljivancanin’s lawyers’ argument that their client has been deprived of his right to appeal the murder conviction has been the subject of much scrutiny since the appeals judgement was delivered, as it is the same view adopted by one of the judges in the appeals chamber that, by majority, overturned Sljivancanin’s acquittal on murder charges.

Judge Fausto Pocar, the former president of the ICTY, voted against convicting Sljivancanin of murder for the very reason that he would not have any rightful avenue to appeal that conviction.

“Such findings are now destined to remain unchallenged, in clear violation of Sljivancanin's right to appeal against convictions,” noted the judge, in his dissenting opinion annexed to the May 5 judgement.

“I do not believe that the Appeals Chamber has the power to remedy an error of the Trial Chamber by subsequently entering new or more serious convictions on appeal,” said Judge Pocar, citing article 14 of the ICCPR.

“The right to appeal convictions, not excluding convictions entered for the first time on appeal, should be granted to an accused before the International Tribunal.”

He argued that appeals judges should instead have sent the case back to the trial chamber to assess the evidence and decide whether Sljivancanin was guilty of aiding and abetting the murders – a move which would have left the defendant with an opportunity to appeal the subsequent ruling.

He also suggested that appeals judges lacked some of the information necessary to hand down such a conviction.

“The Appeals Chamber enters a conviction based on the trial record without having observed the witness testimony or the presentation of evidence, factors which may be particularly important in assessing witness credibility,” added the judge, in his dissenting opinion.

However, the other appeals judges did not share the opinion of Judge Pocar – who has made similar arguments in previous judgements at the tribunal – and decided the acquittal should be overturned.

Their decision has raised questions from international lawyers about whether international tribunals – which exist to uphold human rights on a global scale – should be bound by such standards, which grant an accused the right to appeal a conviction.

“There’s an irony here,” Professor Gregory Gordon, Director of the Center for Human Rights and Genocide Studies at the University of North Dakota told IWPR.

“What are we prosecuting here? We are prosecuting human rights violations and the ICTY is an institution serving [those interests]. I think that is a problem.”

Gordon said that the fact that the appeals judges’ verdict against Sljivancanin will go unchallenged does not sit well within the justice process.

“When we know that an appellate court has made a factual finding that can’t be reviewed, that’s the final word, there’s the sense that we want to make sure we got it right – that’s built into the system – that has been taken away,” said Gordon.

Gordon said the right to appeal a conviction, which Sljivancanin has been denied, is consistent with the other fundamental rights granted to a defendant by the court’s trial procedure, and warned against restricting this.

“We are going to be in grave danger if we limit that right to appeal because the entire logic of the system demands it,” he said.

“It goes hand in glove with the burden of proof, with the fact that there’s a presumption of innocence [of a defendant], [and] the fact that we need to be certain beyond reasonable doubt that we have somebody who has committed the crimes which are being alleged.”

Asked for the court’s reaction to the concerns raised by Judge Pocar in his dissenting opinion, court spokeswoman Nerma Jelacic said the judgement was “welcomed as another step towards the completion of [the court’s] mandate”.

“In that sense, it is a step forward,” said Jelacic.

Meanwhile, John Jones, a British barrister who has represented defendants at the court, pointed out that the ICTY is not bound by the ICCPR.

“So it's not strictly right to say that the ICTY cannot as a matter of law convict for the first time on appeal. You may say that the ICTY should not do so, however, there are also arguments the other way,” he told IWPR.

Jones noted that although it is initiated and monitored by the UN, the covenant applies to judicial procedures of states rather than an international court set up to try alleged war criminals, such as the ICTY.

“The ICCPR is for domestic courts in times of peace, whereas the ICTY was created by the UN Security Council to deal with an extraordinary situation – namely a threat to international peace and security – and to deal with terrible crimes such as were committed in Vukovar,” he said.

However, Judge Pocar argued that as an institution operating under the umbrella of the UN, which initiated the ICCPR, the ICTY should operate according to its standards.

“The International Tribunal is an organ of the United Nations, the General Assembly of which unanimously approved the ICCPR. As a direct expression of the very same international organisation which instigated and unanimously endorsed the ICCPR, the International Tribunal is not entitled to avoid the application of the principles enshrined therein,” wrote the judge.

However, others point out that unlike the ICCPR, the European Convention on Human Rights does not state that a defendant must be able to appeal his or her conviction.

"Under the European Convention, there is no right to an appeal,” said Michiel Pestman, a lawyer with the Amsterdam firm Bohler Franken Koppe Wijngaarden.

He said that Sljivancanin’s rights had been respected, “[Sljivancanin] had a right to appeal. He had two instances [a trial and an appeal] and that’s it.”

Judges in past trials at the tribunal have addressed this issue of whether the court should be bound by international human rights conventions.

Judge Mohamed Shahabuddeen argued against Judge Pocar’s position in the case of Stanislav Galic who, in November 2006, had his prison sentence for terror and killing inflicted during the siege of Sarajevo increased from 20 years to a life term on appeal.

Judge Pocar said at the time that the case should be sent back to the trial chamber for sentencing, because it not only has the responsibility to decide on an appropriate jail term based on all the evidence heard during the case, but also would have allowed Galic the right to appeal the new sentence in a higher court.

But Judge Shahabuddeen argued that while the spirit of human rights covenants should be extended to the tribunal, it’s inappropriate to try and apply them to the letter.

“Internationally recognised human rights instruments were made by states for states. The Tribunal is not a state and is not party to those instruments,” Shahabuddeen wrote in a separate opinion annexed to the Galic appeals judgement.

“It is right that the principles of international human rights instruments are extended to the Tribunal, but the extension has to be interpreted as itself authorising appropriate allowances to be made to reflect the differences between the Tribunal and a state.”

Goran Sluiter, a professor of international law at Amsterdam University, acknowledged that there were arguments against the tribunal applying the ICCPR.

He reiterated that the European Convention on Human Rights doesn’t provide this right to appeal a conviction, and also noted that states have the right to formally set aside article 14 of the ICCPR.

“There is a substantive argument to say that this [right to appeal a conviction] is a part of the covenant, but it is not a core element of human rights law because there is other human rights law that is more flexible and there are many reservations to the provision,” said Sluiter.

However, he argued that because the ICCPR has been adopted in international case law by the appeals chamber at the ICTY’s sister court, the International Criminal Tribunal for Rwanda, the Hague court should abide by it.

As noted by Judge Pocar in the Sljivancinin appeals verdict, the appeals chamber in the case of Jean Bosco Barayagwiza – who was convicted in 2007 of instigating the 1994 Rwandan genocide – stated, “The International Covenant on Civil and Political Rights is part of general international law and is applied on that basis.”

The appeals chamber also noted on that occasion that the European Convention on Human Rights and the American Convention on Human Rights were only a “persuasive authority which may be of assistance in applying and interpreting the Tribunal’s applicable law”.

According to this judgement, Sluiter believes “the [ICCPR] covenant is applicable to the tribunal as a general international law and it should be followed. So it’s not very convincing to say ‘Well, we don’t follow it.’”

Sljivancanin's lawyers have expressed deep concern that their client was denied the chance to have his case sent back to the trial chamber for further consideration by judges.

They say this may have been as a result of pressure felt by judges to honour the court’s completion strategy, as set out by the UN, under which its scheduled mandate is set to expire in 2010.

“Considering the time required for a new trial, the Appeals Chamber appears to have given priority to the Tribunal’s exit strategy over the fundamental right of Veselin Sljivancanin to have his new conviction reviewed by a higher tribunal according to law,” said Sljivancanin's lawyers.

Jelacic declined to comment on the suggestion – also made by Judge Pocar in the judgement – that time constraints influenced the appeals judges’ ruling.

The Association of Defence Counsel, an independent organisation of lawyers defending indictees before the ICTY, has also expressed its “serious concern” that Sljivancanin's case was not sent back to the trial chamber for sentencing.

This was a “previous well-founded practice” of the appeals chamber when reversing an acquittal delivered by the trial chamber, it said.

“As a United Nations judicial institution and subsidiary organ of the Security Council, the ICTY must set the example and apply the highest standard of human rights,” it said, referring to Judge Pocar’s views annexed to the appeals judgement.

Other lawyers have also supported the argument adopted by Judge Pocar.

Alex Whiting, a former prosecutor at the ICTY, argued that there is “an overall reluctance” for appeals judges at the tribunal to send cases back to trial judges for a review of the evidence.

Whiting points to a similar scenario in the recent appeals chamber judgement in the case of former Bosnian Serb parliament speaker, Momcilo Krajisnik. Krajisnik had a number of his more serious convictions overturned on March 17, 2009, when appeals judges declined to send the case back to trial judges to determine certain factual findings in the case.

“The Appeals Chamber considers that it is not in the interests of justice to remit the case for further proceedings,” ruled judges on that occasion, before delivering the acquittals based on a lack of concrete conclusions available to them from the trial judgement.

In that instance, it was the prosecution that had its convictions overturned on appeal due, in part, to a lack of factual findings made in the trial judgement.

“In the Krajisnik case and this [Sljivancanin] case, you see a reluctance to send the case back to the trial chamber and it’s something I don’t understand. I think it’s a mistake,” said Whiting.

Whiting said there was a strong case for sending back the case to trial judges in the Sljivancanin proceedings.

“To do so, would allow the defendant to have the right of appeal of the judgement... and ensure that the ICTY procedure were in line with the international instruments [such as the ICCPR],” he said.

“I think the [Sljivancanin] defence still has a valid objection here. But, similarly, I think the prosecution has a valid objection in the Krajisnik case.”

Although sitting on the appeals panel in the Krajisnik case, Judge Pocar did not raise the same issue, seemingly because the rights of the defendant were not in question.

According to Whiting, the path followed by the appeals chamber in the Sljivancanin case is problematic because it is the trial judges who have heard all the evidence and listened to witnesses at trial, yet the appeals judges are making a finding on the facts of the case.

“I think it’s unfortunate because I think the trial chamber has a superior grasp of the facts and I don’t think the appeals chamber should try to wade in [with its own interpretation],” he said.

In this instance, sending the case back to the trial chamber may have led to the same conclusion but that procedure should, nonetheless, have been followed, said Whiting.

“There is a principle involved here and the trial chamber does have the intimate familiarity with the facts that the appeals chamber just does not have. I think, across the board, the appeals chamber should be more inclined to send it back to the trial chamber for those kinds of findings,” he said.

Meanwhile, Sljivancanin’s lawyers said that they hope to exercise their right – provided for under the tribunal’s rules – to ask for a review of the case following the emergence of fresh evidence which could lead judges to a different conclusion from this month’s appeals verdict.

“Since the delivery of the appeals judgement, we have received numerous calls from persons who have provided us with information both unknown as well [as] unavailable to this day,” said lawyers representing Sljivancanin.

Bourgon and his colleague Novak Lukic say the evidence they have received “tends to confirm that Veselin Sljivancanin was in no way informed by Mile Mrksic of the withdrawal of the Yugoslav army troops on the night of November 20, 1991”.

It was on the basis of the finding that Sljivancanin was informed of this withdrawal and did nothing to stop it that the appeals chamber convicted him for responsibility for the murder of the 194 prisoners of war left unprotected when the JNA troops redeployed

The lawyers said they had received potentially strong evidence for their case, without elaborating.

“We are meeting with a number of potential witnesses and people who have come forward and what I can say is there is more interest than we could ever imagine towards providing us with information,” Bourgon told IWPR.

“The lead source we are talking about at this stage, we can say it appears to be very credible.”

Simon Jennings is an IWPR reporter in The Hague

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