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Tribunal Questions Croatia's Impartiality

Croatia fails in its attempts to appear as a neutral “friend of the court” in cases in which it has been implicated.
By Goran Jungvirth
Judges sitting in the case against six Bosnian Croat officials this week rejected Croatia’s request to appear as amicus curiae, or “friend of the court”, because they were not convinced it would act as a neutral party in the trial.

They also said such an intervention would not serve justice, but Croatia’s own interests.

In the decision issued on October 11, the trial chamber states that “it is not in the interest of justice to authorize a state whose political and military leaders are mentioned in the indictment as members of a joint criminal enterprise, to intervene in the procedure”.

The judges added that matters Croatia wanted to raise are “essentially factual”, while, according to the tribunal’s rules, amicus submissions must be limited to the questions of law, and “may not include factual evidence relating to the elements of a crime charged”.

Rule 74 of the tribunal’s rules of procedure and evidence which govern amicus curiae submissions says that if the chamber “considers it desirable for the proper determination of the case, [it may] invite or grant leave to a state, organization or person to appear before it and make submissions on any issue specified by the chamber”.

Six Bosnian Croat officials, Jadranko Prlic, Bruno Stojic, Slobodan Praljak, Milivoj Petkovic, Valentin Coric and Berislav Pusic are charged with war crimes and crimes against humanity, which include the persecution, imprisonment and expulsion of Muslims in southeastern Bosnia during the 1992-1994 Muslim-Croat clashes, which were part of a wider Bosnian war.

According to the indictment, they were members of a joint criminal enterprise “to politically and militarily subjugate, permanently remove and ethnically cleanse Bosnian Muslims” in the Croat-held territories in Bosnia, and to join these areas to the existing Croatian state as part of a “Greater Croatia”.

The indictment also alleges that Croatia’s wartime president Franjo Tudjman, who died in 1999, was the driving force behind a plan to create a Greater Croatia, that would embrace a self-proclaimed Croat republic in Bosnia led by the six men.

All six Bosnian Croats also have Croatian citizenship, and on those grounds have repeatedly requested Croatia’s assistance in their defence. But until last month, help coming from Zagreb was very limited.

On September 18 this year, the Croatian government applied to appear as amicus curiae in this case, in order to “offer assistance to the tribunal in the interpretation of historical and political facts and the determination of the truth” about Croatia’s role in the events covered by the indictment.

On the same day and for the same reasons, Croatia also applied to assist in the trial of the three Croatian army generals - Ante Gotovina, Ivan Cermak and Mladen Markac - charged with war crimes allegedly committed during Croatian military’s Operation Storm, which was launched in 1995 to reclaim the Serb-held Krajina region.

In the indictment against these three generals, Croatia’s political and military wartime leaders – including Tudjman and former defence minister Gojko Susak - were also mentioned as members of a joint criminal enterprise, whose objective was “the permanent removal of the Serb population from the Krajina region” by force and persecution.

The judges haven’t ruled yet on Croatia’s wish to assist in this trial, which is due to start next year.

Shortly after Zagreb filed these requests, Croatia’s prime minister Ivo Sanader said Zagreb decided to make this move because it could neither agree with nor accept claims from both indictments about the alleged criminal enterprise involving Croatia’s political and military leadership in the early Nineties.

“In our capacity as a friend of the court, we are going to challenge all that is unacceptable to us,” Sanader told the local media.

By launching the two requests simultaneously, the government says it has also proved it is not discriminating between the six accused Bosnian Croats and Croatian citizens who stand trial in The Hague.

“The Croatian government is helping them in the same way it is helping citizens of the Republic of Croatia charged with the crimes that took place in Croatia,” the government said in a written statement issued shortly after the amicus curiae applications were made.

The government is also keen to convince the court that there was no criminal enterprise in either case.

However, apart from the fact that these two cases both implicate Croatia’s wartime leadership in war crimes, they have very little in common.

While Gotovina, Markac and Cermak are still seen by a majority in Croatia as wartime heroes, with the state willing to financially support their defence, its attitude towards the Bosnian Croat officials charged with war crimes in Bosnia is somewhat ambiguous.

It’s easy to understand why Croatia would strive to prove that Operation Storm was a legitimate military operation, whose aim was not to expel thousands of Serbs from Krajina, but to regain the territory which was under Serb control since 1992.

The amicus curiae motion in this case, submitted by Croatian justice minsiter Ana Lovrin, states that Operation Storm “was undertaken in accordance with international law, relevant resolutions of the UN Security Council and General Assembly, and in accordance with the efforts of the international community to restrain the military offensives of the Serb army and prepare peace negotiations”.

However, explaining Croatia’s involvement in the Muslim-Croat war in Bosnia in the early Nineties is not that simple and could be quite tricky. Therefore, Croatia’s official position in the trial against the six Bosnian Croat officials had to be decided upon very carefully.

This case has long been regarded as a political hot potato in Croatia. Some observers say that assisting the defence of the leaders of the self-proclaimed Bosnian Croat entity, Herzeg Bosnia, would mean admitting Croatia was actively involved in military operations in neighboring Bosnia – something the government has been very careful to avoid.

Others say not participating in their defence would mean the government is washing its hands of the events that blackened Croatia’s reputation during the war.

But despite high hopes raised among Bosnian Croats after Croatia’s amicus request, Zagreb quickly tried to play this new development down.

Croatia’s ministry of justice informed IWPR that “this request doesn’t mean the state’s attitude towards the six Bosnian Croat officials has changed in any way”

“It is clear from our request to participate as amicus curiae in the case against Jadranko Prlic and others that our government has been and will continue to help the defence with providing them with required documents and material relevant to their case.”

But the defence teams of the six accused did not appear to be too impressed with this latest government move.

Vesna Alaburic, the defence lawyer for General Milivoj Petkovic, one of the Bosnian Croat defendants, says the request for amicus curiae was “good, but late”, because the trial has already started.

She is adamant Croatia discriminated against her client and other defendants in this case when compared to its attitude towards Gotovina, Cermak and Markac. She claims this is apparent from “financing the defence to public statements” related to these trials.

Alaburic didn’t even expect the government’s request for amicus curiae in her case to be granted, but expressed hope that her team could use the expert help offered by Croatia in making the analysis of the situation on the ground at the time relevant to the indictment.

On the other hand, the defence for Gotovina appeared to be much more optimistic about the assistance Croatia could provide in this case as a friend of the court.

In his written submission to the court earlier this week, Gotovina’s lawyer Luka Misetic said that both the tribunal and Croatia have a common interest – to establish correct historical facts, and that would harm neither the prosecution nor the defence in the Gotovina case.

But Misetic was also eager to point out at that “although the interests of Croatia and [Gotovina’s] defence are similar in many aspects, the defence team in this case are not lawyers for Croatia”.

The prosecutors have vigorously opposed Zagreb’s request to appear as amicus curiae in any of these cases. In its brief filed soon after Zagreb offered its assistance to the court, the prosecution said the issues it wanted to cover were “too broad, unspecified and irrelevant”.

They added that Croatia hasn’t proved that it was impartial enough, to an extent that would satisfy the chamber that its intervention would be of use in adjudicating the case.

According to the local media in Croatia, in order to support this claim, the prosecutors submitted “a highly-confidential intelligence report” by the National Security Bureau from July 1998, which was addressed to Tudjman. This report allegedly contains instructions to the lawyers defending Croat indictees in The Hague that their work “must not jeopardise the interests of the Republic of Croatia”, nor interests of other Croat indictees.

The prosecution also believes that Croatia's request is not an expression of its wish to establish the truth, but is more a consequence of Zagreb's concern about possible financial and political repercussions for Croatia, such as, for instance, damages applications.

Although the tribunal has decided to reject Croatia’s assistance in the trial of the six Bosnian Croats, there is still some hope – however slim - that the answer in the Gotovina, Cermak and Markac case might be positive. However, observers say Croatia’s earlier behaviour when it comes to its own citizens indicted by the tribunal hasn’t exactly helped.

President of the Helsinki Committee in Croatia Zarko Puhovski says Croatia’s government discredited itself as amicus curiae by taking a political, rather than a legal position towards the accused Croats.

“The government lost its credibility because it didn’t allow the possibility that any of the accused Croats were guilty of war crimes. In the end, it’s obvious the government is acting more as a friend of the accused, than a friend of the court,” he told IWPR.

He says that the difference between two requests is that Zagreb wants to become amicus curiae for Cermak, Markac and Gotovina in order to score internal political points. On the other hand, he adds, a request for providing assistance in the case of Prlic and others is quite reasonable, because here Croatia has to explain its involvement in military operations in Bosnia during the war. And that, he says, is more important for the state’s international image.

However, with the trial chamber’s decision to turn down the amicus curiae request in the case of Prlic and others, Croatia might not get another opportunity to shed some light on the events in Bosnia soon.

Goran Jungvirth is an IWPR contributor and Merdijana Sadovic is IWPR’s Hague programme manager.

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