Sljivancanin Turns to Serbia for Help

Defence counsel this week called for Serbia to intervene before the appeals chamber at the Hague tribunal to enforce a war criminal’s right to have his murder conviction and 17-year prison sentence reviewed by a higher tribunal.



In a letter to Serbia president Boris Tadic, the defence counsel of Veselin Sljivancanin, a former officer in the Yugoslav People’s Army, JNA, asserted that Serbia ratified Article 14(5) of the International Covenant on Civil and Political Rights, ICCPR, which provides that an individual has the right to have their conviction and sentence reviewed by a higher tribunal.



Serbia has a “legal obligation to ensure that the rights of its nationals, protected by the ICCPR, are respected and enforced at all times”, the defence wrote.



The letter, which IWPR has seen, followed a motion for reconsideration filed by the defence on November 13, asking the appeals chamber to reconsider its judgement that quashed Sljivancanin’s murder acquittal and five-year sentence by the trial chamber in 2007.



According to the motion, the appeals chamber’s judgement in May led to an injustice, as the circumstances under which the chamber found Sljivancanin guilty - for aiding and abetting by omission the murder of Croat and non-Serb prisoners - were not explored by the trial chamber, prosecution or defence during the trial.



“The injustice resulting from Sljivancanin’s conviction cannot be allowed to stand,” Stéphane Bourgon, one of Sljivancanin’s lawyers, told a press on November 13. “It’s a matter of legacy for the [Hague tribunal], and it’s a matter of authority on international criminal justice as a whole.”



On September 27, 2007, the tribunal found Sljivancanin guilty of aiding and abetting the torture of prisoners of war following the fall of Vukovar, a Croatian town, to Serb forces in November 1991. However, the former army commander was acquitted of aiding and abetting, by omission, the murder of 194 Croat and non-Serb prisoners being held at a farm in Ovcara.



The appeals chamber reversed the latter decision on May 5, 2009, concluding that Mile Mrksic, a JNA commander, informed Sljivancanin that military protection would be withdrawn from the prisoners of war - so Sljivancanin, in turn, must have been aware that the prisoners would be vulnerable to local Serbian forces, and should be held legally responsible for the murders.



According to the defence’s motion, Sljivancanin would have had a right of appeal had he been tried for the same alleged crimes in his native Serbia, even if a second instance court – the appeals chamber – had reversed a judgement of acquittal rendered by a first instance court.



“For Veselin Sljivancanin to have less rights because he was tried before an international tribunal - which was designed to and is supposed to set the example for the States of the former Yugoslavia - is simply unacceptable,” the defence wrote in its letter to President Tadic.



The defence requested that Serbia submit an application to the appeals chamber at the Hague tribunal in order to appear as amicus curiae, friend of the court, and make submissions regarding Sljivancanin’s right of appeal. They are also calling for representatives from the United Nations Security Council to intervene in the proceedings.



Under the statute of the Hague tribunal, Sljivancanin will not be able to challenge the appeal, as the appeals chamber acts as the highest judicial authority at the court. The tribunal allows for a right of review, but not for a second right of appeal through the reconsideration of a final judgement, the defence motion states.



According to the motion, however, the tribunal’s jurisprudence requires that it honour the internationally recognised standards regarding rights of the accused. Therefore, the appeals chamber cannot find Sljivancanin guilty for the count of murder without providing reasons for departing from rights protected by Article 14(5) of the ICCPR to have both conviction and sentence reviewed by a higher court, the motion adds.



“The [Hague tribunal] should set the example and operate at the highest norms of justice,” Bourgon said. “They should respect that standard [of the ICCPR] and give Sljivancanin an opportunity to appeal that judgement.”



Bourgon said that Judge Fausto Pocar, one of two dissenting judges at the Sljivancanin ruling in May, argued that the appeals chamber did not have the power to remedy an error that had been committed by the trial chamber by overruling an acquittal and entering a new, more serious conviction on appeal.



Sljivancanin is not seeking a second appeal in “the guise of a request for reconsideration”, the motion states. Sljivancanin was not convicted for murder by the trial chamber, Bourgon said, and therefore deserves the right to a “first appeal” of the new sentence by the appeals chamber.



“Even if the appeals chamber was to conclude that they did have power to enter a conviction on appeal, this power cannot be exercised if it leads to an injustice,” Bourgon said.



Bourgon argued that the appeals chamber based its murder conviction on findings that were presented during the appeal trial for the first time in the case.



The appeals chamber concluded that Mrksic told Sljivancanin that he issued an order to withdraw protection of the prisoners, and that Sljivancanin was aware that Serbian paramilitaries would be likely to kill the prisoners of war in Vukovar, the motion states.



Acting on facts that were not explored by the trial chamber, the motion argues, underscores the unfairness of Sljivancanin’s conviction for the murder count and the injustice of the judgement.



“[Sljivancanin] was never given an opportunity to challenge these findings. That was a violation of due process,” Bourgon said.



Bourgon said the Sljivancanin defence was asking for an appeal before an entirely different composition of appeals judges, or a new trial on the aiding and abetting charge.



“Who convicted him?” Bourgon asked. “It’s a conviction that was done [by the appeals chamber] acting as a trial chamber. No evidence, no findings, it did not call any witnesses. All of this was done operating as a trial chamber. If that’s a trial chamber, I want my right of appeal.”



Julia Hawes is an IWPR reporter in The Hague.