I greatly appreciate that many colleagues and interested persons have taken the time to comment on my recent post: General Slobodan Praljak’s honorable defiance. One comment in particular, posted by “John Doe”, warrants a response. Below the comment is reproduced, followed by my response.
Comment from John Doe
The author expresses the view that the Prlić et al. trial was “a parody, a charade, theater of the absurd disguised as a trial. Everyone who was at the ICTY saw it.” (emphasis added) While it is the author’s right to criticise the proceedings, even in such strong terms, I believe this is a colourful exaggeration. The claim that “everyone […] saw it”, moreover, is wildly inaccurate: to the best of my knowledge, the author’s view is not shared by all – or even the majority of the people who have a legal background and some knowledge of that trial. Criminal defence, however, can become a very personal matter for an attorney (even though probably it shouldn’t). It would be unrealistic, in my view, to expect someone who has dedicated 12 years of his life to that trial and to his client to be completely objective about it. There is no such thing as a neutral standpoint. The position of an observer always inevitably affects how she sees the events unfolding before her. A number of Mr Karnavas’ observations in this post are, however, difficult to disagree with. Let’s start with the trial bench: International criminal tribunals have always been – and still are – plagued by the political nature of the judges’ selection process. Like all appointments of political nature in international organisations, quality, experience, and merit are not always the guiding stars followed in that process. One of the judges on the Prlić bench had no previous experience in national or international criminal proceedings. None whatsoever. He was, in fact, a diplomat. This choice is inconceivable in a criminal trial of such importance and magnitude, and may not have been inconsequential to the accused’s right to receive a fair trial. This was also not an isolated case at the ICTY, with many judges having only been law professors before being called to manage complex multi-accused trials at the ICTY. Appropriately, the ICTY Statute requires lead counsel to possess 10 years’ experience in criminal law to be granted right of audience before a Chamber (seven years for co-counsel). It’s thus difficult to understand why the drafters of the Statute deemed it appropriate for a jurist without any criminal trial experience to decide of the fate of the accused in these maxi trials. The other two judges in the Prlić case, however, did have experience, and while Mr Karnavas may not have liked them, this may have something to do with Mr Karnavas’ expectations as a lawyer trained in a purely adversarial setting rather than with the judges’ ability to properly manage the trial and deliver a just verdict. The Mladić diaries: This piece of evidence was discovered quite late into the proceedings. Their apparent probative value was clearly appealing to the Trial Chamber. Mr Karnavas states that their admission at the prosecution’s request, and the denial of the defence’s request to tender their own excerpts of the diaries sacrificed fairness on the altar of expeditiousness. However, in assessing the actual prejudice created by this decision, one needs to consider that the Trial Chamber at the ICTY is not only the “referee” of the proceedings, but also the trier of fact. If the Chamber decided not to admit additional parts of the diaries, it did so after looking at their prima facie relevance and probative value. It’s thus unlikely that, if admitted, those excerpts would have changed the Trial Chamber’s mind on the facts to which the diaries related. More troublesome is the Chamber’s denial of the request to hear General Praljak’s testimony on the content of the diaries. The suggestion that Praljak’s counsel could have addressed the issue in her closing arguments (I will take the author’s word for the accuracy of this account) was blatantly offensive to the fundamental principles of evidence, and considering the Chamber’s reliance on the diaries to establish Praljak’s responsibility through JCE, this decision may have caused actual prejudice to the accused. Unlike with the diaries’ excerpts, which the Chamber had the opportunity to read before denying their admission, the Chamber could not have assessed the value of General Praljak’s testimony before actually hearing it. Provisional release: Imposing house arrest on someone who had voluntarily surrendered, behaved exemplarily while in detention and during trial, and for whom the Croatian government had vouched, was wrong and in plain contradiction with the principle of presumption of innocence, which was evidently sacrificed on the altar of public perception. Essentially, that choice was punitive in nature, rather than dictated by the need to avoid the accused’s flight, reiteration of a crime, or other legitimate reasons. Unfortunately, this is something which we see way too frequently in both national and international jurisdictions. Finally, the glaring bias of the majority of ICTY’s outreach has always been baffling to a lot of observers familiar with the basic principles of criminal justice. Aside from the narratives pointed out by Mr Karnavas, outreach materials included leaflets of metal handcuffs printed beside ligatures found on victims of executions buried in mass graves. They were disseminated throughout the building and provided to visitors before they entered the courtroom’s public gallery. The message they conveyed was simply incompatible with the principle of presumption of innocence. The same type of outreach would be unfathomable in a national court in relation to ongoing trials, and rightly so. These pictures made groups of visiting national criminal lawyers extremely puzzled and uncomfortable. I believe complaints were lodged by the Association of Defence Counsel practicing before the ICTY, but to no avail. One of the reasons behind this type of outreach might be that international courts such as the ICTY are created not only to assess criminal responsibility, but also for educational and reconciliation purposes. The way in which to achieve these objectives is generally left to the discretion of media experts, not criminal law experts. The lack of proper judicial oversight over such activities is most regrettable for a plethora of reasons, including the fact that reconciliation itself is jeopardised if part of the public sees bias in the way the court operates. It is not my intention to take position on the overall fairness of the Prlić et al. trial, nor do I intend to speculate on the reasons behind the choice of General Praljak. I agree with Mr Karnavas, however, that the fact that he only had two or three years left to serve before regaining his freedom cannot be overlooked when trying to make sense of what happened.
Response from Michael G. Karnavas
Thank you for your comment. A few points of clarification.
- I do not know whether you witnessed the trial proceedings in Prlić et al., but if you had, you could not have missed just how chaotic it was at times. The record speaks of the countless of silly and mindless interventions from the judges, their constant unnecessary interruptions, inane comments, and petty disputes with the defence and among the judges themselves. You need not take my word; the video coverage proves it – as does the record, some of which is not available to the public.
- Your claim that I have gilded the lily by saying “everyone … saw it” rightly deserves qualification; it may be too categorical of a statement. I fully admit that I am vested in the case, careful pointing this out in my post. Take whatever I say with a ton of salt, but before jumping to any conclusions that these judges provided the accused in Prlić et al. a fair trial, I invite you to read and analyze the record, the exhibits, and our appeal briefs.
- If two of the judges were as experienced as you would have me believe, then how is it that they could not adjust themselves to the adopted procedure? Yes, two of the judges had judicial experience, but was it relevant experience? Is being on a commission relevant experience? And why should I not have expected the judges to be at least familiar with the adversarial procedure when the ICTY proceedings took place in an adversarial setting? Is calling cross-examination by the defence “a game” something you would expect to hear from an experienced judge who is sitting on a case where the proceedings are adversarial? (see here 19735) In any event, I maintain, as subjective as I may be, that all three judges were not up to the task in this case – which at times was a free-for-all.
- ladić Diaries, as I noted, my intention was not to relitigate the matter, but since you raise the point, the Presiding Judge thought that 38 out of 40 entries and documents suggested by the Prlić Defence should be admitted. And here is the kicker: the Presiding Judge made specific findings1 in a very transparent manner – as expected of a judge – on why the proffered material was relevant or not relevant. The other two judges, who visibly expressed contempt for the defence and in particular General Praljak throughout the trial, summarily rejected it entirely without reasoning. Here again, you need not take my word, this issue was argued repeatedly before the Trial Chamber (see here, here, here, here, and here)2 and also in Ground 5 of Dr. Prlić’s Appeal Brief. The fact one of the judges considered that the proffered material by the Prlić Defence was exculpatory (and thus having relevance and probity), should have been enough to have it admitted, even if the other two judges had pre-judged it as unpersuasive to their presumed outcome. You seemed to have omitted or disregarded from your claims of the judges as referees and gatekeepers of the evidence the fact that the threshold for the admissibility of evidence at the ICTY is very low – even newspaper articles with no bylines have been admitted as evidence. So, forgive me if I find this claim of yours unpersuasive.
- As for the outrageous outreach posters you rightly discuss, these affect all accused before the ICTY, which is why I did not mention them. And you are right that there have been complaints about these posters. As president of the ADC-ICTY, and even after, I repeatedly complained about the prejudicial nature of the posters and requested their removal. But this is an aside. My point was that in outreach material and on the official ICTY website, there was a narrative clairvoyantly validating the prosecution’s narrative in its indictment. This is not just prejudicial (as in how the posters are prejudicial), but it is a pre-judgment of the legal and factual issues that the Trial Chamber was supposed to determine based on the evidence at the conclusion of the trial proceedings. The Trial Chamber had not yet heard the evidence on what was paraded around as the “facts” of what happened in the conflict: who did what to whom, what was the intended purpose of certain acts, and so on. Put differently, the trial was nothing short of a self-fulfilling prophecy – which is why I maintain that the die had been cast for these accused even before the first witness was heard.
- General Praljak repeatedly said during the trial that he would accept whatever sentence meted out to him, if he had a full and robust opportunity to challenge the evidence against him, if he had a full and fair opportunity to put forward his evidence, if the evidence was fairly and properly considered, and if the judgment fairly and properly reflected the evidence admitted in the proceedings.
- My account may seem to you (and others not doubt) colorful and exaggerated, but I can assure you as day follows night, you would be screaming bloody murder if you were in the dock, effectively facing a death-in-prison sentence, or the possibility of being labeled a war criminal for the rest of your life.
- I may not be neutral, but to the extent I claim that the Trial Chamber ignored the defence evidence, our Appeal Brief provides page and line numbers of the over 52,000-page record, and references to the Trial Judgment and relevant exhibits. As I noted, we provided the needles not the haystack – both to the Trial and Appeals Chambers in our Final Brief and appeal submissions. And it is not as if either Chamber was pressed for time (or did not take their time), or had a lack of resources.
- Since there is no third instance of review at the ICTY – a serious structural flaw that exists in other international(ized) criminal tribunals and courts – there is no way to seek corrective remedies for errors that may have been committed by the Appeals Chamber.
In any event, anything said now by a defense counsel in this case, as I am doing, invariably is seen as hyperbolic exaggerations of the sour grape variety. I am nonetheless heartened to see that you at least acknowledge some of the systemic problems at the ICTY and in the Prlić et al. proceedings.
The very sad truth is that when considering the efforts and resources that went into the Prlić et al. case, there is no reason why it had to be tried in the way it was by an underqualified (and in my opinion result-oriented) bench. Maybe if the trial had been conducted in a fair manner with a different bench, irrespective of the outcome, General Slobodan Praljak might still be with us and within reach of the warm embrace of his family and friend.
Thank you again for your comment.
- Prosecutor v. Prlić et al., IT-04-74-T, Dissenting Opinion of Presiding Judge Jean-Claude Antonetti on the Decision on Jadranko Prlić’s Motion to Admit Evidence Refuting Evidence Admitted by Decision of 6 October, 25 November 2010, pp. 2-3.
- See Prosecutor v. Prlić et al., IT-04-74-T, Jadranko Prlić’s Response to the Prosecution Motion to Reopen its Case-in-chief (Mladić Materials), 4 June 2010 with Annex; Prosecutor v. Prlić et al., IT-04-74-T, Jadranko Prlić’s Notice of his Intent to Request Reopening of His Case Should the Trial Chamber Grant the Prosecution Motion to Admit Evidence in Reopening, 14 July 2010 with Confidential Annexes; Prosecutor v. Prlić et al., IT-04-74-T, Jadranko Prlić’s Response to Prosecution Motion to Admit Evidence in Reopening, 23 July 2010; Prosecutor v. Prlić et al., IT-04-74-T, Jadranko Prlić’s Revised Motion to Rebut the Evidence Admitted by the Trial Chamber in the Decision on the Prosecution’s Motion to Reopen its case with Confidential Annex I, 1 November 2010; Prosecutor v. Prlić et al., IT-04-74-T, Jadranko Prlić’s Request for Certification to Appeal Décision Portant sur la Demande de Jadranko Prlić aux fins d’Admission d’Éléments de Preuve Réfutant Ceux Admis par la Décision du 6 Octobre 2010, 29 November 2010.