I was recently contacted by Gloria Lujanović, a journalist in Bosnia and Herzegovina working for Dnevnik.ba and asked whether I would be willing to answer some questions about the Prlić et al. case now that six months have passed since the appeals judgment was rendered. Presumably she was interested in whether my views have evolved. Might my perspective (see here, here and here) be different now that I have had some distance from that fateful day when General Slobodan Praljak defiantly (I would say honorably) took his life, rather than accept what he (and others, such as myself) believed were the unjust results of a terribly flawed trial that yielded an error-riddled judgment – a judgment which, regrettably, the Appeals Chamber failed to cure? On 30 March 2018, Ms. Lujanović posted the Q&A in Dnevnik.ba: Karnavas: Alija Izetbegović je trebao na optuženičku klupu, suđenje hercegbosanskoj šestorci farsa, nalik cirkusu / Karnavas: Alija Izetbegović should have been prosecuted, the trial against the six from Herceg-Bosnia was a farce, and resembled a circus.
Here is the English version of the Q&A:
GL: Nearly 6 months have passed since the final judgment in the case of Jadranko Prlić et al. in which Dr. Jadranko Prlić was sentenced to 25 years in prison. You defended Jadranko Prlić, and after the final judgment you wrote on your blog and repeated in interviews with foreign media that this case had been the dark inheritance of the ICTY. Why do you think this judgment is ‘dark’, and the whole procedure, as you put it, ‘absurd theatre’?
MGK: The ICTY Appeals Chamber’s judgment cannot be viewed in the abstract. One must look at the trial and the trial judgment. The trial was often farcical, very much like a circus. The trial was conducted by a presiding judge, Jean-Claude Antonetti, who simply lacked the capacity and experience to preside over such a case. It is also clear that he was not fully engaged and committed to this case, since he was also presiding over the Vojislav Šešelj case at the same time – another spectacle of absurdity. As of the other two trial judges, it would have been hard for an objective observer not to notice that they exhibited a pro-prosecution bias.
Throughout the trial we struggled to have sufficient time to challenge the prosecution evidence and put forward our evidence. When you look at the judgment, which the judges took years to produce, you have to wonder what they were doing other than collecting a fat UN paycheck, plus benefits.
Virtually all of the evidence we produced was ignored for no apparent or credible reason. As a result, the judgment is one-sided. The judges – or their assistants who drafted the judgment – were either unable or unwilling to grasp the reasons underlying the HVO HZ-HB’s establishment, how or why the HR-HB came into existence, to view the events in context, and so on.
The nearly 2,500-page trial judgment contains factual errors in virtually every paragraph. This, in my opinion, made it difficult for the Appeals Chamber to fulfil its obligations. It was easier for the appeals judges to say that the Trial Chamber properly considered and assessed the evidence, as opposed to reviewing hundreds of thousands of pages of the trial record. This is what I think the Appeals Chamber did: it ignored our grounds of appeal by not taking the time to go through the evidence – as they were required to do, assuming that they were willing to do more than just rubber stamp the trial judgment. It is not as if we handed them a haystack of evidence expecting them to struggle blindly in locating the needles. We provided them with the needles; for every assertion made, we cited the authority that supported or validated the assertion.
The questions presented by the Appeals Chamber for the parties to answer during oral arguments revealed that the judges – despite having years at their disposal, with no pressure or personnel constraints – had not seriously considered our appeal submissions and had not sifted through the evidence. So, in the final analysis, while the trial was an absurdity, the appeal judgment was a validation of it – making it too an absurdity. This is why this case represents a dark and disturbing side of the ICTY’s legacy.
GL: The final judgment in the case of Prlić et al. is the last one issued by the ICTY. Do you believe that it accomplished its mission – responsibility for committed war crimes, legal satisfaction for the war victims in Bosnia and Herzegovina (BiH), and in the end,- the possibility of reconciliation between Croats, Serbs, and Bosniaks?
MGK: The outcome of the Prlić et al. case was pre-ordained – determined the moment the ICTY put on its website its version of what had happened in Herzegovina, how the BiH Croats were trying to set up a statelet, or have Herzegovina annexed by Croatia – which, throughout the war, was trying to carve up BiH. With this narrative posted on the official ICTY website, expectedly, the judgments of the last case of the ICTY related to the BiH Croat-Muslim conflicts would reflect this narrative.
The factual findings of the Trial Chamber – now affirmed by the Appeals Chamber – will be considered by many as proved historical facts. This is regrettable, but this is reality – however unrealistic the Trial and Appeals Chambers’ narrative may be. Considering this false narrative, it is hard to fathom that these judgments can contribute to reconciliation. This would require the BiH Croats to accept responsibility for crimes that were not committed and to renounce the pressing need for establishing the HVO, the HVO HZ-HB, the HR-HB, and so on. And in doing so, the BiH Croats would be giving total absolution to Izetbegović, his military commanders, his political associates, his mujahidin, and others for the crimes and irregularities they committed.
GL: The case against Prlić et al. is considered to be one of the most complex cases of the ICTY. The trial started in 2006, there are over 50 thousand pages of trial transcripts, and almost six thousand pieces of evidence in the trial record. Beside this, what actually marked this trial – were there any mistakes made by prosecution and judges, and what was the nature of these mistakes, procedural or legal? Can we say that the leaders of HVO had been convicted before the trial started?
MGK: The prosecution put on its case as aggressively as they could, taking advantage of every opportunity that came their way. It may sound unfair, but there is nothing wrong with this approach to prosecuting a case. The judges are another matter. They fell short, creating all sorts of errors both at the trial, but most importantly, in assessing (or not) the evidence – as I have noted in my answer to the first question.
GL: After the final judgment had been made, you wrote on your blog a post about General Praljak. Do you think that his suicide will be a permanent stain on the ICTY? Was that the only possible answer to everything that had been happening for years in The Hague courtroom – ignoring the facts, taking a selective approach to the evidence?
MGK: While there is very good reason to claim that the ICTY – in particular the judges of the Trial Chamber and to a lesser extent the judges of the Appeals Chamber – drove General Praljak to take his life, this sad affair will negligibly impact or taint the ICTY’s overall legacy. More concern has been shown in resolving the question of how the poison came into General Praljak’s hands, than in discerning why a 100% sane and lucid person with only months to go before being released would take his life? The judges moved on. The ICTY has come to an end. The reality is that neither the judges nor the ICTY as a judicial institution are capable of introspection or self-criticism. The legacy of the ICTY is painted as one rosy and unblemished affair.
GL: How did you manage the translation of documents into English? Were the translations satisfactory or were interventions necessary?
MGK: The translation was not much of a problem. The ICTY had excellent translators and we also had a case manager who assisted in translating and she was fabulous.
GL: Earlier, you said that your defendant, Jadranko Prlić, was denied a fair trial. The lawyer of Slobodan Praljak, Nika Pinter, also said that the prosecutor and defense counsel were not equally treated. Why do you think that the accused in this case were denied a fair trial, and evidence supports this?
MGK: There are two main reasons for claiming that the trials were not fair. Two of the judges, as I have noted, seemed to have a bias against the Croat-accused. Even if Antonetti would have been more competent, the other two judges were routinely making decisions based on a double standard. Also, the prosecution was given adequate time to put on its evidence, where the defense in general – especially the Prlić defense – was constantly denied the time needed to examine critical witnesses. Our objections were registered on the trial record. But as I have noted, the trial record was then ignored.
GL: During the trial, especially the appeal on March 2017, it could be heard that the HVO in Central Bosnia imagined the mujahidin-threat and evacuated the Croats from Central Bosnia to Herzegovina. For instance, the Bosniak war leader Alija Izetbegović said to Franjo Tuđman, after the displacement of Croats from Travnik on June 8, 1993, that unfortunately, the HVO succeeded in evacuating Croats from Travnik. Do you agree that this thesis was promoted by Alija Izetbegović, the prosecution, and the Trial Chamber?
MGK: The Croats in Central Bosnia were becoming surrounded and isolated. Considering how the mujahidin were behaving, the Croats had every reason to fear for their lives and to ask for humanitarian assistance and get out of harm’s way. There was no policy to ethnically cleanse the Croats of Central Bosnia in order to homogenize Herzegovina – as claimed by the prosecution. Had Tuđman not allowed the mujahidin to come through Croatia (and this is an accepted fact), had he not armed the ABiH, had he not been so generous in hosting all those Muslim refugees even while Croatia was 1/3 occupied, maybe the Croats of Central Bosnia would not have come under the ABiH-mujahidin threat. Izetbegović was obviously behind the atrocities committed by the mujahidin. Given his political position, his control over the ABiH, his close affiliation with radical Islamic elements (see Unholy Terror: Bosnia, Al-Qa’ida, and the Rise of Global Jihad by John R. Schindler), Izetbegović should have been prosecuted.
GL: Can you explain why the judgment ignored the military offensives of the ABiH in Central Bosnia, and partly in the Neretva valley? Judge Antonetti in his separate opinion stated that the HVO had been losing territory, and that the ABiH had been occupying it. Is it possible that the evidence on –the mujahidin, the beheadings, all that ISIL is doing today around the world, was ignored, and did not have influence on the judgment in this case?
MGK: These were inconvenient facts that did not fit into the pre-ordained narrative. This evidence is crucial for context, for understanding the events in a proper perspective. But then how can the Trial Chamber claim, as it did, that there was this policy of reverse ethnic cleansing? You also have to look at all the ongoing events to make sense of it all. Nothing can be fully understood and judged in the abstract or in isolation – particularly in retrospect.
When the triers of facts (the judges) have a pre-determined view even before hearing the evidence, anything presented to them will, invariably, be examined through a skewed and biased prism or simply ignored, with the outcome being a self-fulfilling prophesy.
GL: It seems that much bizarreness shaped this trial, in your opinion what is the best example of this?
MGK: The entire trial was an anomaly. Imagine judges taking over the questioning of witnesses and asking inane and silly questions even before the lawyers have had an opportunity to establish the salient points of the witness’s testimony. Or the judges commenting on the evidence from their personal experiences. Or engaging the parties in a 30 or 40-minute discussion on whether to allow a defense lawyer an additional 5 minutes to finish questioning a witness. But the most bizarre example perhaps is where the judges agreed to my request to have the defense and prosecution lecture them on how they need to conduct themselves at trial – how the rules of procedure and evidence envisages trial to be held. A surreal, and now apocryphal, experience in the annals of the Prlić et al. case.
GL: Did the ICTY Trial Chamber deny the accused in Prlić et al. some of the legal standards or misused them?
MGK: Yes, such as the right to confront witnesses, the right to put on an effective defense, the right to be tried by an impartial panel of judges, and the right to a reasoned opinion.
GL: How relevant was the diary of Ratko Mladić? Did you ask to interrogate Ratko Mladić as a witness, as it is logical that Mladić could confirm or negate the authenticity of the content? Were the excerpts from Mladić’s diary of essential importance in this case?
MGK: The diary was critical. We were not permitted – as I explained in the appeal brief – to introduce segments of the diary that were relevant to Dr. Prlić’s case. This was a sham, a disgrace. And it did impact us. Curiously, this was ignored by the Appeals Chamber. Mladić was still in hiding, so he was not available to be questioned.
GL: So we have heard many times in the courtroom that the HVO was aggressor in BiH, that it occupied the territory of the Central Bosnia, that Croatian Republic of Herzeg Bosnia is self-proclaimed entity, and that Tuđman actually tried to establish Banovina Croatia from 1939. Can you explain why transcripts that say differently about Tuđman’s relationship toward BiH were ignored: the facts about the number of logistic centers of the ABiH in Croatia – taking care of wounded Bosniaks in Croatian hospitals, refugee centers, and schools organized for Bosniak children, in a period in which Croatia was occupied by JNA and in a period conflict between the HVO and the ABiH?
MGK: Other than what I have already said, I cannot explain the Trial Chamber’s reasoning for ignoring evidence that did not fit a desired narrative. We tried repeatedly to explain the events and put them in context to show that when properly considered, there are alternative explanations that are more in line with the reality on the ground when the evidence is viewed objectively, than the version peddled by the prosecution.
GL: You reacted to the text that was on the ICTY’s website for years which states that Croatia and Serbia attacked BiH. During the trials the soldiers of the ABiH were called defenders of villages, and the non-legitimate Government in Sarajevo was called the ‘Government of BiH’. Did the discourse used in courtroom announce the judgment?
MGK: I had no reason to look at the ICTY website, so I had not been aware of this ICTY narrative. The first time I saw what was on the website was at an ICTY function celebrating the accomplishments of the ICTY, a few days before the trial judgment was about to be announced. There were leaflets and posters with narratives on the various conflicts that had erupted in the former Yugoslavia. After reading these posters I went to the ICTY website and was shocked. I recall reaching the conclusion that the Trial Chamber would be returning a guilty verdict that would include joint, criminal enterprise, international armed conflict, Tuđman’s efforts to carve up BiH, using the HVO HZ-HB as a vehicle for the BiH Croats to establish a Croatian statelet, etc. Any hopes that the Appeals Chamber would view things differently were dashed when we received the questions for oral arguments: they seemed frivolous and inane.
GL: During the appellate arguments, you said that Croats are the least numerous people in BiH and ’because of this fact, this is why they ended up where they are now. In the courtroom, you also addressed today’s position of Croats in BiH. Since the ‘Prlic and others’ final judgment, there is an improper political, media and social trend in which the HVO is systematically called an Ustasha army, members of the HVO are treated as ‘JCE-ers’, etc. Do you consider that the “Six” final judgment was interpreted in such an attitude as a judgment to the Croatian people?
MGK: Basically yes. I think my previous answers explain why.
GL: Although the judgment is final, the media says that one new piece of evidence is enough to change the final judgment. Is that true?
MGK: It is virtually impossible to reverse judgments. Any new evidence that was not and could not have been known to the parties would have to be significant enough in quality to materially impact the outcome of the case. Frankly, I do not believe that any such new evidence exists; it would have been found by now.
GL: If it is revealed in domestic proceedings that witness testimony during ICTY proceedings was based on lies, would this be sufficient to review the verdict? Also, if a contempt procedure is initiated, could that be a valid proof? Is it a ‘must’ for MICT to judge it or can the judgment of the Court of BiH, be used as new evidence? If documents have been legally found to have been translated incorrectly, and these documents were the basis of the judgment, can this be used to revise the judgment?
MGK: I do not think the MICT will reopen the case unless there is something extremely dramatic. It is not a forgone conclusion that a finding by a national court that witnesses lied would be sufficient to entice the MICT to re-open the Prlić et al. case. Another highly remote possibility that tends to foster empty hope, as opposed to tangible results.
GL: What is your comment on the statement of the Bosniak camp detainees that they are going to sue Republic of Croatia and ask for material/financial compensation?
MGK: I leave it to others to comment on this. I do not think this is a question that can be answered meaningfully and with any precision in a few words. That said, the Republic of Croatia, to my knowledge, neither had detention facilities nor supported or assisted in the operation of such facilities in BiH.
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Defending clients against the state, is always like climbing a mountain without much interest from those that hold law sacrilegious, procedure for that matter. you are right about the prosecution taking all advantages to make their case more credible, but it shall sure is truly unfair for the judges or the deciding body admitted in open court in allowing both benches to school them in procedures; forget about credibility, where is the competency?
Thx for sharing your thoughts. It’s a lonely world for all of who defend the accused, especially when judgement has been rendered and parties were thrown to celebrate it prior to issuing the actual verdict.
Sincerely,
West,
Dear Michael,
Not much to add, unfortunately
Rgds, MMC