Trial Chamber to reject indictment against Gotovina

Pukanic

Nacional 15.03.05
POLITICAL REPORT

On Tuesday, 8 March, the three-member Trial Chamber
returned the indictment against Generals Cermak and
MarkaCto the Prosecution for revision: they criticized
the syntax of 'criminal operation', which is the key
element in the Gotovina indictment

Though there is no explicit mention of Gotovina
anywhere in the Trial Chamber ruling, all rulings in
the Cermak and MarkaCcases regarding the “criminal
operations” will automatically be applied in his case
as well

Tuesday, 8 March could be one of the most important
days for Croatia as a state and its indicted generals
before the Hague Tribunal. On that day, the three
member Trial Chamber under presiding Justice Carmel
Agius and with Jean Claude Antonetti and Kevin Parker,
returned the indictment against indicted Generals Ivan
Cermak and Mladen MarkaCfor revision. This ruling was
a great victory for Miroslav Separovic and Cedo
Prodanovic, attorneys of the indicted generals, as the
indictments against them could be significantly
changed. This in the end could most benefit General
Ante Gotovina. The ruling by the Trial Chamber related
primarily to the Prosecutor’s syntax of the “criminal
operation” which described Operation Storm, and lists
the main executors as Franjo Tudjman, Ante Gotovina
and “others”, among whom are Cermak and MarkaC.

The Hague Prosecution has been given a deadline of
thee weeks to explain its case and to support it with
further evidence, as in the case placed before the
court, there were no elements to support such an
indictment. In the next two weeks before her response
is due, Carla Del Ponte will have a difficult time in
offering arguments to support that portion of her
indictment, and therefore it is logical to expect that
portion of the charges to be removed. This would
significantly ease the position of Cermak and MarkaC,
and for Gotovina, the conditions would be in place to
throw out the charges against him. Though there is no
explicit mention of Gotovina anywhere in the Trial
Chamber ruling, all rulings in the Cermak and
MarkaCcases regarding the “criminal operations” will
automatically be applied in his case as well. And it
is this “criminal operation” which Gotovina is accused
of. This indictment, regardless of what Carla Del
Ponte and her fans in Croatia and part of the EU
believe, is on very shaky legs, and according to legal
experts, this in the end will have to be thrown out.

In order to amend the indictment or throw it out, it
is not necessary for the accused to also be a prisoner
in the Scheveningen prison, even though many “well
acquainted” with the ICTY regulations claim this is
so. According to Articles 50 and 51 of the Statute of
the Hague Tribunal, the accused does not need to be in
prison for the indictment against him to be discussed,
amended or rejected. This is confirmed by precedent,
the best known of which is the case against Serbian
General Zec. While he was a fugitive, due to new
information and documents obtained, the Trial Chamber
threw out the case against him, despite the fact that
he never appeared before the Hague Tribunal.
Therefore, Gotovina does not need to be in the Hague
for the case against him to be amended or rejected.
This has happened once before, when the Hague
Prosecutor amended the indictment against him one year
ago, even though he was a fugitive.

Carmel Agius, chairman of the three-member Trial
Chamber, and Chamber members Jean Claude Antonetti and
Kevin Parker described in detail which sections of the
indictment against Cermak and MarkaCneeded to be
supplemented and explained by the prosecution. In the
introduction to the Chamber ruling, they stated that
Cermak and MarkaCwere accused of persecution,
deportation, violent eviction and other inhumane acts
which according to Article 5 of the ICTY Statute are
described as being crimes against humanity, in
addition to murder, looting and destruction of towns
and villages.

The Trial Chamber stated that the indictment requires
the precisely described facts and crimes charged
against the men. The Prosecution in particular has to
explain upon what basis they claimed that the
indictees planned, stimulated or ordered the acts they
are accused of. The Trial Chamber requested that the
prosecution also secure special evidence for those
sections of the indictment in which the men were
accused of personally committed the acts they were
accused of.

The Trial Chamber also requested that the prosecution
explain those sections of the indictments based on the
thesis of a joint criminal operation. The prosecution
was asked to explain the nature and purpose of the
criminal action, when it occurred and over what
period, the identity of those persons involved, and
the nature of the participation of Cermak and MarkaC.

Where the indictment is based on the responsibility of
the accused men as superiors to the perpetrators, the
accused according to the Trial Chamber have to know
not only which conduct the Prosecution based the
thesis of their responsibility, but also which conduct
by those persons inferior to them are accused of.

In the cases where MarkaCand Cermak are accused by the
Prosecution on the basis of command responsibility,
the indictment had to be supplemented with the missing
facts which prove that these two men were in fact
superior to those persons who directly committed the
crimes in question, facts which prove that they in
fact had effective control over their inferiors,
especially in the sense of the direct prevention or
penalization of criminal conduct, and facts describing
which criminal conduct Cermak and MarkaCare accused
of.

Judging by the ruling of the Trial Chamber, the
Prosecution failed to provide sufficient evidence in
the existing version of the indictment to prove that
Cermak and MarkaCknew of the criminal acts they are
accused of. The prosecution must also secure the facts
which will confirm that these two men knew that their
inferiors had committed criminal acts. The Trial
Chamber claims that it is aware that information
cannot always be precise, but ordered the prosecution
to secure the information it can obtain. The
Prosecution also needs to submit those facts which
support the claims that the indicted men failed to
take the necessary and reasonable measures in order to
prevent criminal acts by their inferiors, and that
they failed to punish those responsible.

Where the indictment stated that the indicted men were
aware of the criminal acts they are accused of, the
Trial Chamber ordered the Prosecution to describe that
state of awareness as a material fact, or to secure
evidence upon what basis this thesis of the state of
awareness of the accused was made. The Trial Chamber
warned the Prosecution that they cannot simply assume
that in this case the legal assumptions for
incrimination of the accused is achieved. The Trial
Chamber stated in its ruling that in general, each of
these facts should be stated quickly and openly, even
though in certain situation, they can be additionally
described with the necessary implications.

The Trial Chamber rejected the remarks by Defense
council in the sections where they claim that the
Prosecutor incompletely and irregularly stated and
described the fact context in which the crimes were
committed and which Cermak and MarkaCare accused of,
and as such the entire indictment is irregular. These
two men in particular responded to the fact that the
indictment treats Operation Storm as a criminal
operation. In its response, the Prosecution claimed
that it is not dealing with the legality of Operation
Storm, but only with the crimes committed while the
Operation was ongoing.

The Trial Chamber stated that the facts which the
accused are accused on only in some cases can be based
on the description of events in which, among others,
Storm is treated as a criminal operation, and the
so-called Republic of Srpska Krajina is placed
alongside Croatia as a state. The Trial Chamber stated
that the facts burdening the accused must be
accompanied with the necessary specificity, however,
the lack of specificity in the description of events
in this case is insufficient to grow into a formal
irregularity of the indictment.

The Trial Chamber set out that the questionable claims
on the description of actions in Storm must be proven
by entering evidence into the proceedings, and it is
in general considered that the way of presenting Storm
within the indictment is not relevant for the content
of incrimination against Cermak and MarkaC.

The Trial Chamber rejected the comments by council
that the identity of the victims and the destruction
of property are not precisely stated, particularly in
the section claiming that Generals Cermak and
MarkaCmust have known that the crimes would be
committed or that they had been committed by their
inferiors. The Trial Chamber holds that the indictment
in that section requires stronger argumentation and
evident to support it. On the contrary, the indictment
will have to rely on those sections which state that
the representatives of the international community
warned the accused that the crimes had been committed.
Paragraph 18 of the indictment, according to the
interpretation of the Court, is not clear in its
intent. In the first part of the paragraph, it claims
that the accused had authority to prevent the crimes
or to punish the perpetrators. The contents of
paragraph 17 and 18 of the indictment state that they
were authorized to prevent or punish the crimes
entrusted to those forces who were inferior to the
accused. Therefore, the Trial Chamber requested that
the Prosecution precisely determine the forces that
were under the command of accused General Cermak. And
here the situation is very clear. Under Cermak’s
command were about 30 people concerned with logistics
and the functioning of Knin: garbage removal, sewage,
hospitals, supplies and removing dead animals.

The Prosecution was asked to identify all the facts by
which the accused Cermak and MarkaCcould be tied to
the claims that they knew they crimes would be
committed or had already been committed by their
inferior units. In terms of the nature and intent of
the criminal organization, the Trial Chamber was
satisfied by the general interpretation by the
Prosecution that a criminal organization is two or
more individuals with a common plan to commit a
criminal act according to the ICTY Statute. The Trial
Chamber was also satisfied by the explained time
period in which the Prosecution claims that the crimes
were committed – from 4 August to 15 November 1995.
However, the Trial Chamber also accepted the claim by
Defense council that the Prosecution had failed to
offer sufficient evidence in the identification of all
the members of this criminal organization. If they
fail to do so, the Prosecution will have to state in
the indictment that not all the participants of the
alleged criminal organization can be identified. Also,
the Prosecution will have to explain the nature of
participation of each participant in the criminal
organization.

Furthermore, in paragraph 22, the Prosecution defines
the category of participants of the criminal
organization as members of the Croatian forces. If
this was the intent of the Prosecution, this is not
exactly clear. Paragraph 11 of the indictment names
only two suspects, General Ante Gotovina and the late
President Franjo Tudjman as members of the criminal
group. Other members were not identified, they were
instead only mentioned as ‘others’. The Trial Chamber
considers that this could, in the material sense of
proving the indictment, result in the failure of the
Prosecution. The Trial Chamber requested that the
Prosecution provide a clear position on whether it
believes the intents and objectives of the criminal
organization were carried out by Croatian forces under
real command of the members of that organization, such
that the defense council could be informed.
Furthermore, the Trial Council requested that the
Prosecution explain its claims in the case of General
MarkaCas to how the accused was aware of the criminal
activities and how he consciously agreed to his role.
All in all, not an easy task for the Prosecution,
which will have to be completed in the only three
weeks.

The situation is not identical for MarkaCand Cermak.
They are both most burdened by the “Grubori case”, a
crime committed on 26 August 1995 in which Serbian
civilians were killed and which to date has not been
prosecuted. The fact that this case was never
prosecuted is one of the greatest points of shame for
the Croatian justice system, as the perpetrators in
this horrible crime are known. In recent days in
Zagreb, members of the special units who participated
in this ‘cleansing’ action have been giving their
statements to ICTY investigators. It is known who
commanded that unit of special forces, as it is also
known that General Cermak as a civil official
responsible for Knin, had nothing to do with this
case.

Nacional has learned that yet another indictment,
announced against a Croat, will be raised for the
“Grubori” case, against the direct commander of the
special forces unit. In 95% of crimes which arose
following military action during Storm, criminal
charges have been laid and the majority of those cases
prosecuted. Mladen Bajic, then the military prosecutor
responsible for Gotovina’s South Sector, sent in
documentation on more than 4000 criminal charges
against known and unknown perpetrators of crimes
during and after Operation Storm. Bajic sent in the
last CD with his final report to the Hague two months
ago.

It is not completely clear that the majority of the
indictment based on the “criminal operations” is
founded on the famous “Brijuni transcripts” of 31 July
1995 during the final discussion between President
Tudjman and his military commanders. If it can be
proven that this document is not credible, and that it
is a forgery, then the entire thesis by the
Prosecution of a criminal operation no longer stands.
In order to prove a “criminal operation”, this will
have to be made more concrete as to who was who in
this criminal operation and what each participant in
the operation did. They will also have to answer on
what basis they claim that there was a criminal plan.
The third item that will need to be more precisely
described is which units committed which crimes, and
they precisely state who the commander was of those
units, and who will then be held accountable for
“command responsibility”. Here Carla Del Ponte is in
big trouble. She used the concept of a “criminal
operation” in order to avoid concretely listing the
criminal acts, as not a single act can be directly
attributed to Gotovina, either in commanding or trying
to cover up a crime. It is for these reasons that the
Hague Prosecutor decided to use the syntax of the
“criminal operation” which is much more favourable for
accusations, as it only has to proven who the members
of the operations were, and then each member is as
responsible as the next for crimes committed, even
though one may have had no knowledge of what the other
was doing.

One Hague attorney described the situation as follows
for Nacional. “For example, I agree with a friend to
rob a bank. I’ll drive the car and he’ll rob the back.
He’s to enter the back, pass a piece of paper with a
threat to the teller if he won’t give the money out of
the safe. I agree in advance with him that there will
be no use of force and that he will not be armed. But
without my knowledge, he takes a gun, fires in rage
and kills five bank employees. I have no idea what
he’s done, as I’m sitting in the care, and I drive him
away. According to the concept of a ‘criminal
operation’, I can also be tried for five-time murder,
because I knew that we had the criminal intent to rob
a bank, and I should have known that there were many
possible outcomes, including that my friend might kill
people, even though we agreed to otherwise. According
to that, by the concept of a ‘criminal operation’, I
am as responsible as the man who killed five people. I
would likely only receive a somewhat smaller sentence
because he was the actual executor.”

Carla Del Ponte has begun with the thesis that
Gotovina was part of this criminal operation, and that
he must be held accountable for any possible mistakes
by Tudjman, Su¹ak, Cermak, MarkaCand perhaps even
Jarnjak, as well as the remaining unnamed people from
the Brijuni meeting. However, the indictment must
contain some kind of an agreement on the criminal
operation and crimes committed personally by Gotovina.
According to the Prosecution, this agreement was made
in Brijuni on 31 July 1995, when Gotovina ‘knew’ of
Tudjman’s intent to “hit the Serbs so hard they
disappear”. Knowing this, Gotovina participated in a
“criminal operation” by carrying out Storm. According
to Carla Del Ponte, he knew that Tudjman’s intent was
to scare the Serbs into leaving, even though no crime
was committed during the military-police action that
ended on 9 August 1995 when Gotovina commanded an
“active defense”, thereby halting all offensive
actions and he sent the military units on vacation. He
then went to BiH. However, the Prosecution claims that
Gotovina “knew or should have known” that after
carrying out Storm that various criminal acts would be
committed, including those by civil persons. According
to that, he is responsible according to the accusation
for all that happened after Storm because he knew of
Tudjman’s intentions. He executed Operation Storm and
should have known all that would follow.

In the current indictment against Gotovina, there is
nothing concrete and the indictment is based on the
problematic transcript. If the Prosecution is unable
to prove their claims on the “criminal operation”
following the ruling by the Trial Council, nothing
will remain in Gotovina’s indictment. Therefore, the
contents of the new indictment to be submitted by
Carla Del Ponte in two weeks’ time will be very
important, as within it will be very difficult to tie
Gotovina and his soldiers to any crime. If that
happens, the Prosecution will be unable to defend its
thesis of a “criminal operation”, and with that, the
indictment against Gotovina will be rejected. The
question this raises is for whom this performace has
been carried on for the past few years, which has
destabilized the country and put enormous pressures on
the Croatian state, and who will be held responsible.