Blaskic Judgement Overturned
This is the original English version of an article
that appeared in issue 753 of Globus, 15.10.04
Blaskic Judgement Overturned due to Judge Jorda's
Errors
Brian Gallagher
The quashing of the majority of General Blaskic’s
convictions did not rely on new evidence. He was
largely exonerated because of errors the Trial
Chamber judges made and the prosecution not having
proved its case in the first place. Croatian
politicians should request an independent UN inquiry
into the Tribunal, to determine how UN prosecutors and
judges convicted Blaskic in the first place.
Contrary to popular belief, the issue of new evidence
was not as critical to the success of Blaskic’s appeal
so much as errors made by the original Trial Chamber.
Indeed, many international media reports primarily
referred to the criticism of the Trial Chamber by the
Appeals Chamber. London’s The Times pointed out the
Appeals Chamber had “said the court had misinterpreted
the law and punished Blaskic unfairly�. It also
considered there may be implications for the Milosevic
trial, “If the tribunal cannot prove a serving general
had command responsibility for forces in his
territory, it is likely to be more difficult to
establish it for a political leader�.
The New York Times considered the decision a “ strong
reprimand of the work of the lower court, in
particular of the senior justice who presided over it,
Judge Claude Jorda of France.� The Independent didn’t
bother mentioning the new evidence at all, stating
that “The ruling dealt a blow to prosecutors involved
in other cases concerning some of the worst ethnic
violence of the Balkan wars in the 1990s, in which two
more Bosnian Croat commanders, Dario Kordic and Mario
Cerkez, are contesting their charges.�
Such reports were based on what the Appeals Chamber
had actually stated in their judgement.
The Appeals Chamber re-affirmed findings made in the
earlier Kupreskic appeal - which was also a
miscarriage of justice concerning Ahmici - presided
over by American Judge Patricia Wald. Essentially,
where the Trial Chamber had made a conviction that
could not have been accepted by any tribunal or where
the evaluation of evidence was “wholly erroneous� it
should be overturned.
The Trial Chamber was criticised on this basis; for
example in blaming Blaskic for Ahmici. The Appeals
Chamber stated that the original trial evidence did
not support the Trial Chamber’s finding that the
Bosnian Army was not preparing for combat in the
Ahmici area; the additional evidence simply confirmed
that. In other words, the Trial Chamber got it wrong
in the first place.
In relation to Blaskic’s order to attack Ahmici, the
Trial Chamber’s assessed it as an order to attack
muslim civilians. This was found to be “wholly
erroneous� and that “no reasonable trier of fact�
could have reached that conclusion on the basis of
the evidence before the Trial Chamber. This is very
serious criticism indeed.
Furthermore, the Trial Chamber made errors of law,
which the Appeals Chamber corrected, especially in
regard to ’command responsibility’.
The Trial Chamber had considered that command
responsibility meant that any person who orders an
act, knowing that there is a risk of crimes being
committed is guilty of any such crimes. The Appeals
had a different view: “The knowledge of any kind of
risk, however low, does not suffice for the imposition
of criminal responsibility for serious violations of
international humanitarian law.� They pointed out
that the Trial Chamber seemed to think any military
commander who gave an order was criminally liable, as
there is always a chance crimes could occur.
The Appeals Chambers considered that ‘command
responsibility’ should be applied only when a person
orders an act or omission with the awareness that
there is a substantial likelihood that a crime would
be committed in the execution of that order. This is
a quite major finding, which will have implications
far beyond the Blaskic case, as the western press has
already noted. For Blaskic, it meant that he was not
found responsible for ordering the crimes in Ahmici.
The Appeals Chamber in fact expressed concern that
having found Blaskic guilty of ordering crimes the
Trial Chamber also found him guilty of not preventing
or punishing those crimes. Blaskic it seems was
guilty of not preventing himself from committing
crimes and then not punishing himself for them.
Little wonder the Appeals Chamber threw this lunacy
out.
It was also confirmed that the Prosecutors had
breached Tribunal rules by not providing the defence
with documents they were entitled to have. This was
rectified during the appeal, but it points to an
ethical problem in the Prosecutor’s office, showing
they are not quite the moral force they portray
themselves as. One wonders how often they withhold
evidence.
In light of the severe rebuke the Appeals Chamber has
given to the Trial Chamber, it is hard to believe that
Blaskic’s original conviction was some kind of
accident.
The Croatian government is now in an excellent
position to press forward their case in the
international community. The Blaskic acquittal gives
credibility to the concerns regarding the case against
the Bosnian Croats recently sent to the Hague and the
role of Croatia that it alleges.
Zagreb should do the same over the indictments of
Generals Gotovina, Cermak and Markac for the American
controlled Operation Storm. Like the Blaskic case,
its fairly clear - from evidence in the public domain
- that these men are innocent.
Those indictments should be dropped now; must we wait
years for an Appeals Chamber to overturn their
inevitable guilty verdicts?
Further, Zagreb should request an independent UN
investigation into the entire performance of the
tribunal during the Blaskic affair. As part of such a
request, all Court documents in the case not made
public should be made public, so that the public has a
complete picture.
If Croatia can investigate why documents were not
handed over, than surely the UN can investigate its
own far greater role. It was the UN that indicted,
prosecuted and wrongly sentenced General Blaskic to 45
years for crimes he did not commit. Judges did not
apply the law correctly and came to conclusions that
the evidence they had did not support. They bear the
responsibility for this shocking miscarriage of
justice - not Croatia - and the individuals
responsible at The Hague should be held fully
accountable by the international community.
Blaskic Judgement Overturned
This is the original English version of an article
that appeared in issue 753 of Globus, 15.10.04
Blaskic Judgement Overturned due to Judge Jorda's
Errors
Brian Gallagher
The quashing of the majority of General Blaskic’s
convictions did not rely on new evidence. He was
largely exonerated because of errors the Trial
Chamber judges made and the prosecution not having
proved its case in the first place. Croatian
politicians should request an independent UN inquiry
into the Tribunal, to determine how UN prosecutors and
judges convicted Blaskic in the first place.
Contrary to popular belief, the issue of new evidence
was not as critical to the success of Blaskic’s appeal
so much as errors made by the original Trial Chamber.
Indeed, many international media reports primarily
referred to the criticism of the Trial Chamber by the
Appeals Chamber. London’s The Times pointed out the
Appeals Chamber had “said the court had misinterpreted
the law and punished Blaskic unfairly�. It also
considered there may be implications for the Milosevic
trial, “If the tribunal cannot prove a serving general
had command responsibility for forces in his
territory, it is likely to be more difficult to
establish it for a political leader�.
The New York Times considered the decision a “ strong
reprimand of the work of the lower court, in
particular of the senior justice who presided over it,
Judge Claude Jorda of France.� The Independent didn’t
bother mentioning the new evidence at all, stating
that “The ruling dealt a blow to prosecutors involved
in other cases concerning some of the worst ethnic
violence of the Balkan wars in the 1990s, in which two
more Bosnian Croat commanders, Dario Kordic and Mario
Cerkez, are contesting their charges.�
Such reports were based on what the Appeals Chamber
had actually stated in their judgement.
The Appeals Chamber re-affirmed findings made in the
earlier Kupreskic appeal - which was also a
miscarriage of justice concerning Ahmici - presided
over by American Judge Patricia Wald. Essentially,
where the Trial Chamber had made a conviction that
could not have been accepted by any tribunal or where
the evaluation of evidence was “wholly erroneous� it
should be overturned.
The Trial Chamber was criticised on this basis; for
example in blaming Blaskic for Ahmici. The Appeals
Chamber stated that the original trial evidence did
not support the Trial Chamber’s finding that the
Bosnian Army was not preparing for combat in the
Ahmici area; the additional evidence simply confirmed
that. In other words, the Trial Chamber got it wrong
in the first place.
In relation to Blaskic’s order to attack Ahmici, the
Trial Chamber’s assessed it as an order to attack
muslim civilians. This was found to be “wholly
erroneous� and that “no reasonable trier of fact�
could have reached that conclusion on the basis of
the evidence before the Trial Chamber. This is very
serious criticism indeed.
Furthermore, the Trial Chamber made errors of law,
which the Appeals Chamber corrected, especially in
regard to ’command responsibility’.
The Trial Chamber had considered that command
responsibility meant that any person who orders an
act, knowing that there is a risk of crimes being
committed is guilty of any such crimes. The Appeals
had a different view: “The knowledge of any kind of
risk, however low, does not suffice for the imposition
of criminal responsibility for serious violations of
international humanitarian law.� They pointed out
that the Trial Chamber seemed to think any military
commander who gave an order was criminally liable, as
there is always a chance crimes could occur.
The Appeals Chambers considered that ‘command
responsibility’ should be applied only when a person
orders an act or omission with the awareness that
there is a substantial likelihood that a crime would
be committed in the execution of that order. This is
a quite major finding, which will have implications
far beyond the Blaskic case, as the western press has
already noted. For Blaskic, it meant that he was not
found responsible for ordering the crimes in Ahmici.
The Appeals Chamber in fact expressed concern that
having found Blaskic guilty of ordering crimes the
Trial Chamber also found him guilty of not preventing
or punishing those crimes. Blaskic it seems was
guilty of not preventing himself from committing
crimes and then not punishing himself for them.
Little wonder the Appeals Chamber threw this lunacy
out.
It was also confirmed that the Prosecutors had
breached Tribunal rules by not providing the defence
with documents they were entitled to have. This was
rectified during the appeal, but it points to an
ethical problem in the Prosecutor’s office, showing
they are not quite the moral force they portray
themselves as. One wonders how often they withhold
evidence.
In light of the severe rebuke the Appeals Chamber has
given to the Trial Chamber, it is hard to believe that
Blaskic’s original conviction was some kind of
accident.
The Croatian government is now in an excellent
position to press forward their case in the
international community. The Blaskic acquittal gives
credibility to the concerns regarding the case against
the Bosnian Croats recently sent to the Hague and the
role of Croatia that it alleges.
Zagreb should do the same over the indictments of
Generals Gotovina, Cermak and Markac for the American
controlled Operation Storm. Like the Blaskic case,
its fairly clear - from evidence in the public domain
- that these men are innocent.
Those indictments should be dropped now; must we wait
years for an Appeals Chamber to overturn their
inevitable guilty verdicts?
Further, Zagreb should request an independent UN
investigation into the entire performance of the
tribunal during the Blaskic affair. As part of such a
request, all Court documents in the case not made
public should be made public, so that the public has a
complete picture.
If Croatia can investigate why documents were not
handed over, than surely the UN can investigate its
own far greater role. It was the UN that indicted,
prosecuted and wrongly sentenced General Blaskic to 45
years for crimes he did not commit. Judges did not
apply the law correctly and came to conclusions that
the evidence they had did not support. They bear the
responsibility for this shocking miscarriage of
justice - not Croatia - and the individuals
responsible at The Hague should be held fully
accountable by the international community.