Interview with Tomislav Kuzmanovic, co-counsel for General Mladen Markac Part 1

Kuzmanovic, Tomislav Z-1.Published in Hrvatsk Vjesnik (Australia) No.1441 20 February 2012

Questions by Brian Gallagher

Born in Milwaukee, Wisconsin,  49 year old Tomislav Kuzmanovic (pictured) was trial and appellate co-counsel for General Mladen Markac before the ICTY in The Hague. He is a partner and trial lawyer in the Milwaukee, Wisconsin office of Hinshaw & Culbertson. His practice includes complex litigation in the fields of international, commercial, transportation, construction and hospitality law.  Since 2008, he has been named annually to the Super Lawyers Corporate Counsel Edition.  

He has strong links with Croatia. His parents were born in Slavetic and Cista Provo, Croatia. He was recognised by the City Council of the Croatian city of Slavonski Brod for his contributions to its defense in 1992.In 1996, he was awarded ‘Red Hrvatskog Pletera’ by the late Croatian President Franjo Tudjman for contributions towards Croatia’s independence.  From 1994 to 2002, he served as a board member and Vice President of the Croatian American Association. He is married and is the father of three children ages 23, 18 and 15.

Of course he is most known to Croats for his successful defence of General Mladen Markac, which saw the General – along with co-defendant General Ante Gotovina – wholly exonerated of the charges against them in relation to Croatia’s 1995 Operation Storm which liberated much of Croatia and saved Bosnia-Herzegovina from Serbian forces.  In this question and answer interview, he provides us with his insight into the case. 

What were both you and General Markac expecting before the verdict? How did you both react to the actual result?

We were expecting nothing but hoping for justice.  I think we were realists.  He was prepared for any result.  We knew it could not be worse!  Even though we knew we had the legal and factual arguments for an acquittal, only a liar would state that we thought for a fact we would be justifiably acquitted.  Of course, when the result was announced, we were stunned but not completely surprised.

We had good thoughts about what we had done on appeal and the appeals chamber seemed very receptive to our oral arguments and briefs.  General Markac was cool on the outside, but I know he was just as stunned, yet not completely surprised.  He was very happy, of course, and the hugs and celebrations were very heartfelt in the small cubicle where the accused are held behind the courtroom.  He thanked us for our long hard efforts.  I think he was completely unprepared to actually leave The Hague so quickly.

It must have been a fairly tumultuous day The Hague in the morning, Ban Jelacic in the evening?

I can’t imagine what it was like for the man.  I mean they load them up in the morning in a heavily armed heavily guarded van from prison to the court building each morning.  They wear bulletproof vests over their suits and are handcuffed.  He went from being handcuffed at 8:30 AM to standing a free man on Jelacic Square at 5 PM the same day.  What a shock to the system, but I know it was gratifying and a relief for him to finally be home.

Prime Minister Milanovic and the government welcomed us off the government plane.  The whole procession/motorcade from Zagreb airport to the square was like being in The Beatles at the height of Beatlemania.  Mobbed.  Photos.  Handshakes. And that’s just for the lawyers!  From the massive reception at the square to the Cathedral for Mass, to Pantovcak and the amazing reception by President Josipovic and all of the current and retired military leaders of Croatia, simply unforgettable.

I must add that none of this would have been possible but for the great sacrifice and expense of the Croatian government, and its taxpayers, who funded the defense teams and provided us the resources necessary to win the case.  This was crucial.

We have also had the verdicts in regards to the Haradinaj case. Out of this have come allegations from former prosecution staff regarding ICTY Carla del Ponte. Apparently not only was she advised against the Haradinaj prosecution but also that she did deals with Belgrade. Do you think something similar happened in regards to the Croatian Generals? i.e. was politics involved?

Well as you know, the Tribunal was set up by a political body, the UN Security Council, and the judges were politically selected and voted on by the Security Council to serve at the ICTY.  That being said, I strongly believe that our appeals verdict was not a political decision in any way.  The evidence and the law were clearly on the side of the defense in this case.  If they rubber stamped the trial chamber, it clearly would have been a political outcome because then it would confirm what Carla Del Ponte wanted all along, to make all sides equally guilty when clearly that wasn’t the case.

I mean come on, the CIA reported in 1995 that 90% of the alleged war crimes committed in the former Yugoslavia were committed by Serb forces.  The indictments, the judgments, the sentences clearly reflect that.  The initial indictment did not contain a JCE for either Gotovina nor Cermak and Markac.  They were separate cases that were joined.

The amended indictment with her insistence on pursuing a JCE (Joint Criminal Enterprise) caused her, in the end, great problems.  A straight up case of command responsibility would be very defensible given the facts, and their shotgun approach led to all kinds of circumstantial evidence being used to justify their unlawful artillery attack arguments.  In the end, Carla ended up with egg on her face and an ethics complaint filed against her due to her obscene comments post verdict.

Why was the JCE introduced by the prosecutors? Is it easier to prosecute than command responsibility?

In my view, there were several reasons the JCE theory was the preferred method of the OTP (Office of the Prosecutor)  to try to convict the generals.  First, the JCE was used to impute liability on those who could not be there to defend themselves.  In my case, those defenseless co-conspirators were President Tudjman, Gojko Susak and  Zvonimir Cervenko, who were dead, among others.  The way the amended indictment was phrased, the entire Croatian population could be interpreted as being a member of the JCE.

Second, it seemed that until our Appeals Judgment, there was no way legally possible to prevent the broad brush of the JCE to stain the individual defendants.  What I mean by that is the OTP tried to use the Brioni transcripts alone as the trigger for the so-called ‘plan’ of the co-conspirators to forcibly remove the Serb population from the ‘Krajina’, not the entire Krajina, just the areas from Gracac south, including Knin, Benkovac and Obrovac and the Zadar hinterland.  That was an illogical argument, since it excluded all of Sector North, which included Korenica, Petrinja and other significant areas of Serb occupation.  The Serbian forces there under the command of Cedo Bulat capitulated in a formal ceremony to General Stipetic.  They left there on their own free will if they wanted to leave.

In Sector South, the population didn’t even have time to decide whether to stay because they were under an evacuation order and their military began to leave.  I mean after the first day of Operation Storm, the ARSK (Army of the ‘Republika Srpska Krajina’) came to General Forand who was in charge of UN Sector South and demanded fuel and vehicles to evacuate 32,000 people!  That was in evidence.

Had the ARSK just surrendered and not fled, the situation would have been entirely different on the ground.  The shelling was the method they tried to use to implement the JCE, which we all know failed miserably.  But they needed the JCE, which they could only get from the Brioni transcripts.  By the way, not one person who was actually at Brioni and still alive was called by the OTP to testify at trial.  I still don’t understand how the transcripts got into the hands of the OTP.  No normal person would voluntarily produce these transcripts.  Could you imagine President Bush or Obama or Prime Minister Blair volunteering internal discussions of planning of military operations to anyone?  Whoever was responsible for this in Croatia should be prosecuted.

Third, the JCE enabled the OTP to avoid the greater legal and factual scrutiny required by the superior responsibility mode of liability.  Finally, by using the JCE theory, the OTP tried to use evidence of crimes like burnings, murder and plunder and attribute them to be part of the plan rather than to tie them to individual military commanders.

The OTP did introduce evidence which they believed to be indicative of liability under command responsibility.  This evidence was vigorously challenged by the defense and we put in our own evidence in our respective defense cases.  The Trial Chamber didn’t address command responsibility whatsoever.  I don’t know why, but in my view the defense put together a strong case which established reasonable doubt to the benefit of the Generals on command responsibility.  While the Appeals Chamber didn’t come right out and say reasonable doubt existed on the issue of command responsibility, it declined by a 4-1 margin to find the Generals guilty under alternate modes of liability, which included command responsibility.

Part 2 can be seen here
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