Published in Hrvatsk Vjesnik (Australia) No.1442 27 February 2012
Questions by Brian Gallagher Part 1 can be seen here
Del Ponte has apparently told the Serbian newspaper ‘Blic’ that neither the Serbian government nor its people should accept it. How do you respond to her behaviour?
I think she needs to take a deep breath and think before she speaks. Look at her indictments. They were failures. She was a failure. She should shut up, shake hands and say “good match”. Fat chance.
A number of ‘Balkan analysts’ have been critical of the judgement; a number of these are of the sort who considered everyone had to accept the original judgment. They often refer to the comments made in the ‘Brioni trancript’ and comments by Franjo Tudjman, interpreting these as a plan to expel Serbs. How do you respond to this?
The problem with these ‘analysts’ is that they don’t know the trial record, the standard of proof that someone must have evidence of guilt beyond reasonable doubt, and that a raft of circumstantial evidence doesn’t make a case good, it makes a case extremely weak.
As far as a ‘plan to expel Serbs’, it didn’t exist. The fallacy that Brioni ‘proves’ that a plan existed is exposed as false simply by reading the entire transcript, not taking one or two quotes of people who are dead completely out of context. The appeals chamber made short shrift of these ‘experts’. If there were 5 pieces of evidence which would favor the defense in the interpretation of Brioni, and one against, the trial chamber took the one against and used it as evidence ‘beyond reasonable doubt’ of a JCE. The appeals chamber rejected that kind of reversal of the burden of proof.
The matter of the Serb leadership organising the evacuation of Serbs from ‘Krajina’ was – and is – very much a taboo subject for ‘Balkan experts’ critical of Croatia. The evacuation is rarely mentioned. Why is this and do you feel it impeded international public understanding of the issues surrounding the trial?
I don’t think they can reconcile the fact that the Serb leadership in Croatia could never accept Croatia as being the legitimately recognised sovereign with the desire of that same leadership to do anything to avoid living together with Croatians. Had we been able to have them in time, the evidence we tried to get admitted post trial in our motions clearly shows the Serbian leadership’s desires in Belgrade to evacuate this population and move them to Kosovo and other places. If one isn’t planning an evacuation, the leadership doesn’t go to General Forand late on the first day of Operation Storm in the UN barracks in Knin and ask for enough vehicles and fuel to evacuate 32,000 people. That’s just one of the pieces of direct evidence the trial chamber conveniently ignored.
In relation to that – given the evacuation, how did the original indictments blaming Croatia for the exodus ever got off the ground? At the very least reasonable doubt was there.
Let’s face it, crimes were committed, and very ugly ones at that. They were not widespread, nor were they systematic. And even the trial chamber agreed that the crimes were not part of the ‘plan’ to expel the Serbian population. The fault lies with the lack of resources and in some cases the lack of will of the criminal justice system in Croatia at the time of the events to deal with it in a proper fashion. Had they been more intensely involved in prosecuting the criminals who committed the crimes, maybe the indictments would not have been forthcoming. Then again, political pressure has its presence here given the fact that the mantra kept being spread over and over that Operation Storm was “the biggest ethnic cleansing event of the wars in former Yugoslavia”. This was false and we knew it to be so.
As an example of the difficulties of returning a war zone to order, we admitted evidence in our case through one of the experts who was involved in KFOR in Kosovo that the murder rate in Kosovo went down from something like 50 people a week before KFOR to 30 people a week after KFOR. And these were ‘western military forces’ trying to keep the peace. And they were lauding the fact that the murder rate went down! If this kind of carnage happened in the so-called Krajina weeks after the Croatian civilian authorities took over the occupied territory, Croatia and its leaders would have been even more vilified.
So while it’s in some instance comparing apples to oranges, it’s a valid piece of evidence to show that not even the best trained and best armed force could control lawlessness and killing well after hostilities had ended. How was Croatia to do that on its own with scant resources while still dealing with occupied Eastern Slavonia and fighting the BSA (Bosnian Serb Army) with the ABH (Army of Bosnia-Herzegovina) in Bosnia?
Something I have found disturbing about the case is that the prosecution used material from one Savo Strbac, a member of the ‘Republika Srpska Krajina’ government – Milosevic’s illegal occupation structure in Croatia. The prosecution even issued him with a ‘letter of endorsement’ to help him raise funds for his organisation. What are your thoughts on the matter?
The OTP was hypocritical in using him and his organisation to further their case. He was a member of the “government” which was held to be a criminal enterprise and thus his credibility was completely compromised. Had they thought he was so credible, the OTP would have had him testify at trial. As it was, they knew that if he testified he would have been completely obliterated in cross-examination by three sets of counsel. As it was, the ‘statements’ his organization ‘Veritas’ provided were all templates and all the same as if they were a script. Interestingly, not one of the statements had reference to ‘shelling’ as being the cause of people leaving Croatia. So while the OTP wanted badly to enhance Strbac’s credibility through this pseudo NGO, in the end the ‘evidence’ they provided was negligible and had no effect in my view on the ultimate issues in the case.
There was little coverage of the 200m rule or the substantial criticism of the original verdicts by military and legal experts from around the world. Do you think there is a problem with international media coverage of such trials?
They cover what’s sensational and nothing else. I was in contact with Marlise Simon from the New York Times after opening arguments. She covered the whole elaborate opening of the prosecution. She didn’t stick around nor even mention the Gotovina opening the next day. I emailed her and admonished her for her lack of balance. Her email response to me was on March 13, 2008, shortly after the openings were completed. She thanked me for my email and told me that the defense outline would appear in a story as soon as she received the transcript. She added that she did not have 5 or 6 hours to sit through court proceedings every day and advised that “I assure you that there will be plenty of opportunity to reflect the position of the defense.”
Well that opportunity “to reflect on the position of the defense” at least from the New York Times correspondent covering the Tribunal never came. As a journalism major and one who worked as a reporter and who was taught by former New York Times Moscow Bureau chief Ray Anderson, who interviewed, among others, Brezhnev, Tito, Sadat and other important historical figures, I was extremely disappointed.
Simons’s response tells you all you need to know about what the press thinks is most important in theses trials, sensationalize and promote the prosecution, convict the “war criminals” before they even have a chance to defend themselves and ignore the defense. The poster on the wall at the tribunal sums it up really: “Bringing War Criminals to Justice and Justice to Victims”. So much for the presumption of innocence and a fair trial
I could write an entire book on how the SENSE News Agency, which is essentially housed in the Tribunal building, has covered this Tribunal as a cheerleader for the prosecution.
Two appeals judges disagreed with the majority. One even said it “…contradicts any sense of justice”. How do you respond to that, but also the arguments they put forward?
At this point, I don’t want to comment directly other than to say that after analysis, it’s clear to me that the dissent had it’s own agenda to equalize guilt and to find any means possible to uphold the JCE convictions to make Croatia as equally culpable on a governmental level as Serbia. There were very few substantive citations to support their dissent, what they did cite was disingenuous and didn’t say what they claimed it to say, and they were unnecessarily vitriolic in their language. At least they found 4-1 for no alternative mode of liability.
What does the future hold for you now, with this case coming to such a satisfactory conclusion?
Well, now back to my firm full time and my domestic litigation practice. I’m still involved in handling international legal matters. My family’s happy I’m not always on a plane. So am I. The intensity and the stakes were very high and there is no way that I will duplicate such a case, nor quite frankly such a result, in my career. I’m grateful and proud to have defended General Markac and that justice prevailed when the odds were so stacked against us. I plan on writing a book about my experiences and to lecture about the case and international law. Thanks to all out there who supported us in any way during our case. It’s finally over.