Non-acceptance of ICTY judgements and “humanisation” of crimes and criminals
The International Institute for Middle-East and Balkan Studies (IFIMES) in Ljubljana, Slovenia, regularly analyses events in the Middle East and the Balkans. Following ICTY judgements against Ratko Mladić and Jadranko Prlić IFIMES has prepared an analysis of the situation and circumstances in which those judgements were (not) accepted. The most interesting sections from the analysis entitled “Croatia-BiH-Serbia:Non-acceptance of ICTY judgements and 'humanisation' of crimes and criminals” are presented below.
Non-acceptance of ICTY judgements and “humanisation” of crimes and criminals
The verdicts against Ratko Mladić (IT-09-92) and Jadranko Prlić et al. (IT-04-74) represent the final judgements of the International Criminal Tribunal for the former Yugoslavia (ICTY) which will formally cease to operate on 31 December 2017.
The Mechanism for International Criminal Tribunals (MICT) established by the UN Security Council resolution CS/RES/1966 (2010) will continue the work of ICTY as its legal successor at least until 2023. MICT is formally ICTY's replacement body and as such will work with the same capacity and mandate as ICTY. Analysts believe that all the appeals and trial judgements before MICT should be concluded before a comprehensive analysis and evaluation can be made of ICTY's 24 years of work.
No one had believed that ICTY would perform its function
In order to perform a comprehensive analysis, account should be taken of the conditions under which ICTY worked, which were anything but promising. A very illustrative example are regular annual and semi-annual reports that have been submitted by ICTY's President and Chief Prosecutor to UN Security Council since 1994. In almost all reports they complained about the non-cooperation on the part of the countries in the region, especially Serbia, but also Croatia and the Republika Srpska entity of Bosnia and Herzegovina, and about constant lack of financial and human resources. During her testimony before ICTY former US Secretary of State Madeleine Albright admitted that no one had believed the Tribunal would perform its function, that the UN would appoint the judges and prosecutors and that there would be any defendants, apprehensions, trials, judgements and punishments. She was one of the few persons who claimed the opposite: that the Tribunal would not only perform its function but play the key role in establishing the responsibility. The late professor M. Cherif Bassiouni wrote in his memoirs that the fact that Western Forces knew that the then President of Federal Republic of Yugoslavia (SRJ) Slobodan Milošević was responsible for many of the crimes in Bosnia and Herzegovina made him all the more valuable as an interlocutor– “and that knowledge, in turn, was incompatible with an assertive policy of supporting justice”.
Although that was not ICTY's priority task, it defined the nature of the armed conflict in the territory of former Yugoslavia, and thus provided answers to two key questions: what were the war goals and what was the nature of the armed conflict in the territory of former Yugoslavia. It should be noted why ICTY decided to define the nature of those conflicts while its priority task was to determine the responsibility of individuals. Namely, the proving of charges under Article 2 of ICTY Statute (Grave Breaches of the Geneva Conventions) and the application of that Article 2 were conditional upon the existence of an armed conflict. Therefore, in numerous judgements the character of those conflicts had to be defined.
In its judgements ICTY established the existence of an armed conflict in former Yugoslavia
In ICTY final judgements it was established that the conflicts in the territory of former Yugoslavia were of an international nature: Serbia against Croatia on one hand and Serbia and Croatia against Bosnia and Herzegovina on the other hand. In more simple terms we can say that in a series of judgements ICTY established the aggression of SRJ (Serbia) and the Republic of Croatia against Bosnia and Herzegovina as well as the aggression of Serbia against Croatia based on their plans to create the Greater Serbia and the Greater Croatia. The conclusions of ICTY judgements are based on evidence showing direct and indirect interference of SRJ (Serbia) and the Republic of Croatia in Bosnia and Herzegovina as well as the interference of SRJ (Serbia) in Croatia.In the judgements it was proven that the Greater Serbia and Greater Croatia plans represented the bases for the politics of committing crimes. The final judgement against Duško Tadić (IT-94-1) states in paragraph 660: “As discussed, this Trial Chamber has found that an armed conflict existed in the territory of Opstina Prijedor at the relevant time and that an aspect of this conflict was a policy to commit inhumane acts against the civilian population of the territory, in particular the non-Serb population, in the attempt to achieve the creation of a Greater Serbia.”
The relevance of the Joint Criminal Enterprise (JCE) legal doctrine
At the last meetings on the work of ICTY held in December 2017 in the UN, ICTY and MICT Chief Prosecutor Baron Serge Brammertz stressed the importance of Joint Criminal Enterprise (JCE) as a legal doctrine: “Thanks to this theory, we determined that the war in Bosnia was not only a civil war, but that Belgrade, and also Zagreb, had a role in crimes in BiH, which was an international armed conflict.”
The first-instance judgements against Ratko Mladić and Radovan Karadžić taken by ICTY definitely represent the condemnation of political, military and police leadership of Republika Srpska and the confirmation of four JCEs. Analysts believe that both judgements contain the correctly established facts based on four JCEs, including the Srebrenica genocide. However, they failed to establish the genocide in six BiH municipalities, although the majority of judges except judge Orie established the genocidal intent in five municipalities. The trial chambers again withdrew from the previously established facts in ICTY judgements regarding the JCE involving Slobodan Milošević and other officials from Serbia. Namely, in the 2008 judgement against Milan Martić (IT-95-11) it was concluded that: “In this respect, the Trial Chamber recalls the evidence that the SVK and the VJ were in reality one and the same organisation, only located at two separate locations. Moreover, the evidence of Milan Martić’s arrest in 1991 gives a clear example of joint cooperation between political leaders in the SAO Krajina, in the RS in BiH and in Serbia. The Trial Chamber has been furnished with evidence that this type of cooperation continued until 1995. “The Trial Chamber therefore finds that at least Blagoje Adžić, Milan Babić, Radmilo Bogdanović, Veljko Kadijević, Radovan Karadžić, Slobodan Milošević, Ratko Mladić, Vojislav Šešelj, Franko “Frenki” Simatović, Jovica Stanišić, and Captain Dragan Vasiljković participated in the furtherance of the above-mentioned common criminal purpose.” 
A dishonourable role of the Dutch judge Orie
It should be noted that judge Bakone Justice Moloto from South Africa was presiding the Trial Chamber in the Martić case and he was also member of the Appeals Chamber in the case of Prlić et al. in which it was established that JCE existed and also that former President of the Republic of Croatia Franjo Tuđman took part in JCE. Analysts believe that the main reason why in the cases of Karadžić and Mladić ICTY chambers withdrew in some parts from the earlier final judgements lies in the fact that in those cases the chambers were presided by Alphons Orie from the Netherlands and O-Gon Kwon from South Korea, who had already taken certain positions in earlier cases and did not change them in the Karadžić and Mladić cases. Judge Orie presided the Trial Chamber also in the judgement against Momčilo Krajišnik (IT-00-39) when he denied the existence of genocide in other BiH municipalities and excluded Serbian leaders from JCE, so it was expected that he would do the same in the case of Ratko Mladić (IT-09-92), and so he did. Judge Orie's separate opinion in the trial judgement against Ratko Mladić shows just how persistent he was in his position that no genocide was committed in Bosnia and Herzegovina. He opposed the majority of judges who found that the genocidal intent existed in five BiH municipalities. This finding represented a revolutionary position of ICTY judges after 24 years of work of the Tribunal and it now provides additional basis to MICT prosecution in trying to prove through appeals proceedings that genocide existed in other municipalities outside Srebrenica where all kinds of crimes that fall within the competence of ICTY, including ethnic cleansing, were established.
Judge Orie was also the presiding judge of the Trial Chamber in the case of Jovica Stanišić and Franko Simatović in which he scandalously concluded that the defendants were not responsible and abolished the JCE in which they were together with Slobodan Miloševič, and then acquitted them. It was therefore expected that as the presiding judge in the Mladić case judge Orie would do everything to exclude from JCE Jovica Stanišić and Franko Simatović and logically also Slobodan Milošević as their superior. Nevertheless, his shameful judgement and the legal (non)standards that he applied in the Stanišić-Simatović case are now reversed and a new first instance trial is taking place.
The way in which presiding judge Orie together with another two members of the Trial Chamber defined JCE in the judgement against Ratko Mladić and the relationship between the Yugoslav Army (VJ) and the Army of Republika Srpska (VRS) is in direct contradiction with ICTY established case law. Thus in the final judgement against Duško Tadić it is explicitly stated in paragraph 156: “As the Appeals Chamber has already pointed out, international law does not require that the particular acts in question should be the subject of specific instructions or directives by a foreign State to certain armed forces in order for these armed forces to be held to be acting as de facto organs of that State. It follows that in the circumstances of the case it was not necessary to show that those specific operations carried out by the Bosnian Serb forces which were the object of the trial (the attacks on Kozarac and more generally within opština Prijedor) had been specifically ordered or planned by the Yugoslav Army. It is sufficient to show that this Army exercised overall control over the Bosnian Serb Forces. This showing has been made by the Prosecution before the Trial Chamber. Such control manifested itself not only in financial, logistical and other assistance and support, but also, and more importantly, in terms of participation in the general direction, coordination and supervision of the activities and operations of the VRS. This sort of control is sufficient for the purposes of the legal criteria required by international law.”
In the trial judgement against Ratko Mladić (IT-09-92, par. 3782, p. 1914, vol. 4) the Trial Chamber presided by judge Orie found that the Yugoslav Army provided the VRS with weapons, ammunition, and that the soldiers received their salaries and benefits from the VJ while they were incorporated into the VRS, however the Trial Chamber noted that it received no evidence to suggest that the VJ issued instructions (or was able to issue instructions) to these soldiers once they were incorporated into the VRS. In other words, the Trial Chamber presided by judge Orie not only changed the standard from the Tadić case, but judge Orie and another two judges once again wrongly applied the standard of "specific direction" which was already annulled and abolished in 2015 in ICTY's appeal judgement against Stanišić and Simatović. In its reversal of the trial judgement against Stanišić and Simatović the ICTY Appeals Chamber stated that the Trial Chamber erred in applying the law when it required that the acts of the aider and abettor be specifically directed to assist the commission of a crime. Thus the Appeals Chamber stated that “if the new trial chamber were to examine the responsibility of Stanišić and Simatović for aiding and abetting the crimes, the Appeals Chamber instructs it to apply the correct law on aiding and abetting liability as set out above, which does not require that the acts of the aider and abettor be specifically directed to assist the commission of the crime.”
It is worrying from the legal point of view that the Appeals Chamber in 2015 issued instructions on how and under what standards the retrial in the Stanišić-Simatović case it to take place. Judge Orie and the Trial Chamber which he presided in the Mladić case once again introduced the non-existent standards based on which Momčilo Perišić as well as Stanišić and Simatović had already been acquitted in earlier cases.To the satisfaction of the broad legal circles the Appeals Chamber eventually managed to abolish the standard of “specific direction” applied in the trial judgement against Stanišić and Simatović and to reverse the judgement. Consequently, a fierce legal “battle” is expected to take place in appeals proceedings against Mladić as well as against Karadžić with the aim to apply the conclusions of the final judgements and the correct international standards for determining criminal liability.
Judge O-Gon Kwon is best known from the trial against Slobodan Milošević in which he presented his separate opinion in the interim judgement in which Milošević was found liable under all charges in the indictment including JCE and the genocide in other BiH municipalities. Judge O-Gon Kwon was outvoted by the other two judges who decided that Milošević could already at the halfway stage be held liable under all charges in the indictment. As presiding judge in the Karadžić case, O-Gon Kwon once again excluded Milošević from JCE, which will be the subject of the appeals proceedings before MICT.
The key fact in evaluating the results of ICTY is that Slobodan Milošević was the only president from former Yugoslav republics who stood for trial before ICTY. It is therefore expected that in the appeals proceedings against Mladić and Karadžić MICT would respect the earlier conclusions from ICTY judgements and the fact that Milošević was charged with crimes committed in three countries in the framework of JCE.
Reactions to the judgement against Prlić: everyone accusing each other, but no one has accused the defence
ICTY's final judgement against Prlić et al. pronounced on 29 November 2017 has triggered predictable reactions, especially in Croatia. ICTY has continually delivered judgements in which it confirmed that there was an international conflict in Bosnia and Herzegovina and that Serbia and Croatia interfered in Bosnia and Herzegovina by controlling, respectively, the military forces of Bosnian Serbs and the Croatian Defence Council (HVO) in the so called Croatian republic of Herzeg-Bosnia with the aim to annex parts of Bosnia and Herzegovina. Croatian public has been deceived by hysterical statements made by the highest officials of the Croatian Democratic Union (HDZ) and the Republic of Croatia who claimed that the appeal proceeding was decided on the basis of Franjo Tuđman's presidential transcripts. They have intentionally concealed the fact that in the first three trials before ICTY the international conflict/aggression by the Republic of Croatia was established without the use of Tuđman's transcripts. In those three trials in the cases of Kordić and Čerkez (IT-95-14/2), Blaškić (IT- 95-14/1) and Aleksovski (IT- 95-14) the role of the Republic of Croatia was established in both trial and appeals proceedings in which 22 ICTY prosecutors took part and none of them applied Tuđman's transcripts.
Joint Criminal Enterprise (JCE) as an element of proving criminal liability and international armed conflict represents two sides of the coin. Judgement against Prlić et al. was more or less expected, but after the acquittal of Ante Gotovina and others there was reasonable caution among all ICTY connoisseurs. Analysts believe that the prosecution outwitted the defence whose biggest mistake was that it demanded the trial chamber to provide for the fifth time evidence on Croatia's interference in the war in Bosnia and Herzegovina although the prosecution had offered to reach an agreement on the established facts. Thus the defence made it easier for the prosecution to prove grave breaches of the Geneva Conventions in parallel with the establishment of international armed conflict in BiH and joint criminal enterprise. Other mistakes noted by the analysts include the three demands of the Republic of Croatia to participate in the proceeding as the “friend of the court” and the statements made by incumbent Croatian President Kolinda Grabar Kitarović that she would not accept the sentencing judgment and the statement by the Croatian member of the BiH PresidencyDragan Čović who said that he knew in advance the Appeals Chamber's decision. The analysts have estimated the defence of Bruno Stojić as the worst one, since it focused on denying JCE and saving Croatia instead of contesting Stojić' concrete liability, although Stojić's position in the structure of the so called Croatian Republic of Herzeg-Bosnia was the most simple case for defence. In her final speech in the case of Prlić et al. defence counsel Senka Nožica used political rhetoric stressing that Bosnia and Herzegovina was a dysfunctional state and that most of the Croats living there felt that they were denied some of their rights. Noting that Croatian politicians also expressed concerns regarding that issue, Nožica stressed that “the third entity and Herzeg-Bosnia were no longer taboo topics”. Such statements provoked outrage in European and American highest professional, political and diplomatic circles. The defence presented Bruno Stojić as a temperate person who supports coexistence, while on the other hand it spent most of the time presenting evidence showing the Bosniak political leaders and the BiH Army as a criminal organisation which had planned and initiated the attacks at Croatian civilians and the Croatian Defence Council (HVO) in Bosnia and Herzegovina. Those arguments were regarded as unsustainable by the trial chambers. The defence thus lost a lot of valuable time which it could have spent for protecting the interests of its clients.
It can be concluded that it is mainly thanks to the professional attitude of ICTY's staff and the willingness of mostly the Bosnian-Croatian side to cooperate that ICTY has fulfilled its mandate through apprehensions, trials and judgements of all 161 suspects. However, we should not forget that ICTY would have never determined the goal, scope, extent, nature and system of committed crimes were it not for the testimonies of over 4,000 victims. Instead of cooperating with ICTY, which was the obligation of all the actors from the former Yugoslavia under their national laws, certain highest representatives of Croatia, Bosnia and Herzegovina and Serbia have rejected to accept the adopted judgements and even tried to “humanise” the committed crimes and their perpetrators.
Ljubljana, 21 December 2017
 STANIŠIĆ Jovica and SIMATOVIĆ Franko (MICT-15-96), KARADŽIĆ Radovan (MICT-13-55), ŠEŠELJ Vojislav (MICT-16-99) MLADIĆ Ratko (MICT IT-09-92 ).
 The list of judgements with the related paragraphs, including the interim judgement against Slobodan Milošević: ICTY, The Prosecutor v. Duško Tadić, IT-94-1, par. 97,156,160,162,569,606,660. http://www.icty.org/bcs/case/tadic/4
ICTY, The Prosecutor v. Zejnil Delalić, IT-96-21, par. 110,221,223,225,233 (‘Delalić’) http://www.icty.org/bcs/case/mucic/4
ICTY, The Prosecutor v. Slobodan Milošević, Trial Chamber, Decision on Motion for Judgement of Acquittal, 16 June 2004., IT-02-54, par. 254 (‘S. Milošević) (http://www.legal-tools.org/doc/d7fb46/, http://www.legal-tools.org/doc/78bb66/). http://www.icty.org/x/cases/slobodan_milosevic/tdec/bcs/040614.pdf
ICTY, The Prosecutor v. Milan Martić, IT-95-11, par. 329,442-446 (‘Martić’) http://www.icty.org/bcs/case/martic/4
ICTY, The Prosecutor v. Radoslav Brđanin, IT-99-36, par. 76,148.150,151,153,154http://www.icty.org/bcs/case/brdanin/4
ICTY, The Prosecutor v. Miroslav Deronjić, Sentencing Judgement, 30 March 2004., IT-02-61, par. 52 (‘Deronjić’) (http://www.legal-tools.org/doc/95420f/). http://www.icty.org/x/cases/deronjic/tjug/bcs/040330.pdf
ICTY, The Prosecutor v. Jadranko Prlić et al., IT-04-74, par. 24 ,544,545,549,550,560,568 (‘Prlić et al.’) http://www.icty.org/bcs/case/prlic/4
ICTY, The Prosecutor v. Dario Kordić and Mario Čerkez, IT-95-14/2, par. 108,109,137,142,145 (‘Kordić and Čerkez’) http://www.icty.org/bcs/case/kordic_cerkez/4
ICTY, The Prosecutor v. Zoran Kupreškić et al., IT-95-16, par. 40 (‘Kupreškić et al.’) http://www.icty.org/x/cases/kupreskic/tjug/bcs/000114.pdf
ICTY, The Prosecutor v. Mladen Naletilić and Vinko Martinović, IT-98-34, par. 14 ,196,200 (‘Naletilić and Martinović’) http://www.icty.org/bcs/case/naletilic_martinovic/4
ICTY, The Prosecutor v. Tihomir Blaškić, IT-95-14-T, par. 94, 122,123,744 (‘Blaškić’) http://www.icty.org/bcs/case/blaskic/4
 ICTY, The Prosecutor v. Milan Martić, Judgement, IT-95-11-T, par. 446 (‘Martić’) http://www.icty.org/x/cases/mart ic/tjug/bcs/070612.pdf
 By adopting this conclusion the Trial Chamber took the position that Slobodan Milošević, who is referred to in the judgement as VJ’s Supreme Commander and President of the Supreme Defence Council, is to be excluded from JCE. For MICT's prosecution in the appeal proceeding it will be of key importance to define the position of Slobodan Milošević in the trial judgement in relation to the conclusion of the trial chamber. Interestingly, the trial chamber held the opinion that Milošević received instructions from the Supreme Defence Council.