The Cost of Prosecution and Defence at the ICTY

by Luka Misetic

Every year or so, a new publication decides to recycle news about Croatia's spending on the defence of General Gotovina, and repackage it as an "exclusive."  I blogged about this last year here.  Now comes BIRN (Balkan Investigative Reporting Network) with another article, claiming to be an "investigation" about "suspect payments," which reports inter alia about how much Croatia allegedly spent on the defence of Croatia's three generals accused before the ICTY in the Operation Storm case.

Let me first point out the obvious.  Croatia spent a significant amount of money (whatever the amount really is)[1] on the defence of three men who turned out to be innocent, wrongfully accused by the Office of the Prosecutor, a point ignored in the BIRN piece.  One would think that in any retrospective discussion of the merits of spending on ICTY indictees, the ultimate determination of guilt or innocence would at least be a factor for consideration.

Second, Article 21 of the ICTY Statute acknowledges the Accused's fundamental right to "have adequate time and facilities for the preparation of his defence" "in full equality" with the Prosecution.   Defence spending thus should be compared with Prosecution spending to assess whether spending was generally equal in the case and thus in line with the Accused's fundamental rights, or whether spending was disproportionate.

According to UN documents, the Prosecution's budgets for the years 2006-2013 were as follows:

ICTY Prosecution Budgets

2006-2007:  $96,169,000.00 USD, or approximately $48,084,000.00 USD per 2006 and 2007;

2008-2009: $104,579,000.00 USD, or approximately $52,289,500.00 USD per 2008 and 2009;

2010-2011: $79,810,000.00 USD, or approximately $39,905,000.00 per 2010 and 2011; and

2012-2013: $59,518,000.00 USD, or approximately $29,759,000.00 per 2012 and 2013.

Thus, for the seven years of the Gotovina trial and appeal, the Prosecution had at its disposal a total of $310,000,000.00USD (I am excluding the budget for 2013 from the above numbers because Gotovina ended in 2012).  These figures do not take into account that the Prosecution conducted its investigation of the Gotovina case in the ten years prior to 2006, on which the Prosecution undoubtedly spent several million additional USD that are not reflected in the above numbers. 

Obviously, the $310,000,000USD was spent by the Prosecution for all of its cases and not just on the Gotovina case alone.  However, Gotovina was one of the Prosecution's higher profile cases (Gotovina having been mentioned in Security Council resolutions along with Karadzic and Mladic as the Tribunal's highest profile cases) and certainly received more Prosecution resources than the average ICTY case.  The Prosecution staffed its Gotovina team with at least ten trial attorneys, two case managers, three full time investigators, a military analyst unit, and an untold number of interpreters and other staff.  It is not unreasonable to think that up to one-tenth of the Prosecution's budget was committed to Gotovina, but a specific calculation of Prosecution spending on a case-by-case basis is impossible given that the Prosecution's costs are fixed while many of its resources (like attorneys, staff, office space, travel costs, etc) are used on more than one case.

Nevertheless, if one takes into account Prosecution spending from 1995 until the end of 2012 on the Gotovina case alone, it is probable that the level of Prosecution and Defence spending was roughly the same, which is exactly what Article 21 of the Tribunal's Statute guarantees:  "full equality" between the Prosecution and Defence in the preparation of their cases.  Gotovina was one of the rare ICTY cases where equality of arms with the Prosecution was actually achieved. The fact that this "full equality" was guaranteed by the United Nations, but funded by Croatia, is a benefit to the United Nations budget.

Whether Croatia should get a refund from the United Nations as a result of Carla Del Ponte's gross incompetence in falsely accusing three innocent Croatian Army officers is perhaps a topic to be discussed in the next journalistic "investigation" about costs at the ICTY.

__________________

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[1] I do not know the actual numbers because I was not privy to information about the contracts of other lawyers and other defence teams with Croatia.

The Competence of Judge Güney and the Boomerang Effect

Declarations of war often have a boomerang effect, causing more damage to the attacker than the attacker had ever anticipated.  Just ask George Bush what happened after he declared “Mission Accomplished” in Iraq.  In The Hague, the war launched on the ICTY’s judges in early 2013 continues.   As I have noted previously, Judge Theodor Meron has been subjected to what I figuratively refer to as a “Joint Criminal Enterprise” by a disgruntled few.  More recently, Judge Frederic Harhoff discovered the “boomerang effect” when he launched an attack on Judge Meron in an email to 56 of his “closest friends,” only to find himself attacked on multiple fronts by multiple defendants and ultimately disqualified from the Seselj case by a panel of his judicial colleagues.

Today comes a new attack on ICTY Judge Mehmet Güney of Turkey, this time on the pages of the Süddeutsche Zeitung (“SZ”).  In an article titled, “The Fight for Supremacy on the UN Tribunal,” the SZ reports (citing those sinister “anonymous sources,” but widely believed to be sourced by a certain “Balkan journalist” based in The Hague) that Judge Güney is “no longer really sure on his feet,” that he “communicates only in writing,”  and “is no longer able to monitor long conversations and at meetings loses his orientation.”  Moreover, the “anonymous sources” allege that Judge Meron is “pulling Judge Güney along with him for as long as Judge Meron thinks he needs Judge Güney’s vote.” SZ then states that had Judge Güney not voted with the “American President of the Tribunal, then there would be no stunning 3-2 decision in favor of the acquittal of the two Croats.”

The article concludes by stating that a “medical examination of one of the judges can only be ordered by the President of the Tribunal,” and therefore the “incompetent” Judge Güney cannot be removed from the ICTY before the end of his mandate in 2015 unless the judges elect a new judge to replace Judge Meron as President of the ICTY on October 1^st.  This statement, combined with the article’s title, (“The Fight for Supremacy on the UN Tribunal”), makes it clear that the article is really just part of the campaign to discredit Judge Meron on the eve of ICTY elections for President of the Tribunal, a campaign which has been organized for months by the “Balkan journalist” based in The Hague.

But let’s look at the substance of the allegations against Judge Güney, who supposedly can “communicate only in writing” and is “pulled along by Judge Meron.”  The Gotovina Appeals Chamber Judgement was delivered on 16 November 2012.  Meanwhile, Judge Güney was the Presiding Judge and the Pre-Appeal Judge in the appeal of Milan Lukic, whose appellate judgement was delivered on 4 December 2012, almost three weeks after the Gotovina Appeals Judgement.  As the Presiding Judge and the Pre-Appeal Judge in Lukic, Judge Güney had primary responsibility for administration of that case, including resolving motions and preparing the actual Judgement.  Accordingly, those now anonymously attacking Judge Güney are also calling into question the legitimacy of the appeals convictions of Milan and Sredoje Lukic.  Indeed, if the Judge most responsible for preparation of the Lukic Judgement was incompetent, then the Judgement is not sound and must be reviewed.

But was Judge Güney really able to “communicate only in writing”?  The video of the delivery of the Lukic Judgement (again, delivered three weeks after the Gotovina and Markac acquittals), suggests that Judge Güney was able to communicate verbally without any problems.  Furthermore, he delivered the Judgement for 36 consecutive minutes, contradicting the claim that he is “no longer able to monitor long conversations and at meetings loses his orientation.”

It should be noted that Judge Meron was not a member of the Lukic Appeals Chamber, so Judge Meron was not there to “pull along” Judge Güney, as the SZ article claims.   Moreover, Judge Güney was a member of a 3-2 majority (along with Judges Agius and Morrison) that voted to grant two of Sredoje Lukic’s grounds of appeal.  Unless the “anonymous sources” of SZ are willing to go so far as to suggest that Judges Agius and Morrison (like allegedly Judge Meron) are also “manipulators of the incompetent Judge Güney,” the 3-2 vote in Lukic suggests that Judge Güney is able to reach decisions competently and independently of Judge Meron or anyone else.

Finally, it should be noted that the Lukic and Gotovina Appeals Chambers had three common judges:  Judges Güney, Agius and Pocar.  If Judge Güney were “incompetent” at the time of the delivery of the Gotovina Appeals Chamber Judgement, Judges Agius and Pocar would have had to know about it.  They would have had a duty to disclose to the parties in the Gotovina case that they believed one of their colleagues was incompetent at the time of judicial deliberations.  Instead, Judges Agius and Pocar, despite vigorously dissenting from the Majority decision, never suggested in their dissents that the Majority had reached its decision where one member of the Majority was incompetent.  Moreover, Judges Pocar and Agius then went on to sit with their colleague in the Lukic case, where they not only did not disclose any concern about Judge Güney’s fitness to be a member of the Appeals Chamber, but also had no concern about Judge Güney being named the Presiding Judge in the case. Indeed, Judge Agius in the Judgement went so far as to join Judge Güney (and oppose Judge Pocar) in forming a 3-2 Majority on certain issues in the Lukic Judgement.

Accordingly, the silence of Judges Agius and Pocar in the Gotovina and Lukic cases strongly suggests that Judge Güney was not incompetent at the time of delivery of both Judgements in November and December 2012.  If it were true that Judge Güney was incompetent at the time of delivery of both judgements, and Judges Agius and Pocar kept silent, then Judges Pocar and Agius would have to be disqualified from both cases along with Judge Güney, because both Pocar and Agius would have breached their ethical duties to disclose information critical to determining whether the fundamental rights to a fair trial and to an independent and impartial tribunal were violated by Judge Güney’s membership on both panels.

Those “anonymous sources” attacking Judge Güney on the basis of his vote in the Gotovina Appeal are thus also inadvertently calling into question the ICTY’s conviction of Milan and Sredoje Lukic, once again demonstrating the “boomerang effect” of going to war on false pretenses. 

Just ask “Boomerang Fred” Harhoff.

Eric Gordy's Straw Men

By Luka Misetic

My June 19th blog post titled, “The Joint ‘Criminal’ Enterprise Against Judge Theodor Meron” received many responses, but none more bizarre than a blog post written by sociologist Eric Gordy, titled “For the Annals of Conspiracy Theory: Nia, Snajko.” Gordy does not, to my knowledge, have any training or education in law. Nevertheless, Gordy has become one of the more prominent critics of the ICTY’s recent jurisprudence, including the acquittals of Generals Gotovina and Markac.

On the day of the acquittals of the Croatian generals, Gordy wrote a blog post with the subtle title, “Today is a good day to be a criminal.” In the post, Gordy mounts an attack on the Appeals Chamber’s finding that indiscriminate shelling did not cause the departure of the Krajina Serbs. Of course, Gordy could not then (and cannot now) name a single one of the mythical “tens of thousands of Krajina Serbs” who were deported by the alleged “indiscriminate shelling.” But more on that later. More recently, Gordy has turned to the pages of the New York Times to argue inter alia that in the Gotovina case, “In essence the appeals chamber (also chaired by Judge Meron) found that there exists no legal standard that allows courts to distinguish between legitimate and illegitimate military targets.” This statement is, of course, nonsense. The ICTY has clearly identified the legal standards of targeting in its decisions in cases like Blaskic, Kordic, Galic, Strugar, Martic, Dragomir Milosevic, etc. What the Appeals Chamber in Gotovina found was that there was no evidence introduced by the Prosecution at trial concerning the proper margin of error for targets in Operation Storm. It did not rule, “There exists no legal standard that allows courts to distinguish between legitimate and illegitimate military targets.” Oh, and the Prosecution was never able to identify a single shelling victim in Operation Storm, unlike in Blaskic, Kordic, Galic, Strugar, Martic, Dragomir Milosevic, etc. (More on that later.) 

Gordy’s recent transformation into a critic of the substance of ICTY judgements stands in stark contrast to his views back when Ante Gotovina was a convicted war criminal sentenced to 24 years in prison. In an interview with the Croatian weekly Nacional published less than one month after Gotovina’s April 2011 conviction at the trial level, Gordy remarked:

• NACIONAL: What are your thoughts about the judgements against Gotovina and Markac?
• 
  
• GORDY: The court arrived at a lawful judgement, but only a few people have been encouraged to come out and say that we have to examine the facts and open a dialogue with those who were forced to move out. The majority simply concluded that the Court was wrong. That does not help in building peaceful relations. I think the other day Mesic commented that the decision has moved people back into the ‘90’s. And I think after the decision many discussions look exactly like that.
• 
  
• NACIONAL: Does that mean that you do not agree with the judgement?
• 
  
• GORDY: There was a trial, the Prosecution gathered evidence, and the Defence presented its case. This lasted five years. The judges looked at the evidence that both sides presented and made their decision. Whether you or I would have arrived at a different conclusion is not important, because it’s not our job. But the judgement certainly did not contribute to the establishment of peace. At the gathering on the Ban Jelacic Square after the Judgement, the master of ceremonies, actor Bozidar Alic, after reciting poetry exclaimed, “The war is not over.” Who does that help and how does that contribute to the establishment of peaceful relations? It needs no mentioning that there probably exist people in all of the countries of the region who welcome these types of messages, who want another war. But I think that the majority of normal people would not. Lawyers like to say that if justice is served before a court, it contributes to understanding and growth of social contacts and dialogue. That obviously did not happen when people celebrate those decisions which appeal to them, and protest those decisions which don’t appeal to them.

Gotovina’s conviction obviously “appealed” to Gordy, and as a result he was of the view that is was “not our job” to criticize decisions reached by judges who had “looked at the evidence both sides presented and made their decision.” When Gotovina’s conviction was overturned, however, also by judges who had “looked at the evidence both sides presented and made their decision,” it suddenly did become “our job” to criticize the Tribunal. It became “our job” to argue on the pages of the New York Times that the judges who voted to overturn the conviction could not possibly have done so in good faith on the basis of their review of the evidence and the law, but instead did so because “no conspiracy is needed to explain that judges represent the states that nominated them to the tribunal, and that law is a conservative profession.” Suddenly, it did become “important whether you or I would have arrived at a different conclusion.”

Gordy has obviously become one of those very people he criticized in Nacional, who “celebrate those decisions which appeal to them, and protest those decisions which don’t appeal to them.” Or perhaps he was one of those people all along.

Now on to Gordy’s comments about my “Meron JCE” blog post.  Gordy correctly notes that the post was written tongue in cheek. However,  I found the rest of Gordy’s post bizarre because Gordy starts his comments by explaining the definition of a “straw man argument,” and then proceeds to attack my blog post by advancing nothing but a series of straw man arguments. 

At the outset, I note that Gordy takes no issue with the substance of my post.  Thus Gordy does not dispute:

1. There is an effort underway to discredit Judge Meron and force his removal as President of the ICTY;

2. The Prosecution has never been able to identify a single Serb civilian who was killed or injured by shelling, or who claimed to have left Croatia due to fear of shelling;

3. Florence Hartmann wrote a book in 1999 in which she recorded her experience that the Krajina Serbs “fled at the request of their own leadership”;

4. The Prosecution’s lead investigator for the Operation Storm case was simultaneously a Swedish military intelligence agent, Joakim Robertsson;

5. Robertsson fabricated evidence against General Gotovina;

6. Robertsson and Thomas Elfgren leaked a confidential Prosecution report to the New York Times in 1999; and

7. Robertsson and Elfgren were behind an attack on Judge Meron in the Finnish press in April 2013.

These were the essential facts in my blog post, and Gordy disputes none of them. Indeed, I particularly note that Gordy is unable to rise to my challenge and name a single victim of the alleged “indiscriminate attack” which Gordy superficially claims took place. 

Gordy had claimed that Gotovina’s defence team had offered a “Rodney King defence to the charge that civilians were encouraged to flee because of indiscriminate shelling of the towns where they lived. Shell by shell, they argued it could not be demonstrated which particular attack by explosives caused which civilian to flee.” The problem with Gordy’s analogy, of course, is that neither Gordy nor the ICTY Prosecution could ever identify a single “Rodney King” among the entire Krajina Serb population. If Gordy wants to stay with the Rodney King analogy, then he should modify the analogy to reflect the facts in the Gotovina case. What would have happened if a video had surfaced of LAPD officers swinging their police batons energetically and---striking no one?  

Instead of addressing my arguments, Gordy attributes a series of invented arguments to me and then proceeds to mock them in a classic case of a “Straw Man” attack.

1. Gordy claims that I wrote, “Florence Hartmann, Mirko Klarin, the ICTY prosecutors, Serbia, Carl Bildt, and something called ‘Nordic intelligence’” are in “collusion” to “protect Carl Bildt from embarrassment.” I wrote nothing of the kind. Gordy misunderstands the law of Joint Criminal Enterprise, which requires no “collusion” at all among all actors in order for a JCE to exist. Indeed, in my blog post I made clear that various members of a JCE not only need not be in “collusion,” but they also “need not know of each other’s existence.” Second, Gordy confuses intent to contribute to a common “criminal” purpose, with motive. Florence Hartmann, Mirko Klarin, the ICTY prosecutors, Serbia, Carl Bildt, and Nordic intelligence services all may share the common “criminal” purpose (remove Judge Meron from office), while each may have a distinct motive for doing so. Thus, while Robertsson and Elfgren had a motive to protect Carl Bildt, Hartmann’s motive for defaming Meron is entirely different, as I made clear in my blog post: to discredit her own conviction for contempt of the Tribunal.

2. Gordy claims that because I posted a picture of Klarin, Hartmann and others having drinks, which one of the participants labeled a gathering of the “MORON / NERON fan club,” I necessarily claim that the entire Jahorina conference (where the photographed participants were having drinks) was “a sinister or secret or conspiratorial” conference aimed at discrediting Judge Meron. Nowhere did I ever make such a statement, so Gordy is “refuting” something which I never said---and never thought. I posted the picture solely to note that the participants in the picture  (including Hartmann and Klarin) do not hide their contempt for Judge Meron. Whether the picture was taken at the Jahorina conference or in Las Vegas is completely irrelevant.

3. Gordy claims I have “something against Florence Hartmann, Mirko Klarin, and all Scandinavians.” I have nothing against anyone. The only thing I am “against” is “when people celebrate those decisions which appeal to them, and protest those decisions which don’t appeal to them,” something Gordy himself criticized in his Nacional interview.

4. Finally, Gordy claims that I believe “damage to the reputation of Meron puts the credibility of the appeals verdict in the Gotovina case, his greatest courtroom success to date, in danger.” Actually, I don’t believe this. I believe that those attacking Judge Meron believe this. I myself believe that history will record the Gotovina Appeals Judgement as the only possible just result. For those of you who choked on your morning coffee when you read that sentence, I offer the following challenges:

i. Identify—by name—a single Serb shelling victim in Operation Storm, or a single Serb civilian who claimed to have fled Croatia out of fear of shelling;

ii. Explain why 99% of the Krajina Serb civilian population left Croatia within the first four days of Operation Storm?

iii. If you cannot identify a single Serb shelling victim, then what exactly was the “criminal plan” you believe was hatched at Brioni? HOW (through what criminal means) did Tudjman and the others intend to forcibly remove the Krajina Serb population?

History will look favorably upon the three Appeals Chamber judges who had the courage to overturn the unjust conviction and sentence of Ante Gotovina to 24 years in prison, where the Prosecution could not identify a single victim of the core crimes of the alleged JCE. 

I have no concern that the "credibility of the appeals verdict in the Gotovina case is in danger," because the Appeals Chamber "judges looked at the evidence that both sides presented and made their decision. Whether you or I would have arrived at a different conclusion is not important, because it’s not our job."

More Disinformation from Milorad Pupovac & Co.

As Croatia celebrated the 18th anniversary of its liberation in Operation Storm, the Serbian National Council in Croatia issued a press release through its leader, Milorad Pupovac, in which it declared that to date, "none of the direct perpetrators was held responsible" for murders of Serb civilians committed during and after Operation Storm. Vesna Terselic of the Documenta center and Mladen Stojanovic from the Center for Peace in Osijek made similar claims.

These claims are incorrect. Several people--members of the Croatian Army--have been convicted for murder of Serb civilians after Operation Storm. Here are just a few examples (there are more, but I will not list them all here):

1. Mario Dukic, member of the Croatian Army's 134th Homeguard Regiment, was sentenced to six years' imprisonment on 10 January 1997 for the murder of Petar Bota committed on 28 September 1995;

2. Ivica Petric, member of the Croatian Army's 15th Homeguard Regiment, was convicted on 27 May 1997 for the murder of Djurad Čanak in mid-August 1995, and sentenced to six years' imprisonment;

3. Zeljko Sunjerga, member of the 15th Homeguard Regiment, was convicted on 29 November 2002 for the murder of Manda Tisma sometime in the first half of August 1995. He was sentenced to four years and eleven months in prison;

4. Veselko Bilic, member of the 15th Homeguard Regiment, was convicted on 2 December 1996 for the murder of Dara Milosevic in September 1995 and sentenced to eight years' imprisonment.


I have provided only a sample of the criminal prosecutions. There are many other examples. There is no question that many other murders committed after Operation Storm have still gone unpunished, but there are many reasons why this is the case. Milorad Pupovac continues to make gross misstatements of fact in an effort to perpetuate the myth that the Croatian State intentionally refused to prosecute crimes committed after Operation Storm. Even the Trial Chamber that initially convicted Generals Gotovina and Markac rejected this claim (See Gotovina Trial Chamber Judgement, paragraph 2203).

It is time that Mr. Pupovac and others stop distorting the historical record.

Brammertz No Longer Has Jurisdiction Over Gotovina Case

Radio Free Europe today published an "exclusive" interview with ICTY Prosecutor Serge Brammertz, in which Brammertz comments that his office is "dissatisfied" with the acquittals entered in the Gotovina and Perisic cases and is "examining all legal means to contest these decisions."  This is consistent with a press release issued by Brammertz on 24 June 2013 in which he announced, "[r]egarding the Gotovina et al. case, my Office is considering whether the specialized threshold required for review of Appeals Judgment is met.  If so, we will initiate proceedings within the prescribed one-year time frame."  Having received repeated requests from the media to respond to Mr. Brammertz's comments, I wish to note as follows:

First, I know of no evidence that exists (or that even could theoretically exist) which would satisfy the specialized threshold required for review of the Appeals Chamber Judgment.  Furthermore, I believe that if Mr. Brammertz believed he had such evidence in his possession, he would have filed a Motion for Review of the Appeals Chamber's Judgment by 30 June 2013.  

My first point leads into my second point:  on 1 July 2013, the ICTY lost jurisdiction over the Gotovina case, because jurisdiction as of that date was assumed by the new International Residual Mechanism ("MICT").  According to the Statute of the MICT, "[t]he Mechanism shall have competence to conduct, and complete, all review proceedings for which the application for review of the judgment is filed on or after the commencement date of the respective branch of the Mechanism [i.e., 1 July 2013]."  (See page 18 at Article 3(2) in the Annex to the MICT Statute titled, "Transitional Arrangements.").  

Thus, if a Motion for Review of the Appeals Chamber Judgment in Gotovina is filed, it must be filed before the MICT (not the ICTY) by 16 November 2013.  Furthermore, it must be noted that Mr. Brammertz is not a Prosecutor before the MICT.  The MICT Prosecutor is Mr. Hasan Jallow (also the Prosecutor at the International Criminal Tribunal for Rwanda), and any decision to file a Motion for Review in the Gotovina case therefore must be made by Mr. Jallow, not Mr. Brammertz.  Mr. Brammertz can, of course, ask Mr. Jallow to file such a Motion for Review, but the final decision as to whether a Motion for Review will be filed with the MICT rests exclusively with Mr. Jallow.  Mr. Brammertz's recent public comments might inadvertently mislead the public into believing that Mr. Brammertz has the authority to file a Motion for Review of the Gotovina Appeals Judgment.

Accordingly, if Mr. Brammertz believed he had a basis to file a Motion for Review in the Gotovina case, it is my view that he would have filed such a Motion by 30 June 2013, when he still had jurisdiction to file such a Motion at the ICTY.  By allowing the 30 June 2013 deadline to pass, and allowing jurisdiction over the Gotovina case to transfer from the ICTY to the MICT, I can only conclude that Mr. Brammertz did not believe he had a basis to file such a Motion, i.e, he does not have evidence in his possession sufficient to seek Review of the Gotovina Judgment.  This does not mean that Mr. Brammertz may not later conclude that new evidence has been discovered that would justify a Motion for Review, but if he does discover such new evidence he will have to ask Mr. Jallow to file a Motion for Review at the MICT.

Finally, I cannot but take note of Mr. Brammertz's additional comments in the Radio Free Europe interview in which he discusses the public criticism of the Tribunal's recent judgments.  Mr. Brammertz states that, "we in the Tribunal have to allow for such criticism, which was my message at the last two events we held at the ICTY. If criticism exists, then we have to deal with it; we have to accept constructive criticism and we should not hide from internal discussions about the work of the Tribunal."  Having lost several high profile cases recently, Mr. Brammertz is now a strong advocate for public debate about the ICTY's judgements, and a proponent of the notion that the Tribunal's judges should take into account public criticism in arriving at their judgements.

Mr. Brammertz's newfound position should be juxtaposed with his position in 2011 in response to comments made by Croatian officials criticizing the Gotovina Trial Chamber's conviction of Generals Gotovina and Markac as well as Croatia's criticism of the Trial Chamber's finding that Operation Storm amounted to a Joint Criminal Enterprise.  Mr. Brammertz reported Croatia to the Security Council for its criticism of the Gotovina Trial Chamber Judgment, telling the Security Council that it is “unfortunate that in the aftermath of the judgment, the highest state officials failed to comment objectively on the outcome of the case.” 

In light of the Appeals Chamber's subsequent decision to overturn the Gotovina Trial Chamber's Judgement, it is clear that Croatia's criticism of that Trial Judgment was not only "objective," but fully justified.  Perhaps in his next interview Mr. Brammertz can explain his conversion from his 2011 role as "The Silencer" of public criticism of ICTY judgments to convict, to his 2013 role as the defender of the right to freedom of speech to criticize acquittals.

One would hope that Mr. Brammertz's conversion is not based on naked opportunism masquerading as concern about the legacy of the ICTY.

The Joint "Criminal" Enterprise Against Judge Theodor Meron

The Inside Story of How Carl Bildt, Intelligence Agencies from the Nordic countries, Serge Brammertz, Florence Hartmann, Mirko Klarin And Others Are Connected to the “Controversy” Designed to Discredit the ICTY’s President, Judge Theodor Meron

By Luka Misetic

As controversy continues to engulf the ICTY as a result of Judge Fred Harhoff’s seemingly senseless email, over the past week I have been asked the same question repeatedly.  Journalists, former prosecutors, defense attorneys, friends and relatives have all asked me the exact same question:

“What is going on here?”

Allegations are flying, from the pages of the New York Times to the website of the BBC to the cafeteria inside the ICTY itself, that the ICTY’s President, Judge Theodor Meron, has been corrupted by the government of the United States.  Judge Fred Harhoff passed along these rumors to 56 of his “closest friends”, thus triggering the “controversy.”[1]  Of course, there has not been a single shred of evidence to support this claim.  Nevertheless, the “story” continues to be driven by several individuals, many with close connections to the Office of the Prosecutor of the ICTY.

This blog post is my attempt to begin to answer to that often repeated query: “What is going on here?”  As I will explain in great detail below, the interests of many with an agenda against Judge Meron and/or Ante Gotovina have aligned, including current and former members of the Office of the Prosecutor, foreign intelligence services who have/had operatives inside the Office of the Prosecutor, a number of journalists, and the government of Serbia, among others.  Their objective is to so thoroughly discredit Judge Meron that they will (1) force his removal as President of the ICTY; (2) discredit the acquittals of Gotovina, Markac, Perisic, and Jovica Stanisic and create such an unbearable political climate that the judges will somehow reverse their acquittals even after final Judgement, and (3) in the case of former Prosecution spokeswoman Florence Hartmann, discredit her conviction for contempt of the Tribunal (of which all eight judges of the ICTY who reviewed her case found her guilty, unanimously).

In short, I argue that we are witnessing a Joint “Criminal” Enterprise unfolding against Judge Meron (the “crime” in this case being his defamation).  The “common purpose” of the Meron JCE is to destroy Judge Meron’s reputation so as to discredit the acquittals of Gotovina, Markac, and Perisic.    ICTY precedent holds that such a JCE can exist even if the participants in it have never formally agreed to such a conspiracy, and indeed even if they do not know of each other’s existence.  (See Gotovina Trial Judgement, page 985).  What is important is that they all share the same goal: to discredit Theodor Meron.

I.               Introduction

To understand “what is going on here,” some basic facts about Operation Storm and the Gotovina case must be established at the outset. First point:  Judges Meron, Robinson and Guney got it right when they acquitted Gotovina.  Contrary to the Prosecution’s novel theory at trial, and Judge Orie’s Trial Judgement based on his invented “200 Meter Standard” (which all five Appeals Chamber judges agreed was erroneous), the Serbs from “Krajina” were not ethnically cleansed by an unlawful artillery assault launched by Ante Gotovina.

I do not intend to re-litigate the Gotovina trial here.  In summary, the Prosecution argued at trial that the Serbs were deported from Croatia because they were allegedly terrorized into leaving by Gotovina’s merciless artillery assault on civilians and civilian objects.  But if you ask Serge Brammertz today whether the Prosecution has ever been able to identify (1) a civilian killed or injured by artillery shelling during Operation Storm or (2) a civilian who claimed to have left the “Krajina” due to fear of artillery shelling, Brammertz will concede to you that they were never able to find any such person.  There are no known victims of the alleged unlawful artillery assault or of the so-called “Brioni JCE” led by Croatian President Franjo Tudjman.  Judges Meron, Robinson and Guney overturned a 24-year conviction of a man where the Prosecution could not establish a single JCE victim.  In any domestic jurisdiction, it would be Orie’s Trial Judgement and not the Appeals Chamber’s Judgement that would be deemed the controversial decision.  But for many at the ICTY, this is merely an inconvenient truth.[2]

Ironically, former Prosecution spokeswoman Florence Hartmann wrote a book in 1999 titled “"Milosevic: la diagonale du fou (Milosevic: Diagonal of a Madman),” in which she argued that the “Krajina” Serbs were cleansed by Milosevic, not Tudjman.  In a chapter titled the “Abandonment of Krajina,” the book details why the “Krajina” Serb population left Croatia during Operation Storm.  Hartmann, a journalist covering the war for Le Monde at the time of Operation Storm, asserted, “every refugee could confirm that the population had fled at the request of their own [Krajina Serb] leadership.” Further, she wrote that every soldier was a witness to the deliberate withdrawal of the Serbian military, the officers abandoning the night shift at the front and the retreat of heavy armor. She describes the whole process as the  "strategic abandonment" of 'Krajina' by Milosevic and the entire Serbian leadership.

Accordingly, even Hartmann knows that Judges Meron, Robinson and Guney were right to strike down the Trial Chamber’s finding that Gotovina deported the “Krajina” Serbs through unlawful shelling. Nevertheless, Hartmann is one of the principle members of the “Meron JCE,” attempting to undermine Judge Meron in an effort to discredit her own conviction for contempt of the Tribunal.

II.             The Role of Foreign Intelligence Services Inside the ICTY’s Office of the Prosecutor

In the early years of the Tribunal, the ICTY did not have the resources to hire its own staff in large numbers.  Therefore, many of the prosecutors, analysts and investigators working for OTP in the 1990’s were “on loan” to the ICTY from their own governments.   In her book, “Peace and Punishment,” Florence Hartmann reveals that some of the “on loan” personnel were really intelligence agents working more for their home governments than the ICTY.  On page 47 of the Croatian edition of the book, Hartmann describes certain members of the Prosecution staff:

Some barely know where the Balkans even is. They are hounding the Prosecution, the moving force of the Tribunal, whose judges have been subdued to the position of arbitrators between the Defense and the Prosecutors. Military analysts, lawyers and intelligence officers easily blend in the crowd continuing to occupy humble yet strategic positions and serving more to their own governments than the ICTY.

This background information leads us to two Nordic intelligence agents named Joakim Robertsson (Sweden) and Thomas Elfgren (Finland), who became ICTY Prosecution investigators and whose stories are interwoven into the Gotovina case and the recent “Meron JCE.”

III.           Carl Bildt and the Gotovina Case

Intelligence agencies from the Nordic countries became heavily involved in the Gotovina case in order to protect the reputation of Sweden’s top diplomat, Carl Bildt.

Within 9 hours of the commencement of Operation Storm, Bildt, then acting in his capacity as the European Union’s chief peace negotiator in ex-Yugoslavia, issued a press release in which he declared that because the Croatian Army had “shelled the civilian population” in the town of Knin, Croatian President Franjo Tudjman would be brought before the ICTY.[3]  Bildt was in London when he sent this release and had no first hand information to support the claim.

After the Croatian takeover of the “Krajina,” international journalists descended on the town of Knin in order to find the evidence of Bildt’s claim that the Croatians had “shelled the civilian population.”  The international press unanimously concluded that the allegation was false:  there was no evidence of any unlawful shelling.  Pulitzer prize winner Roy Gutman reported from Knin on August 7^th, 1995, three days after Storm began: 

At the United Nations base in Knin, UN officers chaffed at a continued curfew and restrictions on movements, but they acknowledged that the UN had overstated the damage to Knin during the height of fighting. The UN commander, Brigadier-General Alain Forand of Canada had said that there had been no direct hits on Knin's hospital. Reporters saw ... large craters from shells that shattered most of the windows in a nearby apartment house but there was no evidence of indiscriminate shelling.[4]

Similarly, the New York Times reported:

The town does not appear to have been as badly damaged as reports of the shelling over the past few days would have suggested. For one thing, the hospital was not shelled, as had been reported. Only one shell hit the modern hospital building, and the Croats appeared to be aiming at a rebel Serbian tank firing from nearby, a United Nations official who had been at the hospital said today. "I don't think they were shelling us," said the official, who spoke on condition of anonymity. In three passes over the town by helicopter, little evidence was seen of the kind of damage that extensive shelling would cause. The red tile roofs on most houses are intact. The only gutted building was the Roman Catholic Church, which served the Catholic Croats, and the Serbs, who are Orthodox, did that during their occupation.[5]

Finally, United Nations Military Observers conducted their own investigation into the shelling of Knin.  On 17 August 1995, they reported that the shelling had been “concentrated against military objectives,” and that only 3 to 5 shells could be found outside the vicinity of military objectives.[6]

Accordingly, the United Nations and the international media had both investigated Bildt’s claims that Tudjman’s forces had “shelled the civilian population,” and concluded that they were unsubstantiated. 

In reaction to Bildt’s call for Tudjman to be indicted by the ICTY, Croatia declared Bildt to be persona non grata in Croatia.[7]  Bosnia-Herzegovina quickly followed suit.[8]

Bildt thus found himself in the role of the EU’s top peace envoy but unable to travel to Croatia or be received by Bosnia-Herzegovina officials due to his status as persona non grata.  Bildt acknowledges this in his memoirs, even recounting that Croatia had refused his plane landing rights at the airport in Split as a result of the dispute.[9]  With Bildt and the E.U. on the sidelines, Richard Holbrooke took over as the primary international negotiator with the parties in ex-Yugoslavia and ultimately became the architect of the Dayton Peace Accords.

IV.           Nordic Intelligence To Bildt’s Rescue:  Robertsson and Elfgren Join the ICTY to Investigate Tudjman and Storm

When Operation Storm began on 4 August 1995, Joakim Robertsson was a Swedish military intelligence officer stationed in Zagreb as part of the United Nations Protection Force (UNPROFOR). [10]   Three weeks later, while Bildt was persona non grata in Croatia, Robertsson was sent by Sweden from Zagreb to the ICTY to be the ICTY Prosecution’s lead investigator into the shelling conducted in Operation Storm. Within weeks, Robertsson was joined by Thomas Elfgren, an agent with Finland’s National Bureau of Investigation who was loaned to the ICTY as an “Expert on Mission” to assist Robertsson in the Prosecution’s “investigation” of Operation Storm.[11] 

The task given to Robertsson and Elfgren was simple.  They were to build the case that Bildt’s allegations against Tudjman were true by proving that the Croatian Army had indiscriminately shelled civilians, at Tudjman’s direction and on Gotovina’s orders.  Robertsson and Elfgren stopped at nothing to vindicate Bildt by making sure that Tudjman and his generals would be indicted for the alleged unlawful shelling of Knin.   Robertsson went so far as to fabricate evidence in the Gotovina case, and should have been criminally prosecuted for obstruction of justice.  (For a full discussion of Robertsson’s fabrication of evidence, see http://icr.icty.org/LegalRef/CMSDocStore/Public/English/Response/NotIndexable/IT-06-90/MSC7260R0000280559.pdf).

V.             Elfgren and Robertsson Leaked Information to the New York Times in 1999 Alleging Gotovina Indictment Was Rejected Due to U.S. Conspiracy

Elfgren and Robertsson failed to convince their colleagues in the Office of the Prosecutor that the shelling of Knin was unlawful.  The Prosecution in 1998 held an Indictment Review and concluded that the evidence was insufficient to include a charge of unlawful shelling in any indictment for Operation Storm.  This should not have come as a surprise given that (1) the United Nations investigation in the immediate aftermath of Storm confirmed the lawfulness of the shelling; (2) on site investigations by international media including the New York Times confirmed the same; and (3) the Prosecution could never identify a single shelling victim.

Having failed to fulfill the mission with respect to Bildt, Elfgren and Robertsson concluded that the failure of their case was not because of the lack of evidence, but because of a conspiracy led by the United States government to impede the investigation of Operation Storm.  Elfgren leaked an internal Prosecution assessment to the New York Times, spinning that the U.S. was blocking the Operation Storm investigation.[12] 

Prosecutor Louise Arbour responded to the leak by stating that the Prosecution would conduct an internal investigation to determine the source of the leak.[13] Arbour’s investigation ultimately concluded that Elfgren was the source of the 1999 leak to the New York Times, which Elfgren himself confirmed to me via email recently.

Elfgren and Robertsson never had any evidence that the United States was blocking an indictment for the use of artillery in Operation Storm.   There was no charge for unlawful shelling because there was no evidence of unlawful shelling.  Indeed, even when the Prosecution ultimately indicted Gotovina in 2001, it did not include a charge that the Krajina Serbs were ethnically cleansed due to unlawful shelling.  Instead, the Prosecution charged that the Krajina Serbs were deported because the crimes committed after Operation Storm had prevented their return.[14]  It was not until 2006, after Gotovina’s arrest that the Prosecution first charged that the Serbs had been ethnically cleansed from Croatia due to the shelling attack.

VI.           Elfgren and Robertsson Attack Judge Meron

Elfgren and Robertsson left the ICTY before the judgements in the Gotovina case were issued.  After the Appeals Chamber’s acquittal of Generals Gotovina and Markac in November 2012, Prosecutor Serge Brammertz travelled to Helsinki, Finland where he appeared on a panel discussion with Elfgren on 22 January 2013 at Helsinki University.[15]  In his speech addressing Brammertz, Elfgren once again complained that Gotovina had been protected by the United States:

One could argue, with a fairly good reasoning, that the ICTY, at the very outset, failed to fulfill its intended purpose. The Tribunal posed no threat to the perpetrators. The Srebrenica massacre, also known as the Srebrenica genocide serves as an example. The widespread killings and forced displacement of the Krajina Serbs in August 1995 is just another one. Many more could be mentioned…

Criminal justice system professionals have their focus on technically perfect decisions. Too often they pay too little attention on the material truth and the importance of reconciliation. Truth and reconciliation should be on top of the agenda when peace and security is at stake.

In 1995, in the corridors of the ICTY, there were influential elements who knew that no crimes were committed by the Croats during Operation Storm. My question is, how could they know this? 

Mr. Prosecutor, you did your utmost to prove the opposite, but you failed. The appeals chamber, in its recent decision shared the view with those who already had the answer in 1995. [16]

Elfgren and Robertsson did not stop with this speech in January 2013.  Instead, as they had done in 1999 in leaking to the New York Times, the two began their campaign to discredit Gotovina’s acquittal by acting as anonymous sources to Helsinki’s leading newspaper, Helsingin Sanomat.  One would not typically look to the Helsingin Sanomat for hard-hitting investigative journalism about the inner-workings of the ICTY in The Hague, but Elfgren turned to his local paper first.

On 14 April 2013, Helsingin Sanomat published a sensationalist piece claiming that the United States had influenced the Tribunal into acquitting Gotovina.[17]  Having participated in the Gotovina case and thus having had access to all confidential materials in the case, I can state with certainty that the article in Helsingin Sanomat was filled with outright lies that are intended to create the perception that the United States attempted to influence the ICTY in the Operation Storm case.  For example, the article claims that the CIA withheld satellite imagery concerning Operation Storm in an effort to protect Gotovina, despite U.S. denials that such imagery exists.  The author of the article reports that his sources (read: Elfgren and Robertsson) dispute the U.S. denial because “the investigators had previously received one satellite picture from the Canadian Colonel Leslie, which he had been given by the Americans. “ Leslie never produced such a picture and never claimed to have such a picture.  If he had, I as Gotovina’s Defence Counsel would know.

The article goes on to claim that my fellow Gotovina Defence Counsel, Greg Kehoe, “opposed” the investigation of Gotovina back during the time when he worked for the ICTY Prosecution.  This is an outright lie.  The Gotovina Trial Chamber thoroughly investigated whether Greg had a conflict of interest, reviewed all of the Prosecution’s internal memoranda, and concluded that Greg had no involvement in the Operation Storm case.[18]  Given that Greg was prosecuting a Croatian general (Blaskic) during his time at the ICTY, it is preposterous to suggest that he was secretly protecting one Croatian general (Gotovina) while successfully prosecuting another (Blaskic). Remarkably, the article mentions that the lawyer who prosecuted Gotovina, Alan Tieger, is also an American, suggesting that Tieger is somehow complicit in the U.S. conspiracy to protect Gotovina.

Interestingly, the Helsingin Sanomat article ghost written by Elfgren and Robertsson is the first to attack Judge Meron on the basis of Wikileaks cables from 2003.  Sanomat suggests that Judge Meron spoke to the U.S. Ambassador in 2003 in an effort to get rid of Carla Del Ponte in 2003 because she had indicted Gotovina.  Two months later in June 2013, other members of the “Meron JCE” have recycled the Wikileaks cables as new “news”[19] in an effort to discredit Judge Meron following a leaked email written by, guess who?

The ICTY’s lone Nordic Judge, the Scandinavian Judge Frederik Harhoff of Denmark.

End of Part I

Coming up in Part II, I will describe the roles of Florence Hartmann and Mirko Klarin of Sense News Agency in the Meron JCE, and how and why Serge Brammertz is knowingly using the members of the Meron JCE in an effort to topple the ICTY’s President.

---

[1] For my deconstruction of Harhoff’s email, see my earlier blog post:  Debunking Fred Harhoff’s Outrageous Email, http://miseticlaw.blogspot.com/2013/06/debunking-fred-harhoffs-outrageous-email.html

[2] For further discussion on why the Appeals Chamber was correct to acquit Gotovina, see my earlier blog post here: http://miseticlaw.blogspot.com/2012/12/dissenting-from-dissenting-opinions-of.html

[3] See:  http://icr.icty.org/LegalRef/CMSDocStore/Public/English/Exhibit/Indexable/IT-06-90/ACE80908R0000320067.tif

[4] Newsday, In Krajina, Disorder Reigns, (8 August 1995).

[5] New York Times, “Croats Celebrate Capturing Capital of Serbian Rebels”(8 August 1995).

[6]http://icr.icty.org/LegalRef/CMSDocStore/Public/English/Exhibit/NotIndexable/IT-06-90/ACE80787R0000319865.TIF

[7]http://icr.icty.org/LegalRef/CMSDocStore/Public/English/Exhibit/NotIndexable/IT-06-90/ACE81884R0000321550.pdf

[8] See page 13 here: http://icr.icty.org/LegalRef/CMSDocStore/Public/English/Response/NotIndexable/IT-06-90/MSC7260R0000280559.pdf

[9] Carl Bildt, Peace Journey, pages 75-80.

[10] See paragraph 4 and Annexes A and B here:  http://icr.icty.org/LegalRef/CMSDocStore/Public/English/Submission/NotIndexable/IT-06-90/MSC7260R0000280212.pdf . See also Robertsson’s LinkedIn Profile here: http://fr.linkedin.com/pub/joakim-robertsson/4/3b0/879.  Note that Robertsson on his LinkedIn CV has left out the year from September 1995 to August 1996, and claims to have only worked for OTP from September 1996 to September 1997.  In fact, Robertsson worked for OTP from September 1995 to September 1997.  See, e.g., Trial Exhibit P-214 at page 1: http://icr.icty.org/LegalRef/CMSDocStore/Public/English/Exhibit/NotIndexable/IT-06-90/ACE81081R0000320324.TIF.

[11] See Trial Exhibit P-721, demonstrating Elfgren’s status at ICTY as of December 1995: http://icr.icty.org/LegalRef/CMSDocStore/Public/English/Exhibit/NotIndexable/IT-06-90/ACE81779R0000321386.TIF

[12] New York Times, War Crimes Panel Finds Croat Troops Cleansed the Serbs, 21 March 1999, as found at http://www.nytimes.com/1999/03/21/world/war-crimes-panel-finds-croat-troops-cleansed-the-serbs.html?pagewanted=all&src=pm

[13] http://www.icty.org/sid/7782

[14] See Gotovina 2001 Indictment, at paragraphs 19-20; Gotovina 2004 Amended Indictment, at paragraphs 23-24 and 36-37.

[15]http://formin.finland.fi/public/Print.aspx?contentid=267724&nodeid=15145&culture=en-US&contentlan=2

[16] As found on Thomas Elfgren’s Facebook page, https://www.facebook.com/notes/thomas-elfgren/failed-justice-or-just-a-reality-of-life/10152119535560260

[17] As found at: http://files.snstatic.fi/HS/2013/4/jugoslavia/en.html

[18] See http://icr.icty.org/LegalRef/CMSDocStore/Public/English/Decision/NotIndexable/IT-06-90/MRA14503R0000212548.TIF

[19] See Agence France-Presse, Wikileaks Cables Support Criticism of ICTY Judge, 18 June 2013, as found at http://www.globalpost.com/dispatch/news/afp/130618/wikileaks-cables-support-criticism-icty-judge