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