VIEWPOINT FROM LONDON

MISMANAGEMENT OF THE MILOSOVIC TRIAL?

by Brian Gallagher

The Croatian Herald, Australia No. 1023 - 16.07.04

 

The trial of Slobodan Milosevic has descended into farce and mismanagement. Two years on, the defence has yet to begin and has now been postponed until the end of August. Yet a major point as to possibly why the trial has hit such problems has not been considered. Sir Richard May, the presiding judge who died recently, was involved in the worst miscarriage of justice the Tribunal is responsible for, convicting Croats for crimes they were not guilty of. Incredibly, Sir Richard was allowed to preside over the Milosevic trial - it is then hardly surprising that the trial has almost fallen apart.

Many will recall the appalling massacre of muslims at Ahmici by Croat forces. It was a major case for the Tribunal, with many Croats having been charged in connection with it. In January 2000, three members of the Kupreskic family and two others were found guilty of crimes related to the massacre and sent to prison for terms ranging from 6 to 10 years . Sir Richard May was one of the judges that came to that judgement., along with Judges Antonio Cassese (Presiding) and Judge Florence Mumba.

In October 2001, in an appeal presided over by Judge Patricia Wald - who has since left the Tribunal - the verdicts were overturned completely for three defendants and in part for the other two.

The appeal summary makes for disturbing reading. The original trial chamber comes in for some heavy criticism. On the charges of 'persecution' the summary of the appeal states that "the Appeals Chamber can find no basis for the Trial Chamber's finding that Zoran and Mirjan Kupreskic were involved in a persecutory campaign stemming back to October 1992".

Furthermore, "The Trial Chamber provided no description of what illegal conduct it attributed to the defendants during the period between October 1992 and 15 April 1993... Hence, this finding must be rejected due to the absence of any evidentiary basis to support it". The Appeals Chamber concluded that "the convictions of Zoran and Mirjan Kupreskic have occasioned a miscarriage of justice and must be reversed".

Incredibly, these men were convicted for 'persecution' without any evidence.

Vlatko Kupreskic's conviction was also overturned. A large part of his conviction on persecution was that he was seen in the area when the attack on Ahmici occurred. The appeals chamber pointed out that the village he lived in was small, and that it was "risky" to draw inferences of guilt because he was seen in the area of attack, especially if it was close to his home. It was "an insufficient basis upon which to found his conviction for persecution".

Other criticisms of the trial was the "critically flawed" assessment of the sole witness against some of the defendants, the introductions of facts not given in the original indictments and the trial chamber retracting its call for a defence witness who claimed to be ill - without getting certification that that was the case.

For the purposes of sentencing one defendant, the judges inferred he had a role in assisting the strategic planning for the Ahmici attack - despite the prosecution never claiming he had such a role.

This is all very disturbing; The Hague tribunal clearly is a place where one can be found guilty without evidence. The Ahmici appeal result proves that. It perhaps help explain why Prosecutor Carla Del Ponte has put together such ludicrous indictments against Croat General's Gotovina, Cermak and Markac for the US/Croatian military operations to stop Milosevic. What matter the public evidence that these men are innocent when no evidence is required to find them guilty?

But does not the appeals verdict show that there is justice at the Hague? Only in a limited way. How did the miscarriage of justice happen in the first place? Must defendants rely on being fortunate enough to get good judges at appeal, rather than at the trial?

Importantly, the view the Tribunal has taken on the appeal is shown by allowing Sir Richard May to be promoted to presiding judge at the Milosevic trial. Given the high profile, sensitivity and importance of the Milosevic trial, this was a remarkable thing to do in view of the Ahmici case. And the results are there for all to see; the trial was completely mismanaged and has become a farce.

Let us hope that there are still judges at the Tribunal who are as competent as those who presided at the Ahmici appeal.

 

*The summary of the Ahmici appeal can be seen at http://www.un.org/icty/pressreal/kup-sum011023e.htm

 

© Brian Gallagher

My 'Viewpoint from London' column appears in the Australian 'Croatian Herald' and thereafter at www.croatiafocus.com