WELCOME TO IWPR'S TRIBUNAL UPDATE No. 468, 15 September, 2006 THE RIGHT TO DEFEND ONESELF Is it right to impose a defence lawyer on a defendant who insists he can represent himself? By Katy Glassborow in The Hague
COURTSIDES: SESELJ CALLS COURT A "THEATRICAL PRODUCTION" Serbian ultra-nationalist leader puts on a show at his latest court appearance. By Katy Glassborow in The Hague CROATIA ACCUSED OF REPEATING HISTORY IN KRAJINA Martic witness says the Croatian government of the early Nineties continued what the Ustasha regime had started decades before. By Merdijana Sadovic in Sarajevo US BEHIND SACKING OF TOP BOSNIAN CROATS Former American ambassador testifies on the United States' role in reining in Croat paramilitaries in war-torn Bosnia. By Caroline Tosh in The Hague BRIEFLY NOTED: JOURNALIST CHARGED WITH CONTEMPT OF COURT UNANSWERED QUESTIONS IN BABIC PATHOLOGY REPORT ****************** VISIT IWPR ON-LINE: www.iwpr.net *************** INTRODUCTION TO THE INTERNATIONAL CRIMINAL COURT Available at http://iwpr.net/?apc_state=henotri&s=o&o=tribunal_icc_00.html RSS: http://www.iwpr.net/en/tri/rss.xml FREE SUBSCRIPTION. Readers are urged to subscribe to IWPR's full range of electronic publications at: http://www.iwpr.net/index.php?apc_state=henh&s=s&m=p ****************** VISIT IWPR ON-LINE: www.iwpr.net *************** THE RIGHT TO DEFEND ONESELF Is it right to impose a defence lawyer on a defendant who insists he can represent himself? By Katy Glassborow in The Hague The Hague tribunal's recent decision to impose a defence lawyer on Serbian ultra-nationalist leader Vojislav Seselj against his wishes has raised many questions about the right of defendants to choose how they are represented in court. In an August 21 ruling, the trial judges said that allowing Seselj to conduct his own defence could "substantially and persistently obstruct the proper and expeditious conduct of a fair trial", and at the end of the month announced that his new permanent defence lawyer would be David Hooper from London. Seselj did not take the news well. At a status conference on September 14, he said, "this man with a bird's nest on his head has been fraudulently introduced as my defence counsel. "In this theatrical production, you have denied me my right to represent myself. You have brought actors here to represent me, and you are acting in contravention of my human rights." The trial judges' decision to impose counsel indicates that in applying the principle of ensuring that justice is done by means of a fair trial, they saw room for interpretation when it came to the right of the accused to defend his or her own case. Seselj was indicted in February 2003 on charges relating to war crimes allegedly committed in Bosnia and Croatia between 1991 and 1993. He turned himself in to the tribunal shortly afterwards, and when he first appeared before Hague judges on February 26, 2003, he announced his intention to conduct his own defence. The International Covenant on Civil and Political Rights, ICCPR, the principal human rights treaty which is knitted into the tribunal's statute, states that every accused person has the right to represent him or herself in a court of law. The key wording in the tribunal's statute is that the accused has the right to "defend himself in person or through legal assistance of his own choosing...and to have legal assistance assigned to him in any case where the interests of justice so require". This right is qualified if the court decides that the accused cannot represent himself effectively, or that he risks damaging his health or greatly hampering the speed of the trial. But there is also debate in legal circles about whether the right to self-representation can be restricted under other circumstances, as in the case of Seselj, where the argument is that the move is justified because the defendant has been rude, offensive and obstructionist in his dealings with the tribunal. There is no doubt that Seselj is capable of conducting his own defence. However, the court believes his behaviour - ranging from participating in a Serbian election campaign while in detention, to a string of offensive missives to the court - is sufficiently obstructive to warrant his exclusion from the role. MILOSEVIC PRECEDENT CENTRED ON HEALTH, NOT BEHAVIOUR Most of those who come before the tribunal stand accused of perpetrating grave war crimes and crimes against humanity, so mounting their own defence would be a huge undertaking. Disputes over self-representation have therefore been a relatively rare problem, as most accused have preferred to leave their cases to lawyers qualified to deal with the technical complexities. At the tribunal, the issue featured most prominently in the case of former Yugoslav president Slobodan Milosevic, who was on trial from 2001 until his death in custody in March this year. >From the very beginning, Milosevic made it clear he wanted to run his own >case, and although he was legally proficient enough to do so, the judges felt >his health was suffering as a result and that he could not withstand the >rigours of trial work and courtroom confrontations. In December 2004, the appeals chamber suggested that that he would only be fit to defend himself if the hearing schedule was reduced to one day a week, or one day a month, and that this implied that the trial would effectively grind to a halt. In view of the delays caused by Milosevic's ill-health, appeals chamber judges therefore imposed Steven Kay QC and Gillian Higgins as Milosevic's counsel and instructed them to take the lead in conducting his defence. However, after Milosevic appealed, he was restored to the helm of his case, but the assigned lawyers were kept in place with the right to continue playing an active role in conducting the defence. This was possible because even though Milosevic openly questioned the validity of the tribunal, he still played along with most of the rules. Anton Nikiforov, spokesman for the Tribunal prosecutor, acknowledged that Milosevic was preparing in a responsible manner and was not obstructing court processes. He followed procedure and accepted help from the registry, although he said he neither respected or recognised the court. That is not the case with Seselj. According to Nikiforov, the record to date means that "we are sure Seselj would wreck the process and make it impossible to conduct fair and dignified proceedings respectful to the court, court staff, prosecution and witnesses". DEFENCE RIGHT "NOT ABSOLUTE" The Seselj dispute has raged ever since 2003, when the prosecution first filed a motion to appoint a defence counsel because of Seselj's obstructionist behaviour. Seselj wrote a submission appealing against this decision, saying it contravened his rights under the tribunal statute, the European Convention on Human Rights and Fundamental Freedoms, and the ICCPR. But the prosecution maintained that according to the court's jurisprudence, the right to self defence is "not absolute". Following the court's latest ruling, Tjarda van der Spoel, the standby counsel appointed to temporarily oversee Seselj's defence, wrote to the court on August 25 requesting an appeal. Even though Seselj was refusing to speak to him, Van der Spoel pointed out to judges that the accused had made it abundantly clear that he wished to conduct his own defence. In a statement to the court, Van der Spoel said that Seselj was adamant that his legal expertise and personal knowledge of events leave him "best placed to present his case". Any infringement of the fundamental right to self representation may "significantly affect the fair and expeditious conduct of proceedings and the potential outcome of the trial", added the lawyer. Most significantly, Van der Spoel suggested that the decision affected the overall fairness of the trial and would thus offer grounds for an appeal, should Seselj be convicted. While accepting this move to appeal, the judges underlined that their ruling was lawful. And the senior lawyer for the prosecution, Hildegard Uertz-Retzlaff, said "the decision is consistent with the tribunal's jurisprudence and practice as well as with international and domestic case law". A QUESTION OF DEGREE? The question of whether the presumptive right to self-representation is qualified or absolute therefore seems to be a matter of interpretation. Justice Richard Goldstone, who has served as chief prosecutor at the former Yugoslav and Rwandan tribunals, told IWPR that the right is not an unlimited one and can be withdrawn if abused, but he stressed that an accused's right to defend himself should only be curtailed when this is necessary "to ensure effective trials". He said justice cannot be defeated or the rights of victims compromised by allowing the accused to behave disruptively. If the accused disrupts proceedings, he should be given "warnings and opportunities, and could be given closed-circuit television in his cell and he can either watch the trial or not", said Goldstone. Mark Ellis, the executive director of the International Bar Association, agreed that the right to defend oneself is not absolute. There are times when the court has the authority to "limit the defendant's perceived right to self-representation", he added. However, William A. Schabas, director of the Irish Centre for Human Rights, told IWPR that he could not accept the argument that because exceptions to the rule are recognised, it becomes permissible to "restrict the right to self defence on other grounds such as medical problems of the accused, or if the accused is a political leader, or if the trial is complex". DEFINING BAD BEHAVIOUR So how do judges go about deciding what amounts to "serious misbehaviour" that warrants restriction of the right to defend oneself? In around 200 written submissions to the court, Seselj has used offensive language in reference to judges and court officials, including the various standby lawyers he has been allocated in the past. He has attacked these individuals' professionalism, ethnicity, appearance and personality, and the court's Registry has rejected 10 of the submissions solely because of their "obscene or otherwise offensive language". Seselj has misled the court about the treatment he has received in detention, claiming that he had been waiting for months for an operation and that this amounted to torture. A United Nations Detention Unit investigation proved the claim to have been untrue, but Seselj went on to allege that at least four detainees had died due to deliberately inadequate medical assistance, and that the same fate awaited him. The court also dismissed as "frivolous and obstructionist behaviour" Seselj's decision to reject a laptop computer supplied to him to help him prepare his case. He said he was afraid of receiving an electric shock from it. Nonetheless Schabas argues that the court needs to tolerate a certain level of challenging behaviour from defendants. Milosevic, for example, engaged in deliberate political posturing during his trial. SCORING POLITICAL POINTS The complicating factor for trials at the tribunal and other war crimes courts is that they attract so much international attention. If an accused person represents himself at a time when he retains a public profile, the publicity may be to his advantage - a result which Kay points out would be neither intended nor desired by the court. However, Kay does not agree with overarching political restraints, and said that the accused should be able to campaign and participate in political parties, otherwise it is "a denial of free speech". Seselj breached the terms of his detention, for example by participating in press conferences about upcoming Serbian elections in 2003. But if he were found to be in contempt and excluded from court, might this not play favourably with his supporters back home? Similarly, if the Iraqi Special Tribunal had not been able to curtail former president Saddam Hussein's right to represent himself, the series of trials he now faces could have descended into chaos. Ellis said that when a defendant views the judicial process as a political opportunity and disrupts proceedings, the execution of justice is weakened. In Justice Goldstone's view, "One cannot exclude politics, but [one] also cannot turn the proceedings into a political battle." This argument was often used against Milosevic, but Schabas believes the former president was within his rights by offering a vigorous defence and raising political issues. "This is the price you pay when you put the president of a country on trial. It is a highly political undertaking. Some people got angry about him making speeches, but this is his right and we have to live with that," said Schabas. OTHER OPTIONS If the accused chooses to exercise his right to defend himself but remains uncooperative, the court has a number of options. It could impose certain limitations such as preventing the accused from cross-examining a particular witness if it is felt his behaviour would be inappropriate. It could ultimately send the defendant out of the courtroom, since the accused cannot be permitted to direct proceedings. Yet this might give prosecutors an unfair advantage. Another option, used in the Milosevic trial, is to assign an "amicus curiae". Literally "friend of the court", this position is an advisory one, designed to fill the gap between allowing self-representation and imposing a defence lawyer. The accused is allowed to represent himself and maintain ownership of the case, but is bolstered by an advisor. Steven Kay QC was assigned amicus curiae for Milosevic and served in the role for three years before being made assigned defence counsel. He told IWPR that the amicus curiae route was a non-confrontational way of trying to ensure a fair trial, and as such was a "revolutionary move in terms of international jurisprudence". He recalled how at Milosevic's request he appeal against his appointment as assigned defence counsel. "We appealed our own position, so that anyone looking back at the case would see it as fair and that we strove to represent the views of the client. If we hadn't, who would have?" said Kay. This process gained respect from external watchdogs, and Ellis acknowledged that even though it was a difficult process, he gives credit to the tribunal for "trying to create a mechanism that would balance the interests of the court and give the defendant the opportunity to direct his case". Milosevic was capable of running his own case but he needed help with litigation. "The fairest way was brining in an outside component," said Kay. A "FRIEND" FOR SESELJ? To date, the judges have not proposed an amicus curiae as a possible solution in the Seselj case. The method was relatively successful for Milosevic because he was cooperative up to a point. But Justice Goldstone questions whether the route is worth pursuing with an accused who refuses to play by any rules. According to Ellis, there was "no likelihood that he was going to cooperate at all", so the only option was to impose counsel. However, there is no guarantee, either, that Seselj will cooperate with Hooper, his assigned counsel. When Hooper seeks instruction from him, he may remain obstructive and the same problem will arise. During the September 14 status conference, he interrupted Presiding Judge Alphons Orie, saying, "I will never speak to Hooper or any other spy of yours who denies me my right to represent myself. I am a calm and balanced person, but until you restore my right to represent myself, I will not participate in proceedings." TRIAL IN ABSENTIA If Seselj continues to misbehave, the court could charge him with contempt, exclude him, and conduct his trial in absentia. This is generally not a preferred option at the tribunal, as its statute explicitly states that the accused has a right to be present at trial. According to Nikiforov, the rules say that if the accused is behaving badly, "he will be removed from the courtroom and can participate through his defence counsel". Nikiforov said that the prosecution would be happy with such an outcome, and he argued that this would not be a trial in absentia in the classic sense, where the indicted person is tried without having been arrested and placed in custody. In this case, the trial could move forward as long as the defendant was able to follow proceedings via closed-circuit television and get access to records. "An accused should have the right to commit judicial suicide if he leaves his lawyers with no clear instruction, but ultimately he decides," concluded Schabas. At this week's status conference, Seselj himself asked to leave the courtroom, saying, "Mr Orie, would you order the guards to escort me out?" FUNDAMENTALLY UNFAIR? One of the reasons Seselj's standby counsel gave for appealing against the assignation of permanent defence counsel was that he would be able to cite the decision in any appeal against a verdict. Yet if the defendant is responsible for his own failure to participate in the trial, and has forced the court to impose counsel, then his grounds for appeal may falter. It is for this reason that Schabas insists that the defendant's right to make decisions about his defence amounts to a cornerstone principle. "If you don't allow the defendant to exercise his right to defend himself, or instruct counsel and control their case, who will take that decision? Who then decides whether to plead guilty or not? If it is out of the hands of the defendant, and the lawyers take the decision, this is fundamentally unfair," said Schabas. At the status conference this week, Judge Orie announced that the trial would start at the beginning of November. Katy Glassborow is an IWPR reporter in The Hague. COURTSIDES: SESELJ CALLS COURT A "THEATRICAL PRODUCTION" Serbian ultra-nationalist leader puts on a show at his latest court appearance. By Katy Glassborow in The Hague Journalists and members of the public who squeezed into the tiny public gallery of the Hague tribunal's Courtroom Two had a ringside seat this week for another signature performance from Serbian Radical Party leader Vojislav Seselj. Seselj - famous for the obscene language and insults he hurls at the court - referred to the defence lawyer whom trial judges had assigned to him as "that man with the bird's nest on his head" and was sent out at his own request shortly after the status conference started. Before leaving, Seselj described the court as a "theatrical production" which had "denied me my right to represent myself". "You have brought actors here to represent me, and you are acting in contravention of my human rights," he said. Seselj's regular outbursts and vitriolic written submissions to the court - at last count there were around 200 - have caused outrage and amusement in equal measure amongst those who monitor tribunal proceedings. When Seselj was testifying as a defence witness for the late Yugoslav president Slobodan Milosevic in 2005, prosecutor Geoffrey Nice requested that he read one particularly vulgar submission aloud in court. The footage of Seselj doing so was broadcast on Serbia's B-92 television channel, and gained infamy after it became available as an audio clip on the internet. It was even downloaded as a ring-tone for mobile phones in Serbia and Montenegro. The September 14 status conference was designed to work through all the prosecution and defence issues ahead of the start of the trial, which Presiding Judge Alphons Orie announced would begin in early November. Since the beginning of proceedings, Seselj has claimed the right under international law to represent himself and manage his own defence. However, in August the trial judges assigned him a permanent defence counsel because of his rude outbursts and uncooperative behaviour - an attitude still apparent at this week's status conference. Early on, Seselj interrupted Judge Orie, saying, "You are duty bound to stay the proceedings until you deal with the motion I submitted this morning to dismiss Judge Orie." The judge reminded Seselj that the court can only deal with submissions filed through the proper channels, in this case his newly assigned lawyer David Hooper. Seselj replied, "Hooper will never be able to do anything on my behalf", adding, "He has no right to represent me." He then asked the judge to order the guards to escort him out of the courtroom. The conference continued without Seselj, with Judge Orie hearing prosecution and defence arguments on various issues including when the identities of protected witnesses should be revealed to the defence, and how necessary such protection really was. Normally the defence learns the identity of protected witnesses around 30 days ahead of the trial, but the prosecution is seeking a delay to disclosure in this case. In the past, Seselj has revealed the identity of protected witnesses over the phone to people outside the court, who then threatened to harm the individuals concerned. Comparing Seselj's case with that of Milosevic - where disclosure of witnesses occurred 10 days before the start of the trial - prosecution lawyer Hildegard Uertz-Retzlaff said, "Delayed disclosure is perfectly acceptable in this case." She told the court that a delicate balance needs to be struck to avoid exposing witnesses to risk, and that the date needed to be moved closer to the trial start in view of the security concerns. Hooper told the court that the prosecution's reasons for wanting such stringent measures had not been included in any submissions or explained to the court. Uertz-Retzlaff explained that stating why each witness needed to be protected would necessitate revealing their identity. Judge Orie gave the prosecution team five days to review whether their witnesses really did need protective measures and to justify why. Attention then turned to the issue of streamlining the indictments. Seselj was indicted in February 2003 on 14 counts of crimes against humanity and violations of the laws or customs of war for his alleged actions in Bosnia and Croatia between 1991 and 1993. It was amended in July 2005. After lessons learnt during the lengthy trial of Milosevic, the judges tried to encourage prosecuters to cut some charges so as to expedite proceedings. However, Uertz-Retzlaff suggested that the indictment had already been streamlined adequately. She said the situation in each of the nine municipalities where Seselj is accused of either instigating or personally committing crimes is unique. "We have only charged Seselj with a few offences per municipality, so we do not want to drop a municipality because we would lose whole chapters of criminal conduct," said the prosecution lawyer. The prosecution estimates that the trial will last for six months, based on a five-day week with four hours of evidence a day. Both the prosecution and Judge Orie asked whether Hooper - who requested a four-day week - could cope with such an intense start to the trial as he will have only six weeks to prepare the defence case. Reverting back to the issue of Seselj's wish to represent himself, Hooper asked Judge Orie whether the accused could conduct additional cross-examination of witnesses. The judge explained that he would need to hear why it was necessary for Seselj to take over his own defence, and said the chamber would not allow the accused to personally conduct cross-examinations if he did not go through Hooper. Katy Glassborow is an IWPR reporter in The Hague. CROATIA ACCUSED OF REPEATING HISTORY IN KRAJINA Martic witness says the Croatian government of the early Nineties continued what the Ustasha regime had started decades before. By Merdijana Sadovic in Sarajevo The trial of the former leader of the rebel Serb authorities in Croatia, Milan Martic, heard a grueling history lesson on Croatia's fascist Ustasha regime during the Second World War, whose actions were engraved in the collective Serb memory for decades. A defence witness said these painful memories were the main reason why Serbs in Krajina put up resistance to the new Croatian government and declared themselves independent in 1991, a few weeks before Croatia broke away from Yugoslavia to become a separate state. Martic, president of the self-proclaimed Serbian Autonomous District of Krajina during the 1991-95 war, is charged with leading local police and other armed forces in the expulsion and murder of hundreds of non-Serbs. He is also accused of the deliberate destruction of homes and other public and private property, and unlawful attacks on Zagreb in 1995. The prosecution has tried to prove that Martic, backed by the Yugoslav Army, JNA, and the Belgrade authorities, was responsible for the outbreak of violence in Croatia. His defence lawyers have claimed it was the other way around, and that the Krajina Serbs were only defending themselves. This week, they brought in Lazar Macura, Krajina government's first information minister, to support that argument. Macura said the 1991 rebellion in Krajina was justified by Serb fears that "history would repeat itself" once Croatia became an independent state. He told the judges that the new Croatian government led by President Franjo Tudjman, shared the same goal as the Ustasha regime in the Second World War - to reduce the number of Serbs in Croatia to "only three per cent of the total population". His testimony echoed that given by his successor Ratko Licina, the information minister in the "Krajina government-in-exile", who testified one month earlier. Like Licina, Macura insisted Krajina Serbs were so traumatised by what they went through under the Nazi-supported Ustasha government that they were prepared to do anything to avoid suffering the same fate in the Nineties. Macura said that shortly before the outbreak of violence in 1991, Serb policemen in Krajina "refused to wear police uniforms with Ustasha insignia on them", referring to the Croatian checquered coat of arms. When the prosecutor David Black pointed out in his cross-examination that this symbol "was not invented by the Ustashas" and had been a national emblem for centuries, the witness appeared unmoved. "Maybe, but it was the same symbol Ustashas were wearing on their uniforms while they were killing Serbs in World War Two," he replied. Throughout his testimony, the witness claimed that the Croatian authorities in the Nineties never sought to reach any agreement with Serbs. "All they did was to send their police and army to kill us," he said. During cross-examination by the prosecution, the witness confirmed his earlier statements that "all Serbs should live in one state" and said this was still his position. He also stated that Serbs in Krajina "never inflicted any harm on Croats". "During this last war, I mean - not the Second World War," he added. When at the end of his testimony Judge Frank Hopfel asked Macura whether he was still actively involved in politics, he said he was not and now works as an interpreter. "The reason I ask is that you still sound very much like a politician to me," said Judge Hopfel. The trial continues next week. Merdijana Sadovic is IWPR's Hague project manager. US BEHIND SACKING OF TOP BOSNIAN CROATS Former American ambassador testifies on the United States' role in reining in Croat paramilitaries in war-torn Bosnia. By Caroline Tosh in The Hague A former United States ambassador to Croatia revealed this week that it was American pressure that led to the removal of two senior Bosnian Croats during the 1992-94 Muslim-Croat conflict that was part of the wider Bosnian war. Speaking at the war crimes trial of six Bosnian Croat officials, former ambassador Peter Galbraith testified that his government pressured the authorities in Croatia to secure the dismissal of Slobodan Praljak, the military commander of Bosnian Croat forces, HVO, and Mate Boban, the then president of the wartime entity of Herceg-Bosna. The six accused - Jadranko Prlic, Bruno Stojic, Slobodan Praljak, Milivoj Petkovic, Valentin Coric and Berislav Pusic - were senior political and military figures in Herceg-Bosna. They are charged with war crimes and crimes against humanity, including the persecution, imprisonment and expulsion of Muslims in Bosnia and Hercegovina during the bitter Croatian-Muslim conflict which ended 12 years ago. They are also accused of being part of a "joint criminal enterprise to politically and militarily subjugate, permanently remove and ethnically cleanse Bosnian Muslims and other non-Croats" from parts of Bosnia that was claimed as part of Herceg-Bosna, and "to join these areas as part of a Greater Croatia". The indictments says that others involved in this joint criminal enterprise included the former president of Croatia Franjo Tudman, former Croatian defence minister Gojko Susak, and Mate Boban, who was president of Herceg-Bosna. All three are now deceased. This week, Galbraith testified that soon after taking up the role of ambassador in Zagreb in June 1993, he became aware of the reports of atrocities by HVO forces against Muslims in Bosnia, and began to exert pressure on Tudjman, Susak and Croatian foreign minister Mate Granic to take action against the HVO. The former diplomat, who previously testified at the trials of the late Yugoslav president Slobodan Milosevic and Milan Martic, a Serb leader in Croatia, explained that he and the US government "came to the conclusion that we were not going to get the results we wanted as long as Praljak remained head of the HVO and Boban remained president of Herceg-Bosna". Galbraith explained that by "results", he meant securing the passage of humanitarian convoys into Bosnia, the closure of HVO prison camps, and an end to the shelling of east Mostar and to the entire Croat-Muslim conflict. In meetings with Tudjman, Susak and Granic, Galbraith recalled how he "tried to secure removal" of Boban and Praljak from their positions, while making clear the US government's "scepticism that there would be any progress while they were in office". These discussions soon bore fruit, he said, when "the government of Croatia secured their dismissals". Praljak was replaced in November 1993 and Boban stepped down in February 1994. Galbraith went on to explain that in December 1993, he was asked by Granic whether Boban could be issued a visa for "an extended vacation in the US". A visa proved impossible to arrange, because Boban had been entered into the US border control system as a war crimes suspect. Instead, the ambassador secured him an Australian visa. "I remember saying that I hoped it was a one-way ticket," he said. When pressed by one of the judges to say exactly who arranged the dismissal of Boban, Galbraith confirmed that he was "removed by the order or decision of Franjo Tudjman, the president of Croatia". Galbraith testified that after Boban was forced out, American pressure on the Zagreb authorities resulted in a "house-cleaning" exercise which saw all HVO commanders and 70 per cent of the government being replaced. This, he said, "created the environment" in which Croatia accepted the peace proposals which led to the Washington agreement - a peace deal negotiated in March 1994 between the Bosnian government and the Bosnian Croats that created the Federation of Bosnia Hercegovina. Earlier in his testimony, Galbraith claimed that during the conflict, Tudjman was just as much the president of the Herceg-Bosna entity as he was of the Republic of Croatia, and had ultimate control of both the HVO and Croatia's regular army. "I think every diplomat, except the most oblivious, clearly understood that Tudjman and Susak controlled the Bosnian Croat entity and the HVO," he said. In 1993, the first year of his tenure as ambassador, Galbraith said he "tried to influence Tudjman" and often raised concerns with him and Susak about what was happening in Croatia. His concerns regarded the HVO and their blocking of humanitarian aid convoys in Bosnia, the imprisonment of Muslims in detention camps where rapes and forced labour took place, and shelling of east Mostar. When asked what Tudjman's reactions were when he brought up the subject of atrocities, Galbraith said the president would sometimes argue that "terrible things are taking place, but the other side is doing it too", or he would say he would try to do something about it, claiming the HVO leadership "was out of control". The witness gave a fascinating insight into the mind of Tudjman and his obsession with creating what Galbraith termed "a great greater Croatia" by carving up and appending parts of neighbouring Bosnia. Tudjman "believed BiH [Bosnia and Hercegovina] could not or should not continue as a sovereign independent state and that a substantial part of Bosnian territory should become territory of Croatia", Galbraith said. The Croatian leader never gave up on this obsession, he said, and kept trying to convert him to his way of thinking, despite being aware of the US position that everyone must accept "the borders of the [former Yugoslav] states as they had emerged in 1991", the year the country imploded. First to cross-examine Galbraith on his testimony was Praljak, who is conducting his own defence. The former theatre director, dubbed "The Beard" due to his thick white facial hair, conducted a dramatic cross-examination. In a mocking tone, he commended Galbraith on his "great eloquence", before demanding to know what information he had that Praljak, as the former leader of the HVO, was "doing bad things". Galbraith simply answered, "You were the commander of the HVO." He then went on to list a catalogue of abuses for which the HVO was allegedly responsible, including the obstruction of humanitarian convoys into Bosnia, the shelling of the east Mostar, the killing of large numbers of Muslim civilians, and the detention of others in inhumane conditions. "Rapes took place in HVO camps, and you were in charge of this," he concluded. The trial continues. Caroline Tosh is an IWPR reporter in The Hague. BRIEFLY NOTED: JOURNALIST CHARGED WITH CONTEMPT OF COURT The Hague tribunal has charged a Croatian journalist with contempt of court for revealing the identities of two protected witnesses in a war crimes trial. Domagoj Margetic, a freelancer from Croatia, is accused of revealing the names of witnesses who testified under protective measures in the trial of the Bosnian Croat general Tihomir Blaskic. In a September 11 statement, the tribunal said "he did so by publishing lists on his personal website between July 7 and August 2, despite receiving explicit advance warning that the material was confidential and subject to court orders which prohibited publication". It added that Margetic "undermines confidence in the tribunal's ability to grant effective protective measures" and that in committing these acts, he "interfered with witnesses who have given, or are about to give, evidence". This is not the first time Margetic has appeared before the Tribunal. He was previously indicted for publishing Croatian president Stjepan Mesic's secret testimony in the Blaskic case in the Croatian weekly, Novo Hrvatsko Slovo, of which he was editor. Chief prosecutor Carla Del Ponte withdrew the indictment, along with that of two others charged with revealing Mesic's identity, in June this year, "in the interest of justice and judicial economy". The tribunal last month fined the former editor Josip Jovic 20,000 euro for revealing Mesic's identity and publishing his testimony from the Blaskic trial. In 2000, Blaskic was sentenced to 45 years in prison for crimes committed by forces under his command in Bosnia in 1993. His sentence was dramatically cut to nine years on appeal, but prosecutors have since attempted to reopen the case in light of new witness testimony. UNANSWERED QUESTIONS IN BABIC PATHOLOGY REPORT A second pathology report into the apparent suicide of Milan Babic, the former Serb leader in Croatia, appears to leave questions unanswered about the circumstances surrounding his death. Babic, who was serving a 13-year sentence in the Hague tribunal's detention unit and had become a key insider witness for the prosecution, committed suicide in his cell on March 5 this year. The report fails to explain why the mark on his neck was narrower than the belt he reportedly used to hang himself. Despite the discrepancy, Judge Kevin Parker, the tribunal vice-president who headed the internal inquiry into Babic's death, said the findings of his original investigation should not be changed. On June 8, Judge Parker said that Babic had hanged himself with a leather belt and secured a plastic bag around his neck to restrict airflow to his mouth and nose. His findings noted that the width of the ligature mark was narrower than the belt used by Babic, and said that the Netherlands Forensic Institute would give "further consideration" to the possible causes. Suggestions for the difference had included the possibility that the damaged skin dried out after death, or that embalming fluid had caused a shrinking effect. But the September 8 report shed little light on the matter. It concluded that further analysis had failed to explain the cause, and that the experts involved in the post-mortem failed to agree on an explanation. Judge Parker concluded by saying that he thought that no further action by the tribunal was called for. Babic, former president of the self-proclaimed Serb entity in eastern Croatia, known as Krajina, pleaded guilty in January 2004 to murder, deportation and unlawful imprisonment of non-Serb civilians from the area. He also agreed to give evidence in other war crimes trials before the tribunal, and at the time of his death, he was testifying against Milan Martic, another former high-level Serb official from Krajina. He also testified against the late Yugoslav president Slobodan Milosevic, who died of a heart attack in the tribunal detention centre just six days after Babic. ****************** VISIT IWPR ON-LINE: www.iwpr.net **************** These weekly reports, produced since 1996, detail events and issues at the International Criminal Tribunal for the Former Yugoslavia, ICTY, at The Hague. Tribunal Update, produced by IWPR's human rights and media training project, seeks to contribute to regional and international understanding of the war crimes prosecution process. The opinions expressed in Tribunal Update are those of the authors and do not necessarily represent those of the publication or of IWPR. Tribunal Update is supported by the European Commission, the Dutch Ministry for Development and Cooperation, the Swedish International Development and Cooperation Agency, the Foreign and Commonwealth Office, and other funders. IWPR also acknowledges general support from the Ford Foundation. The Institute for War & Peace Reporting is a London-based independent non-profit organisation supporting regional media and democratic change. 48 Gray's Inn Road, London WC1X 8LT, UK Tel: +44 (0)20 7831 1030 Fax: +44 (0)20 7831 1050 Editor-in-Chief: Anthony Borden; Managing Editor: Yigal Chazan; Senior Editor: John MacLeod; Hague Project Manager: Janet Anderson; Translation: Predrag Brebanovic, and others. IWPR Project Development and Support - Executive Director: Anthony Borden; Strategy & Assessment Director: Alan Davis; Managing Director: Tim Williams. For further information on this project and other reporting services and media programmes, visit IWPR's website: www.iwpr.net ISSN 1477-7940 Copyright © 2006 The Institute for War & Peace Reporting TRIBUNAL UPDATE No. 468
