Croatia has requested to be granted the status of an amicus curiae and join in appeals proceedings in "the Prlic and others" case at the International Criminal Tribunal for the former Yugoslavia (ICTY) in which the highest Croatian officials

In a submission dated March 18, Croatia says that in its ruling in the Prlic and Others case in 2013 the Trial Chamber found that Tudjman, Susak and Bobetko, all deceased, were members of a joint criminal enterprise and devised and implemented the enterprise's common criminal purpose, which was "to change the ethnic make-up of the territories claimed to form part of the Croatian Republic of Herceg-Bosna by allegedly directing and coordinating events on the ground to commit the crimes" which resulted from "a plan drawn up by members of the joint criminal enterprise whose goal was to permanently remove the Muslim population from Herceg-Bosna."

"These findings against officials of Croatia are notable for at least two reasons: (I) in a Judgement of six volumes exceeding two thousand pages, the Trial Chamber did not cite a single piece of evidence that, when carefully reviewed, supports the conclusion that President Tudjman, Minister Susak and General Bobetko were 'directing and coordinating events on the ground to commit the crimes,' or that they otherwise intended for the commission of crimes; and (2) in making findings of fact that these three deceased officials were involved in a criminal enterprise, the Trial Chamber violated Article 6 & 2 of the European Convention on Human Rights," reads the submission. 

"The Trial Chamber was required to refrain from conclusions that impugn the presumption of innocence of these three deceased officials of Croatia."

Croatia therefore requests to be allowed to "file this amicus curiae brief and appear as amicus curiae in these proceedings" because it believes that it would be "desirable" as it would "assist [the Appeals Chamber] in the proper determination of the case." 

"President Tudjman, Minister Susak, and General Bobetko are entitled to be presumed innocent by the Tribunal even after their death," reads the submission. 

In the Prlic and Others case, the ICTY sentenced six Bosnia and Herzegovina Croats in May 2013 to prison sentences ranging from 10 to 25 years for crimes against Muslims in Bosnia and Herzegovina, carried out as part of a joint criminal enterprise. The then Prime Minister of the Croat Community of Herceg-Bosna, Jadranko Prlic, was sentenced to 25 years in prison, Defence Minister Bruno Stojic to 20 years, the commanders of the Croat Defence Council (HVO), generals Milivoj Petkovic and Slobodan Praljak, to 20 years, HVO Military Police Commander Valentin Coric to 16 years and the head of the Office for the Exchange of War Prisoners, Berislav Pusic, to ten years in prison.

The Trial Chamber concluded, with a disstenting opinion of Judge Jean Claude Antonetti, that the conflict between the HVO and the Army of Bosnia and Herzegovina in 1993-94 was an international conflict and that most crimes against the Muslim population of Herceg-Bosna which the accused were charged with had been committed as part of a joint criminal enterprise that also involved a part of Croatia's political and military leadership, including Tudjman. According to the Trial Chamber's explanation, the purpose of the joint criminal enterprise was to establish a Croat entity within the boundaries of the 1939 Banovina Hrvatska (Croatia's Banovina) and eventually annex that territory to Croatia in case Bosnia and Herzegovina disintegrated.

In its submission, Croatia says that the political goal of recreating Banovina Hrvatska within its 1939 borders alone cannot be the basis for a conviction but that a conviction requires proving the existence of the criminal intent to commit the crime.

Croatia says that the Trial Chamber cited only three pieces of evidence in a bid to corroborate its conclusion that President Tudjman and the Croatian leadership intended for crimes to be committed against Bosnian Muslims, the first being a transcript of a meeting at the office of the Croatian President on 27 December 1991 based on which the Trial Chamber concluded that Tudjman and the Bosnian Croat leadership concluded that re-creating the Banovina required ethnically cleaning parts of Herceg-Bosna.

"Nothing in the transcript suggests that the participants were discussing 'changing the ethnic make-up of the territories claimed to form part of the HR HB (Croatian Republic of Herceg-Bosna)'," Croatia says, adding that discussed was "undoing the political gerrymandering that took place during the Yugoslav era, which resulted in Muslim towns and villages being added from Muslim majority areas to Croat majority areas, in order to reduce the size of the Croatian majority in certain municipalities."

There is no evidence of physically removing civilians from their homes, Croatia says, noting that there is no evidence either that Tudjman agreed with the ideas of the then leader of Bosnia and Herzegovina Croats, Mate Boban, and that there is no evidence that Susak and Bobetko were present at the meeting.

The second piece of evidence the Trial Chamber cited to prove ethnic cleansing was a book by Anto Valenta, which Croatia says contains Valenta's personal views that cannot be attributed to the three Croatian officials. Valenta's book also does not provide evidence that would confirm that Tudjman, Susak and Bobetko shared his views, Croatia says.

The third piece of evidence is a transcript from the Office of the President of 11 September 1992 concerning a meeting dedicated to national security and attended, along with Tudjman, by Praljak and Susak. Not even the prosecution maintained that that transcript proved Tudjman's intent to ethnically cleanse the Muslim population, Croatia says in its submission, adding that the meeting discussed possible conflicts with Serb forces in Bosnia and Herzegovina.

"Reviewing these three documents cited by the Trial Chamber, it is clear that the Trial Chamber erred when it claimed that these exhibits justified its conclusion that President Tudjman and other Croatian officials were involved in a Joint Criminal Enterprise. Nothing in these documents supports that conclusion," Croatia says, noting that the Trial Chamber's conclusion actually means that Tudjman, Susak and Bobetko were declared guilty, which violated their right to be presumed innocent under the European Convention.

The posthumous conviction of President Tudjman, Minister Susak and General Bobetko violates international law and amounts to a violation of their human rights, Croatia says in its submission.

If the Appeals Chamber rejects the conclusion of the Trial Chamber that the three senior Croatian officials were members of a joint criminal enterprise, that can also impact the conclusion on the participation of the six Bosnian Croats in a joint criminal enterprise, reads the submission, signed by the new Justice Minister Ante Sprlje. 

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