The Office of the Prosecutor of the International Criminal Tribunal for the former Yugoslavia (ICTY) has responded to Croatia's application to appear as amicus curiae (friend of the court) in the "Prlic and others" case and called on the Appeals Chamber to deny the application because a Croatian brief would not "assist the Chamber in its determination of the appeal" and because the three most senior Croatian officials mentioned in the Croatian application were never indicted by the ICTY.

Two weeks ago Croatia applied to appear as amicus curiae in appeals proceedings in the "Prlic and others" case in which the highest Croatian officials - former President Franjo Tudjman, former Defence Minister Gojko Susak, and former Croatian Army Chief-of-Staff Janko Bobetko - were declared in the Trial Chamber's judgment participants in a joint criminal enterprise aimed at ethnically cleaning parts of Bosnia and Herzegovina.

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."

Croatia said that these findings were 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."

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

In its response dated March 31, the Prosecution said that Croatia's intervention as amicus curiae would not meet the standard set by Rule 74 of the ICTY Rules of Procedure and Evidence, because "the submissions would not aid in the proper determination of the case." Amicus curie submissions are generally limited to matters of law and the issues on which Croatia seeks to intervene are questions of fact, the Prosecution said.

"As Tudjman, Susak and Bobetko are not charged with any crimes in this case, they do not benefit from fair trial rights, including the presumption of innocence," the Prosecution said in its response signed by Senior Appeals Counsel Douglas Stringer. "The Republic of Croatia fails to meet the standard to appear as amicus curiae in this case. For the reasons set out above, its Application should be denied," it concluded.

In the "Prlic and others" case, in May 2013 the ICTY sentenced six Bosnia and Herzegovina Croats to prison sentences ranging from 10 to 25 years for crimes against Muslims in Bosnia and Herzegovina, committed 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 each, HVO Military Police Commander Valentin Coric to 16 years and the head of the Office for the Exchange of Prisoners of War, Berislav Pusic, to ten years in prison.

The Trial Chamber concluded, with a dissenting 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 are charged with were 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.

Croatia said in its submission that the political goal of recreating Banovina Hrvatska within its 1939 borders alone could not be the basis for a conviction but that a conviction required proving the existence of the criminal intent to commit the crime. The submission was filed by Justice Minister Ante Sprlje.

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